SMITH v NEW ZEALAND POLICE [2020] NZHC 3211

SMITH v NEW ZEALAND POLICE [2020] NZHC 3211 [7 December 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2019-404-000337[2020] NZHC 3211BETWEEN RUSSELL WARD SMITHAppellantAND NEW ZEALAND POLICERespondentHearing: 1 December 2020Appearances: D J Taumihau & A J Greaves for the AppellantA Al-Janabi for the RespondentJudgment: 7 December 2020JUDGMENT OF CAMPBELL JThis judgment was delivered by me on 07 December 2020 at 3.00pmRegistrar/Deputy RegistrarSolicitors/Counsel:Public Defence Service, AucklandKayes Fletcher Walker Limited, ManukauIntroduction[1] On 11 September 2018, following a judge-alone trial in the District Court atManukau, Judge McNaughton found the appellant, Mr Smith, guilty of two charges ofmale assaults female.1 At that time the Judge indicated that he would look favourablyon an application by Mr Smith for a discharge without conviction, if Mr Smith firstundertook 50 hours of community work.[2] Mr Smith undertook a little over 50 hours of community work. He alsovoluntarily undertook, and completed, an anger management course.[3] Mr Smith then applied, under s 106 of the Sentencing Act 2002, for a dischargewithout conviction. On 20 December 2018 Judge McNaughton declined Mr Smith'sapplication.2 He convicted Mr Smith on both charges, and ordered him to come upfor sentence if called upon within six months.[4] Mr Smith appealed his convictions. Peters J allowed his appeal in part.3 HerHonour held that the Judge had erred in finding the first charge proved. Oneconviction was therefore quashed. In light of that, her Honour remitted the matterback to Judge McNaughton for reconsideration of Mr Smith's application for adischarge without conviction.[5] Judge McNaughton reconsidered Mr Smith's application on 5 June 2020. TheJudge again declined the application.4 Mr Smith appeals from that decision.FactsThe offending[6] This summary of the offending is taken principally from Judge McNaughton'sfirst decision on Mr Smith's application for a discharge.[7] Mr Smith and the complainant had been in a relationship, and had livedtogether, for some years. The first incident on which Mr Smith faced charges occurred1 Police v Smith [2018] NZDC 17113.2 Police v Smith [2018] NZDC 26856.3 Smith v Police [2019] NZHC 2688.4 Police v Smith [2020] NZDC 18494.in August 2016. This was the incident in respect of which Peters J held the charge hadnot been proved.5 I will nonetheless refer to it briefly, because it provides context tothe judgment under appeal.[8] By the time of the first incident Mr Smith and the complainant had ended theirrelationship, but were living separate lives in different parts of the house that they stillshared. There was an argument between Mr Smith and the complainant about money.The Judge found that Mr Smith grabbed the complainant by the shirt and threw her tothe floor.6 The complainant struck her head on tiles. She split the skin above her eye,causing bleeding down her face and on to her shirt.[9] The second incident was in December 2016. By that time Mr Smith had movedout of the house. However, while the complainant was in Australia she askedMr Smith to stay at the house to mind a dog. When the complainant returned fromAustralia to the house an argument developed. The argument moved outside. TheJudge found that Mr Smith grabbed the complainant by the shirt and threw her acrossthe lawn.7 The complainant suffered bruising and a sore leg.Events after the offending[10] Mr Smith was charged in February 2017. The proceeding then had a ratherconvoluted history. I will set out the relevant parts.8[11] A judge-alone trial was scheduled for 20–21 December 2017. In advance oftrial the Judge set the matter for sentence indication on 11 December 2017. At thesentence indication hearing counsel for Mr Smith made submissions in support of anapplication for discharge under s 106 of the Sentencing Act. An affidavit by Mr Smithwas prepared for that application, but the affidavit was not (it seems) ever sworn.Judge McNaughton felt the matter was not clear enough to be dealt with on the basisof a sentence indication. The matter therefore proceeded to trial.5 Smith v Police [2019] NZHC 2688.6 Police v Smith [2018] NZDC 17113 at [45].7 At [44].8 The procedural history is based, in part, on an affidavit by Mr Smith's former counsel,Ms Cheeseman, dated 9 April 2019. That affidavit was made for the appeal before Peters J.[12] The trial commenced on 20 December 2017. It was adjourned, part-heard, onthe first afternoon. This occurred because the Police were unable, or refused, toprovide a prosecutor for the following day. The trial resumed, and was completed, on20 August 2018.[13] On 11 September 2018 Judge McNaughton delivered his decision in Court. Hedid not sentence Mr Smith that day. The Judge stated that if Mr Smith completed 50hours' community work he would look favourably on a s 106 application.[14] By the end of November 2018 Mr Smith had completed 51.5 hours' communitywork. He also self-referred for an anger management course, which he completed on4 December 2018.[15] Mr Smith's application for a discharge under s 106 was heard and determinedon 20 December 2018. Mr Smith was represented by counsel. No further affidavitwas filed in support of the application. His application was declined.