WARDLEY v NZ POLICE [2021] NZHC 1026

WARDLEY v NZ POLICE [2021] NZHC 1026 [10 May 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000459[2021] NZHC 1026BETWEEN TYLA CHANTAL WARDLEYAppellantAND NEW ZEALAND POLICERespondentHearing: 4 May 2021Appearances: TM Newman for AppellantBJ Hamilton for RespondentJudgment: 10 May 2021JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 10 May 2021 at 11.00amRegistrar/Deputy RegistrarDateSolicitors: Meredith Connell, AucklandPublic Defence Service, Auckland[1] Tyla Wardley, now aged 23 years old, appeals against her convictions andsentence on charges of burglary,1 possession of utensils2 and failure to answer DistrictCourt bail.3 She appeals on the ground of trial counsel error, on the basis that she wasnot advised she could seek a discharge without conviction.Offending[2] Immediately prior to the time of her offending, Ms Wardley had been residingwith her aunt. They had fallen out and Ms Wardley went to the house to retrieve someof her possessions. Her aunt was away at that time, on holiday. Ms Wardleynevertheless entered the home through the kitchen window. Once inside, she took twolaptops, a stereo, bedding, perfume, a jewellery box and items of clothing. Herfingerprints were located on the window and her sandals outside the window, whichher aunt later identified as belonging to Ms Wardley. Ms Wardley says that she wasin a bad space personally at that time, including being under the influence ofmethamphetamine. On 14 December 2017, Ms Wardley sold one of the stolen laptopsto Cash Converters for $140. She signed a declaration that the laptop belonged to herwhen she sold it. The laptop was on sold, and none of the other stolen property wasrecovered.[3] Ms Wardley was arrested in relation to the burglary on 6 February 2018. Uponarrest, Police located a glass pipe and an empty point bag containing crystal residue inher bag. She was released on bail that same day.[4] On 9 February 2018, she failed to appear in the District Court.Procedural history[5] In 2018, Ms Wardley pleaded not guilty to the three charges and a judge alonetrial was scheduled for 7 June 2019.1 Crimes Act 1961, s 231(1)(a); maximum penalty imprisonment not exceeding 10 years.2 Misuse of Drugs Act 1975, s 13(1)(a) and (3); maximum penalty imprisonment not exceeding oneyear and/ or a fine not exceeding $500.3 Bail Act 2000, s 24; maximum penalty imprisonment not exceeding three months or a fine notexceeding $1,000.[6] In March 2019, Ms Wardley's file was reassigned to new defence counsel (notcounsel on the present appeal). Both Ms Wardley's former and new counsel tried toget Police to reduce the charge of burglary to theft to no avail.[7] On 10 April 2019, Ms Wardley's counsel (who I will refer to in the balance ofthis judgment as her trial counsel) communicated via text message to Ms Wardley thatthe Police were not prepared to amend the charge. She wrote:Hi, I contacted the police prosecutor. They advised that there has been 3attempts made previously to reduce the charge and they are not willing toamend anything. So your options are to as follows:1. Plead guilty to the charges as they stand and accept the summary of factsand hope to be dealt with on the day of plea (next week).2. Seek a sentence indication on all the charges – this is where we ask thejudge if you were to plead guilty to all the charges what type of sentence youwould get (this gives you options and ability to hear the sentence you wouldget before you plead guilty).3. Maintain not guilty plea and go to the trial on 7 June.Have a think and let me know what you would like to do. I will need to advisethe court this week.[8] Ms Wardley initially replied to the text message requesting a sentenceindication, but then sent a follow up message: "Sorry changed my mind. I'll pleadguilty". On 17 April 2019, she duly pleaded guilty to the charges. Her written"Instructions as to Plea" record, relevantly:I wish to vacate my not guilty pleas and resolve this case due to my personalcircumstances.[9] Trial counsel's file note from the time indicates that one of the personalcircumstances which prompted Ms Wardley to seek resolution of the charges was thatshe was pregnant with her second child and was due to give birth in May 2019.[10] In the event, the District Court Judge was not in a position to deal withMs Wardley's sentencing on 17 April 2019, due to a busy list court and the need forfurther information. Trial counsel's file note of that day includes a notation thatMs Wardley "wants to look at studying health science once she's settled [with] baby".[11] Ms Wardley's sentencing eventually took place on 25 July 2019. I note thatthe Provision of Advice to Courts (PAC) Report dated 25 July 2019 recorded thatMs Wardley intended to return to a Health Sciences bridge course at AUT "with thehope of becoming a midwife". Ms Wardley's trial counsel clearly had a copy of thePAC Report at the time, as it includes, for example, her handwritten comments on thefront page.