S v R [2022] NZHC 164

S v R [2022] NZHC 164 [11 February 2022]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OFAPPELLANT/COMPLAINANT PURSUANT TO SS 200 AND 201CRIMINAL PROCEDURE ACT 2011. SEE PARAGRAPH [76]http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.htmlIN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2021-485-89[2022] NZHC 164BETWEEN MR SAppellantAND THE QUEENRespondentHearing (by VMR): 3 February 2022Counsel: N Levy QC for the AppellantR K Thomson for the RespondentJudgment: 11 February 2022JUDGMENT OF GWYN JIntroduction[1] The appellant appeals against two decisions of the District Court:(a) On 17 June 2021 to refuse the application for dismissal of charges foroffending when the appellant was within the Youth Court's jurisdiction(pursuant to s 322 of the Oranga Tamariki Act 1989).11 R v S [2021] NZDC 11439.(b) On 12 November 2021 on conviction and sentence of eight months andtwo weeks' home detention.2[2] On 12 November 2021 the appellant pleaded guilty to:(a) one representative charge of indecent assault on a girl aged 12-16 foroffences during the period 1 January 1980 to 2 August 1984;3 and(b) one charge of incest relating to offending in December 1984.4[3] The appellant was initially charged with:(a) five charges of indecently assaulting a girl between 12 and 16 years ofage pursuant to s 134(2)(a) of the Crimes Act 1961;(b) one charge of sodomy pursuant to s 142(1)(a) of the Crimes Act 1961;and(c) one charge of rape pursuant to s 128(1)(a) of the Crimes Act 1961.Background[4] Some of the facts remain disputed. What follows is a summary of the facts onthe basis of which S pleaded guilty and was sentenced.[5] S is now 56 years old. The victim, S's sister, is two and three quarter yearsyounger than S. The charges, laid in July 2020, relate to offending which occurredbetween 1 January 1980 and 31 December 1984, when S was 14 to 19 years old andthe victim was 11 to 16 years old.[6] The representative charge of indecent assault relates to four incidents,including instances of S touching the victim on her vagina; anal penetration of the2 R v S [2021] NZDC 22276.3 Crimes Act 1961, s 134(2)(a): maximum penalty of 7 years' imprisonment. This is now s 134(3)and carries the same maximum penalty.4 Section 130: maximum penalty of 10 years' imprisonment.victim by S; S performing oral sex on the victim; and S making the victim performoral sex on him. The charge of incest relates to an incident in 1984 when S climbedinto bed with the victim and began to digitally penetrate her vagina and climbed ontop of her and penetrated her vagina with his penis.Lower Court's decisionsJudgment of 17 June 2021[7] S made an application for dismissal of four charges of indecent assault and thecharge of sodomy, pursuant to s 322 of the Oranga Tamariki Act, on the grounds thatthe time elapsed between the date of the commission of the alleged offending and thehearing has been unduly protracted.[8] Judge Kelly declined the application.[9] The Judge did not find the delay of 37 years to be unduly protracted from theperspective of S, who is now 56 years old. This was because there was a validexplanation for the delay; S's age at the time the charges were laid did not engage theprinciple that decisions should be made in a timeframe appropriate to a young person'ssense of time; and S's offending continued when he was 19 years old.[10] The Judge found that, even if the delay had been unduly protracted, she wouldnot have exercised her discretion under s 322 to dismiss the charges. This was becausethe offending was serious; the offending continued until S was older, including oncehe was an adult; S provided cogent corroboration of the offending by makingadmissions/partial admissions; there is public interest and strong policy support intrying historical sexual offences; and because of the complainant's personal interest inthe case proceeding. The Judge balanced these factors against the factors in favour ofdismissal, which were that S had not subsequently offended and had undertakenextensive counselling. The balancing exercise resulted in the outcome that the chargesshould not be dismissed.Judgment of 12 November 2021[11] Subsequently the charges were amended and on 12 November 2021 S pleadedguilty to one representative charge of indecent assault and one charge of incest.[12] S applied for a discharge without conviction in relation to that offending5 andpermanent name suppression.[13] The Judge declined S's application for a discharge without conviction. TheJudge considered that although the consequences of conviction were serious, theywere not out of all proportion to the seriousness of offending.