MUATABU v NEW ZEALAND POLICE [2022] NZHC 2535

MUATABU v NEW ZEALAND POLICE [2022] NZHC 2535 [4 October 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2022-485-44[2022] NZHC 2535BETWEEN MARIKA MUATABUAppellantAND NEW ZEALAND POLICERespondentHearing: 21 September 2022Appearances: A Peter and O M Crosse for AppellantR G Buckman for RespondentJudgment: 4 October 2022JUDGMENT OF McQUEEN J[1] The appellant, Marika Muatabu, pleaded guilty to one charge of assault on aperson in a family relationship.1 He appeals against his conviction and sentence on thebasis that the District Court Judge erred in declining his application to be dischargedwithout conviction, instead convicting him and imposing 12 months' supervision.2[2] The appellant argues that the Judge erred in his assessment of the gravity ofthe offending and his assessment of the consequences of a conviction on the appellantin determining a discharge was unavailable. In the alternative, the appellant submitsthat the sentence of supervision imposed was manifestly excessive in thecircumstances.1 Crimes Act 1961, s 194A, maximum penalty two years' imprisonment.2 Police v Muatabu [2022] NZDC 13666.Background[3] In the early hours of Friday 27 August 2021, the appellant knocked on the doorof the flat of the victim, where she was at home asleep. He demanded entry to the flat.The victim asked Mr Muatabu to leave but he refused, saying that he needed to havea discussion with her. The victim let him inside the flat and then prepared to leave theproperty herself. Mr Muatabu grabbed her to prevent her from doing so. The victimtold him again to leave the property but again he refused, and this time Mr Muatabugrabbed her and forced her to the ground. In the process he landed on top of the victim,as a result of which she received bruising to her hip and arm.[4] The appellant has no previous convictions but there is a background of familyviolence matters. The appellant was granted diversion in 2017 for wilful damage in afamily violence context. There is a family violence bail report that records severalincidents after the diversion in 2017 and before the current matter, involving familyviolence.[5] The appellant pleaded guilty to the offending on 22 November 2021.Following his guilty plea, he completed a 16-week "Living Without Violence"programme, to which he self-referred. Following completion of the course, theappellant applied for a discharge without conviction. This was considered by theWellington District Court on 20 July 2022.[6] Mr Muatabu swore an affidavit in support of his application. In that affidavit,Mr Muatabu expresses his shame and remorse at his offending and takes fullresponsibility for it. He explains that on 27 August he had consumed significantamounts of alcohol and kava, which contributed to the offending. He asks the Courtto take into account the efforts he has made to address his behaviour and ensure that itnever happens again. He expresses his concern that a conviction may jeopardise hiscurrent job as a cargo handler and that a conviction would be a significant hurdle fora number of possible future careers, including joining the Police or Navy orCorrections.District Court decision[7] The Judge declined the application. He considered the consequences of theconviction on Mr Muatabu were "speculative"3 and could not outweigh the"moderately serious" offending.4[8] Of particular focus was the impact of a conviction on the appellant's careerprospects. The Judge noted that while Mr Muatabu had future job aspirations, "there[was] no specific career plan put forward"5 and there was no evidence put before theCourt that a conviction would be a "major impediment to joining the navy or thepolice".6 Ultimately, the Judge concluded that there were no real or appreciable risksto his employment prospects:7The general effect of a conviction is not such in this case as to amount to anabsolute bar or significant hurdle to you, and in particular, you now have acurrent employment history you can point to, both in your job you had priorto COVID and in particular in your current work where you have been forsome time to the point where you have clearly impressed your currentemployer.Principles on appeal[9] Section 106 of the Sentencing Act 2002 provides that the Court may grant adischarge without conviction only when satisfied that, under s 107, the "direct andindirect consequences of a conviction would be out of all proportion to the gravity ofthe offence." By virtue of s 106(2), a discharge without conviction is deemed anacquittal.[10] It is well-settled that this assessment involves a three-step inquiry:8 The court must consider first, the gravity of the offending; secondly, theconsequences of conviction; finally, whether those consequences are out of allproportion to the gravity of the offending identified at step one.3 Police v Muatabu, above n 2, at [17].4 At [6] and [17].5 At [10].6 At [12].7 At [16].8 See R v Hughes [2008] NZCA 546, [2009] 3 NZLR 223 at [16].