MALSTER v R [2020] NZHC 1444

MALSTER v R [2020] NZHC 1444 [24 June 2020]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2020-419-000043[2020] NZHC 1444BETWEEN REBEKKA JOANNE MALSTERAppellantAND NEW ZEALAND POLICERespondentHearing: 16 June 2020 (at Rotorua)Appearances: A A R Pell for the AppellantA S Alcock for the RespondentJudgment: 24 June 2020JUDGMENT OF WYLIE JThis judgment was delivered by Justice WylieOn 24 June 2020 at 4.00 pmRegistrar/Deputy RegistrarDate:Solicitors/counsel:A A R Pell, HamiltonCrown Solicitor, HamiltonIntroduction[1] On 16 March 2020, the appellant, Ms Malster, was convicted of one charge ofcommon assault in the Hamilton District Court by Judge Marshall. She wasdischarged on another charge – also of common assault.1 On the same day, JudgeMarshall entered a conviction against Ms Malster, and sentenced her to 80 hours'community work.2[2] Ms Malster has filed a notice of appeal against both conviction and sentence.The appeal was filed out of time, through no fault of Ms Malster or her counsel, butrather because of the lockdown due to the COVID-19 crisis. Ms Alcock, for theCrown, did not oppose an extension of time, and the same is granted.[3] Ms Malster asserts that trial counsel erred by failing to advance an applicationfor a discharge without conviction on her behalf. It is said that had such applicationbeen made, it would likely have succeeded, because the entry of a conviction impactssignificantly upon Ms Malster's ability to earn an income from operating a passengervehicle service and providing driver training services.[4] It was argued on behalf of the Crown that there was no trial counsel error, thata discharge without conviction was, in effect, sought, and that there has been nomiscarriage of justice because a discharge without conviction would not have beengranted in any event.Background facts[5] Ms Malster was contracted to an entity known as the Settlement Centre,Waikato, which is based in Hamilton. It assists refugees and migrants coming intoNew Zealand to settle in the Waikato region. Ms Malster was contracted as a drivinginstructor. She assisted the refugees and migrants to obtain drivers licences. She waspaid a fee for this work. In addition, Ms Malster works as a bus driver and in theprovision of other transport related services.1 Police v Malster [2020] NZDC 8316.2 Police v Malster [2020] NZDC 8302.[6] There were concerns about Ms Malster's services and in March 2019, theSettlement Centre sought to terminate her contract. Representatives of the Centrediscussed the matter with Ms Malster. The situation became tense. Ms Malsterdecided to leave and she went into an open plan area and gathered up her belongings.She then attempted to leave the building.[7] Staff at the Settlement Centre believed that Ms Malster was taking files thatbelonged to the Centre. A door was closed by someone. Ms Malster thought that thedoor was being closed to prevent her leaving. Other staff said that the door was closedto keep the noise down so those in the reception area would not hear what was goingon. The first complainant stood in front of the closed door. She said that Ms Malstercame towards her carrying a cardboard box with various items in it and pushed her inthe stomach with the cardboard box. Ms Malster denied this. She said that someoneopened the door and that she tripped going out of the room, spilling the items in thebox into the reception area.[8] After the spilled items had been picked up, Ms Malster went out to her car.Various staff members followed her. Ms Malster put the cardboard box in her boot.The second complainant grabbed some of the items out of the box. There wereconflicting allegations about what happened next. The police alleged that Ms Malsterbecame angry and that she briefly pinned the second complainant up against theoutside wall of the building with her forearm. Ms Malster said that she did not assaultanyone. In any event, the altercation died down and Ms Malster drove off.[9] As a result of these events, Ms Malster faced two charges of common assault– one relating to the incident with the cardboard box in the office, and the other relatingto the incident in the carpark.[10] Judge Marshall was not satisfied beyond reasonable doubt that the charge inrelation to the first incident was made out. He considered that it was a reasonablepossibility, given the shock and confusion that everybody was experiencing, thatMs Malster could have tripped whilst carrying the box, and that the box couldinadvertently have come into contact with the first complainant. In relation to theincident in the carpark, the Judge preferred the evidence of the three witnesses calledby the police. He considered that Ms Malster had intentionally used her forearm topin the second complainant to the wall and he found the second charge proved beyondreasonable doubt.