MITCHELL v NZ POLICE [2020] NZHC 440

MITCHELL v NZ POLICE [2020] NZHC 440 [9 March 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-000512[2020] NZHC 440IN THE MATTER of an appeal against convictionUNDER the Criminal Procedure Act 2011, ss 229 and244BETWEEN SARAH-JANE MITCHELLAppellantAND NEW ZEALAND POLICERespondentHearing: 4 February 2020 (Further submissions received on 20 and28 February 2020)Appearances: S Moore for the AppellantK Fitzgibbon for the RespondentJudgment: 9 March 2020JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Monday, 9 March 2020 at 2.00 p.m.Registrar/Deputy RegistrarSolicitors: Meredith Connell (Office of the Crown Solicitor), Auckland for the RespondentBen Langdon, Auckland, for the AppellantCounsel: S Moore, Auckland, for the Appellant[1] On 13 November 2018, Sarah-Jane Francis Mitchell pleaded guilty to onecharge of wilful damage. On 29 March 2019, she pleaded guilty to one charge ofassault arising out of the same incident.[2] On 1 November 2019, Judge J C Down declined Ms Mitchell's application fora discharge without conviction. On the charge of assault, the Judge convictedMs Mitchell and ordered her to pay emotional harm reparation of $1,000 andreparation of $2,196 for damage to a television set. On the charge of wilful damage,he convicted and sentenced Ms Mitchell to 40 hours' community work.[3] Ms Mitchell now appeals against the decision of Judge Down to refuse adischarge without conviction.Factual background[4] At about 10.00 am on Sunday, 7 October 2018, the appellant went to a Birkdaleaddress, being the residential address of Mr J, who is described in the agreed summaryof facts as the appellant's ex-partner. He was present at the address together with afemale friend, who was the victim of the assault.[5] The appellant entered the property and approached Mr J and the victim inMr J's bedroom. The appellant intentionally scratched the victim and pulled her hair.On leaving the property she knocked the television set in the lounge, causing damageto the screen. She also picked up an empty alcohol glass bottle and threw it in thedirection of Mr J. The bottle missed him and hit the front door, causing a hole in theglass panel. The appellant then left the scene in her vehicle. The victim receivedmultiple deep scratches to the left side of her body and scratches on her back.District Court decision[6] At the outset of his decision,1 the Judge commented that there was somediscussion as to the precise terms of the summary of facts and what could properly beinferred from the summary. He noted that, quite properly, counsel for the appellant1 Police v Mitchell [2019] NZDC 21792.invited the Court to adhere strictly to the agreed summary of facts and not go outsideof it or draw inferences that were improper.[7] The Judge recorded counsel's instructions that, although the agreed summaryof facts referred to Mr J as being the appellant's ex-partner, the relationship betweenthe two of them was still on-going. He therefore invited the Court to conclude thatfinding another woman in Mr J's bed was not only shocking, but was what led to theappellant's behaviour on that day and should be seen in that light.[8] The Judge noted that the agreed summary of facts referred to Mr J as being theappellant's ex-partner. This suggested to the Judge that either the relationship wascompletely over or was in a very bad state at the time.[9] The Judge also noted the inference that the prosecution asked him to draw thatthe appellant entered into the address uninvited. The Judge thought that that couldproperly be inferred from the summary of facts.[10] The Judge then assessed the overall gravity of the offending as being low tomoderate. He noted that the appellant was a woman of previous good character andhad on a voluntary basis attended a Living Without Violence 15-week programmecalled Women's Respect Group. She had also made a voluntary donation of $1,000 tothat organisation.[11] Taking those matters into consideration, the Judge came to the conclusion thatthis type of offending was unlikely to occur again and that she had reduced somewhather culpability by recognising that her conduct was unlawful. The Judge was satisfiedshe was remorseful.[12] The Judge then referred to information in the appellant's affidavit about theviolent nature of the relationship between her and Mr J and how that affected herjudgment on that day. He noted that that did not form part of the summary of factsand was not relevant to the way that she conducted herself towards the victim of theassault. He therefore put those matters to one side.[13] The Judge then turned to make an assessment of the consequences ofconviction. There were two bases on which the appellant's counsel argued thatconviction would be significant in the appellant's case and bring about consequencesthat may unfairly and disproportionately affect her future. First, as they related to hercareer and, secondly, the prospects of being able to travel abroad in the future.[14] The Judge noted that the appellant had completed the first year of a law degree,at which point she left her studies to care for her disabled brother. She also assistedher mother to care for her father, who has also been diagnosed with dementia. TheJudge noted that the appellant had then studied for, and obtained qualifications relatingto real estate practice, which was the family business. She was at a point where shewas qualified and able to apply for a practising certificate. In order to get a practisingcertificate, she must prove that she is a fit and proper person.