[12] Returning to the narrative, on 25 July 2019, Judge Hastings sentencedMs Wardley to supervision for nine months with special conditions4 and orderedreparation of $200 payable at $10 per week.5 As to why Judge Hastings adopted asentence of supervision, he stated:[5] I have been handed up a letter from CADS that you have attendedthree counselling sessions, the last one being last year, in 2018. It also recordsthat you are open to support and want to make a change.[6] You have no history in the adult court. The pre-sentence reportrecommends a sentence of supervision. In all the circumstances, that to meseems like the right thing to give you. This conduct needs to be denouncedbut I also need to take into account the fact that you have no previousconvictions and that you have rehabilitative needs.Appellant's personal circumstances[13] In her affidavit filed on the present appeal,6 Ms Wardley expresses regret attaking her aunt's belongings. Of her circumstances at the time of the offending, shestates:The time of the offending was a difficult time for me. I had broken up withmy partner,and lost custody of my first child, to him. I was in a violentrelationship with another man, who was giving me drugs. I was strugglingwith addiction and depression.[14] She also describes how her circumstances subsequently improved:By [March 2019] I had had support from Women's Refuge, the City Mission'sSocial Detoxification Unit and received treatment from Community Alcoholand Drugs Service.4 Not to consume, possess or use non-prescription alcohol or drugs; and to undertake to completeappropriate assessment and counselling or treatment as directed by, and to the satisfaction of, aprobation officer.5 Police v Wardley [2019] NZDC 26748.6 There being no objection to it being received on the appeal.I stopped using drugs and broke up with my abus[ive] partner. I was able toresume my relationship with my former partner[15] In relation to her plea decision and future plans, she states:I pleaded guilty to the charges on 17 April 2019 and told [my counsel] I wantedto have the matter wrapped up as soon as possible. I was pregnant with mysecond childI really just wanted to focus on caring for myself, my daughterand the second child I had on the way.By mid 2019 I was planning on becoming a midwife. I mentioned this to theProbation Officer who interviewed me before the sentencing hearing. At thattime I had no idea that a conviction would impact my ability to get a job.[My counsel] did not mention to me that I could apply for a discharge withoutconviction. I did not know that such an outcome was possible.At the start of 2020 I started looking for a job. I have had absolutely no luckand have not been called back by anyone. I applied for fifteen to twenty jobswaitressing, in retail and administrative support work. I fear my convictionsare stopping me getting a job.In January 2020 I started a Diploma in Health Science, and completed that on30 October 2020. Then I enrolled in the Bachelor of Nursing. This is a threeyear degree.While I was doing the Diploma, in about April, I was informed that I mightnot even be able to enrol in nursing because of my convictions. I was offeredto be refunded the course costs. However, I wished to complete the Diplomaand did so. However, I became concerned I would never be able to become aNurse.I have received a letter saying that I have been accepted into the Bachelor ofNursing Program. I am aware that to become a Registered Nurse I have topass a character test. My convictions will not help me with this but I am toldthat if I do not have any further offending I may be able to be registered as aNurse.In the meantime I am still unable to get a job.[16] Ms Wardley has also put before the Court:(a) A letter dated 17 July 2019, authored by a counsellor at CommunityAlcohol and Drugs Services (CADS), confirming that she attended aCADS assessment and three follow-up appointments to address heraddictions. The counsellor reported that Ms Wardley was "open tosupport and intentional in making change".(b) An academic record dated 17 July 2019 which shows that Ms Wardleycompleted Level 3 of the National Certificate in Health, Disability andAged Support (Health Assistant) with New Zealand ManagementAcademies Ltd.(c) The PAC Report dated 10 July 2019, which records that she told theprobation officer that she intended to return to her Health Sciencebridging course at Auckland University of Technology in February2020 with the hope of becoming a midwife.(d) Her Criminal and Traffic History, which records that at age 15 she facedtwo charges which were dealt with in the Youth Court.7 Other than theindex offending, Ms Wardley has no other convictions.