MOSS v POLICE [2020] NZHC 1065

MOSS v POLICE [2020] NZHC 1065 [21 May 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000051[2020] NZHC 1065BETWEEN JONATHAN DUNBIER MOSSAppellantAND NEW ZEALAND POLICERespondentHearing: 13 May 2020Appearances: S Bonnar QC for the AppellantJ Herring for the RespondentJudgment: 21 May 2020JUDGMENT OF GORDON JThis judgment was delivered by meon 21 May 2020 at 11.30 amRegistrar/Deputy RegistrarDate:Solicitors: Crown Solicitor, AucklandCounsel: S Bonnar QC, AucklandIntroduction[1] The appellant, Jonathan Moss, pleaded guilty in the Auckland District Court totwo charges of criminal harassment.1[2] On 14 February 2020, Judge Glubb refused Mr Moss' application for adischarge without conviction. He convicted Mr Moss and sentenced him toeight months' supervision.2 A protection order was issued in favour of the victim.3[3] Mr Moss appeals that decision. He claims that the Judge was wrong when herefused to grant a discharge without conviction and, in any event, the sentence ismanifestly excessive.[4] The Police oppose the application on the grounds that there was no error on thepart of the sentencing Judge who was correct to refuse the application and impose asentence which the Police submit was within the available range and not manifestlyexcessive.Factual background[5] The factual background was set out fully by the Judge in his sentencing noteswhich I reproduce in relevant part below:[1] The facts are that you and the victim in this matter were in arelationship for about 12 months and it ended in December 2018. Due toongoing issues after the separation you were served with a criminalharassment warning letter which listed the types of behaviour that you werenot to engage in. That letter was served on you on 3 February 2019 and youacknowledged that you understood the content of that letter. [2] At about 4.00 pm on 19 February 2019, you were in your Subaru carnear the Auckland University. You made several requests to the victim in thismatter via instant messaging on the Instagram Smart Phone application,offering her a ride home. She declined these offers and took the bus to gethome. You drove your car to the bus stop where you knew that she would begetting off the bus and you parked nearby.[3] She told you to leave and entered her home. She was then subjectedto approximately 70 phone calls from you that evening. In explanation you1 Harassment Act 1997, s 8.2 Police v Moss [2020] NZDC 2548.3 Sentencing Act 2002, s 123B.said that you were aware of the criminal harassment warning and you admittedusing multiple Instagram accounts to send the victim instant messages and thatyou had made approximately 70 calls to her.[4] Subsequent to that offending, you appeared before the Court on21 February 2019 at which point you were released on bail. One of theconditions was not to associate with the complainant nor have contact withher. Then between the dates of 13 April and 17 June 2019, you contacted thevictim again via text message and cellphone calls. You sent her approximately300 text messages and you made approximately 120 phone calls to her duringthat period. She only responded to a fraction of those attempted contacts. Dueto the lack of replies from the victim, you then made contact with a number ofher friends.[5] On 31 May you went to her home in Remuera. You informed her bytext that you were parked in the driveway and you wanted to come inside. Atno point did she say you could do that. You then entered the property passed(sic) the closed gates and accessed the victim's bedroom via an external accessdoor. Once there you remained for approximately 40 minutes until youeventually left after multiple pleas from her to do so.[6] Then on 14 June 2019, she was at the retail store that she was workingin at the time. At about 12.00 pm that day you came into the store, approachedher when she was behind the counter, you placed an envelope containing ahandwritten card and a cupcake on the counter as a gift to her. You declinedto comment on it when you were spoken to by the police in relation to that.Approach on appeal[6] An appeal against a refusal to grant a discharge without conviction is by wayof rehearing. It requires the Court on appeal to make a fresh assessment in accordancewith its own opinion.4The legal test[7] Section 106 of the Sentencing Act 2002 ("the Act") gives the Court a discretionto discharge an offender without conviction. This discretion is subject to the test ins 107 being satisfied. Section 107 provides:107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unlessthe court is satisfied that the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence.4 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].[8] In assessing the gravity of the offence, the Court is not restricted to anassessment of the conduct that gives rise to the charge. In R v Hughes, the Court ofAppeal approved the comments of Miller J in Delaney v Police where the Judge said:5[29] I consider that "the gravity of the offence" should be read asincluding not only the offence itself but also anything that may affect theCourt's subsequent assessment of overall culpability. That includes guiltypleas, expressions of remorse and the Court's assessment of how likely it isthat the offender will reoffend, the victim's perspective, and any consequencealready suffered by way of reparation, community work, or publicity.[9] The law in relation to ss 106 and 107 is succinctly stated by the Court of Appealin Taulapapa v R:6[22] It is settled law that a court considering a discharge should: examinethe gravity of the particular offence, taking into account all aggravating andmitigating factors of the offending and the offender; identify the direct andindirect consequences of conviction; and consider whether thoseconsequences are "out of all proportion" to the gravity of the offence. Onlythen does it move to considering the residual discretion under s 106. Theremust be a "real and appreciable" risk that any given consequence will happen:this standard recognises that the court is assessing the likelihood of somethingthat may happen in the future.[23] The offender should ordinarily put information before the court toprovide a factual basis for a decision that the test has been satisfied. There isno legal onus on the offender to do so however, and the standard of proof ins 107 is simply that the judge be satisfied that the requirements of the sectionare met.(citations omitted)[10] A three step approach is thus required by the Court which must:(a) determine the gravity of the offence, having regard to both theaggravating and mitigating factors of the offending and the offender;(b) determine the direct and indirect consequences of conviction; and(c) determine whether those consequences are out of all proportion to thegravity of the offence.5 Delaney v Police HC Wellington CRI-2005-485-22, 22 April 2005, at [29] as cited in R v Hughes[2008] NZCA 546, [2009] 3 NZLR 222 at [27].6 Taulapapa v R [2018] NZCA 414.