[14] In sentencing S, the Judge began with a starting point of four years'imprisonment: three years for the indecent assaults, uplifted by one year for the incestcharge. The Judge then gave a 65 per cent reduction for the substantial mitigatingcircumstances, as follows:• 25 per cent for S's guilty plea;• 20 per cent for S's youth at the time of offending;• 15 per cent for rehabilitation; and• Five per cent for remorse.[15] This would have led to a prison sentence of just less than 17 months'imprisonment. However, the Judge considered home detention appropriate andsentenced S to eight months and two weeks' of home detention with standardconditions.[16] On the issue of name suppression, the Judge found that publication would leadto extreme hardship for S on mental health grounds. Accordingly, permanent namesuppression was granted.5 Sentencing Act 2002, s 106.Grounds of appeal[17] The grounds of appeal are that there has been a miscarriage of justice in theimposition of a conviction for the offending as a s 322 Oranga Tamariki Act dischargeand/or a discharge without conviction should have been granted.6[18] Alternatively, if the conviction was not a miscarriage of justice, there has beenan error in sentencing and a different sentence should be imposed.7SubmissionsFor the appellant[19] The central submission for the appellant is that on both occasions theDistrict Court failed to give appropriate weight to the breadth and depth of S'sacceptance of guilt, remorse, and rehabilitation since offending. This is relevant to theappeal against conviction and sentence.Appeal against conviction (refusal of s 322 application for dismissal of youth charges)[20] First, the appellant submits that the delay between the offending and date ofhearing, of 37 years,8 is unduly protracted, from S's perspective. This is because Shas been dealing with the guilt, contrition and worry as consequences of the offendingsince it occurred. He has made himself accountable for the offending, including byearly admissions of guilt and steps taken in rehabilitation. The victim is not thereforedependent on the criminal justice system for vindication of the harm that has beendone to her.[21] Second, the appellant submits that because the delay was unduly protracted,the Judge should have exercised her discretion to dismiss the charges of youthoffending. The appellant's submissions emphasise S's rehabilitation efforts, includingadmissions made by S and his commitment to therapy. In particular, the youth justice6 Criminal Procedure Act 2011 s 232.7 Section 250.8 Above n 1, at [72].principle of considering the wellbeing and best interests of the young person is invokedas support for dismissal under s 322.[22] The appellant's submissions describe S as a sensitive young person withdeveloping mental health problems who was not supported by his parents or teachers,and, came to develop an obsession with sexual activity. This context is used to explainS's offending.[23] Under this aspect of the appeal, the appellant finally submits that if the youthcharges are dismissed pursuant to s 322, the single charge of incest would not havecome to court and could not require a prison sentence. Instead, an emotional harmpayment and/or community work would be an appropriate sentence.Appeal against sentence (if charges not dismissed under s 322)[24] The appellant argues that, when viewed in context, the offending was of minorto moderate seriousness only, rather than the "moderate to moderately serious" labelJudge Mill adopted or Judge Kelly's description of the offending as "serious". Thecontext includes a difficult upbringing for S; S's youth at the time of offending; andS's honest belief that the victim was consenting. Furthermore, the appellant arguesthat the offending was considered more serious than it should have been by thesentencing Judge because he was unduly influenced by the victim impact statementwhich went "far beyond" the effects of the offending S was being sentenced for.[25] The appellant submits that a starting point of imprisonment was not appropriateand led to a sentence that was manifestly excessive. Additionally, the available andappropriate discount for mental health (of 20 per cent) was not included and a furtherdiscount (of five per cent) should have been applied for youth (instead of the20 per cent already applied). Failing to do so also made the sentence manifestlyexcessive.[26] Finally, home detention was an inappropriate sentence because of S's mentalhealth issues.Composite appeal against conviction and sentence (refusal of s 106 discharge withoutconviction application)[27] The appellant submits that the test for discharge without conviction was madeout here because the consequences of conviction would be out of all proportion to theseriousness of the offending.