[15] The Judge noted that no evidence had been provided of the likely consequencesof those convictions on whether she would be able to practice. He said he could drawno conclusions because it is not possible in individual cases to determine the approachthat might be taken by a professional body.[16] The Judge also came to the conclusion that the further study and practise oflaw by the appellant was too remote. There would be many more years of study to beundertaken before she could even apply to have a practising certificate. The Judgethought that aspect of her future was so uncertain and remote that he should also putit to one side.[17] The other consequence relied upon was that family holidays usually entailedtravel abroad, but the Judge stated he simply did not have enough information to besatisfied that the ground was sufficient to provide a likely consequence of conviction.A further matter relied upon by the appellant was her desire to enter beauty pageantsabroad. The Judge said it was hard to know how to view that. It did not seem to besource of income, but there were hurdles which seemed to the Judge to be easilyovercome.[18] The Judge came to the conclusion that consequences of conviction were verymodest and did not far outweigh the gravity of the offending. He, therefore, concludedthat the test in s 107 of the Criminal Procedure Act was not met and he had nodiscretion to discharge the appellant without conviction.Appellant submissions[19] The appellant submits that the Judge erred in his assessment of the evidence tosuch an extent that a miscarriage of justice has occurred. In particular, the Judge waswrong to conclude that:(a) At the time of the incident, the relationship between the appellant andMr J was either completely over or was in a very bad state; and(b) The appellant entered the property uninvited.[20] As to the Judge's finding that the relationship between the appellant and herex-partner was completely over or was in a very bad state at the time, the appellantsubmits that the Judge should not have disregarded advice from counsel that thedescription of the relationship in the summary as former partners was disputed and theappellant's sworn evidence that she and Mr J were in a romantic relationship at thetime of the incident. He also went beyond the agreed summary of facts to draw adverseinferences and considered a witness statement (that of Mr J), that was not properlyadduced as evidence in accordance with s 77 of the Evidence Act 2006.[21] As to the appellant's entry on to the property, the appellant submits that theissue was not addressed in the agreed summary of facts and no evidence from Mr Jwas adduced on this point or any other. Therefore, the conclusion reached by the Judgethat the appellant's entry on to the property was uninvited should not have been drawnby him.[22] In addition, the appellant submits that the Judge erred in finding that theconsequences of the convictions were very modest and did not far outweigh the gravityof the offending and that, accordingly, the test in s 107 of the Sentencing Act was notmet. The appellant submits that in making these findings, the Judge:(a) Failed to take into account the appellant's youth;(b) Failed to adequately consider the adverse and disproportionate impactof the convictions on the appellant's prospective employment. Inparticular, the Judge failed to address the likelihood that the convictionswould either operate as an immediately disqualifying factor toemployment in the appellant's chosen profession or elicit an enquirywith an attendant obligation to explain; and(c) Failed to impose, in accordance with s 8 of the Sentencing Act, the leastrestrictive outcome appropriate in the circumstances.[23] The appellant was only 24 at the time of the offending. Counsel submits thatthe offending itself is consistent with the impulsive and gut instinct behaviour of ayoung person. Counsel further submits that this, coupled with the appellant's evidencethat she was in a heightened state of anxiety at the time due to stress of the nature ofher relationship with Mr J, supports a conclusion that her offending wasuncharacteristic and a one-off.[24] As to the adverse and disproportionate impact of the convictions on theappellant's prospective employment, counsel submits that it is only necessary to showthat there is a "real and appreciable risk" that a conviction will impact on a defendant'sability to obtain or keep employment. The appellant has the qualifications to applyfor a real estate agent's licence. She does, however, have to satisfy the Real EstateAuthority that she is a fit and proper person to hold a licence. Some convictions, suchas convictions for any crime involving dishonesty, are immediately disqualifying. Theappellant is young and has no established career. She has never held a licence and noprofessional reputation to support her application for a licence. Counsel thereforesubmits that there is a real and appreciable risk that the convictions will undermineher ability to be considered a fit and proper person and practice as a real estate agentin the future.