[11] Only if the threshold in (c) above is met can the Court move to consider theresidual discretion under s 106.7 There must be a "real and appreciable" risk that anygiven consequence will happen.8 This standard recognises that the Court is assessingthe likelihood of something that may happen in the future.9 Once the s 107 test issatisfied this will normally result in a discharge.District Court decision[12] After reciting the facts set out above, the Judge assessed the gravity of theoffending having regard to both the aggravating and mitigating factors of the offendingand Mr Moss personally.[13] As for the aggravating factors he regarded "principal" amongst them was thedegree of planning and premeditation involved. Mr Moss knew and appreciated hehad been warned to keep away from the victim and yet, despite that, he continued tomake contact with her.10[14] The Judge acknowledged that the second set of offending occurred after thevictim had approached Mr Moss at a concert, but the Judge commented that he did notregard this as mitigating what subsequently occurred.11 He pointed to the repeatedand persistent nature of the offending and the impact on the victim. He quotedpassages from the two victim impact statements.12[15] Adding to the aggravating factors, the Judge referred to Mr Moss' previousconviction history, which included four convictions for excess breath alcohol and fiveconvictions for either driving whilst disqualified or suspended, most recently in 2015.He also mentioned that while Mr Moss was on bail for the earlier offending, he hadre-offended.137 Z (CA 447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27] and Taulapapa v R, above n 6,at [22].8 DC (CA47/2013) v R [2013] NZCA 255 at [43] and Taulapapa v R, above n 6, at [22].9 Taulapapa v R, above n 6, at [22].10 At [7].11 At [8].12 At [9]-[12].13 At [15].[16] The Judge then listed and discussed the mitigating factors advanced onMr Moss' behalf by Mr Bonnar QC.14 These included that guilty pleas were enteredat the earliest opportunity; Mr Moss was having counselling and had completed theLiving Without Violence Programme; his chronic but now diagnosed and treatedmental health issues; that the complainant initiated contact at a concert before thesecond round of offending (which the Judge put to one side); Mr Moss' evidentremorse; and that based on the reports from Mr Hogg's psychiatrist and psychologist,there did not seem to be a likelihood of a relapse at the moment.[17] The Judge noted that Mr Moss had previously had the benefit of a s 106discharge in 2013. He recorded Mr Bonnar's submissions that at the time Mr Mosshad recently been diagnosed with bipolar disorder and rather than having it properlytreated, Mr Moss was self-medicating with alcohol and possibly the cannabis involvedin the discharge.15 The Judge went on to say that the fact of the previous dischargeand the fact of earlier convictions were not an absolute bar to a further discharge but"the bar does get raised somewhat".16[18] Weighing these factors together the Judge assessed the offending as moderateto serious but when the mitigating factors were taken into account the offending wasin the low to moderate range.17[19] The Judge then turned to consider the consequences of conviction. Theseincluded the likely adverse effect on Mr Moss' mental health presentation andprognosis, his aspirations for a career in the law18 or as a chartered financial analystand the barriers which a conviction might create. The Judge observed that there wasno inevitability that convictions would operate as barriers to employment in thosefields, noting that it will be for the regulatory arms of the respective professions toassess any application to practice against the factual backdrop and that the Court"should not presume to second guess any outcome".1914 At [19] and [20].15 At [22].16 At [23].17 At [23].18 He had recently completed his LLB/BCom.19 At [32] and [33].[20] The Judge also acknowledged Mr Bonnar's submission that a conviction in thelife of a young person has long lasting and ongoing consequences.20[21] On the question of overseas travel the Judge noted Mr Moss' aspiration totravel to the United Kingdom for his OE and the fact that he had been offered apromotion in his present employment which included the opportunity to travel to theUnited States for training within the next few months.[22] The Judge accepted that while these convictions would require disclosure,Mr Moss already had previous convictions requiring disclosure. It was not the casethat requests to travel would inevitably be rejected. He noted that it was not the Court'srole to effectively hide relevant factors from the appropriate authorities when they aregiving consideration as to who they should admit at their borders. Again, it was amatter for those agencies to consider and not for the Court to second guess.21[23] On the question of Mr Moss' mental health issues, the Judge commended himfor the progress he had made with the support of his family. Whilst acknowledgingthat the entry of a conviction might well bring an immediate sense of loss anddisappointment which may cause some difficulty, the Judge noted that he was equallysatisfied that Mr Moss' illness appeared to be stabilised with the result that hecontinued to perform well.22[24] The Judge then referred to Mr Moss' previous 2013 discharge withoutconviction. While he again acknowledged that this did not exclude the possibility ofa second discharge, particularly given the differing nature of the offending, he said heregarded it as a factor to be put in the balance albeit not of significant weight.23[25] He also took into account Mr Moss' previous convictions, noting Mr Bonnar'ssubmission that Mr Moss was a young man at the time and was, apparently, self-medicating. He noted there had been no issues since 2015.2420 At [31].21 At [35].22 At [36].23 At [37].24 At [38].