[16] Mr Smith represented himself on his appeal before Peters J. He alsorepresented himself when the matter was remitted to Judge McNaughton forreconsideration of the s 106 application. No further affidavit was filed in support ofthe reconsideration of the application.Recent affidavit from Mr Smith[17] This appeal was first scheduled to be heard on 20 October 2020. At the startof that hearing Mr Taumihau, senior counsel for Mr Smith, requested an adjournment.The basis for this was that Mr Taumihau had just learnt that the affidavit that had beenprepared for the very first s 106 application (for the sentence indication hearing inDecember 2017) had never been signed or sworn by Mr Smith.9 Moreover, Mr Smithwished to clarify or correct matters in that draft affidavit.[18] Ms Al-Janabi, for the Crown, opposed the request for an adjournment. Igranted the request. Given the procedural history that I have set out, and that Mr Smithhad represented himself on the most recent hearing before Judge McNaughton, I9 The only copy of that affidavit on the Court file is unsigned and unsworn.determined that it was in the interests of justice that Mr Smith be given the opportunityto put his best case forward in respect of his application and this appeal.[19] Mr Smith made an affidavit dated 30 October 2020. Ms Al-Janabi submittedthat the evidence in the affidavit was not fresh, so that its admission was not in theinterests of justice. Alternatively, she submitted that if the affidavit was to be admitted,its contents did not affect the assessment under s 106.[20] I have determined that it is in the interests of justice to admit the affidavit.10The affidavit is primarily directed towards the consequences of a conviction forMr Smith. The affidavit provides more detail about those consequences than was inthe earlier unsworn affidavit, but it is broadly consistent with that earlier affidavit.Some of the consequences have arisen since the earlier affidavit (which was drafted inlate 2017) and since Judge McNaughton's decision (in December 2018) decliningMr Smith's earlier s 106 application. I have no reason to doubt the credibility of whatMr Smith has deposed to in that respect. I accept that Mr Smith could have providedthese details by an updating affidavit for the more recent (June 2020) hearing beforethe Judge. But I take account of Mr Smith being unrepresented at that hearing.Consequences of convictions for Mr Smith[21] Mr Smith has deposed to three consequences of a conviction: personal shameand reputational damage; consequences for his immigration status; and consequencesfor employment prospects. I address these in more detail below.District Court judgments[22] Section 106 of the Sentencing Act confers on the Court a discretion to grant adischarge without conviction. However, the discretion is subject to s 107, whichprovides that the Court must not grant such a discharge unless it is satisfied that "thedirect and indirect consequences of a conviction would be out of all proportion to thegravity of the offence."10 Criminal Procedure Act 2011, s 335(2)(c).[23] Judge McNaughton followed what is now a standard approach to s 106applications:11(a) First, assess the gravity of the offending. This involves considerationof the seriousness of the actual offending, but also includes anyaggravating and mitigating factors that apply to the offender.(b) Secondly, identify the direct and indirect consequences of a conviction.(c) Finally, consider whether those consequences are out of all proportionto the gravity of the offence.[24] In the June 2020 judgment that is under appeal, Judge McNaughton referred toand relied on his December 2018 judgment (regarding Mr Smith's earlier s 106application). I will therefore begin by summarising that December 2018 judgment.The Judge assessed the gravity of the actual offending (then consisting of twoconvictions) as of "moderate seriousness".12 This was because "the complainant wasinjured on both occasions and the repetition of your offending makes it more serious."His Honour then acknowledged that Mr Smith's voluntary community work andcompletion of an anger management programme mitigated the gravity of the offendingto the point that it was towards the lower end of the moderately serious range, "but itis difficult to characterise this as offending of minor gravity."[25] The Judge then turned to the consequences of a conviction for Mr Smith, whichat that point had been identified as damage to Mr Smith's reputation and consequencesfor future employment. The Judge concluded that these were not truly seriousconsequences out of all proportion to the moderate gravity of the offending.13 Hetherefore declined the application.11 Z (CA 447/2012) v R [2012] NZCA 599, [2013] NZAR 14 at [27]; and Mathieson v Police [2019]NZCA 406 at [8]. There is a fourth step: if the consequences of conviction are out of all proportionto the gravity of the offending, consider whether to exercise the discretion in s 106 to grant adischarge. But it will be a rare case that a Court will refuse to grant a discharge in suchcircumstances. On Mr Smith's appeal the Crown does not suggest that, if the consequences areout of all proportion, the s 106 discretion should not be exercised.12 Police v Smith [2018] NZDC 26856 at [8].13 At [9].