NZ POLICE v XY [2018] NZHC 414

NZ POLICE v XY [2018] NZHC 414 [13 March 2018]ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES),OCCUPATION(S) OR IDENTIFYING PARTICULARS OFWITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360349.htmlORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES),OCCUPATION(S) OR IDENTIFYING PARTICULARS OFAPPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PURSUANTTO S 200 CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.htmlIN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2018-425-000003[2018] NZHC 414BETWEEN NEW ZEALAND POLICEApplicantAND XYRespondentHearing: 7 March 2018Appearances: M J Thomas for ApplicantL C Denton for RespondentJudgment: 13 March 2018JUDGMENT OF GENDALL JIntroduction[1] The respondent, a man of 58 with a previously blameless record, was chargedwith three offences. The first was male assaults female, the second common assaultunder the Crimes Act 1961, and the third, common assault under the SummaryOffences Act 1981. He applied for a discharge without conviction. On 11 December2017, Judge Brandts-Giesen in the District Court at Queenstown granted theapplication.1[2] On 10 January 2018 the Police applied for leave to appeal against that decision,as a ruling made in the determination of a charge pursuant to s 296 Criminal ProcedureAct 2011, on two questions of law. They are:(a) Did the Judge err in his assessment of the gravity of the offending?(b) Did the Judge err in concluding the consequences of conviction wereout of all proportion to the gravity of the offending?[3] The respondent opposes that applicationBackground facts[4] On 14 September 2017, the respondent was socialising at a bar in Queenstownwith his wife, his two daughters and a male associate whom he has deposed was along-time friend of his. He saw text messages from the associate to his wife, and sheto him, declaring their love for each other. He says he was shocked and in response,he left the bar and walked away down the street.[5] A short while later, the respondent then found the group near Starbucks in theQueenstown township. He went straight up to the associate on the street, pushed himagainst a pole and held him there with his arm around the associate's neck. A struggleensued and both men ended up on the ground. The pair were separated by one of therespondent's daughters. The respondent then grabbed that daughter by the throat andpushed her to the ground, his hand preventing her from breathing. This resulted inbruising around her neck.[6] Another further struggle ensued, involving pushing and shoving between therespondent and the associate. A group of people tried to separate them. This includedthe respondent's daughter and wife. The respondent put up his boot and pushed at his1 [].wife, kicking her in the ribs. This caused her to fall backwards onto the ground. Someminor injuries occurred.[7] When spoken to afterwards by the Police, the respondent said he was cross andwanted to "get" the associate. He also said he could not remember grabbing hisdaughter by the throat or kicking his wife in the ribs.District Court decision[8] The Judge broadly applied the three-step test under s 107 of the Sentencing Act2002 to determine whether the application for a discharge without conviction shouldbe granted.[9] He began by considering the gravity of the offence and described the event asbeing at one level "a nasty assault" but, on the other hand, it "had to be seen in itscontext". He stated that the respondent evidently "saw red" when he discovered hisfriend had been having a relationship with his wife. The Judge then said:There would be many people who would have done exactly what you did,even though it may be against the law to do so.And later, in his final summary of the events in issue, he said:In the circumstances, I consider that the consequences of conviction are out ofall proportion to what happened on this occasionAnd:This is a situation that does your wife no credit and it does the firstcomplainant no credit.He considered, too, that while the actual assaults were, in his words, "moderate toserious", the context in which they happened really reduced that seriousness by a largeamount. The respondent's previous good character, at 58 years of age, with no priorconvictions, also helped put the offence at what he described as a "moderate levelonly".[10] In moving to address the consequences of a conviction, the Judge said thesewere that it may affect overseas travel and also that it "will put up certain barriers thatshould not have to annoy [the respondent] for the rest of [his] life". He commentedtoo there was also the stigma of a conviction.[11] The Judge concluded, as I note above, that, in the circumstances, theconsequences of conviction were out of all proportion to the events on this occasion,especially given what he described as "the spontaneous and explosive nature of whathappened".