DEWDNEY v NEW ZEALAND POLICE [2020] NZHC 954

DEWDNEY v NEW ZEALAND POLICE [2020] NZHC 954 [11 May 2020]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2020-419-000013[2020] NZHC 954BETWEEN MATTHEW JOSEPH DEWDNEYAppellantAND NEW ZEALAND POLICERespondentHearing: 21 April and 1 May 2020Appearances: S Taylor for AppellantA S Alcock for RespondentJudgment: 11 May 2020JUDGMENT OF LANG J[on appeal against conviction and sentence]This judgment was delivered by me on 11 May 2020 at 3.30 pm.Registrar/Deputy RegistrarDate[1] Mr Dewdney pleaded guilty in the District Court to charges of assaulting andthreatening to kill his mother, intentional damage and dangerous driving. On23 January 2020, Judge P R Connell declined an application by Mr Dewdney to bedischarged without conviction under s 106 of the Sentencing Act 2002 (the Act).1 Onthe same date the Judge sentenced Mr Dewdney to 12 months judicially monitoredintensive supervision.2 On the charge of dangerous driving the Judge convicted anddischarged Mr Dewdney but disqualified him from driving for six months.[2] Mr Dewdney appeals against both conviction and sentence. First, he contendsthe Judge erred in refusing to grant him a discharge without conviction under s 106 ofthe Act. In the alternative, he contends the Judge was wrong to impose a sentence ofintensive supervision. He says the Judge ought to have imposed a sentence ofsupervision rather than intensive supervision.The charges[3] All of the charges other than that of dangerous driving relate to an incident thatoccurred on 27 July 2019 at the address where Mr Dewdney was living with hismother. Mr Dewdney dropped his cellphone as he was getting out of a vehicle afterarriving home with his father. This caused the screen of the cellphone to break. MrDewdney became angry. He stormed inside the address and began demanding that hismother buy him a new cellphone. Mr Dewdney continued to harangue his mother forthe next 45 minutes. At one stage during this episode he held a butter knife in his handand threatened to stab his mother if she did not buy him a new cellphone. Mr Dewdneyalso picked his mother's cellphone up and smashed it by throwing it onto the floor.[4] Mr Dewdney's mother eventually went outside the house to call the police.Mr Dewdney followed her and wrapped both of his arms around her. He then pickedher up and dropped her so that she fell onto her side. This caused his mother to suffera grazed knee.1 New Zealand Police v Dewdney [2020] NZDC 1133.2 New Zealand Police v Dewdney [2020] NZDC 5896.[5] Mr Dewdney then left the address but returned a short time later, still in anaggressive mood. When he entered the address he punched and kicked the walls ofthe hallway, causing four holes to be smashed in the walls as a result.[6] The charge of dangerous driving was laid as a result of an incident thatoccurred on the evening of 21 December 2019 whilst Mr Dewdney was on bail on thecharges arising out of the earlier incident. On that evening Mr Dewdney was drivinga motor vehicle in Hamilton. He was the holder of a restricted driver's licence andbreached the terms of this by having two unlicensed drivers in the vehicle. A policepatrol vehicle observed Mr Dewdney accelerate heavily away from an intersection inan area with a posted speed limit of 80 kilometres per hour. Mr Dewdney's vehiclewas then detected travelling at a speed of 132 kilometres per hour. The police vehicleactivated its flashing lights and siren to direct Mr Dewdney to pull over to the side ofthe road. When asked for an explanation he said he was in a hurry to get the passengersof the vehicle home.Relevant principles[7] An application for discharge without conviction is governed by s 106 of theAct, which relevantly provides as follows:106 Discharge without conviction(1) If a person who is charged with an offence is found guilty or pleadsguilty, the court may discharge the offender without conviction, unlessby any enactment applicable to the offence the court is required toimpose a minimum sentence.[8] In applying s 106, the Court must follow the guidance contained in s 107 ofthe Act. This provides:107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unless thecourt is satisfied that the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence.[9] A court considering an application for discharge under s 106 must considerthree issues.3 It must first assess the gravity of the offending having regard to the factsof the particular case. This exercise is not restricted to the aggravating and mitigatingfactors of the offending itself. Factors personal to the offender may also be relevant.4Next, it must identify the direct and indirect consequences of a conviction beingentered. In this context there must be a "real and appreciable" risk that any positedconsequence will occur.5 Thirdly, the court must determine whether the consequencesof a conviction would be out of all proportion to the gravity of the offending. Thereis a residual discretion not to grant a discharge but that will rarely be exercised wherethe statutory criteria have been met.