[11] In assessing the gravity of the offending, the Court must consider allaggravating and mitigating factors relating to the offending and the offender. Theconsequences of a conviction include all direct and indirect consequences where thereis a "real and appreciable risk" they will occur.9[12] An appeal against a refusal to grant a discharge without conviction is an appealagainst both conviction and sentence.10 It is conducted by way of rehearing, with theappellate court making its own assessment as to whether the s 107 threshold has beenmet. The basis for determining an appeal against a refusal to grant a discharge withoutconviction is whether a miscarriage of justice has occurred:11(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 theSentencing Act 2002.The appellant's submissions[13] The appellant submits that the Judge erred in assessing the gravity of theoffending as "moderately serious". Rather, he says that this was a low level offence.The appellant compares his offending to that in Gasu v Police12 and Moala v Police.13While accepting that the offending involved a breach of trust and occurred in thevictim's home, the appellant emphasises that the victim did let him into her home,although acknowledging that he did not leave when requested. The appellant alsosubmits that this was a brief physical confrontation with violence on the lower end ofthe scale. The assault involved him pushing the victim as opposed to punching orstriking her and her bruising was caused by him falling on top of her. After that, theappellant left the address.9 DC (CA47/13) v R [2013] NZCA 255 at [43].10 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 [7]–[8].11 At [12].12 Gasu v Police [2021] NZHC 2948.13 Moala v Police [2021] NZHC 1516.[14] The appellant also relies on the following mitigating factors to support hissubmission that the gravity of the offending is low:(a) The appellant pleaded guilty at the earliest possible reasonableopportunity. He was "eager" to engage in restorative justice howeverthat conference was unable to proceed.(b) The appellant has no previous convictions, although it is accepted hewas granted diversion in 2017 when he was 21 years old and that therehave been four family harm call outs between the appellant and thevictim. The appellant asks the Court to exercise caution in assessing theweight to give the family harm call outs as he says this is ultimatelyuntested hearsay evidence.(c) The appellant has completed an intensive 16 week "Living WithoutViolence" course and two assessment sessions. This is the firstrehabilitative intervention the appellant has engaged with and thecertificate of completion provided to the Court describes the appellantas "attentive and constructive" at the course. He was described by thefacilitator as "thinking about the material between sessions andapplying the tools in his everyday life". The facilitator also records theappellant's report to her that changes in his behaviour are leading toimprovements in his relationship with his partner.(d) The appellant was 26 years old when the offending occurred. It issubmitted that the appellant's case is symptomatic of a young man whomade a poor decision and did not appreciate the long-termconsequences.[15] The appellant also submits that the District Court Judge erred in consideringthe consequences of a conviction on his future employment prospects were"speculative" and a conviction would not amount to a "significant hurdle" to him. Theappellant submits that the general consequences of a conviction are not speculative.While he will not lose his current employment as a result of a conviction, the appellantsays that he does not intend to remain in this casual employment permanently and hasambitions to pursue a more meaningful career where there are greater opportunities toprogress. The appellant submits that he should not be punished for not yet establishinga foothold in a particular career. He is still relatively young, and his employmentprospects have been impacted by the global pandemic. It is submitted that thisuncertainty aggravates the general consequences of a conviction on the appellant.