[28] The appellant submits the seriousness of the offending was overstated in thesentencing judgment. And the serious adverse consequences of conviction,particularly on S's employment prospects, were not fully appreciated. Consideredtogether with the internal guilt S has already punished himself with, the conviction isout of all proportion to the offending.For the respondentAppeal against conviction (refusal of s 322 application for dismissal of youth charges)[29] The respondent submits that the Judge was correct in concluding that the delayof 37 years in this case was not unduly protracted: there was a reasonable explanationfor the delay, and, importantly, S was not blindsided by the charges, having known formost of his adult life that the victim considered he had sexually abused her. Moreover,the offending was not a one-off; rather it was a pattern which started when S was ayoung person and continued into young adulthood.[30] Even if the delay had been unduly protracted, the respondent submits that theJudge's exercise of discretion not to dismiss the charges was not an error of law as theJudge considered all relevant principles and did not rely upon any irrelevant principles.The respondent submits that although the "best interests of the young person" is onerelevant youth justice principle, as noted by the appellant, other principles includepublic interest, the interests of the victim and accountability of the young person, allof which support not dismissing the youth charges.[31] Finally, the respondent submits that S's offending at the time when he was19 years old shows that his offending was not an impulsive error of judgement or abrief phase — the kind of offending s 322 is aimed at. Rather, it was compulsive whenhe knew responding to the compulsion was wrong.Appeal against sentence (if charges not dismissed under s 322)[32] The respondent submits that a sentence appeal must focus on the end sentencerather than the process by which it was reached. When this is considered, the endsentence S received of eight and a half months' home detention is not manifestlyexcessive for his moderate to moderately serious offending. Further, the 65 per centdiscount is irreproachable, if not generous.[33] The respondent submits that S has the resources and family support to bettermanage boredom and loneliness during the home detention sentence compared tomany other offenders.Composite appeal against conviction and sentence (refusal of s 106 discharge withoutconviction application)[34] Under this head, the respondent submits that the appellant must show an errorin the sentencing assessment such that the consequences of conviction would be outof all proportion to the gravity of the offence.[35] The respondent submits that the Judge was correct to conclude that theoffending was moderate to moderately serious. Further, the respondent disputes theappellant's allegation that the sentencing Judge used the victim impact statement in anillegitimate way.[36] As a matter of jurisdiction, the respondent notes that the appellant's appealagainst the refusal to grant a s 322 dismissal must also pass through the gateway ofseeking to vacate his guilty plea. The orthodox position is that this is permitted onlyin exceptional circumstances. However, the Crown concedes that the best way toapproach this aspect of the appeal is that the s 322 decision affected the trial outcome,because S would not have pleaded guilty if the charges had been dismissed. If thatdecision was in error, a miscarriage of justice would have occurred and S must beallowed to vacate his plea to allow the appeal to proceed.Relevant lawIssue 1: Appeal against conviction (refusal of s 322 application for dismissal of youthcharges)Vacating Guilty Plea[36] In the normal course where an appellant has pleaded guilty, an appeal againstconviction will succeed only in exceptional circumstances.9 The categories of caseswhere a guilty plea may be vacated after conviction are not closed.10 The appellantmust show that a miscarriage of justice will result if the conviction is not overturned.11Not every "error or irregularity" causes a miscarriage of justice.12Section 322 two-stage test[37] Section 322 of the Oranga Tamariki Act 1989 states:332 Time for instituting proceedingsA Youth Court Judge may dismiss any charge charging a young personwith the commission of an offence if the Judge is satisfied that thetime that has elapsed between the date of the commission of thealleged offence and the hearing has been unnecessarily or undulyprotracted.