UDE-SHANKAR v NEW ZEALAND POLICE [2019] NZHC 1938

UDE-SHANKAR v NEW ZEALAND POLICE [2019] NZHC 1938 [9 August 2019]IN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYI TE KŌTI MATUA O AOTEAROATE WAIHARAKEKE ROHECRI-2019-406-13[2019] NZHC 1938BETWEEN JOSHUA UDE-SHANKARAppellantAND NEW ZEALAND POLICERespondentHearing: 9 August 2019Counsel: L A Murdoch for AppellantA R Goodison for CrownJudgment: 9 August 2019JUDGMENT OF CHURCHMAN J[1] The appellant, Mr Ude-Shankar, pleaded guilty in the Blenheim District Courtto one charge of assault on a person in a family relationship.1 On 8 July 2019, JudgeTuohy declined his applications for discharge without conviction under s 106 of theSentencing Act 2002 (the Act)2 and for name suppression.3 He was sentenced to ninemonths' supervision.[2] Mr Ude-Shankar appeals his conviction and sentence on the basis that theJudge:(a) erred by taking into account irrelevant considerations and not takinginto account relevant considerations; and1 Crimes Act 1961, s 194A; maximum penalty two years' imprisonment.2 New Zealand Police v Ude-Shankar [2019] NZDC 13127.3 New Zealand Police v Ude-Shankar [2019] NZDC 13587.(b) erred in his application of law.[3] Mr Ude-Shankar appeals the refusal to grant him name suppression on the basisthat the Judge:(a) erred by not taking into account the effect on him and on the victim andher family of publication;(b) was wrong in finding that publication would not cause him extremehardship.[4] The Crown opposes the appeal.Background[5] At the time of the offending, Mr Ude-Shankar and the victim had been in arelationship for about eight months.[6] In the early hours of 30 March 2019, Mr Ude-Shankar and the victim got intoan argument. He became aggressive and verbally abusive towards the victim. Fearingfor her safety, she punched him and escaped to a nearby address.[7] Occupants of that property accompanied the victim back to the address wherethey confronted Mr Ude-Shankar. He got into a fight with them while the victim wentto her bedroom and tried to sleep.[8] Mr Ude-Shankar entered the bedroom, approaching the victim where she layin bed and punching her hard about eight times to her torso. At the first opportunity,the victim fled the house.Fresh evidence[9] Mr Ude-Shankar seeks leave to adduce further affidavits from himself, hispartner and her mother on the basis that it is in the interests of justice for the HighCourt to receive this evidence and it satisfies the principles for the admission of freshevidence.[10] The respondent opposes the admission of the three affidavits on the basis thatthe evidence is not "fresh" as it could have been put before the District Court and, infact, some of it was in the form of attachments to defence sentencing submissions.[11] Section 335 of the Criminal Procedure Act 2011 (the CPA) provides that anappeal Court may receive new evidence in respect of an appeal against conviction orsentence. The proposed evidence must also be sufficiently fresh and credible, andcogent.4 In terms of a decision not to grant name suppression, the High Court retainsan inherent jurisdiction to receive fresh evidence, such discretion to be exercisedsparingly and only when the interests of justice require its admission.5[12] It is my view that these affidavits do not contain information that was not orcould not have been before the Court at sentencing and, therefore, are not sufficientlyfresh to warrant admission. Indeed, similar material to some of that sought to beadvanced actually was before the lower Court. This is not a case where it would beappropriate to grant leave for the filing of further evidence.Discharge without convictionApproach on appeal[13] An appeal against the refusal to grant a discharge without conviction is acomposite appeal against conviction and sentence.6 The basis for determining anappeal against a refusal to grant a discharge without conviction is whether amiscarriage of justice has occurred:7(a) by virtue of a material error by the sentencing judge in entering aconviction; or(b) as a result of an error by the judge in applying the principles ofdischarging an offender without conviction under s 107 of the Act.4 Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34]; Lundy v R [2013] UKPC 28, [2014] 2NZLR 273 at [116]-[118]; R v Baker [1976] 1 NZLR 419 (CA).5 R v Ratu [2013] NZHC 3085 at [24].6 Jackson v R [2016] NZCA 627 at [6]-[16].7 At [12].District Court decision[14] The Judge observed that Mr Ude-Shankar had some previous convictions, mostfor drink-driving but one for common assault and another for assault on Police bothfrom 2009. He had been sentenced to a penalty as high as community detention forhis last drink driving offending in 2015.8[15] It was noted that Mr Ude-Shankar, who has a qualification in social work, hadengaged in anger, violence and alcohol counselling, along with restorative justicewhich had been successful in that his relationship had continued and he had hispartner's support, as well as that of her family.9[16] The Judge then considered the requirement that the Court must not dischargean offender without conviction unless satisfied that the direct and indirectconsequences of a conviction would be out of all proportion to the gravity of theoffence.10 First looking at the gravity of the offending, the Judge said:[7] The first thing I have to say is that this is a moderately serious offence,if not a serious offence. As I said just a few minutes ago to a man I sentencedto eight months' imprisonment for the same offence that you are facing albeitwith slightly more serious facts, the community takes offending by way ofviolence against women very seriously and the whole of society is trying tostop it. So the offence is at a reasonably substantial level, particularly whenone puts it against the fact that you have convictions already for violence.