[16] As a result, the appellant submits that the consequences of conviction wouldbe out of all proportion to the seriousness of offending in a family violence context.He relies on Nash v Police and Singh v Police to argue that his offending is less seriousthan in both those cases where the appellants were discharged without conviction.14[17] The appellant argues alternatively that the sentence of 12 months' supervisionis excessive in the circumstances. It is submitted the appellant has already addressedany rehabilitative needs by completing an intensive 16-week rehabilitation course and,accordingly, the Court's intervention is not necessary. He also relies on the fact thatthere has been no offending since the incident arose. A sentence of supervision willrequire him to engage with another service, Probation, until September 2023.Respondent's submissions[18] The respondent opposes the appeal. The respondent submits that as theoffending involved family violence, which is inherently serious in nature, alongsidethe elements of a breach of trust and an intrusion into the victim's home, the offendingwas appropriately assessed as "moderately serious". The respondent highlights theverbal abuse of the victim during the incident as elevating its severity.[19] While acknowledging the self-initiated rehabilitative efforts of the appellantand his remorse for the offending, the respondent contends that the previous familyharm incidents weigh against his "previous good character" being a mitigating factorfor the appellant.14 Nash v Police HC Wellington CRI-2009-485-000007, 22 May 2009; and Singh v Police [2019]NZHC 2985.[20] Further, the respondent submits that the District Court Judge was correct in hisview that youth was not a relevant mitigating factor. The respondent says the appellantwas an adult who had undertaken responsibilities. At the time of the offending, theappellant was 26 years old, had two children aged three and five, and had (until beingmade redundant) been working as a courier driver.[21] Even if this Court was to determine that the gravity of the offence is moreappropriately categorised as low to moderate, the respondent submits that theuncertain consequences of the conviction identified by the appellant are not "out of allproportion" to the gravity of the offending, such that the s 107 discharge threshold ismet. The respondent echoes the conclusions of District Court Judge that the possiblebarriers to employment faced by the appellant are uncertain and vague, and submitsthat a "general expression of interest" to work for the Police, Corrections or the Navycannot satisfy the Court that there is a real and appreciable risk of negative careeroutcomes.[22] In relation to the sentence of supervision, the respondent does not accept thatthe sentence is excessive and says that without supervision there is no guarantee theappellant will continue to take steps towards his rehabilitation and reintegration. Therespondent says that the appellant would only be required to attend treatment orprogrammes as appropriate.DiscussionGravity of the offending[23] The appellant and the respondent contest whether the appellant's age and lackof previous convictions can be considered mitigating factors of the offending. As mytreatment of these factors is relevant to the overall assessment of the gravity of theoffending, I address these first.[24] Youth has been regarded as a mitigating factor for three principal reasons: torecognise the neurological differences between adults and young people and theimpact this may have on culpability; the impact of imprisonment on young people;and to recognise the greater capacity of young people for rehabilitation.15 In relationto the assessment as to the gravity of the offending, argument has centred around thefirst category.16[25] In Rarere v R, the High Court refers to research undertaken by the ChiefScience Adviser indicating that maturation among boys "is not complete until well intothe third decade of life", with impulse control and judgement being the final functionsto mature.17 The appellant, at age 26, will therefore be nearing the end of his cognitivedevelopment.[26] Consistent with the "nuanced approach" the courts have taken to youth,18 Iprefer to consider the impact of the appellant's relative youth in light of the context ofthe offending and whether it possesses the hallmarks of youth offending. This wasimpulsive and reckless behaviour. The appellant, drunk, elected to visit the victim'shome address in the very early hours of the morning and demand to be let in. He wasobtuse to the victim's evident feelings of discomfort and, later, her likely fear as hewould not leave the house. It appears to me that this behaviour may be the result of aperson who has not reached their full cognitive development, and some considerationto this fact is necessary.19 However, I also recognise a 26 year old should be nearmaturation, and this factor accordingly should be given less weight than it would for,say an 18-year-old.20[27] Regarding the appellant's good character, I consider the appellant is entitled tosome credit for his previous lack of convictions. His previous diversion should not becounted against him. The diversion