[11] There was then a brief discussion between counsel, David Venter, and theJudge about sentencing. The Judge indicated that he was looking at an emotional harmpayment. Counsel asked if that implied "a possible 106". The Judge responded asfollows:No, I would not be contemplating that on a not guilty basis. That would be avery hard hurdle to overcome Mr Venter. The – I would think that remorseand acceptance of responsibility and accountability would be one of theimportant things when considering that.Counsel then requested a brief adjournment so he could discuss the issue withMs Malster. The Judge responded:Yes, you can and I mean there is no bar to you bringing one before me. Butthe reality is on a 106 that accountability and acceptance of responsibility areone of the more important aspects I think, okay?The Court then adjourned and counsel had a brief discussion with Ms Malster. I turnto the detail of that discussion shortly.[12] When the hearing resumed, the Judge proceeded to sentence Ms Malster. Heentered the conviction. He recorded that his preference would have been to order anemotional harm payment in favour of the second complainant, but that becauseMs Malster could not afford to make such a payment, this was not appropriate. Heconsidered that a suitable alternative sentence was one of community work. Herecorded that he was keeping the hours down to "a reasonably modest number",because Ms Malster had little by way of previous convictions and nothing relevant tothe conviction for common assault. He sentenced her to 80 hours' community work.The appeal[13] As noted, the appeal is against conviction and sentence. It was broughtpursuant to ss 232 and 244 of the Criminal Procedure Act 2011. Section 232 dealswith appeals against conviction. It provides that the first appeal court must allow theappeal if it is satisfied, inter alia, that a miscarriage of justice has occurred for anyreason.3[14] Mr Pell, for Ms Malster, discussed whether an appeal against a refusal to granta discharge without conviction under s 106 of the Sentencing Act 2002 is an appealagainst conviction or sentence. This issue has been resolved by the Court of Appeal.An appeal against a refusal to discharge a defendant without conviction is properlycharacterised as an appeal against both conviction and sentence.4 I do not howeverconsider that this matters in the present case. The Judge did not refuse to dischargeMs Malster without conviction, because no application for a discharge withoutconviction was made. All the Judge did was signal his preliminary view that anyapplication might face difficulties.[15] Ms Malster appeals her conviction on the ground of trial counsel error. Shesays that counsel failed to seek a discharge without conviction, notwithstanding thathe knew that she considered that the consequences of a conviction would be verysignificant for her. She says that as a result the conviction was entered in error, as wasthe subsequent sentence imposed.[16] Where trial counsel error is alleged, two issues arise – first, did trial counselerr, and secondly, if an error was made, is there is a real risk that it affected theoutcome. If there is a real risk that an error affected the outcome, then there will havebeen a miscarriage of justice, and that is the statutory ground of appeal.5[17] If there is a real risk that the error affected the outcome, the appeal will beallowed, with the result that the sentence appeal will not require consideration.6 If theconviction appeal fails, then there is no independent challenge to the sentence imposedand the sentence appeal again does not require separate consideration.3 Criminal Procedure Act 2011, s 232(2)(c).4 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12]; Ovtcharenko v Police [2017] NZCA65 at [5].5 Criminal Procedure Act 2011, s 232 (4)(a). R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730at [7]-[9] per Elias CJ, [45], [49], [58], [64]-[66], [69]-[70] per Gault, Keith and Blanchard JJ, and[110]-[112], [115] and [118] per Tipping J; R v Scurrah CA159/06, 12 September 2006 at [17]; Inthe context of a failure by counsel to apply for or properly advise about a discharge withoutconviction, see Chand v Police [2017] NZHC 2188; Carroll v Police [2018] NZHC 2930.6 Jackson v R, above n 4, at [13]-[15].Counsel error?