LATA v POLICE [2020] NZHC 187

LATA v POLICE [2020] NZHC 187 [17 February 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-475[2020] NZHC 187BETWEEN SUMAN LATAAppellantAND NEW ZEALAND POLICERespondentHearing: 17 February 2020Counsel: J Hickey for AppellantS Rankin for RespondentJudgment: 17 February 2020ORAL JUDGMENT OF WHATA JSolicitors: Meredith Connell, Auckland[1] Ms Lata appeals the decision of the District Court to decline discharge withoutconviction on one charge of assault.[2] Leave to appeal out of time was sought and not opposed. Leave is thereforegranted.Facts[3] Ms Lata and the victim are whānau. Ms Lata is the victim's aunty. After theChristchurch earthquakes, Ms Lata welcomed the victim and her son into her homewhere the victim stayed for some months. Their relationship then soured, and theylost contact with each other until relatively recently. It appears, however, that Ms Latamaintained a closer relationship with the victim's son who, on 22 June 2018, askedMs Lata to pick him up from the local mall. She did so, and he stayed with her for thenight.[4] A little after 3.00 pm the following day, the victim arrived at Ms Lata's home.Ms Lata met the victim at the front door and told the victim to leave. The victimrefused to leave. The victim repeatedly asked to see her son and Ms Lata refused toallow her to do so. The victim saw her son inside the house and tried to make her wayinto the house towards him. Ms Lata pushed the victim, causing the victim's head toimpact against the doorway. Ms Lata grabbed the complainant and slapped her aboutthe face. The victim grabbed Ms Lata's hair, in an attempt to defend herself, and theyfought. The victim received scratches to her face.District Court decision[5] The District Court Judge had the benefit of a restorative justice report, victimimpact statement and an affidavit of Ms Lata. From this material the Judge identifieddeep seated issues between Ms Lata and the victim and he saw those issues fallingequally on both sides. He noted that Ms Lata did apologise and that the victimaccepted her apology. He also noted that the victim is gutted by the whole situationand the fact her own family could have put her through this. The victim's oppositionto a discharge is also recorded.[6] The Judge referred to Ms Lata's background at some length. She was born inFiji and she is currently employed as an environmental specialist for Synlait Milk,having previously worked for Life Technology. It is noted that for the last two to threeyears in her work with Life Technology, Ms Lata travelled overseas to manufacturingplants in India, the United States, Canada, Australia and Singapore every two or threemonths. Ms Lata's current employment, however, does not require such travel.[7] The Judge described the gravity of the offending in this way:1[14] The assault here involved the initial push, the head colliding with adoorway and a slap about the face. Recognising it was the defendant'saddress, noting wrongly, she tried to keep a mother from her son. I would seethe assault as a low end of a moderate to low end offence.[8] As to consequences, the Judge noted:[15] the applicant as I have said has stated in her affidavit, "When Ichange jobs I have to have a drug test and a police clearance". That isunderstandable as I have already commented. She goes no further, there isnothing to indicate a change in employment is imminent. It may occur. Shestates a criminal conviction will affect "me working overseas". She refers tooverseas travel with a previous employer. She has not had to travel with hercurrent job and I concur with the police submission that this is all for themoment speculative. Of course, there may be issues, but travel visas can besought and processed well prior to any intended travel. It has been recognisedby the Courts that countries do guard their boundaries and should have theultimate say with reference to all available material as to who enters and whodoes not enter.[9] In the result the Judge was not prepared to exercise the discretion to dischargewithout conviction. She stated:[16] The matters that weigh with me in particular; travel cannot beanticipated to flow from current employment and current employment is safe.[10] It does not appear that any sentence was imposed but the Judge does make aprotection order in favour of the victim.1 New Zealand Police v Suman Lata [2019] NZDC 10454.Fresh evidence[11] Ms Lata seeks leave to file evidence from Mr Christopher Hammonds, a travelconsultant, and on her own behalf, a further affidavit in support of the appeal. It isopposed as being not fresh, though Mr Rankin, responsibly in my view, concedes thatit is cogent insofar as it goes to matters in issue.[12] In terms of the application, Mr Hickey explained that it was assumed thatMr Hammonds' evidence was not necessary. With the benefit of hindsight, he acceptshe may have been mistaken about that. In those circumstances, in my view, it wouldbe unfair to Ms Lata to deprive her of the opportunity to table cogent evidence goingto the issue of discharge. The application for leave to file evidence is thereforegranted.Victim's position[13] I also have a note from the victim's adviser. In that note, the victim's positionis recorded. She says she continues to have fears for her children and her safety andwould like to keep the protection order in place. There is no mention of the appealagainst the refusal to discharge.Jurisdiction[14] An appeal against a refusal to grant discharge without conviction is an appealagainst conviction under s 232 of the Criminal Procedure Act 2011.2 The thresholdtest is whether a miscarriage of justice will have occurred for any reason if the Judgeerred in applying the principles under s 107 of the Act.3Principles of discharge without conviction[15] It is common ground that the Court must apply a three-stage test:42 See Jackson v R [2016] NZCA 627 at [15].3 At [12].4 R v Taulalapa [2018] NZCA 414 at [22].