[17] He continued:[8] As to the direct and indirect consequences of conviction, it is said thatif this event ends as a conviction that you will be barred from employment inthe area in which you have a qualification. I am not satisfied that you wouldbe barred from all employment in that field. The field of youth work and thelike sometimes has people engaged in it who have been through the millthemselves.[9] It will without doubt make it more difficult to obtain work in that areaand probably will close off some employers all together. On the other hand,it is only right that people who are employing others in social work fieldsought to know the background of those that they are employing. That is themajor consequence which is suggested.8 New Zealand Police v Ude-Shankar, above n 2, at [3].9 At [4].10 At [6].[18] The Judge was not satisfied that the consequences of conviction would be outof all proportion to the gravity of the offending, which he considered to be serious anddeserving of conviction, and accordingly did not accede to the s 106 application.11Relevant law[19] Section 106 of the Act provides that if a person who is charged with an offenceis found or pleads guilty, the court "may discharge the offender without conviction,unless by any enactment applicable to the offence the court is required to impose aminimum sentence".[20] The application of s 106 is guided by s 107 which provides as follows:107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unless the courtis satisfied that the direct and indirect consequences of a conviction would beout of all proportion to the gravity of the offence.[21] As stated by the Court of Appeal in R v Hughes, s 107 "provides a gatewaythrough which any discharge without conviction must pass".12 The Court noted thatsuch an appeal is not an appeal against the discretion of the Court:13[11] The decision as to whether the test under s 107 has been met is not amatter of discretion. It is a matter of fact requiring judicial assessment, whichcan be subject to appeal on normal appellate principles ... The discretionarypower of the court to discharge without conviction under s 106 arises andexists only if the court is satisfied that the s 107 threshold has been met.[22] The approach to be adopted by an appeal court in relation to s 107 has beensummarised as:14[28] An appeal against a refusal to grant a discharge without conviction isby way of rehearing. Normal appeal principles apply as set out in Austin,Nichols & Co Inc v Stichting Lodestar. In Heke v R, the Court of Appealconfirmed the application of an Austin, Nichols approach in criminal appealswhere the decision under appeal involves a matter of fact requiring judicialassessment. Later in Paia v R, the Court of Appeal confirmed the approachtaken in Heke. Thus, when it comes to a decision under s 107, the appellatecourt must come to its own view of the merits; the weight the appellate court11 At [10]-[11].12 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].13 At [11].14 Denden v Police [2014] NZHC 1814 (citations omitted).gives to the original decision is a matter of judgment; and that deference tothe assessment of the original decision-maker is not necessary, even where theassessment requires a value judgment. If the appellate court considers that theoriginal decision is wrong, it must act on that opinion.[23] More recently, the Court of Appeal, speaking of the s 107 test, said:15[11] It is settled that a court considering a discharge under s 106 of theSentencing Act 2002 should follow a three-step process addressing theguidance given in s 107. These steps are:(a) identification of the gravity of the particular offence, takinginto account all aggravating and mitigating factors of theoffending and the offender;(b) identification of the direct and indirect consequences ofconviction; and(c) a determination of whether those consequences are "out of allproportion" to the gravity of the offence.Only if that threshold is met can the court move to consider the residualdiscretion under s 106. There must be a "real and appreciable" risk that anygiven consequence will happen. This standard recognises that the court isassessing the likelihood of something that may happen in the future.[24] In terms of the gravity of the offence, the Court of Appeal has summarised thecorrect approach to take as follows:16[W]hen considering the gravity of the offence, the court should consider allthe aggravating and mitigating factors relating to the offending and theoffender; the court should then identify the direct and indirect consequencesof conviction for the offender and consider whether those consequences areout of all proportion to the gravity of the offence; if the court determines thatthey are out of all proportion, it must still consider whether it should exerciseits residual discretion to grant a discharge (although, as this Court said inBlythe, it will be a rare case where a court will refuse to grant a discharge insuch circumstances).