[18] Ms Malster filed an affidavit making various allegations about the way inwhich Mr Venter handled her case. By way of example, she said that the only timeshe spoke to him was about 20 minutes before the trial was due to start. She referredto the trial and said that, after the Judge found her guilty of one charge, she andMr Venter were allowed time to discuss matters. She said that she told Mr Venter thatshe did not want a criminal record because she was concerned that it would affect heraccreditation as a driving instructor, and affect endorsements she had on her licencepermitting her to drive passenger vehicles. She said that Mr Venter told her that, inhis view, the offending was too serious and that any application for a discharge withoutconviction would not succeed. She said that Mr Venter made it "absolutely clear" thathe was not going to ask for a discharge without conviction.[19] Ms Malster did not initially grant a waiver permitting Mr Venter to speak tothe Crown. It was however granted on 1 June 2020, and Mr Venter filed an affidavit.He said that he had numerous discussions with Ms Malster prior to the trial to discussthe charges. He also said that she attended at his office, sometimes without anappointment, to discuss matters. He accepted that he was aware of her concern that aconviction might impact on her ability to work as a driving instructor. He said that,for this reason, he asked for a sentence indication. He noted that Ms Malster did nottake the sentence offered, and the matter went to trial. He said that, after the trial, hesought an adjournment before any sentence was imposed to discuss with her theJudge's finding and its consequences.[20] Given the conflicting evidence, I heard viva voce evidence from Ms Malster,her support person, Stuart Tomuri and Mr Venter.[21] Mr Malster largely repeated her initial version of events. She initially assertedthat Mr Venter never sat her down and discussed with her the consequences of aconviction. However, she accepted, in cross-examination, that there had been adiscussion or discussions, but "not in a way that I understood". Despite what she hadsaid in her initial affidavit, she also accepted that she had phone discussions withMr Venter about the charges, and that she had dropped paperwork prepared by herinto his office. She accepted that she heard the discussion between Judge Marshalland Mr Venter which I have set out above. When it was put to her that Mr Ventersought a brief adjournment so that he could take her instructions, she said "well, hedidn't take instructions. He forcefully told me what he wasn't going to do and applying for it was something he was not going to do". When it was put to her thatshe did not provide Mr Venter with instructions to make application for a dischargewithout conviction, she responded "I am not of the law. I don't understand what isrequired for these things".[22] Mr Tomuri was both in Court and in the interview room with Mr Venter andMs Malster during the adjournment. He admitted that he wasn't really focusing onwhat was being said, but he remembered Ms Malster saying, "I cannot afford to havea conviction" and Mr Venter banging his hand on the table and saying, "I'm notapplying for one".[23] Mr Venter said that he had numerous discussions with Ms Malster, both inperson and by phone prior to the hearing. He said that he understood, from May 2019at the latest, that she was worried about the impact of a conviction. He said that it washowever difficult dealing with her because she strongly denied the offending. Asentence indication was sought but it was not taken up. Mr Venter accepted in cross-examination that he did not make application for a discharge without conviction at thisstage. He said, "my position is that at that point, counsel don't apply for – make thoseapplications". He said that, following the trial, he raised the possibility of a s 106application with the Judge because he was aware that Ms Malster had concerns abouta conviction. He said that he raised it to "get a steer on whether it was something he[the Judge] would consider". He said that in the interview room during theadjournment, Ms Malster reiterated that she couldn't afford to have a conviction andthat he told her that it was unlikely that any application would succeed. He deniedsaying that he told he wouldn't make an application. Rather, he said that he told herany application was unlikely to be granted and that he couldn't see the point in makingone. He said that Ms Malster did not instruct him to make an application. He acceptedin cross-examination that he could have sought to adjourn the sentencing to give himtime to file an application for a discharge without conviction. He said that he didn'tdo so because of the view expressed by the Judge.[24] In response to questions from me, Mr Venter accepted that the position couldbe summarised as follows – Ms Malster didn't give him instructions to makeapplication for a discharge without conviction; nor did she give him instructions notto do so, but she did reiterate the importance to her of not having a conviction enteredagainst her.