BRENNA v POLICE [2023] NZHC 1004

BRENNA v POLICE [2023] NZHC 1004 [1 May 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-000072[2023] NZHC 1004IN THE MATTER OF an appeal against s 106 decisionBETWEEN PASQUALE BRENNAAppellantAND NEW ZEALAND POLICERespondentHearing: 1 May 2023Appearances: N K B N Petrie for AppellantS E Cann for RespondentJudgment: 1 May 2023(ORAL) JUDGMENT OF EDWARDS JSolicitors:Ministry of Justice (Public Defence Service), AucklandMeredith Connell (Office of the Crown Solicitor), Auckland[1] Mr Brenna pleaded guilty to one charge of breaching a protection order in theNorth Shore District Court.1 His application for a discharge without conviction wasdeclined by Judge Fitzgibbon.2 Mr Brenna now appeals.Offending[2] Mr Brenna was subject to a protection order issued by the WaitakereDistrict Court in February 2021.[3] Between 14 January and 21 January 2022, Mr Brenna sent multiple textmessages to the victim, verbally abusing her, and stating: "I'm proud of kicking youaround"; "You are a fucken pos!"; "Mental and amoral = of shit."; "fuck up publictoilet on legs."; "Kill yourself! Do it!".[4] Mr Brenna initially denied the offending when spoken to by police.District Court decision[5] The application came before Judge Fitzgibbon on 19 January 2023.[6] The Judge considered the offending to be of moderate seriousness. Theaggravating factors were the nature of the text messages (which were extremelyabusive and threatening) and the number of them sent over a period of a week.[7] The Judge turned to consider aggravating and mitigating features. She referredto Mr Brenna's two previous (unrelated) convictions for driving related offendingfrom 2007 and 2009. The Judge noted Mr Brenna was remorseful, had completed anon-violence programme with Shine, and was intending to complete a parentingprogramme. She also referred to the victim's view that she no longer wantedMr Brenna to be convicted given his positive progress.31 Family Violence Act 2017, ss 90(a) and 9 and 112(1)(a), maximum penalty three years'imprisonment.2 Police v Brenna [2023] NZDC 861.3 At [7].[8] Taking those factors into account, the Judge assessed the gravity of theoffending to be low to moderate.[9] As for the direct and indirect consequences of the conviction, the Judge notedthat Mr Brenna had been an Uber driver for five years and wanted to return to thatcareer. Waka Kotahi would undertake a background check to ensure Mr Brenna wasfit and proper. Waka Kotahi was aware of the offending but had not taken any stepsso far, but reserved their right to do so after the Court hearing. The Judge noted thatif Mr Brenna lost his passenger endorsement, he would not be able to work as an Uberor a taxi driver. The Judge considered that to be a real and appreciable risk.4[10] Turning to the disproportionality test, the Judge considered that anyconsequences arose out of the offending, rather than the conviction itself.5 She foundthat difficulties in gaining employment were not out of all proportion to the seriousnessof the offending.[11] The Judge also made reference to any new employer having the right to knowabout the conviction and said it was for Waka Kotahi to determine whether Mr Brennawas fit and proper to hold a licence. She said a discharge would deny that agency theability to properly fulfil their function.6[12] Accordingly, the application for a discharge without conviction was declined.Mr Brenna was ordered to come up for sentence if called upon for six months. A $500emotional harm payment was also ordered to be made to the victim.Legal framework[13] Sections 106 and 107 of the Sentencing Act 2002 govern a discharge withoutconviction.[14] Under s 107 of the Sentencing Act, a Court must not grant a discharge withoutconviction unless satisfied that the direct and indirect consequences of conviction4 At [8].5 At [9].6 At [11].would be out of all proportion to the gravity of the offence. It is well settled that acourt is required to follow a three-step process in determining whether this thresholdis met:(a) First, ascertain the gravity of the offending taking into account allaggravating and mitigating factors of the offending and offender;(b) Second, identify the direct and indirect consequences of conviction;and(c) Third, determine whether those consequences are "out of allproportion" to the gravity of the offence.[15] If the threshold is met under s 107 then the Court turns to consider whether toexercise its discretion to grant a discharge under s 106 of the Sentencing Act.[16] An appeal against a refusal to grant a discharge without conviction is an appealagainst both conviction and sentence.7 The appeal proceeds by way of rehearing.8Did the Judge err in the assessment of the gravity of the offending?[17] The Judge assessed the overall gravity of the offending (taking into accountthe aggravating and mitigating factors of offender and offending) as low to moderate.[18] Counsel for Mr Brenna, Mr Petrie, submits that the Judge erred by failing totake into account the appellant's offer of a $500 emotional harm payment to the victimwhen assessing the gravity of the offending. Further, he submits the Judge took intoaccount the appellant's previous conviction history as an aggravating factor whenthose convictions were irrelevant to the index offending. On this basis, he submitsthat the gravity of the offending should be characterised as low.