WEWEGE v NEW ZEALAND POLICE [2021] NZHC 92

WEWEGE v NEW ZEALAND POLICE [2021] NZHC 92 [4 February 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-385[2021] NZHC 92BETWEEN MONIQUE WEWEGEAppellantAND NEW ZEALAND POLICERespondentHearing: 4 February 2021Appearances: S Kim and M S Sweetman for AppellantC P Howard for RespondentJudgment: 4 February 2021(ORAL) [FINAL] JUDGMENT OF LANG J[on appeal against conviction and sentence]Solicitors:Kayes Fletcher Walker, AucklandPublic Defence Service, Auckland[1] Following a Judge alone trial in the District Court Ms Wewege was foundguilty on charges of assault with intent to injure and threatening to kill. She was foundnot guilty on a charge of strangulation.1[2] On 24 November 2020 I allowed Ms Wewege's appeal against conviction onthe charge of threatening to kill. I dismissed the appeal on the charge of assault withintent to injure.2 It is now necessary to reconsider the issue of sentence in light ofthose decisions. As matters currently stand Ms Wewege is subject to a sentence ofsupervision for 12 months and she has also been ordered to perform 150 hourscommunity work. I need to review those sentences in light of my own findingsregarding the seriousness of the offending and in light of the fact that Ms Wewege hasnow sought a discharge without conviction.Application for discharge without conviction[3] 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.[4] 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.1 New Zealand Police v Wewege [2020] NZDC 19161.2 Wewege v New Zealand Police [2020] NZHC 3117.[5] 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.[6] 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 go grant orrefuse to grant a discharge.DecisionOverall gravity of the offending[7] The first issue is the overall gravity of the offending. Several factors arerelevant in this context. The first is the circumstances in which the offending occurred.In the present case I am satisfied the offending occurred in the context of a spontaneousargument between Ms Wewege and the complainant. It resulted in the infliction ofviolence in the form of clawing around the complainant's eyes. This left no permanentdamage to the complainant but resulted in some discomfort to her for a considerableperiod after the incident giving rise to the charge. As the Crown points out, any violentoffending directed towards the eyes is serious because the eyes are a vulnerable partof the body and they are also a vital part of bodily function. Any compromise of theability of the eyes to provide the function of sight is obviously a serious matter. Having3 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].said that, I would describe the overall circumstances of the incident giving rise to theconviction as being low to moderate.[8] This assessment needs to be viewed in light of the fact that Ms Wewege has noprevious convictions. Previous good character will generally reduce the overallculpability of offending. Ms Wewege did not enter guilty pleas to the charges andguilty pleas can further lessen the gravity of the offending. Balanced against that,Ms Wewege has now succeeded in defending two of the three charges that sheoriginally faced. She is unable, however, to claim a further discount or credit forremorse because quite clearly there is no evidence she is remorseful for the incidentthat gave rise to the charge. Taking these factors into account I still assess the overallgravity of the offending as being low to moderate.Direct and indirect consequences of conviction[9] The principal consequence of a conviction from Ms Wewege's perspective isthe likely effect a conviction will have on her ability to obtain employment. She losther job when the COVID-19 pandemic broke out. She has placed evidence before theCourt confirming that she has tried on numerous occasions since then to obtain gainfulemployment in a wide variety of fields. Some of the applications have beenunsuccessful for reasons entirely unconnected to the existence of a conviction. It isclear, however, that the prospects of success of at least some of her applications foremployment are likely to depend in small or large part on whether or not she ultimatelysustains a conviction as a result of the present offending.[10] Ms Wewege currently has outstanding applications for employment beingconsidered by a roofing company and a security company. It is difficult to see howthe existence of a conviction on the present charge could be of any relevance to theroofing company, particularly once the penalty appropriate for the offending is takeninto account. I consider, however, that an entity such as a security company should beentitled to know about the conviction because it could justifiably influence thecompany's approach to employing Ms Wewege. The incident giving rise to the chargeamounted to a disproportionate response to a perceived slight by the complainant. Asecurity firm should know that Ms Wewege reacted inappropriately and in a physicalway to a slight of that kind.[11] I therefore accept that the existence of a conviction is likely to have an impacton Ms Wewege's prospects of obtaining some forms of employment in the future.However, I consider this to be a natural consequence of the nature of the charge andthe nature of certain types of employment to which the conviction is likely to berelevant. I do not consider the likely impact on her ability to obtain employmentgenerally as being out of all proportion to the overall gravity of the offence. Rather, Iwould describe it as being low to moderate. This means it is proportionate to theoverall gravity of the offence.[12] That being the case, Ms Wewege has not satisfied the statutory criteria thatwould permit me to enter a discharge without conviction.[13] The application for discharge is accordingly dismissed.The appeal against sentence[14] It follows that I must now consider the penalty to be imposed for the offence.Given that the charge of threatening to kill has now been removed it should obviouslybe lower than that assessed by the Judge. In addition, I do not see what a sentence ofsupervision would achieve because I do not detect any underlying issues so far asMs Weweke is concerned. The offending suggests she may have a tendency to loseher temper and react inappropriately when confronted by what she considers to berudeness on the part of others. I do not see a sentence of supervision as being necessaryto address that issue. She must take the consequences of that particular personalitytrait as she finds them.[15] Similarly, I do not consider a sentence of community work is necessary.Overall, I consider the fact of a conviction to be sufficient to demonstrate thatMs Wewege has failed to meet her responsibilities towards others on one occasion. Iam satisfied that the appropriate penalty in this case is that Ms Wewege be convictedand discharged. I quash the sentences of supervision and community work.Ms Wewege is convicted and discharged on the charge of assault with intent to injure.I make an order accordingly.Lang J