[25] Finally, counsel submits that the least restrictive outcome appropriate in thecircumstances is a discharge without conviction. The appellant's age, the nature andimpact of her relationship with Mr J, her otherwise good character, her remorse, herearly guilty plea, and the real and appreciable risk of a detrimental effect on her careerprospects render the conviction out of all proportion to the offending, therebysatisfying the s 107 test.DiscussionDid the Judge err in his assessment of the evidence?[26] The appellant submits that the Judge erred in his assessment of the evidence intwo respects to such an extent that a miscarriage of justice has occurred.[27] First, as to whether the appellant and Mr J were in a relationship at the time, Iam not satisfied that a miscarriage of justice arises from the Judge's comment that therelationship was either over or in a very bad state. The appellant submits that theJudge improperly relied on Mr J's witness statement stating that he and the appellantwere ex-partners. However, the Judge clearly states that it is not possible for him tobe certain of the status of the relationship.2 But the agreed summary of facts refers tothe appellant and Mr J as ex-partners. So, relying on the principle that he mustsentence on the basis of the agreed summary of facts, the Judge continued on the basisthat they were ex-partners.3 The Judge acknowledged the appellant's position at thehearing that the relationship was "still ongoing".4 However, if that was the case, theappellant should have raised the issue when formulating the agreed summary of facts.5That does not appear to have been done given that the agreed summary of facts recordsthat they were ex-partners.[28] Secondly, as to whether the appellant entered the property uninvited, the issueis, in my view, ultimately immaterial to the appellant's culpability. Indeed, the Judgecommented that, "I am not suggesting that this was anything approaching an unlawfulentry, as would be found in a burglary".6 He did not attach any other weight to the2 At [8].3 Criminal Procedure Rules 2011, r 5A.1 and 5A.6(1)(c).4 Police v Mitchell, above n 1, at [6].5 Criminal Procedure Rules 2011, r 5A.1(1)(b).6 Police v Mitchell, above n 1, at [11].inference that the appellant had entered the property uninvited. Therefore, it cannotbe said that the drawing of such an inference amounted to a miscarriage of justice.Did the Judge err in his assessment of the consequences of the conviction?[29] The appellant submits that the Judge erred in finding that the consequences ofthe convictions were very modest and did not far outweigh the gravity of the offendingand that, accordingly, the test in s 107 of the Sentencing Act was not met.[30] First, as to youth, the appellant was 24 years old at the time of the offending.The appellant submits that her offending was driven by "impulsive and gut instinctbehaviour" that often colours youth offending. However, the Judge did not fail to takethe appellant's youth into account. Indeed, he gave credit for the appellant's"relatively young age".7 Accordingly, the Judge did not err on this point.[31] Secondly, as to prospective employment, the appellant submits that there is a"real and appreciable risk" that a conviction would hinder her future professionalaspirations as a real estate agent and/or lawyer.[32] There are a number of relevant considerations.8 On the one hand, the Courtrecognises that a conviction carries a social stigma and may affect a person's career.9This is particularly so for a young offender who does not have a "foothold in a career";the risk that a conviction may be permanently damaging must be recognised.10[33] On the other hand, the Court must also consider the employer's right to knowand should be hesitant to usurp the role of a particular employer or registrationauthority to decide the significance of a particular conviction.11 The employer's rightto know carries particular weight where there is an independent statutory or otherregistration agency charged with assessing a person's character or suitability for aparticular career.12 The extent to which the employer or registration agency is likely7 At [18] and [33].8 See Adams on Criminal Law — Sentencing (online looseleaf ed, Thomson Reuters) at [SA107.03].9 DC (CA47/13) v R [2013] NZCA 255.10 Walker v Police [2016] NZHC 1450 at [22].11 See, for example, Maraj v Police [2016] NZCA 279 at [36].12 See Stewart v Police [2015] NZHC 165 at [30]–[31].to look behind the conviction and consider the person's merit is also relevant. Thecase for a discharge will not be strong where the details of the offending will be knownto and closely examined by the relevant employer or professional body in any event.13In contrast, there will be a stronger case for discharge if a conviction will lead toimmediate rejection without further inquiry, for example, at the short-listing stage.14[34] The appellant has the qualifications to apply for a real estate agent's licence.However, she must satisfy the Real Estate Authority (REA) that she is a "fit and properperson" to hold a licence. The Judge noted that the appellant had not adduced anyspecific evidence as to the particular rules or standards that the REA must apply inassessing a "fit and proper person".15 The "Required criteria and qualifications towork in real estate" document adduced simply states, "It's up to you to satisfy the REARegistrar that you are fit and proper". This appears to be a case where the REA ischarged with assessing an applicant's suitability and it is not for the Court to usurpthat function. There is no suggestion that the REA will "not look behind" theconviction or that a conviction is automatically disqualifying. I note that convictionsrelating to any crime involving dishonesty are automatically disqualifying, but theappellant's conviction does not involve dishonesty.