[38] Section 322 applies to an offender who was a young person at the time of theoffending, even if they were not a young person at the time they were charged.13[39] A s 322 application creates a two-step inquiry. First, it is necessary to decidewhether the time elapsed has been unnecessarily or unduly protracted.14 An appealagainst this decision is a general appeal. If the delay is found to be unduly protracted,the second step involves considering whether the Court's discretion should beexercised in favour of dismissing the charges.15 An appeal against the second step isan appeal against discretion.9 R v Le Page [2005] 2 NZLR 845 (CA) at [16].10 Gleason-Beard v R [2018] NZCA 349, [2018] 3 NZLR 699 at [45]; and Wilson v R [2015] NZSC189, [2016] 1 NZLR 705 at [104].11 Criminal Procedure Act 2011, s 232(2)(c).12 Matenga v R [2009] NZSC 18 at [30].13 H v R [2019] NZSC 69, [2019] 1 NZLR 675 at [28].14 R v Mackinder [2020] NZCA 539 at [30].15 At [30].Stage 1: Unduly protracted delay[39] Whether the time elapsed has been unduly protracted must be considered fromthe perspective of the accused.16 As the Supreme Court held in H v R, depending onthe circumstances, even long delays may not be considered unduly protracted for anolder accused.17 A finding of the delay being unduly protracted would be more likelywhere the alleged offending took place when the accused was very young or if theoffending was not very serious.18[40] On the other hand, youth justice principles may mean that the discretion todismiss a charge under s 322 should be exercised even where the alleged offendingwas serious.19 The Supreme Court noted that "[t]his would especially be the casewhere there is good reason to consider the person has been rehabilitated (for examplewhere there has been a long period without any serious offending)."20 The s 322inquiry, therefore, requires a careful consideration of the particular circumstances ofeach case, and, "[u]ltimately, each case must turn on its own facts and the period ofdelay in itself is not determinative."21[41] The Supreme Court also considered relevant the fact that the accused in H v Rhad committed further sexual offending after fully becoming an adult.22 But the Courtcautioned against viewing "youth" as ending after a person had reached 18 years ofage. Instead, youth—as a period of development—is a broader concept than childhoodand extends past 18 years of age.2316 H v R, above n 9, at [44]; and Solomon v R [2019] NZCA 616 at [11].17 At [44].18 At [34].19 At [34].20 At [34].21 Mackinder, above n 10, at [57].22 H v R, above n 9, at [48]. Subsequent offending against one of H's victims was described by theCourt as occurring "long after he became fully adult".23 At [33]Stage 2: Exercise of discretion[42] The exercise of discretion in the second step of the inquiry to determinewhether the charges should be dismissed is to be guided by the youth justice principlesin the Oranga Tamariki Act.24 These are:25(a) the well-being and best interests of the child or young person; and(b) the public interest (which includes public safety); and(c) the interests of any victim; and(d) the accountability of the child or young person for their behaviour.[43] Relevant to the exercise of the discretion are the following factors: the age ofthe accused at the time of laying charges;26 the age of the accused at the time of theoffending;27 the seriousness of the offending;28 subsequent offending, particularlywhen committed in adulthood;29 and whether the offending was a continuing patternor a one-off.30Issue 2: Appeal against sentence (if charges not dismissed under s 322)[44] Under s 250 of the Criminal Procedure Act 2011 an appeal against sentence isan appeal against a discretion and must only be allowed if the Court is satisfied that,for any reason, there was an error in the sentence imposed and a different sentenceshould have been imposed.31 Although s 250 does not refer to "manifestly excessive",it is a principle that is well-established in the Court's approach to sentence appeals.32The Court cannot "tinker" with an end sentence if it is within range.33 The focus is on24 At [46]; and Mackinder, above n 10, at [38].25 Section 4A(2).26 H v R at [47].27 At [48].28 At [48].29 At [48].30 Solomon, above n 12, at [26].31 Tutakangahau v R [2014] NZCA 279.32 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].33 Ripia v R [2011] NZCA 101, at [15].the final sentence and whether that was in the available range, rather than the exactprocess by which it was reached.34Issue 3: Composite appeal against conviction and sentence (refusal of s 106 dischargewithout conviction application)[45] Section 106 of the Sentencing Act 2002 provides that if a person who ischarged with an offence is found or pleads guilty, a Court may discharge the offenderwithout conviction, unless by any enactment applicable to the offence the Court isrequired to impose a minimum sentence.35 Under s 107 the Court must be satisfiedthat the direct and indirect consequences