[12] The Judge therefore granted a discharge without conviction on all threecharges.Principles on appeal[13] The prosecution does not have a general right to appeal against a conviction oracquittal. It may only appeal based on a question of law.2 This requires the prosecutorto seek leave to appeal to the first appeal court,3 here the High Court.4 The applicationfor leave must state the question of law on which the appeal is being taken.5[14] In an appeal on a point of law the Court is not to merely substitute its ownapplication of the law to the facts. The Supreme Court expressed this in Bryson vThree Foot Six Ltd:6An appeal cannot however be said to be on a question of law where the fact-finding Court has merely applied law which it has correctly understood to thefacts of an individual case. It is for the Court to weigh the relevant facts in thelight of the applicable law. Provided that the Court has not overlooked anyrelevant matter or taken account of some matter which is irrelevant to theproper application of the law, the conclusion is a matter for the fact-findingCourt, unless it is clearly insupportable.[15] However, there are situations where a factual conclusion is simply untenable.Blanchard J, in the Supreme Court, discussed the principles relating to an appeal on aquestion of law in Vodafone New Zealand Ltd v Telecom New Zealand Ltd, stating:72 Criminal Procedure Act 2011, s 296.3 Criminal Procedure Act 2011, s 298(1).4 Criminal Procedure Act 2011, s 297.5 Criminal Procedure Act 2011, s 298(2).6 Bryson v Three Foot Six Ltd [2005] NZSC 34; [2005] 3 NZLR 721 at [25].7 Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138 , [2012] 3 NZLR 153at [52]-[53], citing Piggott Brothers and Co Ltd v Jackson [1992] ICR 85 (CA) at 92.[52] As the Court said in Bryson, however, an ultimate conclusion of a fact-finding body can sometimes be so insupportable — so clearly untenable — asto amount to an error of law, because proper application of the law requires adifferent answer. But that will be the position only in the rare case describedby Lord Radcliffe in Edwards v Bairstow. Lord Radcliffe gave threealternative descriptions: a state of affairs "in which there is no evidence tosupport the determination", or "one in which the evidence is inconsistent withand contradictory of the determination", or "one in which the true and onlyreasonable conclusion contradicts the determination". Lord Radcliffepreferred the last of them. It will be an error of law if the Commission hascorrectly interpreted the requirements of s 92 in relation to "net cost" but hasnevertheless made a determination of net cost where the true and onlyreasonable conclusion available on the facts before it actually contradicts thatdetermination. That will be the case if the Commission has in applying s 92made an error which is of fundamental significance to its decision-making.[53] Some caution is, however, required of the appeal court in assessingwhether the decision-maker has reached an untenable conclusion on the facts.In Bryson this Court took notice of the observation by Lord Donaldson MR inPiggott Brothers and Co Ltd v Jackson that:"It does not matter whether, with whatever degree of certainty, the appellatecourt considers it would have reached a different conclusion. What mattersis whether the decision under appeal was a permissible option."[16] Therefore, this Court's task is to assess the correct law and consider whetherthere was any reasonable or tenable interpretation of the facts upon which the DistrictCourt Judge could reach the conclusion here that the test for a discharge withoutconviction was made out.SubmissionsAppellant's submissions[17] I repeat that the applicant's proposed questions of law outlined at [2] aboveare:(a) Did the Judge err in his assessment of the gravity of the offending?(b) Did the Judge err in concluding that the consequences of convictionwere out of all proportion to the gravity of the offending?[18] Counsel submits that the Judge erred in granting the discharge withoutconviction, in particular, in his assessing of the gravity of the offending, theconsequences of conviction and in his carrying out of the balancing test.[19] The applicant contends that the offending here involved a violent, retributiveresponse from the respondent to his discovery of infidelity on the part of his wife andhis friend. The respondent resorted to a significant level of violence, including whatwere truly assaults in the nature of domestic violence against his daughter and wife.Judge Brandts-Giesen, as I have noted above, described the offending as "spontaneousand [of] an explosive nature". The applicant disputes this assessment. Ms Thomassuggests this is because the respondent had taken time to have a walk between hisdiscovery of the text-messaging and the incident. She maintains too that, the Courtcan be satisfied that the offending here is, at least, of a moderate (or medium) levelbecause of the following factors:(a) Three victims were involved;(b) Two of the victims were the respondent's family members so there isan element of breach of trust;(c) There was strangulation involved; and(d) There was a minor degree of premeditation.[20] With regard to the consequences of the offending, Ms Thomas submits that thenegative impact on the respondent's confidence and self-esteem is a normal andexpected consequence of convictions generally. Similarly, any impact on the familydynamic is expected given the nature of the offending. The applicant suggests that itis really the offending itself that would have more impact than a conviction for it.[21] Counsel contends that the only viable consequence raised by the respondentbefore the Judge was a possible impact on travel plans. On this aspect, however, therespondent provided no evidence of real plans nor details of whether a convictionwould impede on that. Therefore, counsel maintains that the respondent has failed toestablish a "real and appreciable risk" that the consequence would occur.