[25] I turn to assess this evidence.[26] In my view, Ms Malster tended to exaggerate matters. I accept counsel'sevidence that Ms Malster did contact him on more than one occasion prior to the trial.I note that Mr Venter annexed to his affidavit extensive typed notes prepared byMs Malster referring to the evidence which had been disclosed in some detail. Whileshe initially asserted that she was not advised about the consequences of a conviction,she later resiled from this assertion.[27] I do not consider that counsel erred by not making application for a dischargewithout conviction prior to the sentence indication. Indeed, I doubt that he could havedone so. Section 106 of the Sentencing Act provides that if a person charged with anoffence is found guilty or pleads guilty, then the Court can discharge the offenderwithout conviction. In my view, counsel cannot be criticised for not makingapplication prior to his client either being found guilty or pleading guilty. The sentenceindication given was however significant. Judge Connell indicated that Ms Malstercould deal with the matter by making a donation to the Settlement Centre.7 It is, inmy view, strongly arguable that counsel should then have raised the possibility of adischarge without conviction, because the sentence indication given could have readilybeen dovetailed with a discharge without conviction accompanied by an order for thepayment of compensation under s 106(3). The Judge may or may not have beenprepared to give an indication as to how any such application might have been receivedbut there was nothing to be lost by raising the possibility. It may have advancedMs Malster's position. Further, counsel should have expressly discussed withMs Malster the fact that she could have made application for a discharge without7 R v Malster, DC Hamilton, CRI-2019-019-001726, 7 May 2019.conviction if she accepted the indication and entered a guilty plea or pleas to one orother or both of the charges. There is no evidence suggesting that this occurred.[28] Further, I am not persuaded that counsel dealt with matters properly followingthe trial and after the Judge had found that one of the charges was proved beyondreasonable doubt. I accept that Ms Malster did not instruct counsel to make applicationfor a discharge without conviction. But nor did she instruct him not to do so. Counselwell knew that, in Ms Malster's view, a discharge would have a significant impact onher and that she could not afford to have a conviction on her record. It was open tocounsel to make application for a discharge without conviction, notwithstanding theJudge's preliminary view. Indeed, the Judge was careful to point this out to counsel.In my judgment, Mr Venter should have better appreciated Ms Malster's position,carefully discussed the issue with her, explained to her the pros and cons of makingapplication, and then obtained her firm and preferably written instructions, either tomake application or not to do so. Again, there is no evidence that any such carefuldiscussion took place. I consider that counsel erred in failing to fully discuss thematter with his client, and in failing to obtain her informed instructions.Is there a risk that the errors affected the outcome?[29] Section 106 of the Sentencing Act provides that a person who is charged withan offence, and who is found guilty or who pleads guilty, may apply for a dischargewithout conviction, as long as no minimum sentence is required. Section 107 statesas follows:107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unless the courtis satisfied that the direct and indirect consequences of a conviction would beout of all proportion to the gravity of the offence.[30] In Z v R,8 the Court of Appeal held that s 107 requires an assessment, first, ofall aggravating and mitigating factors of both the offender and the offending, andsecondly, of whether the consequences, both direct and indirect, of a conviction areout of all proportion to the gravity of the offence. If the Court considers that the8 Z(CA447/2012) v R [2002] NZCA 599, [2013] NZAR 142 at [27].consequences of conviction are out of all proportion to outweigh the gravity of theoffence, the final step is to consider whether the Court should, in the exercise of itsdiscretion, grant a discharge without conviction under s 106.9Gravity of the offending[31] In my judgment, the offending at issue in this case was at a low level. Theassault followed a verbal altercation where tempers became raised. UndoubtedlyMs Malster overreacted, but in the circumstances, where her employment was beingterminated, her