[10] An appellate court is required to reach its own view as to whether the directand indirect consequences are out of all proportion to the gravity of the offending. Ifit accepts the statutory threshold has been met, the court must determine whether thecourt at first instance erred in principle when exercising its discretion to grant or refuseto grant a discharge.6[11] Mr Taylor submits on Mr Dewdney's behalf that a discharge withoutconviction ought to have been entered on all charges. I do not consider this argumenthas any substance on the charge of dangerous driving. Those who deal with MrDewdney in the future will readily appreciate that it relates to a single incident of baddriving when he was 18 years of age. It attracted no penalty other than six monthsdisqualification from driving. I do not consider a conviction on this charge will haveany practical consequences for Mr Dewdney. It follows that he has no basis on whichhe can realistically contend the Judge ought to have discharged him without convictionon it. That is particularly so given the fact that the charge was laid because of anincident that occurred whilst Mr Dewdney was on bail on the remaining charges. Theappeal therefore has no merit so far as the charge of dangerous driving is concerned.3 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16] to [17].4 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; DC (CA47/2013) v R [2013]NZCA 255 at [35].5 DC (CA47/2013) v R, above n 4, at [43].6 Edwards v R [2015] NZCA 583 at [6].The gravity of the offending[12] Several features obviously increase the gravity of the offending that occurredon 27 July 2019. These include the fact that it comprised a prolonged episodeinvolving actual and threatened violence against a vulnerable victim in her own home.The fact that the victim was Mr Dewdney's mother increases the gravity of theoffending because a mother is entitled to be protected by her son rather than threatenedand assaulted by him. The fact that Mr Dewdney threatened his mother with a weaponin the form of a butter knife is also an aggravating factor.[13] The Judge considered, and Mr Dewdney's counsel acknowledged, that thegravity of the offending itself could properly be described as moderate. From thatinitial assessment, however, several mitigating factors need to be taken into account.[14] First, the charges were laid as a result of a single incident rather than acontinuing course of conduct. The police had been called to Mr Dewdney's addresson several earlier occasions where he had reported to be in an aggressive frame ofmind but none of these incidents resulted in Mr Dewdney being charged with anoffence.[15] Fortunately, too, Mr Dewdney's mother did not receive any lasting physicalinjuries as a result of her son's actions. In addition, Mr Dewdney entered his guiltypleas at an early stage and has now paid his mother in full for the damage he causedto her property.[16] Mr Dewdney explains that the offending arises out of the fact that has suffersfrom long standing depression and anxiety issues. He was not on medication at thetime of the offending but is now taking medication to deal with these issues. He isalso attending counselling on a regular basis to ensure he comes to terms with thecauses of the present offending.[17] Importantly, too, Mr Dewdney's mother and other members of his family fullysupport Mr Dewdney's application for discharge and his endeavours to rehabilitatehimself. He has attended a restorative justice conference with his mother and thisproduced a positive outcome for both. At the time of the offending Mr Dewdney wasliving in a caravan at his employer's premises but he has now moved back to hismother's address. There has been no repetition of the type of conduct that led to thepresent charges. Mr Dewdney's employer has likewise provided his support for thepresent application.[18] Finally, Mr Dewdney has no previous convictions and the offending occurredshortly after he turned 18 years of age. Youth is a factor that can be taken into accountin the present context.7 He has also demonstrated remorse and insight into hisoffending.[19] I consider these factors reduce the gravity of Mr Dewdney's offendingsignificantly. When they are taken into account I consider the overall gravity of theoffending is low.The consequences of a conviction[20] At present Mr Dewdney is working for a business that manufactures caravans.His current employer is obviously fully aware of the present offending and hasmaintained his support for Mr Dewdney throughout the court process. His currentoccupation is therefore not in jeopardy.[21] As the Judge acknowledged, however, Mr Dewdney seeks to advance hiscareer by gaining a qualification as an electrician. Before he can be registered as anelectrician he will be required to satisfy the Electrical Workers Registration Board (theBoard) that he is a fit and proper person to be registered as an electrician. The reasonfor this is obvious. Electricians are permitted to enter clients' homes and premises,and to work there with no or limited supervision. This means they must be personswho can be trusted not to abuse this ability.