[26] Taking all these matters into consideration the Judge was not satisfied that therewas a real and appreciable risk of the identified consequences eventuating, adding thateven had he been satisfied, the prior discharge and previous convictions countedagainst exercising that discretion. He observed it would be a rare application that willbe granted against that background as this Court acknowledged in Hudson v Police.25[27] In summary, having regard to his earlier assessment that the offending was inthe low to moderate range of gravity, he was not satisfied that the direct or indirectconsequences of a conviction would be out of all proportion to the gravity of theoffence. He declined to grant the discharge.26[28] He then proceeded to sentence Mr Moss, deciding that the appropriate sentencewould be one of supervision which should be kept to the minimum. He set this ateight months with a condition that Mr Moss undertake and complete such treatment,counselling or programme as directed by the probation officer.27[29] Finally, the Judge granted the victim's application for a protection order whichhe noted was unopposed.28Gravity of Mr Moss' offending[30] Mr Bonnar lists eight errors which he submits were made by the District CourtJudge. He submits the Judge:(a) failed, in assessing the gravity of the offending, to have regard to theseriousness of the offence by comparison with other offences, asindicated by the maximum penalty prescribed for the offence(two years' imprisonment);25 Hudson v Police CRI-2011-404-229 HC Auckland, 23 October 2012 at [37] per Duffy J.26 At [40].27 At [43].28 At [44].(b) failed to give any or adequate weight to the fact that the appellant'soffending was directly connected to his (then) unmedicated mentalillness (bipolar disorder);(c) having regard to the causative effect of Mr Moss' mental disorder, erredin giving undue weight to "planning and premeditation", the "repeatnature of the offending" and its "persistence" as aggravating features ofthe offending;(d) erred in concluding that Mr Moss' previous convictions, for unrelateddriving offences, was an aggravating feature personal to Mr Moss (asopposed to a neutral factor or the absence of a potential mitigatingfactor, such as previous good character);(e) erred in concluding that the above convictions and the previousdischarge "raised the bar" in assessing the application;(f) erred in disregarding the fact that the complainant initiated furthercontact with Mr Moss prior to the commission of the second offence.The Judge incorrectly characterised (and then disregarded) this factoras not being a mitigating feature of the offending. (Mr Bonnar submitsthat this was simply a fact which had to be considered as part of theoverall assessment of the gravity of the offence);(g) similarly erred in disregarding the fact that there were no threats ofviolence in the communications which formed the subject of theharassment charges or, it appeared, fear of physical violence on the partof the complainant. (Mr Bonnar submits this was a fact which had tobe weighed in the overall assessment of the gravity of the offence);(h) failed to give adequate weight to the steps already taken by Mr Moss toaddress the causes of his offending and to reduce the likelihood of anyfuture relapse or re-offending (his on-going counselling and completionof the Man Alive Living without Violence programme); and(i) failed to take into account Mr Moss' co-operation with police, and hisgenuine remorse.[31] Mr Bonnar submits that as a result of the alleged errors, the Judge erred inassessing the overall gravity of the offending as "low to moderate". Of those allegederrors, Mr Bonnar developed two in his submissions: the effect of Mr Moss' mentalhealth on the offending and the emphasis the Judge placed on Mr Moss' previousconvictions and previous discharge.Mental health[32] As well as being referred to by the Judge as a mitigating factor Mr Moss'mental health also reaches into a number of what were considered by the Judge to beaggravating factors.[33] The Court of Appeal has recognised that "mental disorder may mitigate moralfault and, accordingly, criminal culpability".29 Such illnesses "impair the rationalchoice made to offend".30[34] In Orchard v R,31 the Court of Appeal confirmed:[46] Mental health issues may mitigate the offending, diminishingmoral culpability for the offending, and thereby also diminishing deterrence,accountability and denunciation as sentencing concerns. The weight given tothe consideration, for those purposes, will however depend on evidencesupporting the view that the condition contributed causally to the offending.(citation omitted)[35] Mr Bonnar submits that the Judge failed to give any or adequate weight to thefact that Mr Moss' offending was directly connected to his bipolar disorder.29 Nelson v R [2014] NZCA 121 at [22], affirmed in Shailer v R [2017] NZCA 38, [2017] 2 NZLR629, at [50].30 Zhang v R [2019] NZCA 519 at [138].31 Orchard v R [2019] NZCA 529.[36] For the Crown, Mr Herring submits that Judge Glubb did give weight toMr Moss' mental illness in assessing the mitigating features of the offending.Mr Herring refers to the following two paragraphs of the Judge's decision:[19] Thirdly, I take account of the fact that you were suffering from anundiagnosed mental health issue, bipolar, and you have been receivingtreatment and you were receiving treatment at the time of the second offence,having started earlier on. It seems that treatment is going well and the reportsfrom the psychologist and also from a psychiatrist who was consulted are thatthere does not seem to be any likelihood of a relapse at the moment.[29] I note in the letter of Dr Armstrong [the psychiatrist], where heopines that it is likely that your active and untreated illness contributed to yourbehaviour and I factor that in. [37] In his affidavit, which was before the District Court Judge, Mr Moss explainsthat there is a history of mental illness in his family. His mother has bipolar disorder.Mr Moss says he was diagnosed with bipolar disorder in 2013 which causes him toexperience dramatic mood swings as well as deep depressive episodes. Mr Moss saidthat in 2018, during his final year at university, his sister went through a series of majormanic episodes which culminated in her undergoing residential treatment. He saysthis caused him considerable strain as he tried to support his sister as well as his motheron top of juggling his studies and his own bipolar disorder.[38] Mr Moss says that he did not seek medical help during this period, insteadrelying heavily on his partner, the victim, for support. He says this reliance on thevictim was in part the reason he was so devastated at their break-up in December 2018.The period of offending from February 2019 to June 2019 followed the relationshipbreak up and Mr Moss describes his mental health at that time as "incredibly poor"and at "an all-time low".[39] The report of Dr Armstrong, a psychiatrist, dated 1 April 2019 was written asMr Moss' treating psychiatrist. Dr Armstrong confirms that he has treated Mr Mosssince 2013 and has diagnosed him with Bipolar Affective Disorder Type 2.Dr Armstrong explains that as a result of Mr Moss' concern about his behaviourtowards the victim, he prescribed a mood stabilisation medication, Lamotrigine whichDr Armstrong said showed a good initial response. Dr Armstrong expresses the viewthat Mr Moss' behaviour in repetitively contacting the victim was likely partiallyrelated to his mental illness. Dr Armstrong expresses the opinion that people withmania or depression can have impulse control problems and act compulsively.Dr Armstrong states that it is also likely that Mr Moss' active and untreated illnesscontributed to the behaviour which led to the charges against him.