of a conviction would be out of all proportionto the gravity of the offence.36AnalysisIssue 1: Appeal against conviction (refusal of s 322 application for dismissal of youthcharges)Vacating Guilty Plea[46] S's appeal against the s 322 decision will be considered, notwithstanding hisguilty plea, on the basis that the decision affected the trial outcome, as S would nothave pleaded guilty had the charges been dismissed. Accordingly, if the s 322 decisionhad been made in error, a miscarriage of justice would have occurred, and therefore,the guilty plea must be vacated under s 232 of the Criminal Procedure Act.37[47] I turn now to assess the merits of the two-stage s 322 decision.Stage 1: Unduly protracted delay[48] There is no doubt that 37 years is, objectively, a very long period. In addition,this case is highly unusual in the way in which the aftermath of the offending has beendealt with. This is not a case where the facts of the abuse lay dormant for 37 years.Rather, both the victim and S have made extensive efforts to work through the adverse34 Ripia v R [2011] NZCA 101 at [15].35 Sentencing Act 2002, s 106.36 Section 107.37 Criminal Procedure Act, s 232(2)(c) and s 232(4)(a).consequences of the offending. The appellant first took responsibility for hisoffending in 1984 when he informed his and the victim's mother about the sexualabuse and promised that it would not happen again. In 1988, the appellant shared hisfeelings of guilt with his sister. He disclosed the fact of his offending to both his long-term partners early on in the relationships. In 1992, after he was told his sisterattempted suicide because of the sexual abuse, the appellant—in accordance with hissister's wishes—sought professional help, which included joint counselling with hissister. At this point the appellant again took responsibility for the abuse and apologisedfor it. Since 2003, the appellant has continued his engagement with therapy. Duringthis time, there was a period of reconciliation which suggests some form of closurehad been achieved between the appellant and his sister. However, the relationshipdeteriorated in 2012.[49] Focusing on the perspective of the appellant only, as required by H v R, I seesignificant evidence of genuine efforts by S towards rehabilitation. He has not let the37 years simply pass by. Rather, during that time he has attempted to actively holdhimself accountable and responsible for the offending, including through hisengagement with counselling—both jointly with his sister, and, separately as anindividual. He has managed to overcome the difficulties he himself faced in childhoodto contribute positively to society. Significantly, there has been no further offendingduring that 37 year period.[50] The offending that is the subject of the incest charge took place when S was19 years of age, and therefore, outside of the jurisdiction of the youth justiceprinciples. However, it would be artificial to draw a line between that incident and theoffending that falls within the s 322 inquiry. It is clear that both sets of offending arepart of the same continuing pattern—a pattern during which the accused was adeveloping young person. In my view, the incest offending does not count as a factoragainst dismissal of charges under s 322 as it is not an example of reoffending once Shad gained the maturity of an adult. Rather, consistent with the research cited by theCourt of Appeal in Churchward v R and approved by the Supreme Court in H v R, S'slater offending was a part of the continuing pattern that started in his youth.[51] In these circumstances, when assessed from the perspective of the appellant, Ifind that the delay between the offending and date of hearing was unduly protracted.In reaching this view, I have had the benefit of having before me S's affidavitexplaining his perspective of the delay and the Victim Impact Statement, neither ofwhich was before Judge Kelly in the District Court.Stage 2: Exercise of discretion[52] Having found that the delay of 37 years between the offending and date ofhearing was unduly protracted from the perspective of the accused, I turn now to theexercise of the residual discretion in the second stage of the s 322 test.