regime exists to prevent individuals charged with15 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].16 The impact of a conviction on the appellant given his youth is considered further in relation to the"consequences of conviction" assessment.17 Rarere v R [2012] NZHC 779 at [36].18 At [37].19 For completeness, I am not convinced by the respondent's suggestion that the appellant's youthhas less of a bearing given he has children and an "adult" job. Plenty of young people havechildren and jobs. In my view, there is not necessarily a correlation between youth and thesethings.20 In reaching this conclusion, I note that this is not the first time that the relative youth of a 26-year-old has been deemed relevant to the Court's assessment at sentencing: see R v Waitokia [2018]NZHC 2146 at [24] (in the context of third-strike offending); and Waikato Regional Council vBertling [2019] NZDC 16796 at [70] (in the context of a discharge without conviction application).minor offences having a criminal conviction for that matter. I note that the family harmincidents remain relevant. The Court is to consider any aggravating factor that it thinksfit.21 Given the current offending involves domestic violence, I consider the Judge wasright to take the family violence report into consideration. However, the fact that theseare untested reports that did not result in the laying of any charges must also beacknowledged.[28] I accept that the offending is comparable with Gasu and Moala. Both involvedone charge of assault on a person in a family relationship. In each case, the offendingwas the result of significant alcohol consumption.(a) In Gasu v Police, the offending involved four slaps to the face and head,causing a noise bleed. The offender had to be physically removed fromthe victim to stop the assault. The incident had been instigated by thevictim who had slapped the offender first. The actual violence itself wasregarded as "moderately serious",22 however the initiation of the assaultby the victim, the offender's previous good character, genuine remorse,rehabilitative efforts and insight, and support from the victim reducedthe gravity to low to moderate seriousness.23(b) Moala v Police involved an unprovoked attack on a victim after a nightof heavy drinking. The offender grabbed the victim and threw her ontothe ground. Standing over her, he then punched two holes in the wallbefore punching her twice in the face with closed fists. The offenderthen pursued the victim as she tried to hide from him, kicking down abathroom door and smashing her cell phone. The overall assessment ofthat the offending was of moderate seriousness.2421 Sentencing Act 2002, s 9(4)(a).22 Gasu v Police, above n 12, at [26].23 At [26].24 Moala v Police, above n 18, at [11]–[13].[29] In my view, the current offending is of similar severity to Gasu. While someof the mitigating factors present in Gasu are not present in the current case,25 theassault in itself was, in my view, less aggravating. The physical violence was minimal,involving grabbing and pushing the victim, with an incidental fall on top of the victimcausing bruising. The appellant then left the premises on his own volition, unlike Gasuwhere physical intervention was required for the offending to end. Further, thisoffending differs significantly from Moala where there was a pursuit and terrorisationof the victim. I do not consider the verbal abuse to be particularly aggravating.[30] Further, the self-referral and completion of a 16-week intensive rehabilitationcourse must count significantly in Mr Muatabu's favour. Not only does he haverehabilitation prospects, but he has taken active steps to rehabilitate and, as outlinedby the course facilitator, considerable progress has been made.26 Placing significantemphasis on the appellant's rehabilitative efforts, alongside the appellant's youth,remorse, lack of previous convictions and early guilty plea, I consider the offendingcan fairly be described as of low seriousness.Consequences of conviction[31] The key issue here is whether there is a "real and appreciable risk" that theappellant's conviction will negatively impact his potential career prospects. Therespondent says as there is no evidence of a specific career path, there is no such risk.I cannot accept the respondent's submission and I find it unattractive. The appellantshould not be punished for any current uncertainty as to his career path. He is stillyoung. Given the disruptions of the pandemic over the last three years, that he is yetto settle on a career path is even more understandable.