ALLEN v THE NEW ZEALAND POLICE [2021] NZHC 981

ALLEN v THE NEW ZEALAND POLICE [2021] NZHC 981 [5 May 2021]ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES),OCCUPATION(S) OR IDENTIFYING PARTICULARS OFWITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360349.htmlIN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-000178[2021] NZHC 981IN THE MATTER of an appeal against refusal to grant adischarge pursuant to s 106 of theSentencing Act 2002BETWEEN SHAUN PATRICK ALLENAppellantAND THE NEW ZEALAND POLICERespondentHearing: 4 May 2021Appearances: K J Gray for Mr AllenS M H McManus for RespondentJudgment: 5 May 2021JUDGMENT OF DOOGUE JThis judgment was delivered by me on 5 May 2021 at 4.00 pmRegistrar/Deputy RegistrarDate:Introduction[1] On 30 July 2020 the appellant, Mr Allen, applied for a discharge withoutconviction under s 106 of the Sentencing Act 2002 (the Act) in respect of one chargeof assault (the application).1 Judge Brandts-Giesen declined the application andconvicted Mr Allen.2[2] Mr Allen was fined $100 plus court costs and ordered to pay $600 in emotionalharm reparation. Mr Allen appeals the conviction, fine and reparation.[3] Mr Allen also applies for leave to file his appeal out of time.Background[4] Mr Allen and the victim lived together as flatmates during the COVID-19level 4 lockdown in 2020. The relationship between the two deteriorated during thisperiod. The victim considered Mr Allen was not complying with lockdownrequirements and was concerned as she was immunocompromised.[5] At about 5.30 pm on 3 April 2020 Mr Allen returned to the flat. The victimhad locked the door and told Mr Allen to leave as he was continuing to disregardlockdown restrictions. The victim opened the window to communicate with Mr Allen.Mr Allen grabbed the window, opened it wider and attempted to climb in. Mr Allenthen spat directly into the victim's face. The saliva ran down her face, entering hereyes and mouth.[6] When police attended, Mr Allen stated he had sneezed rather than spat at thevictim.[7] The victim was undergoing chemotherapy at the time of the assault. As a resultof the assault she was required to undergo medical tests and has suffered panic attackssince.1 Crimes Act 1961, s 196.2 Police v Allen [2020] NZDC 15364.The District Court decision[8] The Judge commenced his decision by canvassing the facts of the offending.He then went on to consider the application, adopting the statutory test under s 107 ofthe Act to determine if Mr Allen had met the requisite threshold for the granting of adischarge without conviction.[9] In mitigation, counsel for Mr Allen, Ms Gray, submitted he was remorseful,had no prior convictions and was only 21 years old. Mr Allen, himself, was the victimof an assault in 2019 which had heightened his pre-existing condition of anxiety.[10] The Judge noted that the primary consequence of a conviction was thatMr Allen's application to reinstate his Dutch citizenship would be impacted. TheJudge understood that a conviction would result in a five-year stand-down period. TheJudge was cognisant of Mr Allen's submission that this consequence was out of allproportion to the offence.[11] However, the Judge considered, in the context of the COVID-19 lockdown, thedeliberate act of generating spittle to the head and face of a person was a very seriousmatter. Further, in this case the Judge identified that the victim was vulnerable as shewas being treated with chemotherapy and that Mr Allen was aware of this. While nophysical harm to the victim eventuated, physical harm was a real risk given thevulnerability of the victim's physical condition at the time. The Judge noted that theemotional harm she suffered as a result of the assault was very real.[12] The Judge found the gravity of the offending was serious. Mr Allen wasbreaching COVID-19 lockdown restrictions, thus exposing his flatmates to risk.Further, he knew the victim was vulnerable because of her chemotherapy treatmentwhich had reduced her immune system. Overall the Judge set the gravity of theoffending at a moderately serious level when Mr Allen's personal circumstances werealso considered.[13] Mr Allen had booked tickets to travel to the Netherlands. The Judge noted thatMr Allen had purchased those tickets in anticipation of a discharge without convictionon the assault charge. The Judge considered that Mr Allen's assertion that hisapplication for a Dutch passport may be declined was a consequence that was not assignificant as Mr Allen claimed, as Mr Allen may have been able to obtain permanentresidency in the Netherlands. In summary, the Judge did not consider theconsequences of the conviction to be out of all proportion to the offending.Approach on appeal[14] Mr Allen has an automatic right of appeal.3[15] As the Court of Appeal in Jackson v R noted, appeals against a refusal to granta discharge without conviction proceed as an appeal against conviction and sentence.4The appeal can only be allowed if the Court is satisfied that the Judge erred in hisassessment of the evidence to such an extent that a miscarriage of justice has occurred,or that a miscarriage of justice has occurred for "any other reason".5 Section 232(4)of the Criminal Procedure Act 2011 defines "miscarriage of justice" as: any error, irregularity, or occurrence in or in relation to or affecting the trialthat -(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.