[53] An important reason for the existence of the s 322 discretion to dismiss chargesfor youth offending is to enable rehabilitation to occur in line with the general objectin s 208(2)(f)(i) of the Oranga Tamariki Act. In this case, that rehabilitation has beenunderway for much of S's adult life. S has admitted the offending; recognised theharm his offending has caused; and taken active steps to acknowledge the harm he hascaused to his sister. I do not mean to suggest that S's steps at rehabilitation can erasethe consequences of the offending for the victim, but an offender who takesresponsibility for those consequences exemplifies the kind of genuine rehabilitation s322 is intended to enable. I consider S's admissions to the offending count as a factorin favour of dismissal of the youth offending charges. An offender who admits andaccepts responsibility for his offending receives greater credit under s 322 than anoffender who continues to deny his offending. S admitted the incest offending to hismother, the day after it occurred. Subsequently he has admitted the conduct to whichhe pleaded guilty to the victim, her psychologist and the Police. It would not, in myview, be consistent with the youth justice principles in the Oranga Tamariki Act toweigh S's admissions against the exercise of the discretion as the District Court did.An acceptance of guilt helps to meet the public interest in resolving complaints,holding the offender accountable for their offending and the interests of the victim.I accept the appellant's submission that it meets the public interest to give credit foraccountability and acceptance of responsibility.[54] That is particularly so where there is no ongoing public safety issue. TheDistrict Court Judge pointed to the incest offending, when S was 19 years of age, as afactor weighing against the exercise of the discretion. However, it seems to me thatoffending was in reality part of the continuing pattern of S's offending that began inhis youth. At 19 he was not yet a mature adult and I do not think it is appropriate totreat that offending as an example of subsequent re-offending as a mature adult, in theway that H's subsequent reoffending was treated in H v R. The incest offending here,therefore, does not preclude the exercise of the discretion to dismiss the youthoffending charges.[55] Finally, I note that the risk of S reoffending is very low. The extensiverehabilitation efforts S has taken to minimise his chance of reoffending and to acceptresponsibility for past offending are further reasons for exercising the discretion todismiss the youth offending related charges in this case.[56] My decision under s 322 that the youth offending related charges against Sshould be dismissed does not reflect any criticism of the reasons for delay in laying apolice complaint. As noted by the Court of Appeal, "[i]t takes courage and emotionalstrength for complainants of sexual abuse to come forward".38 Nor does it in anywaydiminish the impact of that offending on the victim. Rather, the decision reflects theunique circumstances of this case.[57] I allow the appeal against the refusal to dismiss the charges under s 322 of theOranga Tamariki Act. Those charges are dismissed.Issue 3: Composite appeal against conviction and sentence (refusal of s 106 dischargewithout conviction application)[58] Given my decision that the youth offending charges ought to be dismissedunder s 322, the only aspect of the appeal that remains before me relates to the incestconviction, and whether S ought to have been discharged without conviction for thisoffending.38 At [54].[59] Section 106 of the Sentencing Act is complemented by s 107. Under thisprovision, a Court must be satisfied that the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence.39[60] The Court of Appeal has characterised an assessment under s 107 as a three-step test:40[11] It is settled that a court considering a discharge under s 106 of theSentencing Act 2002 should follow a three-step process addressing theguidance given in s 107. These steps are:(a) identification of the gravity of the particular offence, takinginto account all aggravating and mitigating factors of theoffending and the offender;(b) identification of the direct and indirect consequences ofconviction; and(c) a determination of whether those consequences are "out of allproportion" to the gravity of the offence.Only if that threshold is met can the court move to consider the residualdiscretion under s 106. There must be a "real and appreciable" risk that anygiven consequence will happen. This standard recognises that the court isassessing the likelihood of something that may happen in the future.[61] In Z v R, the Court of Appeal clarified the approach to applying each elementof the s 107 assessment:41[W]hen considering the gravity of the offence, the court should consider allthe aggravating and mitigating factors relating to the offending and theoffender; the court should then identify the direct and indirect consequencesof conviction for the offender and consider whether those consequences areout of all proportion to the gravity of the offence; if the court determines thatthey are out of all proportion, it must still consider whether it should exerciseits residual discretion to grant a discharge (although, as this Court said inBlythe, it will be a rare case where a court will refuse to grant a discharge insuch circumstances).