[22] The applicant's overall position is that the Judge understated the seriousness ofthese offences and overstated the consequences of conviction. Ms Thomas went on tosay that, given the fact that the offending was moderately serious and there were noreal consequences of a conviction, the Judge erred in law by granting the applicationfor a discharge without conviction.Respondent's submissions[23] In her submissions for the respondent, Ms Denton contended that:(a) Judge Brandts-Giesen's assessment of the gravity of the offending wascorrect;(b) The general consequences identified were valid; and(c) The Judge exercised his discretion correctly to discharge the respondentwithout conviction.[24] Turning to an assessment of the gravity of the offending, the respondentsubmits the Judge was correct to assess this as low to moderate for the followingreasons:(a) The offending was spontaneous and out of character and the respondenthas the forgiveness and support of his family.(b) The assault against the male complainant was minor and resulted in noharm.(c) The assault against the respondent's daughter was in a context whereshe attempted to physically intervene in the incident. The respondentcontends that he did not know it was his daughter who had intervened,that he did not specifically attack her neck and he simply recalls beingpulled and grabbed by a third person as they fell to the ground.(d) The assault against the respondent's wife, according to the respondent,was in the context of he being held back and his wife approaching him.He says he raised his foot to push her back and did not intend to kickher.(e) The respondent has expressed profound remorse towards his daughterand his wife and was able to undertake restorative justice with his wife.(f) The respondent has no previous convictions and co-operated fully withPolice. He pleaded guilty at an early stage, and has the support of hiswife.[25] In maintaining that the offending was spontaneous, the respondent contends heinitially left the bar in a state of shock when he was trying to remove himself from thesituation and, in fact, he was pursued by his wife and the male associate at the time.They all then ran into each other in the street and the respondent's emotions, heclaimed, got the better of him. No aspect of the assault, he contends, waspremeditated.[26] In considering Judge Brandts-Giesen's overall decision, Ms Denton maintainsthat the Judge did not condone the respondent's behaviour. What he said instead wasreally an acknowledged understanding as to why the respondent had on this occasionacted out of character. Further, taking into account the victims' expressed views andthe fact that it is said there were no long lasting or serious injuries, the respondentsubmits that the gravity of his offending here was correctly assessed as being only lowto moderate.[27] Ms Denton also referred me to several cases which she contended by analogysupported the respondent's position. She did seem to accept, as I understand it, thateach case must, however, turn upon its own facts and circumstances.[28] Turning now to the consequences for the respondent of a conviction,Ms Denton submitted that Judge Brandts-Giesen made no error in his assessment ofthese consequences.[29] In assessing whether the Court is satisfied there is a "real and appreciable risk"that the identified consequences will occur, Ms Denton maintained that the Judge wascorrect to agree that a conviction here would put up barriers, including the stigmaassociated with family/domestic offending, that ought not to annoy the respondent forthe rest of his adult life.[30] Next, Ms Denton contended that a conviction here may restrict the respondentfrom travelling to Australia to visit his daughter. This travel was a real and regularpossibility, given first, the fact that she resides there, and secondly, the material fromthe Australian immigration website which was provided to the Court. As to this, ifconvicted, the respondent noted that he would be required to obtain a waiver and gothrough detailed Australian immigration requirements each time he intended to travel.[31] Ms Denton then referred me to decisions of this Court, including Bailey vNew Zealand Police8 in support of the respondent's argument that the consequencesof a conviction would pose a real and appreciable travel risk for him.[32] In summary and finally, Ms Denton contended that the stigma associated withdomestic violence, possible travel barriers and future employment consequences forthe respondent here would meet the test that there is a real and appreciable risk thatthe consequences of a conviction for both the respondent and his family were out ofall proportion to the gravity of his offending.Law[33] Section 106(1) of the Sentencing Act 2002 provides the discretion to order adischarge without conviction. However, before that discretion can be exercised, s 107requires the court to be satisfied that "the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence".9 Theseconsequences need not be certain, provided that there is a "real and appreciable" risk8 Bailey v New Zealand Police [2015] NZHC 3051.9 Sentencing Act 2002, s 107.of them resulting.10 The proportionality test is not a matter of discretion but a matterof fact requiring judicial assessment.11[34] The orthodox approach in assessing whether a discharge should be granted wasset out by the Court of Appeal in Z v R:12when 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).