[25] As to the consequences of a conviction, Randerson J in Iosefa v Policedescribed the correct approach to assessing the consequences of conviction asfollows:17[I]t is not necessary for the Court to be satisfied that the identified direct andindirect consequences would inevitably or probably occur. It is sufficient if15 Prasad v R [2018] NZCA 537 (citations omitted).16 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27] (citations omitted).17 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34]; affirmed in DC v R[2013] NZCA 255 at [43].the Court is satisfied that there is a real and appreciable risk that suchconsequences would occur.[26] He continued:18However, the nature and seriousness of the consequences and the degree oflikelihood of their occurring will be material to the Court's assessment ofwhether those consequences would be out of all proportion to the gravity ofthe offence.[27] The Court of Appeal recently confirmed in R v Smyth that: 19[12] It is not enough that the consequences of a conviction outweigh thegravity of the offending. Significantly more is required. The consequencesmust be out of all proportion to the gravity of the offending before the courthas jurisdiction to grant a discharge without conviction.[28] Once the Court is satisfied the disproportionality test has been met pursuant tos 107, it may then determine whether to order the discharge.20Discussion[29] Counsel for Mr Ude-Shankar, Ms Murdoch, submits that the Judge made amaterial error when he failed to take into account all of the mitigating factors relatingto the offending and to Mr Ude-Shankar personally at the first stage of assessinggravity. She contends that insufficient weight was placed on factors such as hisremorse, the rehabilitative steps taken, and the victim's views. While it is acceptedthat he had previous convictions, she argues that this was Mr Ude-Shankar's first everfamily violence conviction and counsel was not given the opportunity to make oralsubmissions on why this new family violence conviction would set him backsignificantly more than his existing convictions. Ms Murdoch also complains aboutthe Judge referring to another man he had sentenced that day, submitting that it waswrong to refer to another case when assessing the gravity of the offence. She submitsthat the Judge erred when he assessed the gravity of the offence as "moderately seriousif not serious" given these mitigating features.18 At [35].19 R v Smyth [2017] NZCA 530.20 Z (CA447/2012) v R, above n 9, at [21]; R v Hughes, above n 6, at [8]-[12].[30] It is my view that the Judge made no error in assessing the offending asmoderately serious, Mr Ude-Shankar having punched the victim eight times in thetorso following an argument. In arriving at this assessment, he had noted Mr Ude-Shankar's engagement in both restorative justice and counselling and that he had thesupport of his partner and her family. Referring to the other man he had sentencedthat day was not taking into account an irrelevant matter, but served to bring home toMr Ude-Shankar that violence against women was an issue taken seriously by societyand the charge he faced could result in a sentence of imprisonment. Mr Ude-Shankarhas previous convictions, some of a violent nature and, in the Provision of Advice toCourts report his risk of harm to others was assessed as medium. These previousconvictions, even if they did not occur in the context of domestic violence, were ofrelevance and needed also to be taken into account.[31] Ms Murdoch also contends that the Judge erred in his evaluation of theconsequences of conviction, concluding that this conviction would not bar Mr Ude-Shankar from work in social services. She argues that, while this might have been trueof his previous convictions, this conviction is different due to it having occurredrecently and being one for family violence. Social workers and those working withyoung people are often required to undergo stringent background checks andMs Murdoch submits there was sufficient evidence before the Judge to determine thatthere was a real and appreciable risk that this conviction would impact on Mr Ude-Shankar's ability to gain employment in his field of work.[32] In this case, the Judge acknowledged that there might be some difficulty forMr Ude-Shankar in taking up his chosen profession, although he was not satisfied thatthe conviction would necessarily bar him from doing so. He noted that employers ofsocial workers had an interest in knowing the background of those they are employing.Social workers, like teachers and police officers, work with vulnerable people and itis important that they are worthy of the trust placed in them. Mr Ude-Shankar will,however, be able to discuss his conviction with potential employers, and explain tothem his history and his rehabilitative efforts. This would also be the case if, in thefuture, he wishes to be registered as a social worker and the Social Workers'Registration Board is required to determine whether he is a "fit and proper" person topractise.