[62] With regard to the assessment of direct and indirect consequences of convictionon a defendant, the Court of Appeal has stated that:4239 Section 107.40 Prasad v R [2018] NZCA 537 at [11].41 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].42 DC (CA47/2013) v R [2013] NZCA 255.The Judge does not have to be satisfied that the direct and indirectconsequences will inevitably or probably occur; it is sufficient if he or she issatisfied there is a real and appreciable risk of such consequences.[63] Furthermore, in relation to the final step, the Court of Appeal has affirmed inR v Smyth that: 43[12] It is not enough that the consequences of a conviction outweigh thegravity of the offending. Significantly more is required. The consequencesmust be out of all proportion to the gravity of the offending before the courthas jurisdiction to grant a discharge without conviction.[64] First, I consider the gravity of the offence. Removing the youth justiceoffending from the sentencing exercise changes the gravity of the offending comparedto the analysis undertaken by Judge Mill in the District Court and reduces the overallseriousness of the offending.[65] Factors specifically relevant to the incest offending include, first, S's honestbelief that the victim was consenting. S accepts now that she was not and says he nowunderstands the factors that shaped her responses, but he says that at the time hehonestly believed she was consenting.[66] With the victim's consent, S admitted the incest offending to their mother thefollowing day. In 1992, he acknowledged it to the victim and her psychologist andsubsequently admitted it to the Police. S continues to accept responsibility for theoffending. Finally, as already canvassed above in detail, S's rehabilitation efforts area significant mitigating factor for the discharge without conviction inquiry.[67] I conclude that the offending was moderately serious.[68] I turn now to consider the consequences of conviction for S, and whether theywould be disproportionate.[69] S submits that the consequences would be the complete removal of his abilityto work in his established field. The need to declare a conviction for sexual offendingwould likely end any recruitment process for employment in his profession,43 R v Smyth [2017] NZCA 530.appointment to a board or for the specialist services that S is known for. Apart fromthe professional consequences, S also faces serious mental health consequencesarising from conviction. The reports from counsellors provided to the Court detail theconsiderable concern S is contending with based on the effects a conviction wouldhave on him and those close to him. These concerns have led to bouts of extremedespair and suicidal thinking. Furthermore, the life-long sense of shame and guilt Scarries would be exacerbated by a conviction.[70] I accept that there is a real or appreciable risk of those consequences (bothprofessional and personal) arising. The appellant may well be able to obtaincertification from the relevant professional body, notwithstanding his conviction, asthe Crown submits. However, a conviction of this nature would almost certainlyexclude him completely from employment and appointment in his acknowledgedfields of expertise when today's significantly changed professional and businessenvironment is considered. The real risks to the appellant's fragile mental health alsoweigh significantly on the discharge without conviction decision. Those are not riskswhich can be adequately dealt with by financial resources and family support, assuggested by the Crown.[71] Accordingly, I am satisfied that the adverse consequences discussed abovewould be out of all proportion to the seriousness of the offending and it is appropriateto discharge S without conviction.[72] By its nature an assessment whether the consequences of a conviction wouldbe out of all proportion to the gravity of the offence focuses on the offender. Aconclusion that the consequences would be disproportionate does not, I emphasise,detract from the acknowledged impact of the offending on the victim.[73] I uphold the appeal against refusal to grant the application for a dischargewithout conviction.Result[74] The appeal against the District Court's s 322 decision is allowed and thecharges are dismissed.[75] The appeal against refusal to discharge without conviction (in relation to theremaining, incest, offending) is granted.[76] I confirm that S has permanent suppression of name, occupation andidentifying details, as granted by the District Court.Gwyn JSolicitors:Mr Nisbet, WellingtonCrown Law, Wellington