R v CLEAVER [2020] NZCA 397

R v CLEAVER [2020] NZCA 397 [7 September 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA186/2020[2020] NZCA 397BETWEEN THE QUEENAppellantAND FERGUS DONALD CLEAVERRespondentHearing: 20 July 2020Court: Clifford, Woolford and Dunningham JJCounsel: R K Thomson for AppellantM J Dyhrberg QC and H G de Groot for RespondentJudgment: 7 September 2020 at 10 amJUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)[1] On 13 March 2020, in the Auckland District Court, Fergus Donald Cleaver wasdischarged without conviction on one charge of injuring with reckless disregard byJudge Field and ordered to pay $10,000 emotional harm reparation to the victim, hisformer wife.1 The Solicitor-General now seeks leave to appeal to this Court againstthe Judge's decision to grant a discharge without conviction on the basis that the Judge1 R v Cleaver [2020] NZDC 4550.was plainly wrong in his conclusion that the consequences of a conviction were out ofall proportion to the gravity of the offending.[2] Leave to appeal was opposed. It is, however, in the interests of justice to grantleave because of the emotional impact of the offending on the victim. Leave is grantedaccordingly.Factual background[3] Following a five-day jury trial in the Auckland District Court between 9 and13 December 2019, Mr Cleaver was found not guilty of two charges of male assaultfemale and guilty of one charge of injuring with reckless disregard.[4] The Judge found, for the purposes of sentencing, that in the course of anargument Mr Cleaver entered the bedroom occupied by the victim and told her to shutup because she was crying.2 While she was lying on the bed, he put one hand over hermouth and the other on her neck and told her to stop crying or he would punch her.At that, she cried even louder. Mr Cleaver then punched the victim with a closed fistto her right eye. The victim got away from Mr Cleaver and fled to a friend's address.The victim suffered bruising to her right eye and a broken nose as a result of the punch,although there was some previous surgery to her nose which may have left it somewhatweakened.District Court decision[5] Mr Cleaver was sentenced on 13 March 2020. After setting out the facts as hefound them and the test to be applied when an application is made for a dischargewithout conviction, the Judge noted the victim's enormous emotional distress inaddition to the physical pain and shock of the punch itself.3 He accepted that althoughthere was only one punch, that punch has had a profound effect on her, both physicallyand mentally.2 At [3].3 At [8].[6] The Judge then assessed the gravity of the offending as moderate.4 The punchwas to the victim's head. She was vulnerable as the violence occurred in the homeshe shared with Mr Cleaver. There was also a disparity in size and strength betweenthe victim and Mr Cleaver. The Judge did, however, reject the Crown's submissionthat the punch was not a spontaneous action. It was an action in the heat of themoment, quite unjustifiable, but nonetheless relatively spontaneous.5[7] Although Mr Cleaver could not claim credit for a guilty plea, the Judge notedthe large number of personal and business references provided to the Court.6Mr Cleaver was, therefore, entitled to credit for his previous good character and thegood work that he had done in business and for charity.[8] The Judge then turned to the consequences of a conviction for Mr Cleaver.The Judge did not attribute much weight to any reputational damage. He noted thatMr Cleaver's professional body, the New Zealand Institute of Chartered Accountants,had already been told of the charge and could take the Judge's assessment of theoffending as being moderately serious into account.7[9] The Judge then noted the post-offence efforts made by Mr Cleaver torehabilitate himself, including an assessment and sessions with the Man Aliveprogramme, an assessment and sessions with the Community Alcohol and DrugService, a Reducing Harm course, sessions with a consultant psychologist,Dr Sakdalan, and ongoing counselling with another psychologist, Dr Easden.The Judge referred to Dr Easden's opinion that Mr Cleaver could be seen as at verylow risk of further offending of this kind.8[10] As to further consequences of a conviction, the Judge accepted that there wouldbe a significant impact on Mr Cleaver's practice, although perhaps not as great as hewould submit. But the Judge recorded that he was concerned about the issue of travel.He said that the United States and various other countries would take one look at the4 At [13].5 At [11].6 At [14].7 At [19].8 At [23].conviction for injuring with reckless disregard "and that would probably be the end ofMr Cleaver's travel plans".9 The Judge was of the view that a conviction would havea very real and significant impact on his ability to travel, to the point where he wouldbe effectively barred from travel to some countries or, at least, the subject of veryconsiderable delay and investigation before his application for a visa would begranted.