SUPRA v NEW ZEALAND POLICE [2020] NZHC 2959

SUPRA v NEW ZEALAND POLICE [2020] NZHC 2959 [10 November 2020]ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES,OCCUPATIONS OR IDENTIFYING PARTICULARS OF CONNECTEDPERSONS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360349.htmlIN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000270[2020] NZHC 2959BETWEEN NATALIA SUPRAAppellantAND NEW ZEALAND POLICERespondentHearing: 9 November 2020Appearances: D Schellenberg and C J J Mair for AppellantK O M Fitzgibbon for RespondentJudgment: 10 November 2020JUDGMENT OF VENNING JAppeal against sentence and convictionsThis judgment was delivered by me on 10 November 2020 at 2.15 pm.Registrar/Deputy RegistrarDateSolicitors: Meredith Connell, AucklandCounsel: D Schellenberg/C J J Mair, Auckland[1] Following a defended hearing in the District Court at Auckland Judge A JFitzgerald convicted Natalia Supra under the Summary Offences Act 1981 on onecharge of common assault and one charge of wilful damage.1 Ms Supra was convictedand ordered to come up for sentence if called upon within 12 months on the assaultcharge and convicted and ordered to pay reparation of $382.60 on the intentionaldamage charge. The reparation has been paid.[2] In 2019 Ms Supra applied to the District Court for a rehearing under s 177 ofthe Criminal Procedure Act 2011 (CPA). Ms Supra wished to pursue a dischargewithout conviction. In a judgment delivered on 4 June 2020 Judge Fitzgeralddismissed her application for a rehearing and set out the reasons why he considered adischarge without conviction should not be granted.2Jurisdiction[3] A preliminary issue arises. That is whether an appeal lies from the Judge'sdismissal of Ms Supra's application for a rehearing under s 177 of the CPA.[4] The starting point is that appellate powers are purely statutory. There is noscope to use the Court's inherent jurisdiction to create a pathway for an appeal that isnot provided for by statute.3 Part 6 of the CPA does not provide a direct appellatepathway from a decision under s 177 of the Act.[5] Mr Schellenberg suggested that resort might be had to an appeal under s 296CPA on a question of law. Section 296 does provide for an appeal on a questionfollowing the determination of the charge. However, without deciding the point, itmay be stretching the statutory language to apply it to permit an appeal on a questionof law from a decision under s 177 of the CPA. The Court of Appeal have confirmedthat an expansive view of s 296 should not be taken.4 As an alternative, in anappropriate case judicial review might lie from a decision of the District Court Judgeunder s 177.1 New Zealand Police v Supra DC Auckland CRI-2013-004-013749, 10 September 2014.2 New Zealand Police v Supra [2020] NZDC 10294.3 Guy v Preliminary Proceedings Committee of the Medical Council of New Zealand [1995] NZAR67 HC), (1994) 8 PRNZ 109.4 Anderson v R [2015] NZCA 518 at [54].[6] However, it is strictly unnecessary to determine the jurisdictional issue in thiscase as both counsel accepted that the real focus of the appeal is on whether Ms Suprashould have been granted a discharge without conviction and the Court's focus shouldbe on that.[7] The appeal against the initial conviction and sentence is out of time. Thetouchstone for granting an application to extend time is the interests of justice in theparticular case.5 Applications for extension of time are often reduced to the reasonsfor the delay and the merits of the proposed appeal.6[8] In the present case it appears that Ms Supra did not receive advice regardingthe ability to pursue the discharge for conviction until she lodged the application forrehearing. Further, as noted, the Police have accepted that the Court may treat thisappeal as an appeal against the 2014 decision insofar as Ms Supra seeks a dischargewithout conviction and have also confirmed they do not oppose an extension of time.7[9] An extension of time to appeal out of time is granted.Background[10] I take the background facts as found by Judge Fitzgerald in finding the chargesproved. Ms Supra and the victim of the offences had a brief relationship. As aconsequence of the relationship, they had a son together, who at the time of theoffending was four years old. There were ongoing issues in the Family Court betweenthem, particularly in relation to the arrangements for E's contact with his father.[11] The offending occurred on 16 November 2013. At the time E was with hisfather for the weekend. The victim had sent a text to Ms Supra advising her that hewas taking E away for the weekend and would not return until Monday. Sheconsidered that to be in breach of the contact arrangement. In the event the victim didnot take E away for the weekend. At about 5.30 pm the victim, his daughter S, and E,were watching television at the victim's address. Ms Supra was driving past the5 R v Knight [1998] 1 NZLR 583.6 Mikus v R [2011] NZCA 298 at [26].7 Respondent's submissions at 2.5.address. She wanted to check if the property was on the market because she had beenadvised it may be relevant in relation to an outstanding child support review.[12] Ms Supra said she noticed the victim's car and so knew that he had not goneaway. She stopped at the gate and beeped the car horn but no-one came. She thenentered the property. She said the gate was slightly open so she could walk throughit, but the Judge found that she must have forcibly opened the electronic gates and indoing so had damaged them.