[33] As a result of recent amendments to the Social Workers Registration Act,21 itseems that the Board can have regard to a discharge without conviction. A convictionwould not automatically mean that he could not, at some point in the future, pursue acareer as a social worker. In circumstances where someone who is convicted of acriminal offence is also a member of a professional body, there are a number of caseswhere the Courts have rejected an application under s 106 saying that the fitness ofthe person to be a member of the profession is a matter best left to the professionalbody.22[34] While there is a real and appreciable risk that an employer would choose notto employ someone with a conviction, particularly with a family violence conviction,this is, however, an ordinary consequence of a conviction, and is not out of allproportion to the gravity of his offending. It is my view that the Judge was correct tothe satisfied that the s 107 disproportionality test had not been met. There has beenno miscarriage of justice.Name suppressionApproach on appeal[35] An appeal against a refusal to make a name suppression order is an appealagainst the exercise of a discretion.23 In such an appeal, the appellant must establishthat the Judge acted on some wrong principle; ignored some relevant matter; took intoaccount an irrelevant matter; or was plainly wrong.24District Court decision[36] The Judge noted that it was a very late application for name suppression,Mr Ude-Shankar having already been before the Court on this matter on a number ofoccasions, and he determined that it did not reach the statutory threshold:25For an offender's name to be suppressed, it requires that extreme hardship beshown, and I do not think that publication of your name, with a conviction of21 Social Workers Registration Act 2003, s 50.22 See Enache v New Zealand Police [2015] NZHC 2586 at [37], R v Smyth [2017] NZCA 530.23 R v B (CA459/06) [2008] NZCA 130, [2009] 1 NZLR 293 at [70].24 Saggers v R [2012] NZCA 560 at [25].25 New Zealand Police v Ude-Shankar, above n 3, at [1].this nature, does amount to extreme hardship. If it does for you, it does foreveryone, so I do not think that it qualifies.[37] A permanent order for suppression of the complainant's name was made, alongwith an interim suppression of Mr Ude-Shankar's name pending filing of this appeal.26Relevant Law[38] Section 200 of the CPA, which sets out the law relating to suppression,relevantly provides:200 Court may suppress identity of defendant(1) A court may make an order forbidding publication of the name,address, or occupation of a person who is charged with, or convictedor acquitted of, an offence.(2) The court may make an order under subsection (1) only if the court issatisfied that publication would be likely to—(a) cause extreme hardship to the person charged with, orconvicted of, or acquitted of the offence, or any personconnected with that person; or(c) cause undue hardship to any victim of the offence; or[39] A very high level of hardship following from publication of the identity of thedefendant must be established,27 something well beyond the consequences ordinarilyassociated with publication of the defendant's name.28 In the context of what is nows 200(2) of the CPA, "likely" has been interpreted as an "appreciable risk".29[40] The Court of Appeal has confirmed that s 200 involves a two-stage analysis.30One of the grounds in s 200(2) must first be established and only if one of the grounds26 At [3] and [5].27 Bond v R [2015] NZCA 488 at [33]; R v N [2012] NZHC 2042 at [21]; Robertson v Police [2015]NZCA 7 at [48].28 DP (CA418/2015) v R [2015] NZCA 476, [2016] 2 NZLR 306 at [6].29 R v W [1998] 1 NZLR 35 (CA) at 40.30 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police, above n 6, at [39]-[42].is established does a Judge proceed to the second discretionary stage, where thecompeting interests of the public and the applicant are weighed.Discussion[41] Ms Murdoch submits that the Judge erred by ruling that the victim would notbe impacted by Mr Ude-Shankar's name being published, as he failed to consider herviews on name suppression or how her family would be impacted if future employerssaw the publication and refused Mr Ude-Shankar work on this basis. It is argued thatthe victim will be affected by others knowing that her partner assaulted her and it wasan error for the Judge to simply grant her name suppression as she will be easilyidentified, as will her children.[42] Ms Murdoch further submits that the Judge failed to consider Mr Ude-Shankar's childhood trauma and placed too much weight on there having previouslybeen no suppression.[43] The threshold for extreme hardship is very high and, while some hardshipwould naturally follow from publication, no information from a mental health experthas been provided to support any conclusion that his childhood trauma would resultin hardship that would reach the threshold. Furthermore, there has been no suggestionthat Mr Ude-Shankar would lose his current employment were he to be named. Thatthere had previously been no suppression of his name in this matter was a factor thatwas of relevance, and the Judge cannot be said to have attached too great a weight tothat factor.[44] As to the victim's views, they are not determinative and, while it isacknowledged that she might suffer some embarrassment if members of the publicconnect her to Mr Ude-Shankar's offending, this is not such as to reach the thresholdof undue hardship. The impact on her family in terms of Mr Ude-Shankar havingdifficulty obtaining work in the future is, unfortunately, a difficulty faced by mostfamilies in this situation.[45] It is my view that the Judge was correct to conclude that the threshold ofextreme hardship was not made out and therefore did not err in refusing to grant namesuppression to Mr Ude-Shankar.Result[46] For the reasons given above, this appeal is dismissed.Churchman JSolicitors:O'Donoghue Webber, Nelson for CrownCounsel:L A Murdoch, Barrister, Blenheim for Appellant