[17] No objection was taken to this material being admitted on the appeal. Most ofit is fresh and all is cogent. I admit it accordingly.Trial counsel's affidavit[18] Ms Wardley's trial counsel confirms that she did not advise Ms Wardley aboutthe possibility of applying for a discharge without conviction. She explains why,stating:Ms Wardley is correct that a discharge without convictionwas not discussedand no application was advanced at the sentencing hearing.The reason I did not discuss a section 106 application with Ms Wardley wasdue to a combination of factors:(a) When the file was reassigned to me, Ms Wardley wanted matters tobe disposed of quickly due to the pending birth of her second child(b) The seriousness of the charges and the property taken – the breach oftrust and premeditation made this more serious in my view.7 Unlawfully getting into/ onto a motor vehicle/ cycle; Obstructing police.(c) Previous dealings with the court in the Youth Court – I acknowledgethis is not a bar to making an application for a section 106 discharge,however it does affect the previous good character assessment.In hindsight, an application may well have been appropriate given her wishto study midwifery. The possibility of a nursing degree was not mentioned tome at that stage. Notwithstanding this, the strong sense that I had from MsWardley at that time was a desire to resolve this as quickly as possible.My understanding was Ms Wardley's health science studies were still in theearly stages. At the time the PAC report was completed, the health sciencebridging course was on hold until the beginning of 2020 when she anticipatedshe would be more settled with her second babyMs Wardley instructed meon the day she entered her 'guilty' pleas that she wanted "to look at studyinghealth science once she is settled with baby".It was unknown to me when she would finish this course and whether shewould continue into midwifery. This was also set out on the PAC report Itwas, in my view, a desire but there was nothing confirmed from the universityregarding the midwifery or nursing studies.(emphasis added)Approach on appeal[19] Ms Wardley's notice of appeal was filed out of time on 30 October 2020, overa year after sentencing.8 This Court may, however, at any time extend the time allowedfor filing a notice of appeal.9[20] Ms Wardley says that the basis for the delay is her late knowledge of how herconvictions might prevent her from enrolling in a nursing course. She learned of thisin April 2020. She also says that she was delayed by the COVID-19 lockdowns, herunfamiliarity with the legal aid processes (and multiple engagements with aCommunity Law Centre), and suffering an infection following an operation. Therespondent does not oppose this Court granting her leave to appeal out of time. Takinginto account the reasons for the delay, I consider it is in the interests of justice to grantleave and I do so.[21] The appeal is brought pursuant to s 229 of the Criminal Procedure Act 2011.This Court must allow the appeal if satisfied that the Judge erred in his assessment of8 Criminal Procedure Act 2011, s 231(2).9 Criminal Procedure Act 2011, s 231(3).the evidence to such an extent that a miscarriage of justice has occurred, or relevantlyfor present purposes, a miscarriage of justice has occurred for any other reason.10[22] As regards the circumstances in which an appeal against conviction might besuccessful following entry of a guilty plea, I refer to Kós P's observations in Whichmanv R:11It is trite law that only in exceptional circumstances will an appeal againstconviction be entertained after a guilty plea has been entered. "Where theappellant fully appreciated the merits of his position, and made an informeddecision to plead guilty, the conviction cannot be impugned."12 Three broad categories of relevant exceptional circumstance were identifiedby [the Court of Appeal] in R v Le Page to which a fourth was added inMerrilees v R:13(d) where trial counsel erred in advising as to the non-availabilityof certain defences or potential outcomes, or where counselwrongly induces a decision to plead guilty under a mistakenbelief or assumption that no tenable defence existed or couldbe advanced.