[13] When no-one answered Ms Supra opened the door and went into the house.The evidence as to what occurred then was confused. In large part the Judge reliedupon the evidence of S. S is the victim's teenage daughter who at the time was about16.8 S described seeing Ms Supra land a punch on the victim's head. Ms Supra wasthen removed from the house by the victim. He physically lifted her up in a bear hugand put her outside. During the course of that Ms Supra dug her nails into his arms,which explained the marks on the victim's arms as shown in photographs produced tothe Court. The Judge accepted that there was a scuffle and that at some point Ms Suprasuffered an injury to her head, but he was not able to say how it could have happened.There is photographic evidence of an injury to Ms Supra's head. The Judge found thecharge of assault proved against her.The District Court decision[14] The Judge's reasoning on the refusal to discharge without conviction is to befound in his refusal to grant a rehearing as the Court does not have a copy of hisoriginal sentencing notes. The Judge emphasised his view that the most concerningfeature of the offending was that it occurred in the presence of E and S. He categorisedthe gravity at the high end of the middle range for such an assault. He then noted thatMs Supra had denied the charges. He considered her expression of remorse too late.The Judge did not consider the consequences of conviction to be out of all proportionto the gravity of the offending.8 Counsel advised the Court of that on the basis of his instructions.Appeal points[15] In support of the appeal Ms Supra submits:(a) the Judge erroneously characterised the overall gravity of the offendingtoo highly;(b) the Judge erred in law by placing insufficient weight on the mitigatingcircumstances and the consequences of a conviction.Jurisdiction[16] An appeal against a refusal to discharge a defendant without conviction isproperly characterised as an appeal against both conviction and sentence.9[17] The Court has a discretion to discharge without conviction a person who haseither been found guilty of or has pleaded guilty to an offence.10 In order to dischargean offender without conviction the Court must be satisfied that the direct and indirectconsequences of a conviction would be out of all proportion to the gravity of theoffending. The word "satisfied" in this context does not mean the Court must besatisfied that the given consequences would inevitably or probably occur. It issufficient if the Court is satisfied that there is a real and appreciable risk that any givenconsequence will happen.[18] There are three stages to the Court's assessment:(a) the assessment of the gravity of the offending with reference to thebackground facts;(b) the direct and indirect consequences of conviction for the offender; and(c) the assessment of whether those consequences would be out of allproportion to the gravity of the offending.9 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.10 Sentencing Act 2002, s 106(1).Gravity of the offending[19] With respect to the Judge's assessment the description of the facts as found byhim do not support a conclusion that the gravity of the offence was at the high toserious end of the middle range for a Summary Offences' assault. What he foundproven was a punch to the head and scratches on the victim's arm. The last injurieswere consistent with being caused by Ms Supra's nails when she was being lifted andremoved from the property. It is apparent from the photographic evidence that MsSupra was also injured in the course of the incident.[20] The Judge seems to have been unduly influenced by the fact the offending waswitnessed by E. He also seems to have placed reliance on the related dispute betweenthe parties in the Family Court. That becomes apparent in the Judge's furthercomments in which he noted that:11 It is apparent that there have been ongoing proceedings in the Family Courtbetween them regarding [E]'s care and, in particular, the arrangements forcontact with his father. The evidence today indicates a high level of animosityin relation to issues such as numerous allegations and counter allegations andproblems regarding the implementation of arrangements regarding [E]'scontact with his father.[21] There is no suggestion of nor any other evidence referred to by the Judge ofany other physical confrontation or anything of that kind in the past. This was, ascounsel had suggested, a one-off incident.[22] To the extent it is relevant that E observed the incident, there is no suggestionE was subjected to such behaviour on any ongoing basis. Until very recently Ms Supraremained the primary caregiver for E. In my judgment the Judge over-emphasised thegravity of the appellant's offending in this case.[23] The Judge also appears to have been influenced by the fact that Ms Supra hadpleaded not guilty. He appears to have factored that into his assessment of the gravityof the offending:1211 New Zealand Police v Supra, above n 2, at [15].12 At [14].There is no credit available for accepting any responsibility for her part inthis; Ms Supra pleaded not guilty and defended the charges. Her evidence,which was a denial of any responsibility in her evidence, indicates that at thetime there was no remorse nor any insight into the inappropriateness of heractions.[24] However, the wording of s 106 and a decision of the Court of Appeal make itclear that a not guilty plea will not preclude the exercise of the discretion to dischargethe offender. Rather than impacting on the assessment of the gravity of the offendingthe not guilty plea or failure to express remorse is more appropriately considered as afactor that may be weighed at the discretion stage.13[25] I return to the issue of remorse at the discretionary stage.Consequences[26] The Judge considered the consequences raised on behalf of the applicant,namely the black mark against Ms Supra's name, the problems of finding a job as anaccountant, the loss of credit in the Family Court and the implications of travelling tosome countries were not out of all proportion to the gravity of the offending.[27] I consider the Judge was correct to reject the submissions regarding the "blackmark" against Ms Supra's name and the difficulty but not impossibility of internationaltravel. As for the difficulties in the Family Court the situation seems to be clear thatMs Supra remained the principal caregiver even after the incident. Mr Schellenbergdid not pursue these grounds with any vigour.