HAZE v POLICE [2019] NZHC 1974

HAZE v POLICE [2019] NZHC 1974 [13 August 2019]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlIN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2019-488-000006[2019] NZHC 1974IN THE MATTER OF an appeal against sentenceBETWEEN ROMOARE HAZEAppellantAND NEW ZEALAND POLICERespondentHearing: 12 August 2019Counsel: A M Harvey for the AppellantC S Taylor for the RespondentJudgment: 13 August 2019JUDGMENT OF EDWARDS JThis judgment was delivered by me on 13 August 2019 at 3.30 pm.Registrar/Deputy RegistrarSolicitors: Thomson Wilson, WhangareiMarsden Woods Inskip Smith (Office of the Crown Solicitor), Whangarei[1] Mr Haze pleaded guilty to one charge of indecent assault after the complainantgave evidence at his jury trial in September 2018.1 His application for a dischargewithout conviction was declined and he was sentenced to 150 hours' community workand 12 months' supervision.2 Mr Haze appeals the decision refusing him a dischargewithout conviction.The offending[2] Although the complainant had given evidence at trial, Mr Haze's guilty pleawas in relation to the summary of facts. The following is taken from that document.[3] Mr Haze and the victim were unknown to each other. In early 2017, Mr Hazeapproached the victim while she was shopping in Whangarei. He told her his nameand asked if he could take her to lunch and for a walk. She declined.[4] The incident giving rise to the indecent assault charge occurred at about 6 pmon 4 April 2017. The victim had been to the gym and was walking to her car. She gotinto her car and shut the door. Mr Haze came running up to the car and knocked onthe window. The victim opened the door. Mr Haze crouched down, said hello, andbegan asking her questions about the gym. He then began asking her what she did totrain her arms and legs. By this time the victim was feeling extremely uncomfortable.[5] Mr Haze then put his hand on top of the victim's right calf muscle and movedhis hand up and down saying all the time that it felt good. The victim told Mr Hazenot to touch her. Mr Haze removed his hand. He then offered to show the victim hisbiceps. The victim told him to go away and leave her alone. Mr Haze then took offhis jumper and began showing the victim his biceps. He continued talking abouttraining at the gym, asking her if she wanted to go for a walk, and making enquiriesabout her husband.1 Contrary to s 135 of the Crimes Act 1961; maximum penalty seven years' imprisonment.2 R v Haze [2019] NZDC 5273.[6] It was at this point that Mr Haze reached into the car, put his right hand on thevictim's leg and began to rub it up towards the victim's waist. He then leaned in andkissed the victim on the neck. The victim pushed him away telling him to "fuck off"and saying that her husband was currently training at the gym. Mr Haze then ran off.[7] In her victim impact statement, the victim describes being shaken by whathappened. Prior to the incident, she says she was open and trusting, but now she ismore cautious around people she does not know and does not like to go to placeswithout her husband.Personal circumstances[8] Mr Haze was 32 years old at the time of the offending. He has two youngchildren, and at the time of sentencing in the District Court was completing anapprenticeship as a motor mechanic. That employment has since been terminated forreasons unrelated to his conviction.[9] Mr Haze's affidavit in support of a discharge without conviction refers tomatters of a personal nature in his childhood for which he is now receiving treatmentfrom a clinical psychologist. A letter from that psychologist was annexed to Mr Haze'saffidavit. In her opinion, Mr Haze's childhood experiences have skewed hisperception of consent.[10] In terms of criminal history, Mr Haze has two prior convictions, both relatingto events on 24 September 2012. One is for male assaults female and the other is forpossession of a knife in a public place. Both are stated on Mr Haze's criminal historyto have been family violence offences. There are no other details of the offendingleading to these charges.District Court decision[11] The Judge began by noting the three-stage approach to applications fordischarge without conviction made under ss 106 and 107 of the Sentencing Act 2002.[12] As to the first of those three stages, the Judge found the offending to bemoderately serious. The Judge noted that the touching was not of an intimate area,but that it involved skin-on-skin contact of a deliberate and sustained nature which hadoccurred after the victim had clearly told Mr Haze she was not interested in him.3[13] The Judge considered Mr Haze's previous convictions to demonstrate "aparticular attitude towards women".4 On the other hand, Mr Haze's personal historywas seen to lessen the culpability of his offending; albeit not, in the Judge's view, bymuch.5[14] In terms of the second stage, the Judge noted that Mr Haze had raised threeconcerns in his affidavit evidence. The first of these was his personal history. As theclinical psychologist's letter did not say a conviction would hinder Mr Haze'streatment, the Judge did not regard this as a particular issue.6 Further, the Judge didnot consider that the stigma of conviction would more gravely affect Mr Haze's mentalwellbeing any more than that of the notional average defendant.