[32] As the appellant notes, convictions carry a social stigma and may affect aperson's career, with an employer often requesting an applicant's conviction history.This will inevitably be so in roles the appellant has indicated an interest in. As this25 Namely, the assault was not initiated by the victim, nor does the victim support the appellant'sdischarge application. However, counsel advised me of their understanding that the appellantcontinues to be in a relationship with the victim.26 I note that in Gasu v Police, above n 12, the rehabilitative efforts of the appellant were taken intoaccount, however there is no specific mention of the rehabilitative steps taken by the appellant.Court has noted, the impact of a conviction on a young person yet to have a footholdin a career can be permanently damaging.27[33] The appellant refers to Nash v Police, where a 24-year-old offender facedsimilar consequences to that of the current appellant.28 The offender was not at risk oflosing his current job. However it was indicated that "in due course" he planned toapply to become a registered master builder, and that there were concerns membership"may be declined" in light of the conviction.29[34] Mallon J considered that it was "difficult to envisage" the offender beingdeclined membership given the minor nature of the charge. However, she consideredthe general consequences of conviction were also relevant and weighed in favour of adischarge without conviction:30 there are general consequences that follow from a conviction. In a varietyof ways (eg. employment, insurance, immigration) people are asked todisclose whether they have criminal convictions. For those that are remorsefulthere can be a loss of pride and self-esteem or at least embarrassment in havingto answer that question honestly. It may also materially disadvantage him—ashis counsel says it may count against him when he is competing for a positionagainst someone who does not have a conviction. [35] Given the offending itself was particularly minor, Mallon J accepted that thegeneral consequences of the conviction were out of all proportion to the offending.31[36] I consider that in this case it is not difficult to envisage the potential denial ofjobs in the career paths sought by the appellant given each job is in the public service.The barriers that a conviction may cause the appellant in entering these professionscannot be overlooked.27 Amstad v Police HC Auckland CRI-2011-404-00161, 6 September 2011 at [22]. I also note thatthe "youth" of a 26-year-old has previously been considered relevant when assessing theconsequences of a conviction in a discharge without conviction context: see Waikato RegionalCouncil v Bertling [2019] NZDC 16796 at [70].28 Nash v Police, above n 14.29 At [18].30 At [19].31 At [20].Proportionality assessment[37] In assessing whether the consequences of the conviction are out of allproportion to the offending, I find Nash v Police to be analogous and thus compelling.The offending has similarities, with both being instances of domestic violenceoffending. While there was no element of home intrusion in Nash v Police, theoffending involved the forceful pulling of hair, resulting in the victim falling to thefloor, aggressively going through the victim's pockets, and the pulling of the victim'sleg, also resulting in a fall. Observing first that the assault was at the "lower end of thescale",32 Mallon J concluded that the general consequences of the conviction,including disclosure of the conviction in employment applications, would be out of allproportion to the gravity of the offending.33[38] Given my conclusions as to the severity of the offending, I consider this caseto be one where the consequences of a conviction on the appellant's employmentprospects are out of all proportion with the offending. Undoubtedly the appellant madea poor decision in the circumstances and the fact that it led to a situation of domesticviolence is of concern. However, placing particular emphasis on the significant stepstaken by the appellant on his own initiative to address his offending behaviour, Iconsider the gravity of the offending is outweighed by the impact of a conviction onthe appellant's career prospects, exacerbated by his age and that he is yet to have afoothold in a particular career.Conclusion[39] Overall, I conclude that the conviction is out of all proportion to the gravity ofthe offence and the District Court Judge erred in applying the principles of dischargingan offender without conviction under s 107.[40] The appellant is therefore discharged without conviction. Of course, he couldnot expect a similar outcome if he were to come before the courts again for familyviolence offending.32 Nash v Police, above, n 14, at [13].33 At [19]–[20].Result[41] The Court allows the appeal and orders that the appellant be discharged withoutconviction.McQueen JSolicitors:Public Defence Service, Wellington for AppellantCrown Solicitor, Wellington for Respondent