[40] There is also a report dated 14 May 2019 from a psychologist, Ms Cullen.Mr Moss has been attending weekly therapy with her since the end of March 2019after self-referring. She is of the view that in the context of compromised mentalhealth, Mr Moss' ability to manage his distress and regulate his emotion and behaviourwas undermined. She refers to the emotional crisis Mr Moss had suffered and is ofthe opinion that was "central" to his harassment offence.[41] It is clear from the reports of both Dr Armstrong and Ms Cullen that Mr Mosshad commenced taking medication and attending therapy prior to the second set ofoffending (between 13 April and 17 June 2019) but I accept it was early days in relationto both medication and therapy.[42] There is a second report from Ms Cullen dated 7 December 2019 whichupdates the first report. In the 7 December 2019 report, Ms Cullen refers to Mr Mossbeing unwell at the time of the offending.[43] I accept on the evidence before the District Court that Mr Moss' offending wasinextricably linked to, and causally connected to, his bipolar disorder and relatedbreakdown at the end of December 2018.[44] This then leads on to some of the aggravating features identified by the Judgewhich I address next.Planning and premeditation[45] The Judge considered that principal amongst the aggravating factors was thatthere was a degree of planning and premeditation.32 The Judge stated, knowing he32 At [7].had been warned to keep away from the victim and even though the relationship hadended, Mr Moss continued to make contact with her. After referring to the second setof offending the Judge noted its repeated nature and Mr Moss' persistence. It was notone-off contact.33[46] Mr Bonnar submits that the "planning and premeditation", "repeat nature ofthe offending" and its "persistence" should properly be seen as symptoms and featuresof Mr Moss' underlying illness and should not be considered to increase the overallculpability of the offending. On the contrary, Mr Bonnar submits Mr Moss' culpabilityis significantly reduced as the result of his illness.[47] Mr Herring, for the respondent, submits while the repetitive phone calls andtext messages may be partially related to Mr Moss' mental illness, there is planningand premeditation involved in Mr Moss' waiting for, and unsolicited visits to, thevictim.[48] I consider the Judge erred in finding that planning and premeditation, the repeatnature of the offending and its persistence were factors that aggravated the offending.I have already found that there is a causal link between the offending and Mr Moss'bipolar disorder and the related emotional breakdown. There is also the evidence ofDr Armstrong that people with mania or depression can have impulse control problemsand act compulsively. I consider that is relevant to both the texting and phone calls aswell as Mr Moss' waiting for the victim and making unsolicited visits to her home andher work place.Previous convictions and previous discharge[49] The Judge treated Mr Moss' previous convictions as a matter that was anaggravating feature personal to Mr Moss and that those convictions and the previousdischarge "raise the bar somewhat" when considering a further discharge.34[50] Mr Bonnar submits that the previous offences would not have justified an upliftfrom any starting point on sentence and should therefore have properly been treated33 At [8].34 At [23].as a neutral factor or as the absence of a potential mitigating factor (previous goodcharacter). He further submits that the Court erred in concluding that the previousdriving related convictions and the previous discharge raised the bar in assessing theapplication.[51] Mr Herring submits that Judge Glubb was entitled to give weight to Mr Moss'conviction history and correctly did so. Mr Herring submits that the accumulation ofa significant number of previous convictions for excess breath alcohol can be regardedas indicating a general disrespect for the law or contempt for authority which enhancesMr Moss' culpability for the current offence.[52] I do not accept that submission.[53] Mr Moss' previous convictions for driving related offences were committedbetween August 2012 and April 2015 when Mr Moss was aged from 17 to just over20. Mr Moss' uncontroverted evidence was that these offences were committed when,as a result of his mental health issues, he would attempt to "self-medicate" withalcohol. There have been no further driving-related offences since April 2015.[54] In relation to the previous discharge, that was for unrelated offending in 2013for possession of cannabis and resisting police when Mr Moss was 18 years of age.[55] I accept Mr Bonnar's submission that Mr Moss' prior convictions should nothave been seen as a personal aggravating factor. They were causally linked to hismental health.[56] Turning to the previous discharge without conviction, in Police v McCabe,35Roper J held that a discharge without conviction cannot be used for "generalpurposes". That would amount to holding against a prisoner a previous charge onwhich he was deemed to have been acquitted.36 Roper J distinguished the situationwhere the previous discharge was for the same type of offending. In that case, the35 Police v McCabe [1985] 1 NZLR 361.36 At 364.previous discharge "must count against a discharge on a later occasion".37 I thereforeaccept Mr Bonnar's submission that the Judge erred in concluding that the previousdischarge "raised the bar".Offending while on bail[57] The Judge took into account the repeat nature of the offending. Mr Herringsubmits that as Mr Moss was on bail for the first charge when he offended again inApril and June the breach of bail conditions increases the gravity of the offending.[58] While that would normally be so, I do not consider it is the case here. I againtake into account Mr Moss' bipolar disorder and his emotional distress and their causallink to the offending.Overall analysis[59] The Judge assessed the offending as moderate to serious before taking intoaccount mitigating factors. In making the moderate to serious assessment the Judgeincluded aggravating factors both of the offending and Mr Moss personally. However,as already discussed, all those factors, both in relation to the offending and Mr Mosspersonally can properly be seen as symptoms and features of Mr Moss' underlyingillness. They should not be taken into account to increase the overall culpability forthe offending.