[35] The first step in considering an application for a discharge without convictionis to assess the gravity of the offence. The gravity is the gravity of the offence incomparison to other offences, not as to where the particular offending sits within othersof its kind.13 When considering the gravity of the offence, the preferred course is forthe Judge to also take into account the aggravating and mitigating factors relating toboth the offending and the offender at this stage.14[36] In the second step, the court is to assess the consequences of a conviction. Inmaking that assessment, it is appropriate for the court to consider the likelihood of theconsequences materialising.15 The higher the likelihood and the more serious theconsequences, the more likely it is that the disproportionality test will be satisfied. Tothis end, it is normal for counsel to provide the court with written material confirmingthe consequences of a conviction. In particular, where foreign travel difficulties are tobe relied on, the evidence before the court should be detailed and reliable.16Submissions as to the consequences will be insufficient to qualify as "information" for10 Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20].11 H (CA680/11) v R [2012] NZCA 198 at [30].12 Z v R [2012] NZCA 599 at [27].13 Z (CA447/12) v R, above n 11, at [31].14 Z (CA447/12) v R, above n 11, at [27].15 Maraj v Police [2016] NZCA 279 at [31].16 Brunton v Police [2012] NZHC 1197 at [16]; Police v M [2013] NZHC 1101, (2013) 26 CRNZ308 at [55].the purposes of a discharge.17 However, the court may take judicial notice of theconsequences of a conviction in some cases.18[37] A discharge on the grounds that travel will be impeded is unlikely to besuccessful where future travel is speculative and not yet planned.19 The court shouldalso consider whether a conviction would be an absolute bar to entry, or whether aconviction would make entry unreasonably difficult or uncertain. This test was met inBailey v Police, where the Court was provided with evidence that the defendant hadalready been denied a visa to attend a business conference in the United States as aresult of his conviction.20 It was not met in Yang v Minister of Business, Innovationand Employment.21 There it was accepted that a conviction would bar the applicantusing an APEC business travel card, which permitted her to enter China withoutgaining a visa. However, there was no evidence that it would prevent her gaining avisa so the consequence was considered to be minor.[38] The final stage is to weigh up the consequences of the conviction with thegravity of the offending and determine whether the consequences would be out of allproportion to the gravity of the offence. The nature and seriousness of theconsequences will be relevant to that assessment of whether they would be out of allproportion to the gravity of the offence.22 As the phrase "out of all proportion"indicates, the situation must be extreme for the test to be met.23 Or, in other words,there must be a "significant disproportionality of consequence before a dischargewithout conviction can be properly considered".24What are the questions of law for the Court?[39] Under s 299 Criminal Procedure Act 2011, the Court has the power to "amendor restate any question of law to be determined in the appeal if it considers it necessaryor desirable to do so".17 See Police v M, above n 14, at [49], [60]–[62].18 Gasson v N [2012] NZHC 2988 at [24].19 Brunton v Police [2012] NZHC 1197 at [16]; Marszolek v Police [2015] NZHC 2858 at [35].20 Bailey v Police [2015] NZHC 3051.21 Yang v Minister of Business, Innovation and Employment [2017] NZHC 1673.22 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [82].23 Police v Roberts [1991] 1 NZLR 205 at 210.24 BC v Police HC Wellington CRI-2003-485-101, 2 June 2004 at [9].[40] Given the content of the applicant's substantive submissions and the issues thatarise here, I consider it is desirable to amend the proposed questions as follows:(a) Was the Judge's finding as to the gravity of the offending available tohim, as a matter of law, on the evidence before him?(b) Was the Judge's finding as to the consequences of the offendingavailable to him, as a matter of law, on the evidence before him?(c) Was the Judge's finding that the direct and indirect consequences of aconviction for the respondent were out of all proportion to the gravityof the offences available to him as a matter of law?[41] These questions better phrase the issue as a question of law, rather than ageneral appeal against a Judge's decision. They cover all the matters the applicantraises here.Was the Judge's finding as to the gravity of the offending available to him, as amatter of law, on the evidence before him?[42] The applicant submits that the Judge erred in assessing the gravity of thepresent offending. In answering this question, I note the observation in PiggottBrothers and Co Ltd v Jackson that:25It does not matter whether, with whatever degree of certainty, the appellatecourt considers it would have reached a different conclusion. What matters iswhether the decision under appeal was a permissible option.