NORTHOVER v POLICE [2020] NZHC 167

NORTHOVER v POLICE [2020] NZHC 167 [14 February 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-000495[2020] NZHC 167BETWEEN KOTAHITANGA KINGI NORTHOVERAppellantAND NEW ZEALAND POLICERespondentHearing: 10 February 2020Counsel: DPH Jones QC for AppellantJ Kang for RespondentJudgment: 14 February 2020JUDGMENT OF BREWER JThis judgment was delivered by me on 14 February 2020 at 10:30 amRegistrar/Deputy RegistrarSolicitors:Cook Morris Quinn (Auckland) for AppellantMeredith Connell (Auckland) for RespondentIntroduction[1] Mr Northover pleaded guilty to three representative charges of assault with aweapon and three representative charges of assault on a child. The victims were histhree mokopuna, then aged 10, nine and eight years.[2] On 5 June 2019, Judge KJ Glubb refused Mr Northover's application to bedischarged without conviction and sentenced him to four months' communitydetention.1 Mr Northover has served that sentence.[3] Mr Northover wishes to appeal Judge Glubb's refusal to discharge him withoutconviction. His notice of appeal was filed on 11 November 2019, some four monthsafter the expiry of the 20 working days appeal period.2 He applies for an extension ofthe appeal period.[4] Mr Northover has filed an affidavit, sworn on 19 December 2019, in which hedeposes to his whakamā associated with the convictions being so overwhelming hecould not engage with the appeal process. I accept this explanation. I also find thereis a genuine basis for bringing the appeal and that the interests of justice would be bestserved by allowing it to proceed. The Crown is silent on the issue. I extend the timeallowed for filing the Notice of Appeal to the date it was filed.3[5] Mr Northover also applies for me to receive as evidence in support of hisappeal generally his affidavit of 19 December 2019 and an affidavit by his brother,Mr Don Clark. The Crown does not oppose. I will have regard to those portions ofthe affidavits which describe the effect of the convictions on Mr Northover and eventsoccurring subsequent to them. I will take that as "fresh" evidence.1 Police v Northover [2019] NZDC 10599.2 Criminal Procedure Act 2011, s 231(2).3 Criminal Procedure Act 2011, s 231(3).Jurisdiction[6] Mr Northover will succeed in his appeal if a miscarriage of justice hasoccurred.4 There will be a miscarriage if there has been a material error in the DistrictCourt decision.Background[7] The summary of facts is sparse. It states, barely, that Mr Northover'smokopuna were staying with him along with their father as part of a shared custodyarrangement with their mother. The summary goes on to say:[Mr Northover] took on the role of disciplining the children and only he in thehousehold was supposed to do this. [Mr Northover] had strict rules for thechildren, such as ensuring that they complete a number of chores and to alwaysask before getting food from the kitchen.If [Mr Northover] felt that the victims had broken any of his rules, he wouldhit them with particular objects including a wooden spoon, a spatula, and abackscratcher. He would hit them to their arms, legs, hands and buttocks.Over this period [Mr Northover] would also hit the children with his hands.This was also to various parts of the body.In particular, on Wednesday the 11th of April 2018, the victims were at[Mr Northover's] house. [Mr Northover] was frustrated as the victims had notdone chores such as making the beds or doing the dishes. [Mr Northover]smacked the hands of the two younger victims with his hand. He used hishand to hit [the older victim]. She was often told that she got worsepunishment than the others as she was the oldest and should be setting anexample for the younger children.[8] There is no information as to how frequently Mr Northover hit his mokopuna.There is no assertion that the violence caused bruising or other injury.[9] The broader context is that the mokopuna's parents had separatedacrimoniously. The children had significant behavioural difficulties. Their father wasaway from the address frequently and it was left to Mr Northover and his wife to carefor the children and try to impose discipline. Mr Northover is Māori. He was broughtup as part of a large traditional Māori family. Recourse to physical chastisement wasa part of his experience of family discipline. He knew it was wrong to hit his4 Criminal Procedure Act 2011, s 232(2)(b).mokopuna, and he had other methods of sanctioning the children, but in the interestsof correcting their behaviour he felt at times he had no choice but to use physical force.