[60] In making the gravity assessment, account also needs to be taken of the factthat the offence itself carries a maximum penalty of two years' imprisonment. In theoverall scheme of criminal offences it is at the lower end. This was not a matterconsidered by the Judge.[61] On the other hand, I do not consider the Judge erred in not taking into accountthe fact that there was no violence involved. The Judge adequately summarised the37 Swami v Police [2012] NZHC 2725 citing Morgan v Police [need to get citation] and Policev McCabe, above n 35.features of the offending and correctly said the fact that there was no threat or violenceis the absence of an aggravating factor not a mitigating factor.38[62] I do not overlook the effect on the victim. The Judge, as he was required todo, took this into account in assessing the seriousness of the offending. The Judgereferred to the victim impact statements, saying:[9] I have victim impact statements. In February she said that she hasbeen really stressed out by your behaviour and despite telling you that shedid not want to see you any more, you have kept contacting her in personand through messaging. She says:This made me feel really on edge and worried about when I will seehim next. I just want to move on with my life. I didn't want to get thepolice involved but felt like he gave me no other choice.[10] She wants a protection order.[11] Then subsequently an update to that victim impact statement wasprovided after the most recent of the offending. That really highlights theimpact that this has had on her. She acknowledges in there that she didspeak with you at the concert. The next day she immediately feared that itwas a mistake.Then each day after he would find some reason to text me and I toldhim he could not be contacting me and then it just snowballed and hestarted calling me all the time and would get upset if I didn't reply.[63] I interpolate here to say that I do not accept Mr Bonnar's submission that theJudge erred in putting to one side the fact that the victim initiated contact withMr Moss prior to the commission of the second offence. She subsequently made itclear to Mr Moss that she did not want him to contact her.[64] The Judge continued:[12] Then she goes on to say on the last occasion and it was the daybefore you were to be in Court and you turned up with the cupcake. Shesays:I feel terrible about not saying anything sooner and I don't want toseem like I'm not taking this seriously because I am. I don't want toruin his life with a conviction but I also think he has absolutely noidea or care for the impact this has on me.[13] She does not want you to do it anymore.38 At [21].[14] She also makes a note in here that she should mention that you texther asking for a victim impact statement saying that your lawyer had askedyou to ask for it. She did not think that sounded right. She remains of the viewthat a protection order is sought, and I have an update of that on 7 October2019 where it is still sought.[65] Even taking into account the effect on the victim I consider the Judgeoverstated the seriousness of the offending by failing to take into account the effect ofMr Moss' mental disorder on what the Judge considered were aggravating factors.Accordingly, before any consideration of mitigating factors of the offending andMr Moss personally are taken into account, I would classify the offending at its highestas moderate.[66] Then there are the mitigating factors both of the offending and Mr Moss. First,in relation to the offending, I have already expressed the view that the offending wascausally linked to the defendant's mental illness and his emotional breakdown. Thatreduces culpability.[67] I do not accept Mr Bonnar's submission that the Judge failed to give adequateweight to the steps taken by Mr Moss to address the causes of his offending and reducethe likelihood of it occurring in the future. They were part of the bundle of mitigatingfactors which the Judge considered operated in favour of reducing the gravity of theoffending. I also do not accept Mr Bonnar's submission that the Judge failed to takeinto account Mr Moss' remorse.39 However, I do accept the Judge did not specificallymention Mr Moss' early co-operation with the police.[68] In terms of personal mitigating factors, I take account of the following:(a) Co-operation with the police;(b) Early guilty pleas;(c) Genuine remorse;39 See at [20].(d) On-going treatment with his psychiatrist and counselling with apsychologist;(e) Completion of the Man Alive Living Without Violence Programme;and(f) By continuing with his treatment and counselling the likelihood ofreoffending is reduced.[69] When all those mitigating factors are taken into account I am satisfied that thegravity can properly be classified overall as being of low seriousness. I consider theJudge erred in finding it was low to moderate.Direct and indirect consequences of convictionThe test[70] The correct approach, set out in Iosefa v Police,40 is as follows:[34] [I]t is not necessary for the Court to be satisfied that the identifieddirect and indirect consequences would inevitably or probably occur. It issufficient if the Court is satisfied there is a real and appreciable risk that suchconsequences would occur.[35] However, the nature and seriousness of the consequences and thedegree of likelihood of their occurring will be material to the Court'sassessment of whether those consequences would be out of all proportion tothe gravity of the offence. Employment[71] In his affidavit Mr Moss gives the following evidence:(a) He is considering two potential career paths: practicing law and/orpracticing as a chartered financial analyst (CFA). He had graduatedwith a LLB/BCom degree and had also completed the level 1 CFAexam;40 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005.(b) He says he is concerned with the effect a conviction for criminalharassment would have on his admission to the legal profession;specifically that the New Zealand Law Society may not be satisfied thathe is a fit and proper person for the purpose of admission. He says thiswould be devastating;(c) As to working as a CFA Mr Moss says that when applying for Level 2of the programme, he would need to declare any conviction punishableby one year or more in prison and in doing so may be ineligible forLevel 2. He says he is therefore concerned that a conviction wouldrender him unable to pursue a career as a CFA;(d) He says the two professions are competitive, establishing a career is noteasy and that most job applications would require disclosure of anyconvictions. He expresses his concern that a conviction for criminalharassment would limit his prospects and cause a barrier to potentialemployment; and(e) Finally, Mr Moss says he has been given a verbal undertaking that thereis an employment opportunity for him in a wealth management team ata named firm.