(a) Identify the gravity of the offence, with reference to all aggravating andmitigating features relating to the offending and the offender;(b) assess the direct and indirect consequences of conviction for theoffender; and(c) determine whether those consequences are out of all proportion to thegravity of the offence.[16] The Court has a residual discretion to discharge without conviction under s 106if the relevant criteria are met.Gravity of the offending[17] The Judge assessed the gravity of the offending as at "a low end of a moderateto low end offence". I agree with this description of the offending per se. Relevantly,the offender was in her own home and the victim was the aggressor insofar as sheattempted to force her way into Ms Lata's home. That is not to criticise the victim.She was wanting to retrieve her son. But I am concerned here with Ms Lata'sculpability. In this regard, Ms Lata swore an affidavit as to the circumstances of theoffending and she was not cross-examined on that affidavit. Her admission to thesummary of facts, however, means that (where relevant) the summary is to bepreferred. Relevantly, however, it is clear that she was acting in a protective way to amokopuna. As an elder within a family, she might be expected to do so. She thought,wrongly she now accepts, that she had a proper basis for resisting the entry by thevictim.[18] The right to deny entry into one's home by reasonable force is a longstandingone. It is affirmed at s 55 of the of Crimes Act 1961, which states:55 Defence of dwellinghouseEvery one in peaceable possession of a dwellinghouse, and every one lawfullyassisting him or her or acting by his or her authority, is justified in using suchforce as is necessary to prevent the forcible breaking and entering of thedwellinghouse by any person if he or she believes, on reasonable and probablegrounds, that there is no lawful justification for the breaking and entering.[19] While in this case Ms Lata's guilty plea is an admission of wrongdoing, herculpability was plainly low in terms of the facts of the offending per se, given thecontext within which it occurred.[20] I would, however, also go further than the Judge. It is relevant to theassessment of gravity that Ms Lata has no prior convictions for violent offending andthere is no evidence of a propensity to violence. The present offending was thus one-off and context-driven. I would therefore put the offending at the low to very low endof the spectrum for offending of this kind. It is also relevant, as Mr Rankin accepts,Ms Lata completed a PAVE Women's Stopping Violence programme and attended arestorative justice process. All of these factors weigh heavily, in my view, indemonstrating that her culpability and the gravity of offending assessed by referenceto her personal circumstances as well, was very low.Consequences[21] Turning then to the consequences for Ms Lata. First, she has no priorconvictions and I agree with Mr Hickey that a conviction at this stage in her life is ablack mark against her. Secondly, she is currently gainfully employed in an area whichrequires a certain level of expertise and may, in the future, involve overseas travel,particularly if she chooses to change jobs. There is, in my view, nothing speculativeabout that. As she deposes in her affidavit, her previous employment required regularoverseas travel. It can be inferred that her specialist expertise lends itself to suchtravel. In this regard, I have read the evidence of Mr Christopher Hammonds,Managing Director of World Travel Limited. He has extensive experience in the travelindustry. I am also satisfied he possesses sufficient expertise to provide evidence ofsubstantial help to me on the implication of a conviction for Ms Lata. He observedthat a conviction for assault is likely to make travel to many countries difficult andthat if a person needs to travel overseas for work purposes, the lengthy processingperiod is going to mean that they will be unlikely to obtain travel to work when theyneed to. That difficulty, in my view, raises a real risk of adverse employmentconsequences for Ms Lata. I think I can also take judicial notice of Ms Lata's age andthe difficulties for persons of her age in obtaining employment.[22] To this extent, therefore, I also disagree with the Judge's assessment of risk toMs Lata. Should Ms Lata need or wish to change employment, there is a real andappreciable risk that her employment opportunities, in a field for which she hasexpertise and experience, could close for her.[23] I also observe at this stage, as the Judge correctly noted, it is normally for theoverseas authorities to determine whether persons who have offended violently oughtto be allowed into their country.5 But, unlike those authorities, I have the benefit of adetailed understanding of the background to the present offending and the offenderand it remains necessary for me to assess whether a conviction, in that context, is outof all proportion to the offending.[24] Coming then to the overall merits, it is clear to me that Ms Lata's one-offoffending in a peculiar and fraught context, would make conviction for that offendingout of all proportion to that offending and to her personally.[25] The appeal is therefore allowed. The conviction is quashed. Ms Lata isdischarged without conviction. I record that, for the benefit of the victim, this orderdoes not affect the protection order.5 Ho v R [2016] NZCA 229 at [15].