[15] The second concern raised was the impact of a conviction on Mr Haze'semployment or training as an apprentice. The Judge noted that Mr Haze had not putanything before the Court indicating that this was more than a potential problem. Hewas not persuaded that this was a real and appreciable risk in the circumstances.7[16] The third concern related to the offence being the subject of a first-strikewarning under the Sentencing Act. The Judge said that was a natural and ordinaryconsequence of Parliament having designated indecent assault a "serious violentoffence",8 and it was not a risk of any consequence to Mr Johnson.93 At [9] and [10].4 At [11].5 At [12].6 At [15].7 At [16].8 Sentencing Act 2002, s 86A.9 At [17].[17] Taking the above into consideration, the Judge was not satisfied that aconviction would be out of all proportion to the seriousness of Mr Haze's offending.The application for a discharge was accordingly dismissed.Approach to appeal[18] The legal principles relevant to an application for a discharge withoutconviction are well settled. The Court must consider whether the threshold unders 107 of the Sentencing Act has been met. That requires the Court to undertake a three-step analysis assessing:10(a) the gravity of the offence, taking into account all aggravating andmitigating factors of the offending and offender;(b) the direct and indirect consequences of a conviction. There must be a"real and appreciable" risk that any given consequence will happen;and(c) whether those consequences are out of all proportion to the gravity ofthe offence.[19] If the offender meets the s 107 threshold, then the Court may go on to considerwhether to exercise the residual discretion under s 106.[20] An appeal against a refusal to grant a discharge is an appeal against convictionand sentence.11 The proportionality test under s 107 is a question of fact requiringjudicial assessment.12 General appeal rights apply.Gravity of the offending[21] Mr Harvey, counsel for Mr Haze, submits that the Judge erred in characterisingMr Haze's offending as being of moderate, rather than minor, seriousness.10 See R v Taulapapa [2018] NZCA 414 at [22] for a recent statement of these principles.11 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [8]–[9] and [16].12 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].[22] In terms of the offence itself, the Court of Appeal has acknowledged thatindecent assault encompasses a wide range of conduct and each case requiresassessment on its own facts. Nevertheless, because all such offences involve aninfringement on an individual's right to autonomy and dignity, it is an offence that theCourt always takes seriously.13[23] Mr Haze's offending in this case had several aggravating features. It wasdeliberate. It appears that Mr Haze followed the victim as she exited the gym andwent to her car. Mr Haze had attempted on at least two occasions to make contactwith the victim, and she had made it clear that she had no interest whatsoever in talkingto him. I do not consider the Judge was wrong to characterise that offending aspersistent in the circumstances.[24] The assault itself involved skin to skin contact and kissing on the victim's neck.The victim was in a confined space and so could not avoid Mr Haze's advances. Inthat respect, she was vulnerable and understandably frightened by Mr Haze's conduct.I consider it was open to the Judge to assess the gravity of the offending as moderatelyserious in those circumstances.[25] In terms of personal aggravating factors, I consider the Judge was also entitledto take into account Mr Haze's previous male assaults female conviction. I accept thatthere were no details of the particular offending, and accordingly the inference thatMr Haze had "a particular attitude towards women" may have been strained.Nevertheless, and as the Crown submits, both convictions involve physical andunwanted contact against women. In that respect, it was an aggravating feature thatcontributed to the overall assessment of the gravity of the offending as beingmoderately serious.[26] As to personal mitigating factors, Mr Harvey submits that the Judge failed toaccord sufficient weight to the psychological impact of Mr Haze's childhood trauma.The psychiatrist's opinion that this background skewed Mr Haze's perception ofconsent and meant that he failed to pick up on social cues assists in explainingMr Haze's conduct. But that explanation does not excuse his conduct. Although it13 Waine v R [2017] NZCA 287 at [16].mitigates the gravity of the offending to some extent, I agree with the Judge that itdoes not have a great impact on the seriousness of Mr Haze's offending.