[28] That leaves the significance of Ms Supra's inability to obtain employment asan accountant. Ms Supra has supported her application with an affidavit from MsGumennaya, a project systems accountant for Southern Cross Hospitals Ltd. MsGumennaya has known Ms Supra for about 12 years in both a professional andpersonal capacity. She confirms that she works with finance recruitment companies alot as she is currently a contractor, so she has to liaise with them for each newassignment. Each time she and others apply for an accounting position in NewZealand they sign a form permitting the recruitment agency to do a criminal record13 Scott v R [2019] NZCA 261 at [88].check. Only if an applicant is able to provide a clean criminal record with positivereferences will the application be pursued.[29] Ms Supra herself confirmed that the recruitment agencies require upfrontdisclosure of criminal convictions and as soon as they find out she has convictionsthey do not respond to her emails or calls or just respond to her application with fob-off emails.[30] Ms Supra has both good qualifications and experience. She has threequalifications in accounting. Her evidence is:18. I am an all-round Financial Accountant, well experienced in all areasof accounting, taxation, financial analysis and reporting.19. I am a Xero, MYOB and Workflowmax expert and very wellexperienced that here in New Zealand...21. I have been building my career as an Accountant for many yearsstarting from when I was first working at 18 years old when I was stillin Russia.22. In New Zealand since I have sought and achieved relevantqualifications and experience in the field since 2008.23. I was employed by Brown & Thomson Consulting Engineering Ltd,February 2008–May 2010. My position was in accountsadministration with full range of accounting and administrativesupport to Company owners.24. I was then employed as Accountant by Ports of Auckland June 2011–November 2012. In that role I contributed to that company'sprofitable growth strategy.25. I then worked for Tribeca Homes Group being from December 2012–November 2013 I was the sole-charge Senior Company Accountantmanging the accounts of three companies within the group. Thesoftware used was MYOB.26. Attached is a reference about my work I obtained in 2015 from theElusion Group of Companies.27. My last job which was commensurate to my professional credentials,experience and education was at Harcourts Cooper & Co Real Estatefrom November 2013 until June 2014.28. My position there was as the Senior Financial Accountant in the headoffice.29. My software by this stage had grown by then to master also Xero. Ireported to the Chief Financial Officer (CFO) and Chief ExecutiveOfficer (CEO).31. I lost this job as soon as the company's resource manager found outthat I had been charged with assault and wilful damage. This wasbefore the court case. I am unsure how they found out but myemployment was terminated.[31] Despite her qualifications and experience Ms Supra has been unable to obtainemployment as an accountant at the level of her experience. She has consistentlyapplied for accounting positions but has been unsuccessful because of her criminalrecord.[32] Where a conviction will be interpreted by an employer or professional body asaffecting a person's character and lead to immediate rejection without further inquiryi.e. shortlisting, that may justify or support a discharge without conviction if aconviction would not fairly reflect the person's character and culpability.14[33] It is important that Ms Supra has no previous convictions and is otherwiseapparently a well-qualified, suitably experienced person, who has been unreasonablyexcluded from her chosen work because of this particular and unrelated conviction.[34] Ms Fitzgibbon submitted that from the appellant's affidavit it was apparent shewas able to obtain employment of sorts following conviction. That is correct to a pointbut the employment has been temporary. The work between February 2016 andFebruary 2017 was a part-time contract with a media advertising company and thatwas only because of her rare knowledge of the software. Ms Supra has also been acontractor bookkeeper from March 2018 until February 2019 but again she wasworking in a small-size business for a friend part-time and only 12 hours a week. Noris it an answer that Ms Supra has obtained a certificate of character from the NewZealand Institute of Chartered Accountants. The practical reality is that Ms Supra hasnot been able to get a job interview recently.[35] From February 2019 Ms Supra has been on the unemployment benefit.14 Edwards v R [2015] NZCA 583.[36] Ms Fitzgibbon also made the point that after seven years, which will expire inSeptember 2021, Ms Supra would be entitled to apply under the clean slate legislationto have the conviction wiped from her record. That may well be correct but that isalmost a year away and there is no reason for her circumstances to remain as they arefor that length of time.Overall assessment[37] In the circumstances of this case the consequences of the conviction faroutweigh the gravity of the one very short and one-off incident of assault on the victim(and damage to the gates) which the appellant now regrets. The position would bequite different if the conviction had been a fraud conviction relevant to her suitabilityto act as an accountant.[38] Even though the offending is towards the bottom of the scale for gravity ofsuch offending the evidence is that it prevents her from being considered by recruitersor an employer. Given her qualifications and stage of life the effective ban on heremployment is an extremely severe consequence and one which is out of all proportionto the gravity of the offending.Result/orders[39] The application for an extension of time to appeal out of time is granted.[40] The appeal is allowed. The convictions are quashed. Ms Supra is dischargedwithout conviction on both charges, on condition that she pay reparation of $382.60.I record counsel has confirmed that reparation has already been paid.__________________________Venning J