(emphasis added)LawTrial counsel error[23] Last year, in K v R,14 the Court of Appeal affirmed the summary of principlesit had set out in Clutterbruck v R concerning appeals on the ground of trial counselerror:15The starting point is R v Sungsuwan where the Supreme Court emphasisedthat the focus must always be on whether there has been a miscarriage ofjustice.16 Counsel's decisions may be relevant to that, but radical error by trialcounsel is not required to establish a miscarriage has occurred. More recently10 Criminal Procedure Act 2011, s 232(2)(b) and (c).11 Whichman v R [2018] NZCA 519 at [34]–[35].12 R v Le Page [2005] 2 NZLR 845 (CA) at [16].13 R v Le Page [2005] 2 NZLR 845 (CA) at [17]–[19]; and Merrilees v R [2009] NZCA 59 at [35].14 K v R [2020] NZCA 133 at [80]–[81].15 Clutterbruck v R [2017] NZCA 361 at [13]–[14].16 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [69]–[70].this court in R v Hall reviewed the topic of alleged counsel error.17 The Courtidentified three fundamental matters over which a defendant had the absoluteright to decide and concerning which counsel must follow or not act – theplea, the focus of the defence and the decision to testify.18The emphasis in R v Sungsuwan on whether there has been a miscarriage hadthe effect of reducing the emphasis or focus on the nature of counsel's error,and the then test of whether it was a "radical" error. The consequence of anyerrors was more important than assessing their gravity. R v Hall is consistentwith this, but clarifies that some matters are so fundamentally tied to adefendant's rights that errors in relation to them will almost always constitutea miscarriage.(emphasis added)[24] In R v Sungsuwan, the Supreme Court had observed:19[W]hile the ultimate question is whether justice has miscarried, considerationof whether there was in fact an error or irregularity on the part of counsel, andwhether there is a real risk it affected the outcome, generally will be anappropriate approach. If the matter could not have affected the outcome anyfurther scrutiny of counsel's conduct will be unnecessary. But whateverapproach is taken, it must remain open for an appellate Court to ensure justicewhere there is real concern for the safety of a verdict as a result of the conductof counsel even though, in the circumstances at the time, that conduct mayhave met the objectively reasonable standard of competence.(emphasis added)[25] In cases in which trial counsel error is alleged, the approach is to:20[A]sk first whether there was an error on the part of counsel and, if so, whetherthere is a real risk that it affected the outcome by rendering the verdict unsafe.If the answer to both questions is "yes", this will generally be sufficient toestablish a miscarriage of justice, so that an appeal will be allowed.(emphasis added)Discharge without conviction[26] Sections 106 and 107 of the Sentencing Act 2002 enable a court to dischargean offender without conviction, provided the court is satisfied the direct and indirectconsequences of a conviction would be out of all proportion to the gravity of theoffence.17 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26.18 At [65].19 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [70].20 R v Scurrah CA159/06, 12 September 2006 at [17]; cited in Hall v R [2015] NZCA 403, [2018]2 NZLR 26 at [11].[27] This is a two-stage inquiry.21 First, the court must determine the gravity of theoffending, the consequences of conviction and whether those are out of all proportionto the gravity of the offence. Second, if the court is satisfied the consequences are outof all proportion, it should consider whether it should nonetheless exercise itsdiscretion to decline to grant a discharge without conviction.SubmissionsFor Ms Wardley[28] Mr Wright, counsel for Ms Wardley on this appeal, submits that becauseMs Wardley did not know a discharge without conviction was an option she couldpursue, the sentencing process miscarried. He submits that if she had been informedof such an option and pursued that option, she may not have been convicted. He seeksthe quashing of Ms Wardley's convictions and referral of the matter back to the DistrictCourt for sentencing, to allow Ms Wardley to seek a discharge without conviction.[29] In addition to Sungsuwan v R, Mr Wright refers to the following authorities insupport of the appeal:(a) Tuhi v Police:22 Ms Tuhi appealed against her conviction and sentence,having pleaded guilty to a charge of wounding with reckless disregardat the conclusion of the evidence at her judge alone trial. She had beensentenced to 12 months' intensive supervision. She had no priorconvictions. She had initially pleaded not guilty. Her counsel did notinform her that she had an opportunity to seek a discharge withoutconviction. The Police accepted that she should have been informed ofthis option. Cull J was satisfied that the failure of her counsel to informher and/or make an application for a discharge without convictionmeant that there had been a miscarriage of justice.2321 DC(CA47/2013) v R [2013] NZCA 255 at [31].22 Tuhi v Police [2019] NZHC 2046.23 At [16].