[43] The applicant suggests that the offending here should be assessed as being ofmedium to serious gravity, inferring that the Judge did not find it such. This appearsto come from its concerns that some of the Judge's statements minimise the offending.They also tend to ignore the fact that some of the violence was domestic in naturebeing directed at his wife and daughter. All this too, it is said, seemed to overlook theJudge's initial assessment of this as a "nasty assault" with a gravity at a level he25 Piggott Brothers and Co Ltd v Jackson, above n 7, at 92.described as "moderate to serious". At [9] of his decision, Judge Brandts-Gieseninitially confirmed this when he stated:[9] From the point of view of the actual assaults, they were moderate toserious. The context in which they happened really reduces that seriousnessby a large amount. Added to that your excellent record to date, all thosecombine to make this an offence at the moderate level only.[44] I consider that the Judge's final assessment of the gravity of the offending asonly "moderate" was misguided. Aspects of the offending, including the respondent'scomplete loss of control as he engaged his anger, the fact the wife initially stated "hedefinitely intended to kick me in the ribs" which the respondent did, and theacknowledged strangling and bruising of his daughter, can only be seen in all thecircumstances here as serious. Judge Brandts-Giesen, however, appeared to beinfluenced in his decision by the later views of the respondent's wife expressed in herVictim Impact Statements, in particular, where she said "I do not want [the respondent]to get a conviction out of this as I want to move on" and "I don't want to see anythingbad happen to [him]" And the unfortunate comments the Judge made that "therewould be many people who would have done exactly what you did" and "this is asituation that does your wife no credit and it does the first complainant no credit",insofar as they attempt first, to normalise and minimise the respondent's offending andsecondly, to blame the victims here, also seem to be influential in the Judge'sreasoning. In my view, this is quite wrong, and it worked to significantly derail theJudge's assessment of the gravity of the respondent's offending here.[45] Whilst I accept the wider context of that offending, and the fact that the viewsof the victims do have some effect on the Court's response to the respondent'soffending, they cannot excuse what was in reality a nasty and violent assault againstthree people. This included what were effectively domestic violence assaults againsthis wife and daughter, the last of whom, as I have noted, suffered a degree ofstrangulation with visible bruising to her neck. Recently, the Court of Appealcommented in Mackay v The Queen:26However, this Court has held that only in exceptional cases will infidelity onthe part of the victim mitigate a violent retributive response by their partner, a26 Mackay v The Queen [2017] NZCA 337 at [15].possible example of an exceptional case being where the reaction is essentiallyinstantaneous and a product of a complete loss of control.55 Wairau v R [2015] NZCA 215 at [39]; and Hamidzadeh v R [2012] NZCA 550Those comments are relevantly considered here, insofar as they relate to theunexpected discovery by the respondent of his wife's infidelity as the genesis of theassaults, especially against her. The present offending against his daughter, however,cannot be justified in any sense on similar provocation grounds. Nor do I see thecircumstances in the present case as sufficiently exceptional to mitigate in anyappreciable way what happened to the other victims here.[46] For all the reasons I have outlined above, the Judge, in my view, clearly erredin law in his assessment of the gravity of the offending as being, at the most, moderate.In no sense could this description be seen as a permissible option.[47] The answer to this question, is "No".Was the Judge's finding as to the consequences of the offending available to him,as a matter of law, on the evidence before him?[48] In this case, the respondent put forward two different consequences which heclaimed would result if a conviction was entered. These were that:(a) It would negatively impact on his confidence and self-esteem and be astigma; and(b) It would affect his ability to travel to Australia to visit his daughter.[49] In concluding his consideration of the consequences of the offending,Judge Brandts-Giesen stated:You are a man who has reached the age of 58 without any previous conviction.Convictions may affect travel overseas and will put up certain barriers thatshould not have to annoy you for the rest of your life. There is also the stigmaof conviction.[50] The respondent, however, did not provide any evidence to support this firstproposed consequence. I accept the applicant's contention here that the negativeimpact on his self-esteem and any social stigma must be simply an expectedconsequence of any conviction. It is not a sufficiently serious consequence that isgenerally taken into account in an application under s 106 as the level of impact willbe commensurate to the gravity of the offending.[51] With regard to the second consequence, the Judge found that convictions here"may" affect travel overseas. This finding, however, is insufficient for the test to bemade out. A consequence must be real and appreciable to be considered under s 107.27However, this comment from the Judge might, at one level, have been a misstatementas the Judge clearly viewed travel problems as a real consequence given his findings.There was some evidence before him as to the potential consequences on therespondent's travel. The question remains, however, whether this was sufficient tojustify the finding that there were real consequences from a conviction.