[72] In his affidavit Mr Moss' father says that if his son were to be convicted he issure that the HR Department at the named firm would rule out employment there.[73] Mr Bonnar submits that the Judge erred when considering the fearedemployment consequences by holding that those consequences were not inevitable orwould not result in a "complete bar" to admission/employment. Mr Bonnar says theCourt was required to consider whether the consequences were "reasonablyforeseeable". He submits that, unlike drink driving convictions which have rarelyresulted in practitioners being unable to practice,41 a criminal harassment convictionwould be significantly more prejudicial for Mr Moss' goal of practicing Law.41 Citing Stanley v New Zealand Law Society [2019] NZCA 119 at [12].[74] Additionally most job application processes in Mr Moss' proposed area ofwork would require disclosure of any criminal convictions. A prospective employeris more likely to pass over an applicant whose past convictions include criminalharassment (particularly in the context of the current "Me Too" environment).Employers cannot be expected to inquire behind the convictions and into thecircumstances that led to them.[75] First, I do not accept that Judge Glubb applied the wrong test. The Judge'sstatement that "there was no inevitably of a barrier to your employment" was areference to a submission by the prosecution as follows:[26] The prosecution in that regard submit that there is no inevitability ofa barrier to your employment. They bring to the Court's attention theappropriate assessment that is made by the Law Society in relation toadmission to the bar and the legal profession and similarly the Institute ofChartered Financial Analysts will properly assess any application that is madeagainst the backdrop. I also note in the paperwork that was put before me thatwhat the Society of Chartered Financial Analysts note is that there is only arequirement for a disclosure of convictions punishable by more than a year ifit is within two years.[76] Then the Judge's reference to a conviction not amounting to a complete barwas simply part of the Judge's discussion on the way to his ultimate conclusion on thetest to be applied. He said:[32] What I recognise is that there are likely to be consequences. However,I am not satisfied that the conviction would amount to a complete bar to entryto either the professional body that is being considered, either the Law Societyor for the Society of Financial Analysts. Certainly, the Law Society mustassess any application that is received against the fit and proper person test.Experience has shown that they are the appropriate body to do so and thisCourt should not presume to second-guess any outcome. I also recognise it isappropriate that body is fully advised of the circumstances when it isconsidering applications.[77] Then, when the Judge came to his conclusion, he applied the correct test,saying:[39] In the end when I look at all matters in the round I am notsatisfied that there is a real and appreciable risk of these consequenceseventuating. [78] I consider that was a correct finding on the evidence in relation to employment.The Judge correctly identified that entering into both the legal and financial analystprofessions is at the discretion of the relevant governing bodies. While there may bedifficulties for Mr Moss entering either of these two professions, the courts havegenerally concluded that something more than an impediment to continuing in aparticular occupation is required for a s 106 application to be successful. InLaing v Police, Hammond J stated:42[17] Whether a conviction will form an occupational barrier is a relevantconsideration in determining whether to grant a discharge without conviction.Where the conviction will result in an absolute bar to the occupation that maycarry extra weight with the Court. I do not think there is any such suggestionin this case. If there is an independent body charged with determining thesuitability of individuals for particular employment, the Court may be moreready to enter a conviction, it being of the view that it is in the public interestthat that body is able to make a decision with the benefit of full disclosureafter the fact. The fact that the conviction may act as a barrier to gainingentrance to an occupation is not a determinative factor – it is merely a factorto be considered in the balancing exercise.[79] In R v Taulapapa,43 the Court of Appeal set out a list of points about theconsequences of conviction for young people emerging from what the Court describedas an incomplete survey of the cases, noting that the points were not exhaustive. Thepoints included that: conviction may affect a person's career but that consequencemust normally yield to the employer's right to know. This principle extends toindependent bodies charged with assessing the character or suitability for a particularcareer.44[80] It would be open to Mr Moss to provide a copy of this judgment to the relevantgoverning bodies. It is apparent that the Court views the offending as being of lowseriousness because of the causal link to Mr Moss' mental health condition. There isalso the unchallenged evidence of his father that Mr Moss has the normal potential inhis career and life; that he is very popular with peers and adults who know him; andhas done much in the preceding six months to atone and improve.42 Laing v Police HC Wellington AP 39/02, 16 April 2003.43 Taulapapa v R, above n 6, at [42].44 Liang v Police, above n 42 at [17]; and Sterjov v Police [2015] NZHC 3103 at [30].[81] Relevant to Mr Bonnar's submission that, even assuming Mr Moss wasadmitted to either of these two professions, potential employers may not look behindthe conviction, the Court of Appeal said in Taulapapa:[42](b) The consequence may be severe if employers are unwilling to lookbehind the conviction to consider the person's merits and that reaction is unfairto the offender in the sense that the conviction itself ought not exclude themfrom the career or job concerned. Such risk may arise where the convictionspeaks to character or records a serious offence but does not fairly reflect theoffender's character or culpability. Theft may be an example of an offence thatmay lead employers to reject an applicant without further inquiry.(citations omitted)[82] However, in the earlier case of Edwards v R, the Court of Appeal said:45[18] We do accept that some employers may not be prepared to look behindthe bare fact of a conviction to read what the Court's had to say about itscircumstances and mitigating factors, but we are not prepared to assume thatall or even most will behave in that way, especially where the offender isgenerally a person of good character, as in this case.