(b) Harris v R:24 Ms Harris appealed against her conviction and sentence,having pleaded guilty to a charge of cultivating cannabis and theft ofelectricity. She had been sentenced to six months' home detention. Shehad no prior convictions. She initially pleaded not guilty. Her counselhad not advised her of her right to seek a discharge without convictionat sentencing. On appeal, Ms Harris submitted that an application fordischarge would have had reasonable prospects of success because first,she was not the principal offender, and second, a conviction would haveserious consequences for her work in television and media. In thecontext of the first stated reason, the Court noted that it was arguableMs Harris was not the primary offender, and the details of who she saidwas the primary offender had not been put before the sentencing Judge.On this basis, Miller J (delivering the judgment of the Court) stated:25Ms Harris should have the opportunity to persuade a judgethat the gravity of her offending was sufficiently low, in allthe circumstances, to open the door to a reduced sentence. Weexpress no view as to the prospects of success for anapplication for discharge without conviction. That willpresumably require a disputed facts hearing and the outcomewill depend on the evidence led there. We will give her theopportunity to seek a discharge by quashing her sentences andremitting the proceeding to the District Court forresentencing.(c) Joy v Police:26 Mr Joy appealed against his conviction, having pleadedguilty to one Summary Offences Act charge of assault. He hadinstructed his counsel to seek a discharge without conviction but wassentenced immediately by the District Court Judge upon entry of hisguilty plea. His counsel did not have an opportunity to indicate to theJudge that Mr Joy sought a discharge without conviction.Dunningham J was satisfied that the circumstances in which hisconviction was entered constituted a miscarriage of justice.2724 Harris v R [2020] NZCA 553.25 At [13].26 Joy v Police [2014] NZHC 1918.27 At [10].[30] Mr Wright submits that these cases demonstrate that failure to advise a clientof the option of applying for a discharge without conviction may amount to the sort ofcounsel error which results in a miscarriage of justice. Further, he submits that thesecases (and in particular Harris) also demonstrate that an appellant has no burden onan appeal of conclusively demonstrating the merits of an application for dischargewithout conviction.[31] As to Ms Wardley's particular circumstances, Mr Wright submits that her age,expression of pursuing studies in midwifery and clean adult criminal history werefactors which indicate counsel should have considered and advised about thepossibility of applying for a discharge without conviction. Further, he submits that thehaste with which Ms Wardley made her decision to proceed to sentencing, changingher mind quickly about whether to seek a sentencing indication or to plead guilty,undermines any suggestion that she made an informed choice about her plea.For the respondent[32] Mr Hamilton, counsel for the respondent, submits that for Ms Wardley tosucceed on appeal, she must satisfy the Court that, had she known about the possibilityof advancing an application for a discharge without conviction, (a) she would haveadvanced one, and (b) there was a reasonable chance the Judge would have grantedthe application. Otherwise there could be no "real risk" that the outcome of hersentencing was affected (and thus no prospect of a miscarriage of justice havingoccurred).[33] Focussing on (b), Mr Hamilton made detailed submissions directed to whethera s 106 application by Ms Wardley would have been likely to succeed. He submitsthat the gravity of Ms Wardley's offending was towards the "moderate end of low",and responsibly accepts that Ms Wardley's personal circumstances go some waytowards mitigating the seriousness of her offending. He identifies, however, thatMs Wardley fears two consequences of her conviction: first, general prejudice towardher employment prospects; and second, difficulty in obtaining registration to becomea nurse. He submits that Ms Wardley has insufficiently substantiated the prejudice sheconsiders herself to be facing in relation to her current job search, which is of ageneralised and speculative nature only. With respect to her desire to become a nurse(or midwife), he first submits that this Court should take note of the relative recencyof her expression of this desire (stating it only appears to have emerged in 2020).Mr Hamilton further submits that the consequences of Ms Wardley's convictioncannot be said to be out of all proportion to the gravity of the offending. This is saidto be because the determination of fitness to be registered as a health practitioner is anarea well within the exclusive domain of the relevant registration board (pursuant tothe Health Practitioners Competence Assurance Act 2003 (the Act)).