[52] In Police v M, the sentencing Judge gave Ms M a discharge without convictionfor her charge of drink driving. Ms M was a young woman with a promising sportscareer. The Police appealed that decision on a question of law, querying whether theJudge was entitled to make the decision given the facts. The appellate Court foundthat the Judge had correctly stated the law. However, it found that there was nosufficient material before the Judge on which he could find that the test in s 107 wasmade out.[53] The evidence before the Judge regarding the consequences of a conviction onMs M was an assertion by her counsel that she had a job offer in the United Kingdomand a conviction would "ruin" her opportunity to travel and take up the job. Therewas no material beyond this to support the contention that the job offer existed, or thata conviction would prevent Ms M taking it. Indeed, the Judge was not even explicitlytold that she intended on taking the position. The Judge referred to his awareness thata conviction for drink-driving could prevent travel to Canada, but there was nosuggestion that the respondent proposed to go there in the foreseeable future.[54] The Judge was given no information about the rules and regulations governingentry into the United Kingdom in cases were an applicant has been convicted and27 Alshamsi v Police, above n 9, at [20].sentenced to a non-custodial penalty. The Judge's decision rested on his determinationthat he could take judicial notice of the fact that sports men and women needed totravel internationally and a conviction was likely to impede their ability to do that.[55] The appellate Court accepted that a Judge could take judicial notice of relevantfactors. However, it noted that the Court in Brunton suggested that where foreigntravel difficulties are to be relied upon, the evidence placed before the Court ought tobe detailed and reliable.28 Therefore, while the Judge was entitled to have regard topast cases in which drink-driving offenders had been refused entry to Canada, that wasnot sufficient to indicate that Ms M would have difficulty getting into the UnitedKingdom. There was absolutely no evidence to support Ms M's contention that aconviction would ruin her chance to travel to and work in the United Kingdom.[56] Thus, the Judge in that case did not have any sufficient evidence before himupon which to grant a discharge without conviction. The proceeding was remitted tothe District Court for reconsideration and the sentencing process to be conductedentirely afresh.[57] In the present case, the respondent provided an affidavit stating that hisdaughter lived in Australia and that he and his wife often travel there to visit her. Heincluded material from the Australian High Commission website which dealt withentry to Australia of a New Zealand citizen with a criminal conviction. It indicatesthat the respondent was not prohibited from entry, but would be required to obtainwritten confirmation from the Department of Immigration and Border Protectionbefore he travelled to Australia.[58] This evidence, in my view, does not meet the test in Brunton. At the very least,more reliable detail would be required. The presence of the respondent's daughter inAustralia and the respondent's past trips to visit her there do indicate some desire thatthe respondent has future plans to travel to see her. The Judge was, therefore, at onelevel, entitled to recognise that a conviction would have some effect on the respondentwhen he travelled to Australia. But none of this provided any sufficientlyauthenticated and reliable evidence of major Australia entry problems for the28 Brunton v Police, above n 15, at [16];respondent to meet the required test of real and appreciable consequences from aconviction. Simply being delayed or embarrassed at Australian immigration, or beingrequired to seek advance approval before travelling to Australia, could not be seen asa real, appreciable or unreasonable consequence here.[59] Therefore, the answer to this question is "No".Was the Judge's finding that the direct and indirect consequences of a convictionfor the respondent were out of all proportion to the gravity of the offencesavailable to him as a matter of law?[60] As noted above, the proportionality test is not a matter of discretion but amatter of fact requiring judicial assessment.29 Therefore, this Court, on an appeal ona question of law, cannot merely substitute its own assessment of the facts for theJudge's. However, if the Judge's ultimate conclusion is clearly untenable, then itamounts to an error of law because proper application of the law requires a differentanswer.[61] I consider that this is one of those rare cases "in which the true and onlyreasonable conclusion contradicts the determination".