[16] In Jackson the Court of Appeal discussed the meaning of "miscarriage ofjustice" in the context of an appeal against a refusal to discharge without conviction:6 While it may be seen as straining the statutory definition of a miscarriageof justice, we are satisfied that the principled basis for determining an appealagainst a discharge without conviction is to establish that a miscarriage ofjustice has occurred by virtue of a material error by the sentencing judge inentering a conviction. That is because a trial includes a proceeding in whichthe appellant has pleaded guilty. Alternatively, it can be said that a miscarriageof justice has occurred "for any reason" if the Judge has erred in applying theprinciples for discharging an offender without conviction found in s 107 of theSentencing Act.[17] For the appeal to be successful I must find that the Judge made a material erroror that he erred in applying the requisite statutory test.3 Criminal Procedure Act 2011, s 229.4 Jackson v R [2016] NZCA 627.5 Criminal Procedure Act, s 232(2).6 Jackson v R, above n4 at [12].Application for leave to appeal out of time[18] Mr Allen seeks leave to file his appeal out of time. Ms Gray explained she wasnewly assigned and that Mr Allen had been out of the country and subject to quarantineupon his return to New Zealand. No prejudice to the respondent arises if leave isgranted and the respondent does not oppose leave being granted.[19] I consider it is fair for leave to file this appeal out of time to be granted, havingregard to the special circumstances arising from the current mandatory quarantineregime.The law[20] Where a person is found guilty or pleads guilty, s 11(1)(a) of the SentencingAct requires the Court to consider whether they might be more appropriately dealtwith by way of discharge without conviction.[21] Section 106 of the Sentencing Act states that where a person charged with anoffence pleads or is found guilty, the Court may discharge him or her withoutconviction unless the Court is required to impose a minimum sentence.[22] Section 107 of the Sentencing Act governs the exercise of the discretion unders 106:107 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.[23] In R v Hughes, the Court of Appeal confirmed that s 103 requires a three-stepprocess:7... The court must consider, first, the gravity of the offending; secondly, theconsequences of conviction; finally, whether those consequences are out of allproportion to the gravity of the offending identified at step one.7 R v Hughes [2008] NZCA 546 [2009] 3 NZLR 222 at [16].Gravity of the offending[24] The Court must first determine the gravity of the offending as "low level","moderate" or "serious". The Court's assessment of the gravity of the offending forthe purposes of an assessment under ss 106 and 107 must take into account not onlythe aggravating and mitigating features of the offending itself, but also the aggravatingand mitigating features personal to Mr Allen.[25] Counsel for Mr Allen, Ms Gray, submitted that the Judge erred in classifyingthe offending as serious. She submitted that the Judge should have accepted that theoffending was in the context of a very unhappy flatting environment involving highstress levels and toxic interactions which resulted in Mr Allen having to leave theaddress. She also submitted the Judge ought to have considered the additional stressnot only to Mr Allen's other flatmates but to Mr Allen arising from the COVID-19lockdown.[26] Ms Gray referred to the fact that Mr Allen sought advice from Healthline andwas advised to go to his parents' home, but that he was also advised by Healthline thathe could return to the flat at any time and not be in breach of lockdown restrictions.His flatmate's perception that he was in breach of the lockdown restrictions was a greatsource of tension within the flat.[27] Finally in respect of the gravity of the offending, Ms Gray submitted that thecontext was highly important, a context of heightened emotional state andvulnerabilities of all those involved and that the gravity of the offending ought to becategorised by the Judge as low/moderately serious.[28] Ms McManus submitted the Judge was correct in his analysis as to the gravityof the offending being serious.[29] The aggravating factor of this offending is the vulnerability of the victim. It iscommon ground that Mr Allen may not have known the victim had breast cancer.Mr Allen, in his affidavit of 16 April 2021, deposes that the victim: had only described it to me in text as a cystic tumour for which she neededchemotherapy. I did not understand she meant breast cancer.[30] It is clear from this, however, Mr Allen knew that the victim was undergoingchemotherapy and that this resulted in her having a compromised immune system.[31] The impact of the offending upon the victim was that she was required toundergo further medical tests on top of her existing treatment.[32] Ms Gray is correct to refer to the context of the offending, which was that itoccurred during the COVID-19 pandemic level 4 lockdown. Nationwide the NewZealand population was expected to adhere to strict social distancing requirements andto limit contact with other people outside of their immediate household contacts. Onthe day of the offending COVID-19 was being transmitted within the community.8[33] Mr Allen also deposes that he sought advice from Healthline about leaving theflat and returning to the flat on 3 April 2020. This is indicative of his understandingof the seriousness of the COVID-19 pandemic.[34] I agree with the District Court Judge that, whilst this assault did not involvethe use of a weapon, I consider it to be potentially a serious assault in the context ofthe COVID-19 pandemic and in light of the victim's compromised immune system.Fortunately, the actual physical harm to the victim was minimal and she did notcontract COVID-19, which could have been life threatening for her. I consider theJudge was correct to assess the objective gravity of the offending to be serious.Factors personal to Mr Allen[35] Ms Gray submitted that Mr Allen has no previous convictions and is otherwiseof good character. Ms McManus acknowledged that the Judge did not directly referto good character, however she submitted that even if he had this would not havefurther reduced the gravity assessment to a significantly lower level.8 On 3 April 2020 there were 49 new confirmed cases of COVID-19 and 22 new probable cases.Ministry of Health "COVID-19 media update 3 April" (3 April 2020)<https://www.health.govt.nz/news-media/news-items/covid-19-media-update-3-april>.