[34] Developing this submission, Mr Hamilton notes that under the Act, registrationas a nurse is still possible despite a conviction, subject to an applicant satisfying therelevant authority that the conviction does not reflect on the applicant's fitness topractice.28 Mr Hamilton also notes that from information on the Nursing Council ofNew Zealand's website, the Council appears to take a similar approach to registrationas a registered nurse or enrolled nurse. By reference to a number of authorities,29Mr Hamilton submits that the courts are hesitant to "suppress" convictions fromentities such as these, as it risks usurping the decision-making function of such expertbodies.[35] In sum, Mr Hamilton submits that it cannot be demonstrated on this appeal thatthere is a real risk that a different outcome would have eventuated in the absence oftrial counsel's failure to advise on a s 106 application. In other words, irrespective ofwhether Ms Wardley's trial counsel ought to have advised on making a dischargewithout conviction application (and such an application had been made), Mr Hamiltonsays it is highly likely that Ms Wardley's convictions would have remained.Analysis[36] I am clear in my view that the appropriate outcome on the present appeal is toquash Ms Wardley's convictions and sentence and to remit the matter to the DistrictCourt so that she has a proper opportunity to advance an application for a dischargewithout conviction. My reasoning follows.28 Health Practitioners Competence Assurance Act 2003, s 16(c).29 Maraj v Police [2016] NZCA 279 at [28]; Daleszak v Police [2015] NZHC 1853.[37] First, I am satisfied there was trial counsel error, in that Ms Wardley's counselat the time did not advise in either the lead up to sentencing or at the sentencing hearingthat an option would be to apply for a discharge without conviction. I acknowledgethat matters progressed quite quickly once Ms Wardley decided to change her plea.But certainly as of April 2019, trial counsel was aware of Ms Wardley's plans forfurther study. In addition, it was clear from the PAC Report in July 2019 thatMs Wardley had raised her desire to complete further study in the hope of becoming amidwife. As noted, the PAC Report was available to trial counsel. This could havealso triggered a discussion with Ms Wardley about the possibility of applying for adischarge without conviction.[38] I note trial counsel's quite responsible acknowledgement that in hindsight itmay have been appropriate to have advanced an application, particularly givenMs Wardley's wish to study midwifery. I further acknowledge that there does notappear to have been a particularly clear expression of this intent by Ms Wardley totrial counsel herself at the time. Nevertheless, given the relatively low level nature ofthe offending, Ms Wardley's age at the time of the offending, her expressed desire forfurther study, that the PAC Report referred to her desire to become a midwife and herpersonal circumstances which appear to have led to her offending, there was at least aproper basis for an application for a discharge without conviction to have beenconsidered.[39] The issue nevertheless remains whether a miscarriage of justice has occurredas a result of trial counsel's error. I am satisfied that this is the case. It is obviouslynot possible on the present appeal to express any firm views about the merits of anapplication for a discharge without conviction. Nor would it in my view be proper todo so. But what is clear is that the present case is not one in which I am satisfied trialcounsel error could not have altered the sentencing outcome.[40] I accept Mr Hamilton's submission that the Court of Appeal's observations inHarris are not directly relevant to the present appeal, as the Court's concern that thesentencing process had miscarried was more directed to the inability of Ms Harris toseek a disputed facts hearing, which would in turn have informed the Court andcounsel as to whether an application for a discharge without conviction wasappropriate. Ultimately, Mr Wright accepted that the Court of Appeal's decision inHarris is properly read in this way, rather than suggesting an appellant has no burdento demonstrate that a discharge without conviction would have succeeded.[41] Nevertheless, there is no real dispute that Ms Wardley's culpability in relationto the offending was low, taking into account the aggravating and mitigating factorsattaching to the offender and the offending itself. In particular, she appears to havebeen in a particularly vulnerable situation at the time, including drug addiction issues.As Mr Hamilton responsibly acknowledged, she appears to have made excellentprogress in her rehabilitation.