[11] The Judge therefore accepted that there were significant direct business andtravel consequences on the entry of a conviction. The Judge concluded that theconsequences of a conviction for the charge would be out of all proportion to thegravity of the offending, acknowledging the impact it had had on the victim.The Judge therefore discharged Mr Cleaver without conviction upon payment of$10,000 emotional harm reparation to the victim.Test to be applied[12] This appeal is brought under s 296 of the Criminal Procedure Act 2011, whichpermits appeals, with the leave of the appellate court, on questions of law against aruling by the trial court. This Court explained the scope of appellate review unders 296 in R v Taulapapa, as follows:10In R v Smyth the Court held that a question of law arises for s 296 purposeswhen there is:11a) a misdirection of law apparent in the decision;b) oversight of a relevant matter or consideration of an irrelevantmatter; orc) a factual finding unsupported by any evidence or an omissionto draw an inference of fact which is the only reasonablypossible one on the evidence.We add that an error of law may also arise when a decision is plainly wrong.129 At [24].10 R v Taulapapa [2018] NZCA 414 at [17].11 R v Smyth [2017] NZCA 530 at [8], citing Brown v R [2015] NZCA 325, (2015) 30 FRNZ 471 at[16].12 R v Malu [2017] NZCA 546 at [10(c)]; and Commerce Commission v Shukla HC AucklandCRI-2007-404-229, 21 November 2007 at [3].[13] The Crown advances this appeal by reference to point (c) above: that is, itsproposition is the Judge was plainly wrong in his assessment under s 107 of theSentencing Act 2002. In R v Malu, this Court treated "plainly wrong" as synonymouswith error as described at [17](c) of R v Taulapapa; that is, a conclusion unsupportedby evidence or contrary to the only reasonable possibility available on the evidence.13Crown submissions[14] The Crown's position is that the likely consequences of a conviction forMr Cleaver are not out of all proportion to the gravity of the offending.The consequences would be no greater than those which would ordinarily flow andthe Judge erred in finding that they would be out of all proportion. The Crown acceptsthe Judge's characterisation that the offending is of moderate seriousness. Againstthat, the likely consequences are said to be potentially some reduction in income anddisruption to Mr Cleaver's business travel plans.[15] As to the likely effect upon Mr Cleaver's business, the Crown submits thatMr Cleaver might justifiably expect his income to reduce as a result of not being ableto continue his overseas investment enterprises in person. However, his primaryincome through his family's accountancy firm would not be significantly affected.The Crown accepts, as the Judge was told at sentencing, that the Institute of CharteredAccountants is already aware of his offending. Whether he is convicted or not wastherefore unlikely to alter his ability to practise.[16] As to the likely effect on Mr Cleaver's travel plans for business and charitablepurposes, the Crown submits that the evidence does not approach the levels requiredfor a discharge as enunciated by this Court in Edwards v R, in which this Court statedthat in order to show international travel is not possible for an offender because oftheir conviction, the offender would need to show:14 that under the law and practice of the jurisdiction concerned:(1) the conviction must be disclosed but, assuming a discharge isgiven, the fact that the offence was committed need not be;and13 R v Malu, above n 12, at [10(c)].14 Edwards v R [2015] NZCA 583 at [26].(2) in consequence of the conviction, the applicant is prima facieinadmissible, and for how long; and(3) there is no alternative entry process available or that, if thereis, such process is unreasonably difficult and uncertain in allthe circumstances.[17] The Crown submits that this case does not approach that level. The conclusionof Ms Cottrell, an immigration lawyer who provided an affidavit in support ofMr Cleaver's application for a discharge without conviction, was that arranging travelwould become "complicated and time consuming" for Mr Cleaver. Ms Cottrell didnot establish, according to the Crown, what would be involved in obtaining a visa andshe certainly did not suggest that it would be impossible in his circumstances. In fact,she confirmed that it is possible to apply for a visa or other entry permission withconvictions.[18] The Crown then analyses the individual requirements of the United States,Australia, Canada, Japan, Singapore, Fiji, and Vanuatu, as they were explained byMs Cottrell. On the basis of its analysis, the Crown accepts that Mr Cleaver wouldsuffer some extra inconvenience when travelling. It submits, however, that there is noevidence that travel is truly essential to Mr Cleaver's business interests. The Crowncomments that indeed the world has learned much of how to conduct businessremotely in recent months because of the COVID-19 pandemic. Furthermore, theCrown submits that given his philanthropic work, valid reasons for work travel, andmany positive supporters willing to provide character references, Mr Cleaver'sprospects of successfully applying for visas or character waivers are clearly higherthan many defendants'.