O’NEILL v POLICE [2020] NZHC 284

O'NEILL v POLICE [2020] NZHC 284 [27 February 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-553[2020] NZHC 284BETWEEN MATTHEW O'NEILLAppellantAND NEW ZEALAND POLICERespondentHearing: 18 February 2020Counsel: R Thomson for AppellantT Stuart for RespondentJudgment: 27 February 2020JUDGMENT OF WHATA JThis judgment was delivered by me on 27 February 2020 at 3.00 pm.Registrar/Deputy RegistrarDate: .Solicitors: Meredith Connell, Auckland[1] Mr O'Neill pleaded guilty to one charge of assault of a family member. He didnot seek a discharge without conviction, so it was not considered. He was sentencedto twelve months' supervision. He now seeks, on appeal, to be discharged withoutconviction under s 106 of the Sentencing Act.Background[2] The facts of the offending are set out in a summary of facts which state that atapproximately 6.00 pm on Sunday, 20 October 2019, the victim and Mr O'Neill wereat their home. The victim and Mr O'Neill were having a conversation regardingMr O'Neill's relationship with his associate. The victim mentioned an occasion whenMr O'Neill did not come back home from overseas to attend a friend's funeral.Mr O'Neill took exception to this comment and left the kitchen. He walked outsideinto the garage and laundry area. Inside the laundry was a teacup containing a solutionof bleach and water. He picked up the teacup and returned to the kitchen. At this time,the victim was still seated in the kitchen. Mr O'Neill then suddenly swung his armholding the cup, flicking the bleach solution at the victim's face. As a result, thesolution struck her face and eyes and they started to burn. She then received medicaltreatment for that.[3] When the Police spoke to Mr O'Neill, he admitted the facts and in explanationstated he threw the contents of the cup over the victim, believing it was water.[4] As noted, the Judge was not asked to and did not address discharge withoutconviction. The Judge concluded, however, that the focus should be on Mr O'Neill'srehabilitation and therefore imposed a supervision order of twelve months withspecific conditions that he attend an Anger Management or Living Without Violenceprogramme.Evidence[5] Mr O'Neill sought leave to file an affidavit as to the circumstances of theoffending and the consequences of the conviction. It is not opposed. Given this, andthe fact that the main body of the evidence cogently goes to the merits of the appeal, Igrant leave to file this evidence.[6] Mr O'Neill deposed that he had been living with his mother for some time priorto the offending. He said he assisted with the mortgage for their home and had alsosupported his mother financially where possible, including by purchasing a chair tohelp her recover after surgery, and paying her dentistry bills. He also referred to theassault, which broadly aligns with the summary of facts.[7] Mr O'Neill further described the effects of the conviction. He referred to hisemployment at Gulf Harbour as a trainee dockmaster until November 2019 (he wasdismissed due to problems with his then availability to work). He noted that he servedwith the Royal New Zealand Navy from September 2003 to April 2017. His servicerecord is unblemished. He said that since leaving the Navy he has continued to servein the Naval Reserve as a Communication Warfare Specialist at the rank of LeadingSeaman. He said he is currently attached to the HMNZS NGAPONA. He said hiswork requires a high security clearance.[8] Attached to his affirmation is a letter from an Executive Officer of theNGAPONA, LTCDR John Gresson. It sets out the likely consequences of convictionfor Mr O'Neill as follows:(a) His criminal conviction constitutes a "changed circumstance" in asecurity clearance context. Such a conviction makes it likely that hissecurity clearance will be revoked and even if not revoked, a convictionalso imperils any renewal of a security clearance when it otherwiseexpires. Loss of security clearance will likely prevent him fromcontinuing to work as a Communication Warfare Specialist.(b) His criminal conviction is an offence involving violence and calls intoquestion his general suitability to serve in any part of the Royal NewZealand Navy.[9] Ms Thompson also advised that Mr O'Neill has already lost his securityclearance and will shortly meet with his superior officers to discuss his future.Jurisdiction[10] Section 232 of the Criminal Procedure Act 2011 provides for an appeal againstconviction if a miscarriage of justice has occurred for any reason. The usual caseinvolves a claim that something went wrong with the trial process, including guiltyplea. This case is unusual in that discharge without conviction was not consideredbecause it was not advanced by Mr O'Neill at sentencing. It might be said, therefore,that the error is not appealable because it is one of Mr O'Neill's own making. Errorsof this kind in relation to guilty pleas (for example) have been given short shrift.1 But,s 11(1)(a) of the Sentencing Act imposes a mandatory obligation to consider dischargewithout conviction in the following terms:11 Discharge or order to come up for sentence if called on(1) If a person who is charged with an offence is found guilty, or pleadsguilty, before entering a conviction and imposing a sentence the courtmust consider whether the offender would be more appropriately dealtwith by—(a) discharging the offender without conviction under section 106[11] Given this, and the potential significance of discharge to Mr O'Neill, it is inthe interests of justice to resolve the appeal on its substantive merits. I note CourtneyJ in Leatinuu took a similar approach.2Section 106[12] It is common ground that the test for s 106 of the Sentencing Act involves athree-step process:3(a) Assessing the gravity of the offence, including all aggravating andmitigating factors relating to the offending and the offender;(b) Identifying the direct and indirect consequences of a conviction;1 Su'a v R [2017] NZCA 439.2 Leatinuu v Auckland Council [2013] NZHC 3489 at [14].3 See R v Taulapapa [2018] NZCA 414 at [22].