[83] It would similarly be open to Mr Moss to provide a copy of this judgment to aprospective employer having gained admission to the relevant profession.[84] Finally, there is the evidence of Mr Moss that he has been given a verbalundertaking of an employment opportunity and the associated evidence of his father.What Mr Moss senior says is as follows:My immediate colleagues have spent time with Jono discussing travel andcareers. They rate him highly and have said that once he has completed histravel and is ready to settle into a career, they will offer him a job as a WealthManagement Advisor trainee. If he were to be convicted of this offence I amsure that the HR here would rule that out.[85] Is this enough to establish a real and appreciable risk overall in relation toemployment? I do not consider it is. Mr Moss has not yet settled on a career path, letalone any particular employer. He is considering one or other of two possible careerpaths. The reservations attributed to "HR" are speculative and it seems that those atthe named firm who know him would be happy to employ him.45 Edwards v R [2015] NACA 583 at [18].[86] I am not satisfied that on the evidence that was before the Court there is a realand appreciable risk that Mr Moss would be denied entry into the two professions heis presently considering nor that a potential employer would not look behind theconvictions for criminal harassment.Travel[87] Mr Moss says in his affidavit that:(a) He has ambitions to live and work in the United Kingdom and willrequire a visa to do so; and(b) He has recently received a promotion in his current employment. Aspart of that offer the employer proposes a trip to the United States fortraining to develop Mr Moss' sales skills.[88] That trip was to occur this year. It has now been postponed and is proposedfor 2021.[89] Mr Bonnar submits first that the District Court Judge applied an incorrect teststating that it was "not inevitable" that any application by Mr Moss for visas to travelwould be rejected; secondly that the Court took into account an irrelevantconsideration, namely whether it was "[the] Court's role to effectively hide relevantfactors from appropriate authorities when they are giving proper consideration to whothey should admit to their countries"; and, in any event, on the evidence there was areal and appreciable risk that Mr Moss may be refused entry into the UK or the USAbecause of a conviction for criminal harassment.[90] First, I do not accept Mr Bonnar's submission that the Judge applied anincorrect test. The Judge's comments regarding the inevitability of a visa applicationbeing rejected simply formed part of the Judge's discussion on the way to the finalapplication of the test. The Judge said:[34] In terms of travel it is accepted that a conviction must be disclosedbut of course, you already have a number of convictions which will needto be disclosed in the first place and having done so, it is not inevitable inmy assessment that the application would be rejected and more there isessentially no evidence put before this Court to support the submission thatit would inevitably be rejected.[91] However, when the Judge came to apply the test, he said (as already noted at[77]):[39] In the end when I look at all matters in the round I am notsatisfied that there is a real and appreciable risk of these consequenceseventuating.[92] In any event I consider the Judge was correct to conclude that Mr Moss hadnot established that there was a real and appreciable risk he would not be able to obtaina visa to travel to either the United States or United Kingdom.[93] As the Judge said, Mr Moss already has a number of convictions which willneed to be disclosed in any event. It appeared to be accepted in the District Court byMr Moss that the offence of criminal harassment is not one which results in automaticexclusion. Mr Moss will simply need to go through a visa process. Even if that islengthy and more difficult than it would have been had Mr Moss not been convicted,that is not the test. The evidence is insufficient to satisfy me that there is a real andappreciable risk that Mr Moss will be denied a visa to enter the United Kingdom orthe United States. The Judge did not err in his finding in relation to travel.General effect of convictions on young offenders[94] Mr Bonnar submits that although the Judge noted his submissions on this issue,he did not address the issue further in the judgment. However, the District Court Judgedid say that he readily recognised that a conviction in the life of a young person haslong-lasting and on-going consequences. It therefore cannot be said that counsel'ssubmission was overlooked. Any stigma is an ordinary consequence of conviction fora young person.46[95] Further, Mr Moss was 24 years old at the time of the offending. He is now 25.That puts him at the outer limit of the age range where a discount would be given for46 Taulapapa v R, above n 6 at [38] referring to Harley v Police [2018] NZHC 404 andMcMurdock v Police [2017] NZHC 1283.youth in a sentencing process.47 I accept that Mr Moss is in the early days of hisworking life but he does have established skills and qualifications in law and thebeginnings of his qualifications as a chartered financial analyst.Effect on mental health[96] Mr Bonnar submits that the evidence before the District Court made it clearthat the entry of a conviction would have adverse consequences on Mr Moss' mentalhealth. He refers to Ms Cullen's updated report of 7 December 2019 where sheconcluded:While Jono has indeed made progress, I believe he needs to continue workingthrough the long-standing patterns that have been identified in therapy. Jonois already feeling the consequences of his behaviour and I do not believe aconviction is needed for him to further appreciate the impact of his behaviourand to take responsibility for his actions. In my opinion, a conviction at thispoint would be a significant blow to Jono's confidence, self-efficacy and senseof hopefulness, potentially interfering with the progress he has been makingand the momentum he has achieved in his recovery and growth to date. Atthis stage I believe the priority for Jono is that he is able to build on the gainshe has achieved and continue to work toward his goal of emotional andpsychological wellness.[97] In his report, Dr Armstrong concluded:Furthermore, I believe that such a therapeutic approach to the problem is morelikely to result in complete resolution and to reduce the chances of recidivismthan any other course of action that the Court may choose to take.