overreaction is understandable. The assault was at the low end of thespectrum. The application of force was relatively minimal; while the evidence wasthat Ms Malster had to be pulled off the second complainant, there was no seriousresulting injury. Further, there were some mitigating factors. Ms Malster has twoprior convictions – both for relatively minor offending and more than 20 years earlier.She had not otherwise been in trouble with the law. She is entitled to credit for herrelatively unblemished record. It is also arguable that the second complainantprovoked Ms Malster, by taking items out of her car, when she had no authority to doso and when she knew that Ms Malster considered that the items were hers.Consequences of the conviction[32] I turn to the consequences of the entry of the conviction. Had a dischargewithout conviction been sought, Ms Malster would not have been required to establishthat the consequences would inevitably or even probably have occurred. It would havesufficed if the Court has been satisfied that there was a real and appreciable risk ofsuch consequences.10[33] Here, the claimed consequences were two-fold – Ms Malster says that if theconviction stands, the New Zealand Transport Agency (the Agency) will not considerher to be a fit and proper person for the provision of transport services. Further, if sheis considered unfit, she says that she is likely to lose her accreditation as a registereddriving assessor.9 Edwards v R [2015] NZCA 583 at [6].10 DC(CA47/13) v R [2013] NZCA 225 at [43]; Waine v R [2017] NZCA 287 at [29].[34] The evidence was that up until 16 March 2020, Ms Malster held a driver'slicence and that she had various endorsements permitting her to operate different typesof motor vehicles; "classes 1, 2, 4, I1, [and a] passenger endorsement large and smallpassenger service, wheels, tracks, rollers, forklift, dangerous goods and vehiclerecovery". She was also a registered driving assessor recognised by the MotorIndustry Training Organisation (MITO). She had held that position for some twoyears. As a registered assessor, she could assess drivers against New ZealandQualifications Authority standards for work place assessments. She was also workingtowards obtaining a National Certificate in Driver Education, and she operated abusiness known as Achieve Driver Training.[35] Ms Malster gave evidence that when she was charged, the Agency revoked herendorsements, "except for class 1, wheels, tracks rollers and forklifts". She said thatshe contacted the Agency and asked why her licences and endorsements had beenrevoked when the charges had not been proved. She was told that it was because shehad been charged. She said that subsequent to the trial, she was granted class 2 andclass 4 endorsements, but that she has not had her passenger or instructor'sendorsements reinstated, because of the conviction. She said that she has applied tothe Agency for reinstatement of her various licence classes and endorsements so thatshe can continue to teach, train and carry passengers, but that the conviction will likelyresult in her being found not to meet the fit and proper person test required for thepurposes of training and assessing drivers, as well as carrying passengers. She saidthat the impact of the conviction is such that it is unlikely that she will be able to holdany endorsement for passenger vehicles, that she will be unable to drive buses or taxisor undertake vehicle recovery, or do anything driving related in which the public isinvolved. She also said that MITO has verbally advised her that, even if she gets theendorsements reinstated, she will not be approved to teach or train pursuant to theircode of conduct.[36] Mr Tomuri, who was previously employed as a driver trainer and independentwork place assessor for driving ability, asserted in his affidavit that unless Ms Malstercan overturn the conviction, she has no future in the transport industry. He says thatMITO will not reinstate her training ability under instructor endorsement if she has aconviction.Proportionality[37] On the face of it, these consequences would seem to be disproportionate to thegravity of the offending. However, I note that, relevantly, s 30C of the Land TransportAct 1998 provides as follows:30C General safety criteria(1) When assessing whether or not a person is a fit and proper person inrelation to any transport service, the Agency must consider, inparticular, any matter that the Agency considers should be taken intoaccount—(a) in the interests of public safety; or(2) For the purpose of determining whether or not a person is a fit andproper person for any of the purposes of this Part, the Agency mayconsider, and may give any relative weight that the Agency thinks fithaving regard to the degree and nature of the person's involvement inany transport service, to the following matters:(a) the person's criminal history (if any):(f) any other matter that the Agency considers it is appropriate inthe public interest to take into account.