[22] The Board has published the procedure and criteria it will apply in determiningwhether a person is a fit and proper person to be registered as an electrician on itswebsite. This includes the following information:3. Rules7 Prasad v R [2018] NZCA 537 at [28].3.1 All persons who apply for registration or for a provisional licence willbe assessed as to whether they meet the fit and proper person criteriaas part of their registration application.3.2 In determining if a person is fit and proper the Board will take thefollowing factors into considerations:(f) ever been convicted of a criminal offence punishable by morethan six months imprisonment in the last ten years in NewZealand or any other jurisdiction;(g) any criminal charges punishable by more than six monthsimprisonment pending in New Zealand or any otherjurisdiction; or(h) done any other thing which may impact on their being a fitand proper person.3.4 Applicants must declare, at the time of their application forregistration or licensing, whether any of the above factors apply tothem and or whether there are any other matters which the Boardought to be aware of as regards their character.3.6 An applicant for registration or for a provisional licence who have anycriminal convictions must include a current New Zealand or overseascriminal record.3.7 The Board may, as part of its assessment of whether any applicant forregistration or a provisional licence or any electrical worker seeking alicence meets the fit and proper person requirements, obtain a NewZealand Police Vetting Service criminal history check. The Boardmay take any refusal to consent of the Board obtaining a criminalrecord into account in determining whether or not an applicant is a fitand proper person.3.9 If there is evidence of one or more of the matters in 3.2 above, thenthe applicant may provide the Board with further information as setout below in rules 3.10 and 3.11. If further such information isrequired, the Board will consider it in determining whether theapplicant is a fit and proper person. If further such information is notprovided, the applicant will be deemed to not be a fit and properperson.3.10 The Board may also take factors other than those contained in 3.2 and3.7 above into consideration in determining if a person is fit andproper.3.11 Any applicant may submit to the Board in writing that they are,notwithstanding evidence of one or more of the matters in 3.2 aboveor such other evidence as the Board considers relevant, a fit and properperson.3.12 Any such application must set out the applicant's reasons. Theapplicant will be given an opportunity to be heard by the Board insupport of their submission.3.14 The Board will apply and adhere to the principles of natural justice incoming to its decision as to whether a person meets the fit and properperson requirements of the Act. The Board may also take any of thefollowing into consideration:(a) how serious the matter is or was;(b) what health and/or safety concerns it may raise;(c) how long ago it occurred;(d) any consequences for the applicant or any other person;(e) whether it was a one off incident;(f) how relevant it is to the applicant carrying out or supervisingprescribed electrical work;(g) the implications of the matter; i.e. what does it show about theapplicant;(h) the applicant's attitude to the matter;(i) how a member of the public who engaged the applicant tocarry out prescribed electrical work would view the matter;(j) anything else that the Board may consider relevant.[23] On its website the Board cites Domb v Real Estate Licensing Authority asauthority for its ability to include a "vetting" provision in the form of r 3.7 in itsprocedure for determining whether an applicant is a fit and proper person to beregistered as an electrician.8 That case was subsequently overruled by the Court ofAppeal, which held that a body such as the Board can only impose such a requirementwhere the legislation establishing the body provides for that to be done.9 The Actprovides the Board with "all such powers as are reasonably necessary or expedient to8 Domb v Real Estate Agents Authority [2015] NZHC 3157, [2016] NZAR 47.9 Real Estate Agents Authority v Domb [2017] NZCA 199 at [17].enable the Board to carry out its functions".10 On my reading of that legislation it doesnot, however, include a provision expressly authorising the Board to utilise the policevetting procedure. An issue may therefore arise as to whether the Board can lawfullyrequire Mr Dewdney to be subject to that process.[24] Even if the requirement is not valid Mr Dewdney is still required under r 3.4to declare whether he has done anything that may impact on his being a fit and properperson and whether there are any other matters of which the Board should be aware asregards his character. It therefore seems inevitable that the Board will learn of thecircumstances giving rise to the present charges whether or not Mr Dewdney isdischarged without conviction.[25] In Parker v Police Williams J observed that the existence of a vetting provisionundermined the argument in favour of discharge.11 Justice Williams based thisobservation in part on his view that a discharge in such circumstances will "simplyprovide a signal to the Board that the sentencing Judge thought the incident should notaffect registration".12 He considered that, for a body such as the Board, "the view ofa judicial non-expert is probably of little probative value".13 He also pointed out thatit is not the role of the courts to tell such bodies how they should exercise theirdecision-making power because that would be to usurp their mandate.14[26] Bodies such as the Board have a duty, however, to take into account all relevantinformation in deciding whether an applicant is a fit and proper person to be registeredfor a trade or profession. As always, context is everything. In some circumstances Iconsider a body such as the Board may derive considerable assistance from the viewa sentencing Judge takes of the overall gravity of criminal conduct and its probableconsequences.