[27] Looking at all the factors in the round, I consider the gravity of the offendingwas probably around the low–moderate mark. That may be less than what the Judgeassessed it as – but not by very much.Consequences of conviction[28] Mr Harvey submits that the Judge erred in assessing the consequences of theconviction (a) for Mr Haze's employment prospects, and (b) in relation to the effect ofthe first-stage warning for the offence.Employment[29] At sentencing, the focus of Mr Haze's application for a discharge withoutconviction was on retaining employment. At that time Mr Haze was in regularemployment and working towards completing his mechanics apprenticeship. Sincethen, however, Mr Haze has lost his job, although for reasons seemingly unrelated tohis conviction. Mr Haze is pursuing an unjustified dismissal claim and looking foralternative employment.[30] In an updating affidavit filed with the Court, Mr Haze states that he has beenunsuccessful in finding other jobs. He says that previously he did not have as muchdifficulty in obtaining a job "but it seems now with my recent conviction things havebecome more difficult".[31] There is little detail provided in either of Mr Haze's affidavits about the impactof a conviction on his employment. That will ordinarily be required. However, inR v Taulapapa, the Court of Appeal observed that there is no legal onus on an offenderto provide a factual basis satisfying the s 107 threshold, and s 107 simply requires thatthe judge be satisfied that the requirements of the section are met.1414 R v Taulapapa [2018] NZCA 414 at [23].[32] Mr Harvey relies on the summary of the points emerging from case law aboutthe impact of a conviction on employment prospects noted in that case.15 In particular,he refers to the Court of Appeal's observations that the consequences of convictionmay be severe where employers are filtering applications without considering thecircumstances of the criminal offending. The Court said that this may be particularlyrelevant for semi-skilled and unskilled workers.16 Mr Harvey submits that Mr Haze'schosen employment, that of an automotive mechanic, falls into this category.[33] The Court of Appeal's observations in R v Taulapapa do not advanceMr Haze's case in my view. That case was concerned with the impact of a convictionon the employment prospects for young offenders. Mr Haze is 32 years old and hehas an employment record. He accordingly falls outside the offender group that theCourt of Appeal was particularly concerned with in that case.[34] Further, it is not possible to say that Mr Haze's difficulties in obtainingemployment in his chosen field are due to his conviction. He has provided scant detailto substantiate that claim. Given his prior criminal history, and his presentemployment difficulties, it is by no means clear that problems in obtainingemployment are due to his conviction.[35] On the basis of the evidence before the Court, I am not persuaded that Mr Hazefaces any greater difficulties in obtaining employment as a result of the convictionthan would flow in the ordinary course.First-stage warning[36] Mr Harvey submits that the Judge erred by not according sufficient weight tothe fact that entering a conviction will mean that Mr Haze will receive a first-stagewarning under the Sentencing Act.15 At [34]–[49].16 At [42(d)].[37] The Judge considered this to be a matter mandated by Parliament, and not arisk of any consequence for Mr Haze.17 That is because the actual impact of a first-stage warning only arises if Mr Haze commits a second-stage offence (as defined inthe Sentencing Act). In those circumstances, Mr Haze will be obliged to serve the fullsentence imposed for that offence without parole. But, until that time, the first-stagewarning is simply noted on Mr Haze's criminal record and it has no other consequenceof any substance.[38] Mr Harvey was unable to find any cases in which this point had beenconsidered and accordingly did not press this ground of appeal before me. I have nothad the benefit of full submissions on the competing contentions on either side of thisargument. Nevertheless, the possibility that there may be cases where the offendingis of such a low level that just becoming subject to the three-strike regime is aconsequence out of all proportion to the gravity of the offending cannot bediscounted.18[39] However, I am not persuaded that this is one of those cases. Although thegravity of the offending is towards the lower end of the scale, it is far from being atthe bottom. On the basis of the material before me, I am not satisfied that this is a casewhere the statutory consequence of a first-stage warning is one that is out of allproportion to the gravity of the offending.Proportionality[40] It follows from my analysis above that the consequences identified by Mr Hazeare not out of all proportion to the gravity of his offending. They are ordinaryconsequences that flow from offending of this nature.[41] Further, there is no evidence that these consequences will be magnified due toMr Haze's childhood experiences. Importantly, there is no reason to suggest thatentering a conviction will impede Mr Haze's treatment for those experiences.17 R v Haze [2019] NZDC at [17].18 Compare Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49 at [77]–[79].[42] Accordingly, the threshold in s 107 is not met and the question of the Court'sdiscretion in s 106 does not arise. The Judge did not err and the appeal must bedismissed.Result[43] The appeal is dismissed.___________________Edwards J