(3) In determining whether or not a person is a fit and proper person forany of the purposes of this Part, the Agency may consider—(a) any conviction for an offence, and(b) the fact that the person has been charged with any offencethat is of such a nature that the public interest would seemto require that a person convicted of committing such anoffence not be considered to be fit and proper for thepurposes of this section.(4) Despite subsection (3), the Agency may take into account any othermatters and evidence as the Agency considers relevant.(emphasis added)[38] Similarly, MITO's Code of Conduct for registered assessors requires that anapproved assessor must let MITO know about anything which may affect the person'srole as an independent assessor, and, by way of example, it records an assessor shouldlet MITO know if he or she is awaiting the hearing of charges in a civil or criminalcourt. It then provides that MITO may deregister a person if the person has beenconvicted of a criminal offence.[39] In the present case, I do not consider that it can properly be said that theconsequences of the conviction were out of all proportion to the gravity of the offence.I have reached this conclusion for the following reasons:(a) The Government has set up a statutory body – the Agency – to considerwhether or not a person seeking to become involved in the provision oftransport services is a fit and proper person to hold the various licencesand endorsements required. The Courts should not generally usurp theright of such a body to decide the significance of any particularconviction. It is not the function of the Courts to preempt suchdecisions.11(b) A number of the transport services that Ms Malster used to (and nowseeks afresh to) provide, required her to have regular contact withmembers of the public. A conviction for assault may arguably bear onher suitability for such a role.(c) Importantly, s 30C of the Land Transport Act goes beyond convictions.Section 30C(3)(b) permits the Agency to consider the fact that a personhas been charged, if the offence is of such a nature that the publicinterest would seem to require that a person convicted of such anoffence not be considered to be a fit and proper person for the purposesof the section. Whether the assault here in issue, even though low level,goes to the relevant public interest, is a matter for the Agency toconsider as the statutory body entrusted with that task.(d) Similarly, MITO's Code of Practice for independent registeredassessors, requires independent assessors to disclose anything which11 Maraj v Police [2016] NZCA 279 at [36]; Graham v Police [2018] NZCA 172 at [29]; Police vRoberts [1991] 1 NZLR 205 (CA).could affect their role, including the fact that they are waiting a hearingof a charge against them in a civil or criminal court of law.(e) Neither the Land Transport Act nor MITO's Code of Practice suggestthat a conviction is an absolute bar to a person being recognised as fitand proper and being given the appropriate accreditation. Both confera discretion and both the Agency and MITO can be expected to exercisethat discretion responsibly and in a lawful way. Given the events herein issue, it is in the public interest that the Agency, as the statutory body,knows what happened and then exercises the discretion conferred on itpursuant to s 30C of the Land Transport Act according to law.12[40] In this case, it is not the conviction which imperils Ms Malster's recognitionas a fit and proper person, or her accreditation. It is the fact that she became involvedin an altercation which resulted in the charges being laid. Ms Malster's history, thefact of the recent charges and the result, whether it be a conviction or a dischargewithout conviction, will be open for consideration by the Agency and MITO. It seemsto me that in the circumstances, the conviction cannot properly be said to have resultedin a disproportionate consequence.13[41] In my judgement, even if an application for a discharge without conviction hadbeen filed, the same would not have succeeded.[42] Accordingly, I do not consider that justice has miscarried as a result of trialcounsel's error. The appeal is dismissed.______________________________Wylie J12 R v Foox [2000] 1 NZLR 641 (CA) at 619 to 650.13 Parker v Police [2016] NZHC 2524 at [22] and [29]; Graves v Police, HC Rotorua, CRI-2010-463-57, 28 February 2011; Backhouse v Police [2015] NZHC 1178.