[62] Even had I accepted (which I do not for the reasons I have outlined above) theJudge's findings that the gravity of the offending was only moderate and that aconviction would impact on his ability to travel overseas, the Judge erred in law infinding that this consequence was "out of all proportion to the gravity of the offence".The consequences of a conviction for the respondent were, at most, moderate. This isnot a situation where the respondent would be unable to travel to Australia at all. Aconviction would be an inconvenience but not a barrier, as the Court noted, in Yang vMinister of Business, Innovation and Employment.30[63] The test in s 107 requires there to be a "significant disproportionality ofconsequence before a discharge without conviction can be properly considered".31That test is not met here. Judge Brandts-Giesen, in his decision, found that the gravity29 H (CA680/11) v R, above n 9, at [30].30 Yang, above n 21.31 BC v Police, above n 23, at [9].of the offending was moderate and that there would be consequences from a convictionthat were also moderate. Clearly, therefore, there was no significant disproportionalitybetween the two factors. As a matter of law, the latter could not be found to outweighthe former even if I accept (which I do not) the Judge's findings as to the gravity ofthe offending here. The situation must be extreme for the test to be met.32 In thepresent case, there was insufficient material before the Judge to properly make suchan assessment.[64] The true and only reasonable conclusion available, even on the facts found bythe Judge, was that the test for a discharge without conviction was not made out. Thiswas because the consequences of a conviction for offending here, offending whichmust be seen as in the range of medium to serious, cannot be considered to be "out ofall proportion to the gravity of those offences".[65] The answer to this question is also therefore "No".Result[66] The Judge erred in law by allowing the discharge without conviction, first,because his assessment of the gravity of the offending here was clearly wrong and,secondly, because there was insufficient material before him by which to find that theconsequences of a conviction were out of all proportion to the gravity of thatoffending.[67] I, therefore, grant leave to the applicant for this appeal and set aside thedecision of Judge Brandts-Giesen to discharge the respondent without conviction.[68] I enter convictions against the respondent on each of the three charges noted at[1] above and, given that no submissions were advanced to me related to a possiblepenalty or sentence, I order that this matter is remitted back to the District Court forsentencing. For the avoidance of doubt, the sentencing process approach is to beconducted entirely afresh.32 Police v Roberts, above n 22, at 210.Suppression[69] In his decision in the District Court, Judge Brandts-Giesen made a blanketsuppression order suppressing the names of the respondent and the victims.[70] At the conclusion of the hearing before me, counsel suggested, and I agreed,that this suppression order could be continued initially by way of an interimsuppression order made in this Court. Such an order was made. This was to providean opportunity for counsel to advance submissions to me on the issue of whether ornot a final order should be made.[71] Counsel for the respondent has now provided detailed submissions dated8 March 2018 in support of that application she now makes for final name suppressionof all parties here.[72] In a minute I had issued in this proceeding on 7 March 2018, I gave counselfor the applicant until 5 p.m. on 9 March 2018 to file and serve any reply submissionsshe wished to advance to the Court.[73] No such reply submissions have been provided to me. I do note, however, thatat the hearing of this matter Ms Thomas said that the victims would support continuedname suppression and sought an order to this effect. Ms Thomas expressed theopinion, however, that this fact did not necessarily trump the obligations which existfor free and open reporting of criminal cases in this and other Courts.[74] Noting all these matters, and applying the correct approach to the considerationof name suppression under ss 200(2) and 202(2) of the Criminal Procedure Act 2011,I am of the view that this is a case where the threshold grounds of the likelihood ofundue hardship being caused to victims would apply here.[75] This is a matter which has already attracted a considerable level of mediapublicity. The principles and the general circumstances involved in this offending arebefore the Court and continued publication regarding those principles andcircumstances here may well occur. This is appropriate.[76] The need, however, for the identities of the respondent's wife and daughter tobe disclosed (which would occur if suppression of the respondent's name is lifted,given their relationships and the fact that they share the same surname) is not necessaryor desirable. Neither the respondent's wife, nor his daughter, should be personallysubjected to the possible public backlash which might be likely to occur, given thisincident. And it is clear they are strongly in favour of continued suppression here.[77] I am satisfied, too, that the public interest in this case does not outweigh thelikelihood of damage to the respondent's family if his and their identification were tobe published.[78] The grounds set out in both s 200(2)(c) and (f) and s 202(2)(a) of the CriminalProcedure Act 2011 are made out. An order is made suppressing the names andidentifying features of the respondent and each of the victims in this case....................................................Gendall JSolicitors:Preston Russell Law, InvercargillTodd & Walker Law, Queenstown