[26] In his June 2020 judgment, the Judge said that even viewing the secondincident in isolation "I would still see that assault as moderately serious".14 Thecommunity work and anger management programme were mitigating, "but, again, notto the point that I would categorise this as offending of minor gravity".15 The Judgeassessed the consequences of the offending as still being of moderate seriousness(unsurprisingly, given that no additional information was provided to His Honour asto such consequences).16 The test for a discharge was therefore still not met.Appeal[27] The decision as to whether the test under s 107 has been met is not a matter ofdiscretion. It is a matter of fact requiring judicial assessment, which is subject toappeal on normal appellate principles. The appeal is by way of rehearing with theappellate Court making its own assessment of the merits.17DecisionGravity of the offending[28] I begin by considering the gravity of the offending. I respectfully differ fromJudge McNaughton's assessment that it was at the lower end of the "moderatelyserious" range. In my view it is appropriately characterised as of "low" gravity. Icome to that conclusion first by considering the seriousness of the actual offending,and secondly by considering the mitigating factors that apply to Mr Smith.[29] I characterise the actual offending as of moderate gravity. The assault was notpre-meditated. It did not occur as part of a long-term history of violence against thecomplainant. The assault itself was of short duration; it was not sustained. I acceptthat there are aggravating factors that prevent the actual offending being characterisedas of low gravity: the complainant suffered injuries (albeit not serious), and the assaultoccurred outside the complainant's home.14 Police v Smith [2020] NZDC 18494 at [3].15 At [3].16 At [4].17 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].[30] It is also necessary to consider any aggravating and mitigating factors thatapply to Mr Smith. There are no personal aggravating factors. But there are severalpersonal mitigating factors:(a) Mr Smith is a 57-year-old with no previous convictions. Until a backinjury several years ago, he had been in employment all his adult life.(b) He voluntarily undertook an anger management course addressing thecauses of his offending.(c) He voluntarily undertook community work (being slightly more thanthe Judge had encouraged him to do).(d) Mr Smith has shown remorse. Ms Al-Janabi points out that Mr Smithcontinues, in his recent affidavit, to dispute the Judge's findings as tothe circumstances of the December 2017 assault. That is correct. ButMr Smith accepts that he caused the complainant's injuries, and hisaccount of the circumstances amounts to an admission of assault.Mr Smith then goes on to express remorse for hurting the complainant.Given the steps that Mr Smith took (the anger management course andthe community work) I accept that his remorse is genuine.(e) There is a very low likelihood of Mr Smith re-offending.Unsurprisingly, he has not offended further in the three years since theDecember 2017 assault.[31] Judge McNaughton referred to most, but not all, of these factors. I have hadthe benefit of more information than the Judge. When all those factors are taken intoaccount, in my judgment the overall gravity of the offending is appropriatelycharacterised as "low".[32] I am reinforced in that conclusion by a comparison with the Court of Appeal'srecent decision in Mathieson v Police.18 There Mr Mathieson had pleaded guilty tocharges of male assaults female and threatening to kill. The assault consisted of18 Mathieson v Police [2019] NZCA 406.Mr Mathieson grabbing the complainant (his then partner) by the jaw with both hands.He repeated this action during the course of an argument, and threatened to kill thecomplainant.[33] Before his first Court appearance Mr Mathieson, who had alcohol issues, hadstarted on courses offered by Community Alcohol and Drugs Services, and had madeinquiries about anger management and non-violence courses. In due course hecompleted 12 weeks of an alcohol and drugs course, and a 20-week Living WithoutViolence course.[34] The Court of Appeal said that, assuming that the actual offending was"moderately serious", the relevant mitigating factors were "many and strong".19 Thesewere that Mr Mathieson was aged 40 and had only a careless driving convictioncommitted when he was 19; that he had been in constant employment all his adult life;that he had completed courses addressing the causes of his offending and appeared todisplay considerable insight into his offending; that he was remorseful; and that theimpetus for undertaking the courses came from Mr Mathieson before any formalengagement with the Court.20[35] Taking account of those "very positive mitigating factors" the Court ofAppeal's assessment of the overall gravity of the offending was that it was "of lowseriousness." 21[36] Mr Smith's personal mitigating factors are not as strong as Mr Mathieson's.For example, although he undertook the anger management course of his own impetus,he did not do so until after his convictions. But Mr Smith's actual offending wassignificantly less serious than Mr Mathieson's. An assessment of the gravity ofMr Smith's overall offending as "low" therefore sits comfortably with the Court ofAppeal's decision.19 At [15].20 At [15].21 At [17].Consequences of the convictions[37] Turning to the consequences of the convictions, Mr Smith does not have toestablish that the consequences would occur as a matter of fact. It is sufficient to showthat there is a "real and appreciable risk" of the consequences occurring.22[38] As it happens, and as will appear below, some of the consequences havealready happened. This is a function of the two years that have already passed sinceMr Smith was first convicted.