LEWIS v POLICE [2021] NZHC 3086

LEWIS v POLICE [2021] NZHC 3086 [16 November 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-400[2021] NZHC 3086BETWEEN KYLIE LEWISAppellantAND NEW ZEALAND POLICERespondentHearing: 26 October 2021Counsel: G D Packer for Appellant P McNabb for RespondentJudgment: 16 November 2021JUDGMENT OF BREWER JThis judgment was delivered by me on 16 November 2021 at 1 pmRegistrar/Deputy RegistrarSolicitors/Counsel:G D Packer (Auckland) for AppellantMeredith Connell (Auckland) for RespondentIntroduction[1] Ms Lewis appeals the sentence of 10 months' supervision imposed on her by Judge KJ Glubb on 10 August 2021 on charges of assault and intentional damage. 1[2] Ms Lewis wanted to be discharged without conviction. Judge Glubb declined to do that. Ms Lewis's submission is that had the Judge permitted a restorative justice conference and had she been able to present her counsellor's report to the Court, then a discharge without conviction would have been available.Background[3] Ms Lewis was due to stand trial on 10 August 2021. On the morning of the trial she accepted a charge bargain and entered pleas of guilty.[4] Ms Lewis wanted to attend restorative justice. Her counsel applied for an adjournment of sentencing to enable this to be canvassed with the victim. But Judge Glubb wanted to sentence immediately. The Judge in his sentencing notes acknowledged that Ms Lewis was willing to participate in restorative justice and said:[13] But that has not been possible because the matter has only just resolved, and I am going to deal with it today. But nonetheless, you would be willing to do so in the future.Judge Glubb's sentence[5] The Judge first set out the facts of the case:[2] The facts are that you are the biological mother of [A]. At the time of this incident, you were 31 years of age and your daughter [A], was six. She was at that point with Oranga Tamariki personnel and was with an Oranga Tamariki support worker at the time. On 21 November 2019, the victim was at the Oranga Tamariki Westgate offices for a meeting. You arrived at the offices unannounced and stormed into the room where your daughter was waiting.[3] The victim in this matter, she entered the room to intervene between [A] and you, and to protect [A] from you. You became angry at this, trying to reach for your daughter before grabbing hold of the victim and punching her in the face. The victim was able to flee from the room before you picked up two mugs and threw them at the wall, causing them to smash throughout the1 Police v Lewis [2021] NZDC 17777.room. The mugs were owned by Oranga Tamariki. You then left the Oranga Tamariki Westgate offices without fu1ther incident. The victim suffered soreness to her face from where she was punched and soreness to her arm from being grabbed.[6] The Judge considered that the principal aggravating factor was that the victim was a social worker acting to assist with issues relating to Ms Lewis's six year old daughter. The daughter was present at the time. Further, the violence included a punch to the face.[7] The Judge referred to the victim impact statement. The victim, a woman aged 38 years, received injuries to her face and arm and felt emotionally hurt that she was attacked by someone she was trying to help. The Judge also quoted the victim's observation: 2I am not opposed to Kylie being discharged without conviction as I understand she was making positive changes in her life and taking steps to do better. I do not want to make things harder for her if she admits what she did to me and wants to put this all behind us.[8] As to mitigating matters, the Judge noted that the pleas of guilty were entered to a reduced charge (common assault under the Crimes Act 1961 reduced to common assault under the Summary Offences Act 1981), as well as the withdrawal of a charge of assault on a child. The Judge did not consider those changes altered the circumstances.[9] The Judge recognised that Ms Lewis has no prior convictions for violence and that she was remorseful. He took into account that Ms Lewis completed the Incredible Parenting course in December 2020, had attended CADS and had referred herself to the Getting Started programme. Random drug and alcohol test results taken on 4 August 2020 and 10 September 2020 were negative and the Judge said that is to Ms Lewis's credit.[10] In considering the application for a discharge without conviction, the Judge first assessed the overall gravity of the offending. He placed the overall gravity in the2 At [6].low to moderate range having (correctly) taken into account all matters relating to the offending and to Ms Lewis personally.[11] The Judge then identified the direct and indirect consequences for Ms Lewis if a conviction were entered. Counsel for Ms Lewis submitted that the principal consequence was that a conviction for assault might impede Ms Lewis's future prospects of employment. The Judge acknowledged that to be a possible consequence, although noted there was no firm indication of what employment might be sought.[12] A second suggested consequence was that a conviction might hinder Ms Lewis's ability to regain access to her children. Ms Lewis was working through that issue with Oranga Tamariki at the time of sentencing and was concerned a conviction might hinder the process.[13] The Judge then had to carry out the third part of the analysis prescribed for assessments of applications for discharge without conviction:[15] The issue then is whether the direct or indirect consequences of a conviction would be out of all proportion to the gravity of the offence and in this case, I am not satisfied they are. I am not satisfied there is a real and appreciable risk that these convictions would impact upon your ability to gain employment in due course or for that matter, that it will impact upon your access to your children.[16] Oranga Tamariki, I am sure, can look past what has happened in this occasion and see that the efforts you are making and continue to make, in the hope that you can regain your care of those children in due course. Accordingly, I decline to grant the application for a discharge without conviction.