[10] Mr Northover during the period of the offending was around 54 years old. Hehad no convictions of any kind. He was, and is, employed in a responsible IT positionwith Te Whānau o Waipareira Trust. He had for many years been a volunteer with anumber of Māori organisations:• Te Whare Whakau Trust• Waipareira Trust• Pukerewa Station[11] Mr Northover believes in the power of education to lift Māori children fromwhat could otherwise be destructive lives and he was dismayed to see his mokopunaadopting patterns of behaviour which he knew put so many Māori children on adestructive path. He was determined by the imposition of sensible rules ofparticipation in household chores and acceptable standards of behaviour to put hismokopuna on the right path.[12] The mokopuna told their mother about Mr Northover's conduct. She calledthe police. Mr Northover accepted immediately his fault and he pleaded guilty to thecharges at the first available opportunity. Of his own initiative, he took significantsteps to address his behaviour:• Attending anger management assessment and undertaking the Man Alive –Living Without Violence programme to completion.• Undertaking the Te Ohaki Whānau Ora Wānanga course.• Undertaking the Whānau Ora (Wellness and Wellbeing) Wānanga programme.• Completion of the Incredible Years Parenting Programme provided byTe Whānau o Waipareira.• Completion of 20 hours' voluntary work at the Te Whare Whakau Trust.[13] In sentencing Mr Northover, Judge Glubb had the advantage of a culturalreport from Dr Ruwhiu (which the Judge described as valuable).5 The Judge also hada pre-sentence report which recommended the outcome for Mr Northover "to come upfor sentence if called upon". The Judge also had an affidavit from Mr Northover inwhich he described his background, his deep remorse and the efforts he had made tounderstand his offending and gain the tools and insight to ensure there will be norepetition.Judge Glubb's decision[14] Judge Glubb first summarised Mr Northover's offending and drew from itfactors the Judge considered aggravated the offending. In paraphrase:• The charges are representative rather than addressing one particular incident.6• The mokopuna were in Mr Northover's care. There is an associated breach oftrust.7• There are three victims.8• The victims were vulnerable because of their ages and they were inMr Northover's household.9• The effect on the mokopuna. The Judge referred to victim impact statementsin which the mokopuna speak of feeling unsafe, of not liking to be hit andbeing "really sad and unhappy when he smacked me".10[15] The Judge saw no mitigation in the offending.115 At [27] – [32].6 At [13].7 At [12].8 At [14].9 At [15].10 At 17] – [20].11 At [23].[16] Judge Glubb referred in some detail to the reports he had on Mr Northover andmade particular reference to the cultural report by Dr Ruwhiu.[17] Judge Glubb then turned to the application for a discharge without conviction.The Judge conducted the three-step analysis required by the law:12(a) Assess the gravity of the offending. That means first looking at all therelevant circumstances of the offending and of the offender, and thenstanding back and deciding how serious the offending is.(b) Determine the direct and indirect consequences of a conviction for theoffender.(c) Determine whether those consequences are out of all proportion to thegravity of the offending.[18] Judge Glubb assessed the offending as moderate offending which would haveapproached moderate to serious offending but for Mr Northover's personal mitigatingfactors.13[19] As to the direct or indirect consequences of convictions, Judge Glubb drew adistinction between consequences following from the offending conduct itself andconsequences arising from being convicted. For this reason the Judge rejectedcounsel's submission that a consequence of conviction would be to amplifyMr Northover's loss of contact with his whānau.14[20] The Judge turned to the emotional consequences for Mr Northover ashighlighted in Dr Ruwhiu's report and in Mr Northover's affidavit. The Judgeacknowledged Mr Northover's whakamā.1512 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8]–[9].13 At [39].14 At [40].15 At [41].[21] In terms of employment, the Judge was not satisfied there was a real andappreciable risk that Mr Northover might lose his current employment.16 The Judgeperceived that any future employment assessment would take into accountMr Northover's employment history, and would be undertaken in a reasonable andfair-minded manner.[22] The Judge was also not satisfied there was a real and appreciable risk to thecontinuation of Mr Northover's longstanding community activities.17[23] The Judge did not identify any direct or indirect consequences forMr Northover if convictions were entered.