[39] Mr Smith points to three consequences. The first is personal shame andreputational damage. I have no doubt that these have occurred, and will continue tooccur if the conviction remains. But I place very little weight on them. Personalshame is an ordinary consequence of a conviction. As to reputational damage, theremight be some circumstances in which the damage to an offender's reputation is sosubstantial that it is relevant to the s 106 assessment. But that is not the case here.Mr Smith merely refers, without any further detail, to the "negative impact" that theconviction has had on his reputation.[40] Secondly, Mr Smith says that the conviction has, and will continue to have,consequences for his immigration status. Mr Smith is a permanent resident of NewZealand, but not yet a citizen. In March 2019 Mr Smith travelled to South Africa tovisit his sick mother. This caused his residence visa to expire. Mr Smith's applicationfor a fresh visa was delayed for two months because of his conviction. This causedhim considerable expense and inconvenience. In addition, he is concerned about theimpact of the conviction on any application he may bring for citizenship. The effectof s 9A(1)(c) of the Citizenship Act 1977 is that Mr Smith is unable, for a period ofthree years from the date of the conviction, to obtain citizenship. That period willexpire in December 2021. Even then, Mr Smith will need to satisfy the good characterrequirement in s 8(2)(c) of the Citizenship Act.[41] I place very little weight on the last of these immigration matters (the goodcharacter requirement). There is no evidence to suggest that the immigrationauthorities would not look fairly and rationally at the particular circumstances of22 Mathieson v Police [2019] NZCA 406 at [18], citing R v Taulapapa [2018] NZCA 414.Mr Smith's conviction in determining whether he is of good character. It is appropriatethat that matter be determined by the immigration authorities, rather than pre-emptedby the Court granting a discharge.23[42] It is different for the two other immigration matters. Mr Smith has alreadysuffered significant expense and inconvenience with his visa; that he was eventuallyable to obtain a visa does not change those facts. There is a real and appreciable riskof those consequences occurring again. Mr Smith's inability to obtain citizenship forthree years (if the conviction stands) is a given, subject only to the very high"exceptional circumstances" discretion in s 9A(2).[43] In fairness to Judge McNaughton, I have been provided with more informationon the immigration consequences than he had. For example, the Judge was not madeaware (at the June 2020 hearing) of the immigration difficulties that Mr Smith hadalready encountered in 2019.[44] Thirdly, Mr Smith says that the conviction has, and will continue to have,consequences for his employment prospects. Mr Smith has 30 years' experience as aplumber. He has been unable to work as a plumber since a severe back injury in 2008.He has been receiving accident compensation benefits since 2009. He deposes that hehas found it very difficult to find employment as a result of his conviction. Heinstances an attempt to obtain employment at a local service station. The manageradvised that he was unable to hire Mr Smith because of his conviction.[45] Ms Al-Janabi criticises the lack of any documentary evidence corroboratingMr Smith's account of his difficulties in finding employment. But it can be difficultfor someone who has been out of the workforce to provide evidence of the directconsequences of a conviction on their employment prospects.24 It is clear that theconviction will place him at a disadvantage as against those without a conviction.Given Mr Smith's back injury, and consequent inability to work in the trade in whichhe is qualified and experienced, he is likely to be applying for fairly low-qualified jobs23 Ho v R [2016] NZCA 229 at [15], citing Zhang v Ministry of Economic Development HC AucklandCRI-2010-404-453, 17 March 2011 at [14].24 Parkinson v Police [2015] NZHC 3272 at [38]. See also R v Taulapapa [2018] NZCA 414 at[46](c): "Evidence of the attitude of employers may not be reasonably available, and in that casethe court will do the best it can on the evidence available. Judicial notice of facts may be takenwhere appropriate."(as his application for a job at the service station shows). There is a serious risk thatin that context Mr Smith's conviction will lead to any job application beingimmediately rejected without further inquiry.25Would these consequences be out of all proportion to the gravity of the offence?[46] The conviction, having stood for two years, has already had seriousimmigration and employment consequences. It is likely to continue to do so. In myjudgment those consequences are out of all proportion to the low gravity of theoffending. Mr Smith was in his early fifties, with an unblemished record, when theoffending occurred. It was an aggressive act, but was out of character, and was one-off. Mr Smith has taken steps since then to address his offending.[47] For those reasons, in my judgment Mr Smith should be granted a dischargewithout conviction under s 106.Result[48] I allow Mr Smith's appeal.[49] Mr Smith's conviction for male assaults female is quashed. Mr Smith isdischarged without conviction on that charge.______________________Campbell J25 Brown v R [2012] NZCA 197 at [31]–[32].