[35] Section 43(3) of the Real Estate Agents Act 2008 provides that if an applicationfor an agent's licence is declined, the Registrar must "notify the applicant of theRegistrar's decision and reasons for it" and "notify the applicant of his or her right ofreview by the Tribunal against the decision". That suggests that there is some avenuefor an applicant, such as Ms Mitchell, to explain the circumstances of her conviction.[36] However, the appellant says that, in explaining the circumstances to REA, shewould have to divulge personal trauma. She says her relationship with Mr J wastraumatic and often violent. She relies on the case of HM v Police, where a dischargewithout conviction was granted due to concerns that, in explaining the conviction tothe REA, the applicant in that case would need to divulge a personal trauma that might13 See Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March2011; and Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.14 See Tahitahi v Police [2012] NZHC 663; Brown v R [2012] NZCA 197 at [31]; Edwards v R [2015]NZCA 583 at [18]; and Walker v Police, above n 10, at [22].15 Police v Mitchell, above n 1, at [28].ordinarily attract a reasonable expectation of privacy.16 There, the applicant sufferedfrom PTSD arising from sexual assault. One evening, she was behaving grosslyintoxicated and erratically and required medical assistance. The Police responded, theapplicant resisted and assaulted the officer. In my view, the circumstances of theinstant case are quite different to those in HM v Police. Putting to one side the veracityof the appellant's claims regarding her relationship with Mr J, significantly, there isno suggestion that the victim assaulted or threatened the appellant. Thus, anytraumatic relationship with Mr J cannot adequately explain the assault against thevictim.[37] Whilst I accept that the appellant is a young offender with no foothold in acareer, the appellant has not adduced any evidence of a "real and appreciable risk" thatthe conviction would be detrimental to her future career as a real estate agent. Thereshould generally be evidence or some supporting material beyond a mere assertion asto the likely consequences on employment, such as a letter from an employer orestablished member of the profession.17 No such material is before the Court.[38] The same goes for the appellant's prospective legal career. The appellant hascompleted her first year of a law degree but, as the Judge noted, the further study andpractice of law is too remote.18 The Judge further commented that:19It is proper to note that there are a number of people working in bothlaw and real estate, who have been able to satisfy their professional bodiesthat, despite convictions on relatively minor matters, they are nevertheless fitand proper persons for practice.[39] Echoing the words of Hammond J in Liang v Police, I consider that:20[As] there is an independent body charged with determining the suitability ofindividuals for particular employment, the Court may be more ready to entera conviction, it being of the view that it is in the public interest that that bodyis able to make a decision with the benefit of full disclosure after the fact. Thefact that the conviction may act as a barrier to gaining entrance to anoccupation is not a determinative factor — it is merely a factor to beconsidered in the balancing exercise.16 HM v Police [2015] NZHC 1910.17 Police v M [2013] NZHC 1101 at [58]–[62]; and Simmonds v Police [2014] NZHC 2488 at [34].18 Police v Mitchell, above n 1, at [26].19 At [25].20 Liang v Police HC Wellington AP38/02, 16 April 2003 at [17].[40] Thirdly, on a related note, the appellant initially submitted that convictionswould hinder her ability to travel internationally to complete in international beautypageants. The appellant no longer advances this ground, but a discharge on groundsthat travel will be impeded is unlikely to be successful where future travel isspeculative and not yet planned, as is the case here.21 Furthermore, where foreigntravel difficulties are relied on, there should be detailed and reliable evidence as to thelaw and practice of the jurisdiction — no such evidence is presently before the Court.22[41] For the above reasons, the Judge did not err in his assessment of theconsequences of convictions and subsequent assessment of proportionality. Whilst Ihave some sympathy for the appellant's circumstances, I do not consider that theconsequences of conviction are "out of all proportion" to the gravity of the offending.Result[42] The appeal is dismissed._________________________Woolford J21 Brunton v Police [2012] NZHC 1197 at [16]; and Marszolek v Police [2015] NZHC 2858 at [35].22 Edwards v R, above n 14, at [25]–[26]; Brunton v Police, above n 21, at [16]; and Police v M,above n 17, at [55].