[27] In the present case the Board will obviously be concerned to knowMr Dewdney has convictions for offending involving violence and damage to10 Section 148(2).11 Parker v Police [2016] NZHC 2524 at [29].12 At [26].13 At [26].14 At [27].property. It may call into question his suitability to enter clients' properties to carryout electrical work on an unsupervised basis. The extent to which this is so willultimately be a matter for the Board. I consider, however, that the rules set out aboveensure Mr Dewdney will have the opportunity to provide the Board with all relevantmaterial relating to the convictions. In particular, he will be entitled to place beforethe Board the material he has placed before the Court in relation to the application fordischarge. The Board will also have the benefit of this Court's assessment as to theoverall gravity of his offending. I therefore do not consider the mere existence of theconvictions is likely to produce significant consequences for Mr Dewdney in terms ofhis bid to be registered as an electrician.[28] Mr Taylor pointed out that, even putting aside Mr Dewdney's desire to beregistered as an electrician, he is still a young man and the existence of the presentconvictions is likely to be a major hindrance to any other career he may wish to pursuein the future. He referred me to Walker v Police, in which this Court observed that thepotentially greater consequences of a conviction for a young offender who does nothave a "foothold in a career" need to be recognised along with the risk that a convictionmay be permanently damaging.15[29] I acknowledge the force of these observations but I do not place Mr Dewdneyin the category of a person who does not have a foothold in a career. He has beenemployed by his current employer for some time now, and has clearly won hisemployer's trust, confidence and support. That will stand him in good stead whateverpath his career may take in the future.[30] I would therefore assess the direct and indirect consequences of the convictionsfor Mr Dewdney as being low.Are the consequences of the convictions out of all proportion to the gravity of theoffending?[31] Mr Taylor relied heavily in this context on the recent judgment of the Court ofAppeal in Prasad v R.16 In that case the Court of Appeal granted a discharge without15 Walker v police [2016] NZHC1450 at [22]16 Prasad v R [2018] NZCA 537.conviction to an offender who, at the age of 19 years, had engaged in two separate actsof violence against his partner. As in the present case, the appellant had entered earlyguilty pleas. The parties had also reconciled their differences and the victim supportedthe application for discharge. In addition, the appellant had expressed remorse andinsight into his offending. He had also undertaken significant rehabilitative steps.These included the payment of reparation to the victim and attendance at a restorativejustice conference that produced a positive outcome. The Court of Appeal assessedthe overall gravity of the offending as being low to moderate.[32] The convictions had, however, contributed to the appellant in Prasadbecoming depressed to the point where he had attempted to commit suicide. Theconvictions had also thwarted a promising academic career, and had jeopardised theappellant's future career prospects. Not surprisingly, the Court of Appeal categorisedthe consequences of the convictions as being serious. It followed that theconsequences were out of all proportion to the gravity of the offending. I view thepresent case as different to Prasad because the consequences of the convictions forMr Dewdney are much less serious than those for the appellant in Prasad.[33] I have assessed the overall gravity of the offending as being low and theconsequences of the convictions as likewise being low. It follows that theconsequences of the convictions are not out of all proportion to the gravity of theoffending. Mr Dewdney has therefore failed to cross the statutory threshold requiredbefore a discharge without conviction may be granted. The appeal against convictionmust accordingly be dismissed.The appeal against sentence[34] The Judge's decision to impose a sentence of judicially monitored intensivesupervision was clearly influenced by what he viewed to be a pattern of aberrantbehaviour on Mr Dewdney's part. He saw the charge of dangerous driving as beingsymptomatic of this.[35] There is a considerable amount of material before the Court to suggestMr Dewdney has had significant issues with anger management for some time. Theseare best demonstrated by the rapid and inexplicable manner in which the events givingrise to the present charges developed. I agree that these issues warranted Mr Dewdneybeing sentenced to supervision but I do not share the Judge's concern that theyrequired the more invasive restrictions of judicially monitored intensive supervision.The rehabilitative steps Mr Dewdney has already undertaken demonstrate he now hasa significant degree of insight into the causes of the present offending. Furthermore,he has been able to hold down a steady job for a considerable period. His relationshipwith his mother and other members of his family is also good. Provided Mr Dewdneykeeps taking his medication I consider there is little risk he will offend again in aviolent way in the future.[36] I therefore consider the less restrictive sentence of supervision was sufficientto provide for Mr Dewdney's rehabilitation and reintegration into the community.Result[37] The appeal against conviction is dismissed. The appeal against the sentence of12 months judicially monitored intensive supervision is allowed. That sentence isquashed. In its place I impose a sentence of 12 months supervision.Lang JSolicitors:Crown Solicitor, Hamilton