(c) Considering whether those consequences would be out of all proportionto the gravity of the offending.[13] If a court determines that the consequences are out of all proportion it mustconsider whether it should exercise its residual discretion to grant a discharge, thoughit will be a rare case where a court will refuse to grant a discharge in suchcircumstances.4Gravity[14] Turning then to the gravity of the offence. At face value, the offending ismoderately serious offending of its kind. Mr O'Neill flung a substance, includingbleach, at the face and eyes of the victim, his mother. The risk associated with suchan action to the victim was high, with potentially very significant consequences forher.[15] Against this, the summary of facts does not state that Mr O'Neill knew the cupcontained bleach. The summary also records that he advised the Police at the time ofthe offending that he did not know that the cup contained bleach. If that is the case,then the flinging of water into the face of another person is a much less serious formof offending of this kind.[16] Mr O'Neill's account of what occurred was not challenged at sentencing orbefore me. I can then to proceed on the basis that he did not intend to fling a dangeroussubstance at the face of his mother. He is remorseful and also willing to participate inany programme that addresses his rehabilitative needs. I think he presents a very lowrisk of reoffending. Balanced against this, his mother was vulnerable to any form ofattack and suffered soreness to her eyes and face as a consequence of the action. Shealso still opposes the application for discharge. In the result, I would put the gravityof the offending at the low (rather than very low) end of the spectrum for offending ofthis kind.4 Z(CA447/2012) v R [2013] NZCA 599, [2013] NZAR 142 at [27].Direct and indirect consequences[17] As noted by LTCDR John Gresson, while Mr O'Neill is entitled to be heard onthe circumstances of his offending and prosecution, he is likely to lose his securityclearance which would likely prevent him from working as a Warfare CommunicationSpecialist. It transpires that he has in fact already lost his classification. Therefore, Iam satisfied that there is a real risk that if he remains convicted, Mr O'Neill will losehis security clearance and thus be precluded from his role as a Communication WarfareSpecialist. More broadly, there is also a risk of administrative discharge, though it isdifficult to quantify this risk.[18] Balanced against this, I note Mr O'Neill's skills appear to be transferable. Forexample, he worked for a time as an engineer for British Telecom. I note also that itappears he lost his job as a trainee dockmaster at Gulf Harbour because of availabilityissues and not because of the offending. It has not been suggested that he will not beable to obtain employment of this kind again.Proportionality[19] Is this outcome "out of all proportion" to the offending? Subject to what I haveto say below about the legitimacy of screening, I consider that exclusion from work asCommunication Warfare Specialist and/or administrative discharge would be out ofall proportion to the offending. This case falls within the class of case where dischargeshould be available because the black mark of conviction is likely to cut off or cutshort a professional career path.5 In this case, a highly specialised career path.[20] However, as the Court of Appeal affirmed in Maraj, due deference is affordedto screening processes, particularly where the public interest is engaged, and thoseprocesses are fair to the affected persons.6 Relevantly, that Court approved thefollowing statement by Wylie J in Roberts v Police:75 See Gaunt v Police [2017] NZCA 590 at [15]; Puriri v New Zealand Police [2018] NZHC 1682;cf Pereira v Police [2019] NZHC 2130.6 Maraj v Police [2016] NZCA 279 at [36].7 At [28], citing Roberts v Police (1989) 5 CRNZ 34 (HC) at 36. See also Pereira v Police at [28],above at n 5.It seems to me, and in this respect I think I echo what Holland J has said, thatit would be inappropriate, at any rate in all but the most exceptional case, forthis Court to substitute its discretion as to what may or may not be relevant onthe seeking of admission to a particular profession for the discretion whichParliament has seen fit to vest in a statutory body. Indeed it is not perhapsgoing too far to say that to do so the Court would be actively concealing fromthe statutory body information which ought properly to come before that body.[21] In the present context, I accept the Royal New Zealand Navy is best placed toassess whether Mr O'Neill possesses the requisite judgement and character for his roleas a Communication Warfare Specialist. However, it is important to note thatMr O'Neill has been completely transparent with the Navy about his offending. Notonly is this to his credit, but I can proceed on the basis that he will be thoroughly vettedby the Navy in terms of his ongoing suitability. The normal utility of conviction as alegitimate trigger for vetting is therefore not an issue I need be concerned about.Conversely, the already real risk of permanent loss of security clearance and relatedjob opportunity, should not be exacerbated by the fact of conviction.Overall conclusion[22] Mr O'Neill's offending involved a momentary lapse of judgement which hadunintended consequences for the victim. It should not, by any ordinary measure, bringto an end a 17-year professional association with the Navy, especially in a hard-earnedcapacity such as that of a Warfare Communication Specialist. It may be that the Navydecides nevertheless, applying the special standards it must apply in the vetting of itsstaff, that Mr O'Neill is no longer suitable for his specialist role and/or should bedischarged from service. But that should not be premised on the black mark ofconviction per se. To do so would, in my view, be out of all proportion to hisoffending. I am thus satisfied that s 106 is properly engaged.[23] In the result, the appeal is allowed. Mr O'Neill is discharged withoutconviction.