[19] It is apparent from the Judge's end sentence that she was aware of the offer tomake a $500 emotional harm payment to the victim. While the Judge did not refer to7 Jackson v R [2016] NZCA 627 [7]–[8].8 Doyle v R [2022] NZCA 307 at [15].this as a separate mitigating factor relevant to the gravity of the offending, I am notsatisfied that this was in error. The offer to make an emotional harm paymentsubstantiates Mr Brenna's remorse. The Judge expressly referred to Mr Brenna'sremorse as mitigating the gravity of the offending in this case and so this factor hadalready been addressed. But even if it was not, I do not consider it to be a separateand distinct factor which would materially alter the assessment of gravity in this case.[20] As for the prior convictions, I do not read the Judge's notes as taking thoseconvictions into account. She referred to the unrelated nature of these convictions,and that they were over 10 years old. I am not persuaded that the Judge erred in thisrespect.[21] Overall, I am not satisfied that the Judge's assessment of the offending as lowto moderate was in error.Did the Judge err in assessing the direct and indirect consequences of conviction?[22] Counsel for Mr Brenna submits that the District Court failed to considerMr Brenna's mental health and the effect of the Criminal Records (Clean Slate) Act2004 (Clean Slate Act) when assessing the consequences of conviction.[23] Reports from a psychiatrist and psychologist have been filed with the Court insupport of the impact on Mr Brenna's mental health. The former is dated from 2017,and the latter is undated. These reports were not before the District Court at the timeof sentencing. Although the evidence is not fresh, the Crown does not oppose itsadmission and accepts that it is likely to be in the interests of justice to allow it. I orderaccordingly.[24] Ultimately, however, this new evidence does not alter the assessment of thedirect and indirect consequences. While it provides more detail of Mr Brenna's mentalhealth issues, it does not explain the consequences for Mr Brenna's mental health ifconvicted. It also appears from the pre-sentence report and the affidavit sworn byMr Brenna in support of his application, that his mental health is relatively stable atpresent. There is no suggestion in any of that material that a conviction would causea negative and adverse impact on his mental health, let alone one which would be outof the ordinary.[25] To the extent that Mr Brenna submits that embarrassment, loss of pride andnegative self-esteem associated with disclosure of the conviction is an adverse mentalhealth effect, then I do not consider it to be a consequence which would tip the scalesin favour of discharge. In Mr Brenna's case this would be an ordinary consequencewhich flows from the offending.[26] The submission regarding the Clean Slate Act has more merit. Mr Brenna'sprevious driving-related convictions fall within that Act. However, a conviction inthis case will mean that Mr Brenna's convictions will show on his criminal record.9[27] The loss of the Clean Slate Act protection may impact on Mr Brenna'spassenger endorsement on his driver's licence, as Waka Kotahi was (legitimately)unaware of these convictions at the time they considered him to be a fit and properperson. Furthermore, Mr Petrie submits that the fact of a criminal record with threeprior convictions may have consequences for new employment prospects shouldMr Brenna lose his passenger endorsement.[28] I accept that the loss of the Clean Slate Act protection elevates theconsequences of conviction for Mr Brenna in this case. It strengthens the risk thatMr Brenna will lose his passenger endorsement (thereby affecting his income as anUber driver) and may make it harder to secure alternative employment.[29] Accordingly, the loss of the Clean Slate Act protections increases the likelihoodthat Mr Brenna will suffer the consequences identified by the Judge.Proportionality assessment[30] Counsel for Mr Brenna submits that the Judge overstated the gravity of theoffending and understated the consequences of the conviction when assessingproportionality.9 Criminal Records (Clean Slate) Act 2004, s 8.[31] My assessment of the gravity of the offending is the same as that of thesentencing Judge. However, I accept that the consequences of conviction may havebeen understated, given the impact of the Clean Slate Act. The question is whatimpact this has on the proportionality assessment.[32] Ultimately, I do not consider the loss of the Clean Slate Act protections issufficient to tip the balance in favour of a discharge. As noted in other cases, the Courtshould be cautious about giving too much weight to the revival of prior convictions.10To do so, risks undermining Parliament's intention that there be consequences forfurther offending.[33] While Mr Brenna may face consequences in terms of his current and futureemployment prospects as a result of conviction, those cannot be said to be out of allproportion to the gravity of the offence.[34] For completeness, I record that I have taken into account the victim's mostrecent views where she states that she no longer wishes to see Mr Brenna convicted.Those views are important, but they are not determinative, and they do not shift thebalance in this case.Result[35] The appeal is dismissed.___________________Edwards J10 Williams v Police [2013] NZHC 394; Enache v Police [2015] NZHC 2586; and Modise v Police[2018] NZHC 2367.