[24] The Judge did say:[60] The whakamā I acknowledge. I acknowledge that there is shame andit appears to be focused on this offending conduct, clearly. And whilst Iacknowledge that the loss of a clean record is significant, I am not satisfiedthat that is out of all proportion to the gravity of the offending in thecircumstances.[25] Judge Glubb concluded that the potential consequences identified byMr Northover were not made out as real and appreciable risks and could not be saidto be out of all proportion to the gravity of his offending.18 Accordingly, the Judgerefused to discharge Mr Northover without conviction.Discussion[26] The law recognises that sometimes the consequences for an offender of beingconvicted of their offending will be so harsh that justice is better served by not enteringa conviction.19 The test is set out in s 107 of the Sentencing Act 2002:The 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.16 At [55].17 At [57].18 At [62].19 Sentencing Act 2002, s 106.[27] It can be seen there is a high threshold between an offender and a dischargewithout conviction. It is not enough to satisfy the Judge that the consequences of aconviction would be disproportionate to the gravity of the offence. The Judge mustbe satisfied the consequences would be out of all proportion to the gravity of theoffence.[28] The law is clear that in assessing the gravity of the offence all relevant mattersrelating to the offending itself and to the offender must be taken into account. Thatmeans that offending which in itself is serious can be characterised overall as lessserious if relevant mitigating factors personal to the offender are present.[29] Here, Judge Glubb, for the aggravating factors he mentioned, characterised theoffending itself as being moderate to serious in its gravity. His Honour found nomitigating feature in the offending. With respect, I disagree.[30] Mr Northover did not use violence wantonly or capriciously. He thought hewas using it correctively and in the best interests of the children. That is a mitigatingfactor.20[31] Mr Northover knew his use of violence was wrong. I, of course, agree withJudge Glubb where he remarked:[33] What I recognise against that backdrop is that the family violence andharm are simply too prevalent in our community and it starts with situationssuch as this and progresses. Learned behaviour becomes modelled behaviour,and that is what you have said in your affidavit.[32] However, the level of violence used by Mr Northover was not great. There isno allegation he caused his mokopuna physical injury.[33] In all the circumstances, I assess the offending itself as moderately seriousbearing in mind the aggravating factors identified by the Judge.[34] In my view, although Judge Glubb recognised the mitigating factors personalto Mr Northover, I find he gave too little credit for their collective effect.20 Sentencing Act 2002, s 9(4)(a).[35] Mr Northover was around 54 years old at the time of the offending.21 He andhis wife found themselves caring for three young mokopuna who had been traumatisedby their previous experiences of life. They had challenging behavioural difficulties.Mr Northover, a person of exemplary character, did his best to help his mokopuna. Inaccordance with the traditions of his background, he set domestic rules and standardsof behaviour. He resorted to low level physical violence where he thought that wasnecessary to correct behaviour. He knew that was wrong and tried other methods, butat times he also used violence.[36] When Mr Northover was approached by the police he concealed nothing. Hetook extraordinary steps to address the causes of his offending, to learn about it and toacquire skills to prevent recurrences. He showed extreme and genuine remorse.22[37] In my view, looking at Mr Northover's situation holistically, all of this meansthe Court should have considered his offending to be at a low level of seriousness.[38] I note that Judge Glubb, when assessing the final sentence, rejected communitywork as an option because of Mr Northover's respiratory problems.23 The Judgerejected supervision as a sentence because, given the extensive rehabilitative effortsmade by Mr Northover, it would be otiose.24 The Judge was not prepared to sentenceMr Northover to come up for sentence if called upon and so went back up the scale ofcommunity-based sentences to community detention. I think the Judge's analysisunderscores the conclusion that overall the offending was at a low level of seriousness.