[14] The Judge finished the sentencing on a positive note, and again referred to restorative justice:[20] Ms Lewis, I encourage you to do anything that probation suggests, let us not see you back here again. Good luck with getting access to your children and reconnecting with the family. Let us not have any more violence and certainly not towards Oranga Tamariki because they are there to help you, not to be subject to violence by you. I am happy to make restorative justice referral as part of that if you wish. It can be dealt with as part of sentence. I make a restorative justice referral as part of the supervision sentence.The appeal[15] Ms Packer for Ms Lewis submits that a step was missed in the sentencing procedure. Section 24A of the Sentencing Act 2002 provides, relevantly:24A Adjournment for restorative justice process in certain casesThis section applies if—(a) an offender appears before the District Court at any time before sentencing; and(b) the offender has pleaded guilty to the offence; and(c) there are 1 or more victims of the offence; and(d) no restorative justice process has previously occurred in relation to the offending; and(e) the Registrar has informed the court that an appropriate restorative justice process can be accessed.(2) The court must adjourn the proceedings to—(a) enable inquiries to be made by a suitable person to determine whether a restorative justice process is appropriate in the circumstances of the case, taking into account the wishes of the victims; and(b) enable a restorative justice process to occur if the inquiries made under paragraph (a) reveal that a restorative justice process is appropriate in the circumstances of the case.[16] Ms Packer submits that, given the attitude of the victim that she was not opposed to a discharge without conviction, it is entirely possible that a restorative justice conference would have been held. A positive restorative justice conference could have reduced the characterisation of the gravity of Ms Lewis's offending.[17] This is really the gravamen of the appeal. Ms Packer does mention that because the sentencing occurred unexpectedly, Ms Lewis had no opportunity to present her counsellor's report regarding the help she had sought to amend her behaviour so the type of offending which occurred in this case does not occur in the future. However, it is clear that the Judge was aware of steps which Ms Lewis had taken, and referred to them in his sentencing notes.[18] Ms McNabb, for the Crown, submits that Judge Glubb was not required to adjourn the sentencing and had sufficient information to proceed to an immediate sentencing. In Ms McNabb's submission, evidence of counselling and of a restorative justice conference would not have impacted the assessment of the gravity of the offending to the extent that a discharge without conviction should have resulted.[19] In Ms McNabb's submission, there were no identified consequences of the entry of a conviction which would be out of all proportion to the gravity of the offending.Discussion[20] Although s 24A(2) of the Sentencing Act 2002 is in mandatory terms, the Court of Appeal has held that exploring restorative justice is not a prerequisite to sentencing. If a restorative justice process does not take place then the questions for an appeal Court are whether such a process would have been available, and if so, whether it would have made a difference. 3[21] Therefore, I accept Ms McNabb's submission that the issue in this appeal is whether a restorative justice process could have affected Ms Lewis's sentence to the point where the appeal should be allowed.[22] There is no doubt that Judge Glubb was aware of the willingness of Ms Lewis to attend restorative justice and that he took that willingness into account. As his final remarks in the sentencing show, the Judge was willing to facilitate a restorative justice process post sentence. It is apparent also that the Judge was aware of, and took into account, the victim's willingness to accept Ms Lewis being discharged without conviction.[23] Therefore, I will assume that had the Judge adjourned to permit restorative justice to be canvassed the victim would have participated in a restorative justice conference and that the outcome would have been a positive one. That is to say,3 Moore v R [2019] NZCA 205 at [11].Ms Lewis would have accepted responsibility for her offending, would have made a genuine apology for it and the apology would have been accepted by the victim.[24] The question then is how would this have affected the characterisation of the overall gravity of the offending. The Judge, having given credit for Ms Lewis's willingness to engage in restorative justice and her remorse, characterised the overall gravity of the offending as being low to moderate. On the assumption I have made, I would reduce the characterisation of the gravity of the offending to "low".[25] The next question is whether the identified consequences of the entry of a conviction would be out of all proportion to the low gravity of the offending. In my view, they would not be.[26] The principal consequence identified was that conviction on a charge of assault might impede Ms Lewis's future employment prospects. But that is a generalised concern. No particular employment prospect was identified. There are some jobs where even a conviction for assault under the Summary Offences Act might be relevant. There are others where such a conviction would not be relevant. In any event, if Ms Lewis were otherwise qualified for a job, a responsible prospective employer could not be presumed to dismiss her application without understanding the context of the conviction.[27] The second identified potential consequence was that a conviction might impede Ms Lewis's negotiations with Oranga Tamariki to regain care of her children. But there was no information that it would have that effect. Oranga Tamariki knew all about the incident. As a matter of common sense, it would be what happened that would influence Oranga Tamariki.[28] The test that the Court must apply in considering a discharge without conviction does not involve a simple balancing of gravity of offending with potential consequences if a conviction is entered. Section 107 of the Sentencing Act 2002 provides:The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.[29] I cannot say that the direct and indirect consequences of these convictions for Ms Lewis would be out of all proportion to the gravity of her offending, even factoring in the assumption I made that had the restorative justice process been followed then it would have been favourable for Ms Lewis.Decision[30] The appeal is dismissed.________________________________Brewer J