[42] I acknowledge the authorities referred to by Mr Hamilton, to the effect that itwould be relatively rare in cases where a statutory authority has been tasked withscreening applicants for admission to a trade or profession that the court wouldeffectively substitute its discretion as to what may or may not be relevant to thatexercise.30 Nevertheless, I consider detailed arguments in this regard are the properdomain of a judge determining an application for a discharge without conviction, withthe full statutory framework and any other relevant information before them (forexample, any evidence which suggests that the type of convictions in this case wouldeffectively amount to a barrier to practice).31[43] Moreover, it is somewhat inevitable that convictions of this kind will hinderMs Wardley in her employment prospects more generally, a point which appears tohave been borne out to date by the information provided in her affidavit. While courtsare often hesitant to place significant weight on vague and unspecified risks said toarise from a conviction, clear and obvious risks to employment can be taken intoaccount in assessing whether the consequences of a conviction would be out of allproportion to the gravity of the offending involved. For example, such matterspersuaded Wylie J in Cook v Police to allow an appeal against the refusal to grant adischarge without conviction.32 Wylie J noted that the offending in that case (an30 Maraj v Police [2016] NZCA 279 at [28].31 In this context, I note Ms Wardley's evidence that she has been told this could be the case for her,and was offered a refund of her Diploma course fees.32 Cook v Police [2014] NZHC 282.assault in a domestic violence context) was of a "comparatively minor nature", andthe defendant was a young man and he and his partner had reconciled. Wylie J stated:33It is in Mr Cook's and his partner's best interests that Mr Cook obtain the bestpossible employment, utilising the skills which he has already acquired andwhich he is now acquiring. His employment prospects are potentially blightedby the consequences of the conviction. The offending was a one-off incident,which occurred in a domestic context, following heavy drinking. While theoffending was isolated, its potential consequence[s] could well be long termand they could have an effect which would not be confined to Mr Cook.Having considered the available materials, I am persuaded that Mr Cook haswell and truly learnt his lesson in relation to the matter.[44] The Court of Appeal made similar observations in Gaunt v Police, stating: 34It would be unrealistic not to recognise that a conviction for common assault,which carries a maximum penalty of one year's imprisonment, would have aninhibiting effect on Mr Gaunt's employment prospects. Answering truthfullythe commonly asked question of whether he had any criminal convictionswould immediately place him at a disadvantage. If given the opportunity todo so, he would be required to explain that the conviction was for spitting athis partner in the course of a domestic dispute. That is not likely to be seen asa positive quality in the assessment of Mr Gaunt as a prospective employee.There is nothing novel about these propositions. It is well-recognised that theblack mark of a conviction alone is a significant consequence on an otherwiseclean record,35 especially for a young person who does not yet have a footholdin a career.36 Mr Gaunt is a 22 year old father with an otherwise clean record.He has expressed his remorse and acknowledged he needs to be a better fatherand role model to his daughter. We consider that a conviction would have adetrimental impact on his ability and opportunity to do so.(emphasis added)[45] The Court accordingly allowed the appeal and granted a discharge withoutconviction.[46] Observations such as these may be relevant to any application for a dischargewithout conviction made by Ms Wardley, particularly given her age at the time ofoffending, her culpability (including her personal circumstances at the time) and herrehabilitative efforts in the interim. I should emphasise that these comments are notto signal that a discharge without conviction should be granted. Rather, it is to33 At [28].34 Gaunt v Police [2017] NZCA 590, at [14]–[15].35 DC (CA47/2013) v R [2013] NZCA 255 at [44].36 Amstad v Police HC Auckland CRI-2011-404-161, 6 September 2011 at [22].demonstrate that the fact Ms Wardley did not have an opportunity to advance thesearguments on an application for a discharge without conviction means a miscarriageof justice has occurred.Result[47] I grant the appeal. Ms Wardley's convictions and sentence are quashed. Idirect that this case be remitted back to the District Court for the purposes ofMs Wardley advancing an application for a discharge without conviction pursuant tos 106 of the Sentencing Act 2002.___________________________Fitzgerald J