[39] I think also there are significant similarities between this case and that ofMathieson v Police.25 In that case, Mr Mathieson had pleaded guilty to charges ofmale assaults female and threatening to kill. The assault involved repeated grabbingof his partner by the jaw with both hands. The complainant suffered a sore head andneck, with visible bruising.21 Sentencing Act 2002, s 9(2)(a).22 Sentencing Act 2002, s 9(2)(f).23 At [72].24 At [72].25 Mathieson v Police [2019] NZCA 406.[40] On the face of it, this was moderately serious offending. However,Mr Mathieson made extensive efforts to address his offending and to rehabilitatehimself. The Court of Appeal said:[15] Assuming for present purposes that an assessment for the actualoffending of moderately serious was correct, then the relevant mitigatingfactors were many and strong:(a) at the time of sentencing Mr Mathieson was a 40 year old whohad only a careless driving conviction committed when hewas 19 years old;(b) he has been in constant employment all his adult life;(c) he had completed courses addressing the causes of hisoffending and appeared to display considerable insight intohis offending;(d) he was remorseful and offered to participate in restorativejustice, so he could apologise directly; and(e) the impetus for undertaking the rehabilitative courses camefrom him before any formal engagement with the Court.[16] We do not consider it possible for a proper consideration of thesefactors not to have resulted in a significant reassessment of the overall gravityof the offending. In terms of the observation made by the High Court, weobserve such a reassessment does not constitute a recharacterisation of theseriousness of the offending. They are two different evaluations, reflecting thetwo steps inherent in the first stage of the s 106 assessment discussed aboveat [8]. The first is an initial grading of but one aspect of the case — the actualoffending; the second evaluation is a much broader analysis of all relevantconsiderations, including the actual offending. That the overall assessment ofgravity is lower than the narrower assessment of the offending merely reflectsthat at the second step within the gravity assessment there are positivemitigating factors to also consider.[41] The Court of Appeal concluded that taking into account these very positivemitigating factors the proper assessment of the gravity of the offending was one of lowseriousness.26[42] The second stage of the analysis requires an assessment of the direct andindirect consequences of convictions for Mr Northover.26 At [17].[43] Mr Northover has identified a possible threat to his employment. His employerrequires an annual police check for criminal convictions. The Māori organisations hesupports voluntarily are also sensitive to criminal convictions. There is also theacknowledged risk that any future employment sought by Mr Northover would beaffected by criminal convictions for violence against children. The conclusion of theCourt of Appeal in Mr Mathieson's case could be said to apply equally toMr Northover:27[21] There is no basis to consider Mr Mathieson offers any risk ofreoffending; to the opposite effect, the signs are that he is now a person withinsight into his actions who has taken considerable steps towards addressingthe causes of his offending. Given the overall low culpability, we consider theimpact of a conviction for male assaults female and threatening to kill on a41 year old in stable employment and who is effectively a first offender wouldbe out of all proportion.[44] There is one further factor going to consequences and proportionality which isimportant in this case. It is Mr Northover's cultural background.[45] Mana is of great significance to Mr Northover. His sense of self is inextricablylinked to it. His mana reflects his life of work and achievement, his qualities and therespect he has earned in the community, particularly his Māori community. Hisoffending has diminished his mana. His whakamā is deep. He does not feel able toresume his voluntary work. He grieves the loss of contact with his mokopuna. Idisagree with Judge Glubb that these consequences for Mr Northover arise only fromhis offending. The convictions are a public declaration that his offending is so seriousthat, despite all he has achieved in life, Mr Northover must forever bear the stigma ofbeing a criminal. I accept that discharges without conviction would have a desirableand appropriate rehabilitative effect on Mr Northover.Decision[46] I find the refusal by the District Court to discharge Mr Northover withoutconviction was the result of material error.27 Mathieson v Police [2019] NZCA 406.[47] The appeal is allowed. Mr Northover's convictions and sentences are quashed.Mr Northover is discharged without conviction.________________________________Brewer J