[36] The personal mitigating factors are Mr Allen's previous good character, youthand lack of prior convictions. I agree with Ms McManus that there is no evidence ofdemonstrated remorse, beyond the entry of a guilty plea.[37] I acknowledge that Mr Allen, himself, faced some personal difficulties. Hewas diagnosed with post-traumatic stress disorder (PTSD) in 2019 following a sexualassault.[38] I reduce the gravity of the offending to moderate in light of these mitigatingfactors.The direct and indirect consequences of a conviction for Mr Allen[39] The Judge identified the primary consequence of a conviction as being theimpact on Mr Allen's Dutch citizenship and his application for a Dutch passport.Mr Allen was concerned the conviction would cause his application for citizenshipand/or for permanent residency to be declined and a five-year stand-down periodwould arise.[40] Mr Allen deposes his "application [for a passport] has not been granted due to[his] criminal history".[41] The fundamental issue on appeal is Mr Allen has not provided evidence of acausal nexus between his conviction and his application for a Dutch passport beingdeclined. Such evidence would demonstrate to this Court that the risk of thisconsequence occurring was real.[42] Ms Gray refers to a number of cases, which she says support the submissionthat the consequence of being unable to travel to and live in the Netherlands is out ofall proportion with the gravity of the offending.[43] In Kumar v Police the appellant pleaded guilty to one charge of assault with aweapon.9 The offending was the result of the appellant being subjected to repeated9 Kumar v Police [2015] NZHC 3293.racial abuse by the victim over a period of months leading up to the incident.10 Theconsequence of conviction was that the appellant would likely be deported, whichimpacted the appellant's wife and unborn child.11 The High Court, allowing theappeal, was satisfied the consequences outweighed the gravity of the offending.[44] The Court reached this conclusion by considering the offending in context,which included a "prolonged history of racial abuse directed by the victim towards[the appellant]".12 Materials were filed to provide background to the assault,13including documents produced for the purposes of a disciplinary process with theappellant's employer following an incident14 and evidence that other staff membersobserved the incident.15[45] In my view this case is of little assistance. While I accept the situation at theflat appears to have been toxic, there is no evidence filed of prolonged abuse. Nordoes the consequence of not being able to reside in the Netherlands appear to affectany other persons.[46] In Rahim v R a discharge without conviction was granted on appeal wheredeportation would result in "significant and devastating adverse effect on [theappellant's] family.16 Expert evidence provided indicated a real and appreciable riskthat went beyond the prospect of deportation.17[47] Again, I consider the circumstances of that case can be distinguished fromMr Allen's case. The consequence of his conviction, if his affidavit is accepted at facevalue, is that he has lost an opportunity to reinstate his Dutch citizenship and to makethe Netherlands his home imminently. These consequences are considerably lessserious than those in Rahim.10 At [16].11 At [41].12 At [26].13 At [16].14 At [26].15 At [26].16 Rahim v R [2018] NZCA 182 at [27].17 At [30].[48] In respect of Mr Allen's claim that he has had trouble obtaining employmentas a result of his conviction, Ms Gray advised the Court that Mr Allen is now employedas a consultant undertaking healthy homes assessments and that Mr Allen's diminishedemployability is no longer advanced as a consequence of his conviction.[49] Finally, Ms Gray submitted that the conviction would have a negative impacton Mr Allen's mental health. By contrast with other cases where such a submission ismade, there is no evidence before the Court that Mr Allen has ongoing mental healthconcerns now. This should be contrasted with Prasad v R, where an opinion of apsychologist was preferred to show a link between conviction and a risk of suicide inthe context of an attempt already having been made.18[50] In respect of the impact on Mr Allen's mental health, I have only his self-reportand that is not sufficient evidence of a disproportionate consequence of the conviction.I do not consider this is outside of the natural consequences of a conviction.[51] Finally, in the absence of any documentation proving Mr Allen's application toreinstate his Dutch citizenship was denied as a result of this conviction, I dismiss theappeal.Conclusion[52] I find the assault, after taking account of the mitigating factors of the offending,should be categorised as moderate.[53] I do not consider the consequences of conviction to be out of all proportion tothe gravity of the offending.[54] In those circumstances the sentence imposed by the Judge was justified.Result[55] The appeal against conviction and sentence is refused.18 Prasad v R [2018] NZCA 537.[56] I order suppression of the victim's identity under s 202(1) of the CriminalProcedure Act 2011.Doogue JSolicitors:Raymond Donnelly, ChristchurchCC:K Gray, Christchurch