[98] The Judge addressed the mental health consequences as follows:[36] In terms of your ongoing mental health issues, the Court recognisesthose, and it is very complimentary in terms of the efforts that you are makingand the good work you have done in the lead up to today. The hope is that withongoing care from both your family, and I acknowledge them for being herein Court today, and also from the specialists who are involved, that you willcontinue to perform well, and we will not have any relapse in this sense.Whilst I acknowledge that there may well be an immediate sense of loss anddisappointment were a conviction to be entered and that may cause you somedifficulty. I am equally satisfied that the illness now appears to be stabilised,there is ongoing counselling and treatment in place and you are continuing toperform well in that regard. So again, I am not satisfied that the result will besuch that it would meet the high threshold of the test in this case.47 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.[99] Mr Bonnar submits the Judge erred in stating that Mr Moss' mental illness"appears to be stabilised". Although it may have been overstating things to say thatMr Moss' mental illness appeared to be stabilised, it can be said that the evidenceestablished that he is well on the way to achieving that goal.[100] I am not satisfied that on the evidence that there is a real and appreciable riskthat the entry of convictions would have adverse consequences on Mr Moss' mentalhealth. It can be seen that Dr Armstrong prefers a therapeutic approach to any othercourse of action. But he does not go so far as to say that the therapeutic approach andMr Moss' mental health would be compromised by the entry of convictions.Ms Cullen puts it higher but only to say a conviction would potentially interfere withthe progress Mr Moss has made. That does not reach the level of establishing thatthere is a real and appreciable risk that there would be adverse consequences forMr Moss' mental health.Proportionality[101] Mr Bonnar submits that as a result of errors made by the Judge in assessingconsequences of a conviction, the Judge erred in concluding that the direct or indirectconsequences of conviction would not be out of all proportion to the gravity of theoffending.[102] As Mr Herring correctly pointed out, it is not enough that the consequences ofa conviction approximate or even weigh more heavily than the gravity of theoffending. Significantly more is required. The consequences must be out of allproportion to the gravity of the offending before the Court has the jurisdiction to granta discharge without conviction.48[103] Judge Glubb understood and correctly stated the test:[17] The application is opposed. What this Court is required to do isundertake a weighting process. I have to look at the gravity of the offendingand its particular factual context. I need to look at the direct and indirectconsequences of a conviction and then determine whether or not they areout of all proportion to the gravity of the offence. Were I to determine that48 R v Smyth [2017] NZCA 530 at [12].they were, then I would give consideration to whether or not I shouldexercise the discretion in your favour and that is the way it operates.[104] In relation to employment, overseas travel and effect on mental health, I havefound that there is no real or appreciable risk of the identified consequences occurring.Accordingly, even assessing the gravity of the offending as low rather than low tomoderate, as found by the District Court Judge, it cannot be said that the consequencesin relation to employment, overseas travel and effect on Mr Moss' mental health areout of all proportion to the gravity of the offending.[105] As to Mr Moss' youth generally, the ordinary consequence of the convictionswould not be out of all proportion to the offending.[106] Accordingly, the threshold for a discharge without conviction is not met.Appeal against sentence[107] Mr Bonnar submits that the sentence of supervision was otiose given thatMr Moss is undergoing treatment and counselling. He submits Mr Moss should havebeen convicted and discharged. The sentence of eight months was thereforemanifestly excessive.[108] There is no tariff case for criminal harassment. The charge carries a maximumsentence of two years' imprisonment. Sentences for criminal harassment vary becausethe offending is always highly contextual. Comparison between cases is difficult inthese circumstances. However it is not impossible: consistency in sentencing is animportant principle in the sentencing regime.[109] The following three cases referred to by Mr Herring provide some assistance.In A v Police,49 the High Court dismissed an appeal against a sentence of periodicdetention and 12 months' supervision for a conviction of one charge of criminalassessment which had been brought on the grounds that it was manifestly excessive.The appellant had met the victim socially. She told him that she did not want anythingfurther to do with him but he telephoned her on over 50 occasions in the following49 A v Police HC Gisborne AP3/01, 9 August 2001.days. The victim served a trespass notice on the appellant but he continued to contacther. The High Court held that the sentence was not manifestly excessive given theneed for deterrence and the lack of realistic sentencing alternatives. The appeal wasdismissed.[110] In Smaill v Police,50 the appellant was sentenced to three cumulative terms ofsix months' imprisonment for three charges of criminal harassment, each against adifferent set of victims. The appellant had no relevant previous convictions. Theoffending involved the appellant making anonymous false allegations of sexualoffending by one of the victims, making threatening phone calls to the victims andsending them threatening letters and parcels containing live ammunition and parts ofclocks. The sentence was upheld on appeal.[111] In Green v Police,51 the appellant was sentenced to 15 months' imprisonmenton each of two charges of criminal harassment to be served cumulatively in relationto two victims. The defendant pretended to know each of the victims and contactedthem by text messages which became increasingly threatening. The harassmentscontinued for just over a week. The sentencing Judge adopted a starting point of17 months' imprisonment on each charge with an uplift of one month to reflectprevious similar offending and a discount for guilty pleas. The sentence was upheldon appeal.[112] I consider that the offending in this case was less serious than in the abovecases, particularly having regard to Mr Moss' mental health which I have discussed insome detail already. On the other hand there is the effect on the victim who requesteda protection order at sentencing.[113] Having regard to the maximum penalty, and the above cases, it cannot be saidthat the sentence imposed was manifestly excessive. It was within the available range.50 Smaill v Police HC Dunedin AP17/99, 25 June 1999.51 Green v Police [2012] NZHC 3228.Result[114] The appeal is dismissed.___________________________________Gordon J