[19] Finally, it submits that continued denial or minimisation of the offendingshould also have factored into the balancing test. The Judge should also have hadregard to the fact that Mr Cleaver did not plead guilty as it signified a lack of genuineremorse. The Judge's decision was therefore plainly wrong.Discussion[20] The test to be applied under s 296 of the Criminal Procedure Act is fundamentalto our assessment of this appeal. It can be contrasted to an appeal by a defendant whohas been refused a discharge without conviction.15 In that case, although an appellatecourt must be persuaded that the Court below was wrong, it reaches its decision onthat point by its own view of the merits. On the other hand, in this appeal we need tobe persuaded not that the Court below was wrong, but that no Judge acting rationallywithin the scope of ss 106 and 107 of the Sentencing Act could have made the decisionunder appeal. It is a much more stringent test.[21] As explained, the Crown does not take issue with the Judge's assessment ofthe offending as moderately serious or his recognition of the enormous emotionalstress caused to the victim. It does not take issue with the Judge's acceptance that theInstitute of Chartered Accountants already knew of the offending and would make itsown assessment of it in relation to Mr Cleaver's ability to continue to practise as anaccountant.[22] The Crown acknowledges that Mr Cleaver's rehabilitative efforts are to becommended, but says they must be viewed in light of his continued minimisation ofthe offending. Although consistently endorsing anti-violence attitudes in therapy isconsistent with the reports from his 39 character references, it is not consistent withhis offending, according to the Crown. The Crown is therefore, in effect, saying thatthe Judge gave too much weight to Mr Cleaver's rehabilitative efforts in hisassessment of the gravity of the offending.[23] The Crown takes a similar stance to Mr Cleaver's ability to travel overseas forbusiness and charitable purposes. It says that the Judge gave too much weight to thisfactor. This is its primary challenge to the Judge's assessment of the consequences ofa conviction. In that regard, the Judge had Ms Cottrell's affidavit, which explainedthe consequences of a conviction for Mr Cleaver on his ability to travel overseas.On the basis of this evidence, the Judge concluded:[25] I have read the affidavit from Ms Cottrell, and of course I can acceptwhat she says in that, and I note the examples she has given from the variouscountries concerning character requirements. I am of the view that it wouldbe a very real and significant impact on his ability to travel, to the point, Iwould suggest, where he would be barred, effectively, from travel to somecountries or, at least, the subject of very considerable delay and investigationbefore his application for a visa, for example, would be granted.15 See R v Smyth, above n 11, at [7].[24] This mirrored the affidavit evidence of Ms Cottrell, who stated:In the circumstances of Mr Cleaver it would appear that the likelyconsequences of a conviction will be on-going and significant. Anyapplication he makes to travel to the US, Australia and Canada will requirehim to declare his conviction/s and it is highly probable that a conviction willaffect his ability to travel internationally. It is highly probable that Mr Cleaverwill be ineligible for a visa to the US, Australia and Canada should he beconvicted. He would then need to make an application for a waiver of thecharacter requirements. This process is complicated and time consuming andthere is no guarantee that it will result in the grant of a visa.[25] Mr Cleaver had travelled overseas on 11 occasions in 2019 — three times toFiji to meet with clients, twice to Australia for a MYOB conference and onhydropower company business and once each to Indonesia, China and Hong Kong,the United States, Japan, Germany and India, mainly to meet with, or accompany,clients. Against that background, it was open to the Judge to find that, at the least,Mr Cleaver would be the subject of considerable delay and investigation before anyfuture application for a visa would be granted.[26] Although many Judges may have weighed the various factors differently andmade an assessment that the likely consequences of a conviction were not out of allproportion to the gravity of the offending, we cannot say that no Judge acting rationallywithin the scope of ss 106 and 107 of the Sentencing Act would have dischargedMr Cleaver without conviction. Judge Field is an experienced trial Judge. He heardevidence over five days and had the benefit of extensive reports and submissions.The decision he made to grant a discharge without conviction was open to him.He was not plainly wrong.[27] The appeal is accordingly dismissed.Solicitors:Crown Law Office, Wellington for Appellant