W v NEW ZEALAND POLICE [2019] NZHC 534

W v NEW ZEALAND POLICE [2019] NZHC 534 [19 March 2019]W HAS NAME SUPPRESSION PURSUANT TO JUDGMENT DATED27 MAY 2019 W v POLICE [2019] NZHC 1165.IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI 2018-454-20[2019] NZHC 534BETWEEN WAppellantAND NEW ZEALAND POLICERespondentHearing: 19 March 2019 via AVLCounsel: L C Ord and S W O Campbell for AppellantS P Poulton for RespondentJudgment: 19 March 2019Reasons: 21 March 2019JUDGMENT OF MALLON JIntroduction[1] W pleaded guilty to a charge of breaching a protection order.1 On18 November 2018, she was convicted and discharged in the District Court afterunsuccessfully applying for a discharge without conviction.2 W now appeals againstthe decision to reject her application for a discharge without conviction.[2] After hearing from counsel, I allowed the appeal with reasons to follow. Theseare my reasons.1 Domestic Violence Act 1995, ss 19(2)(c) and 49(1)(b) and (3); maximum penalty three years'imprisonment.2 New Zealand Police v W [2018] NZDC 20348.Summary of offending[3] W was married to the complainant for a year or so, until they divorced in 2011.On 21 May 2013, a final protection order was issued against W for the protection ofher former husband.[4] A parenting order was made by the Family Court on 10 December 2014, whichgave the complainant full-time care of their now ten-year-old daughter. W wasallowed supervised fortnightly access to her daughter for a period of seven hours on aSaturday. There was also an allotted hour for phone calls to take place weekly on aWednesday evening. W was also allowed overnight contact on one night during eachschool holiday period.[5] W moved to Napier in 2016 shortly after the order was made, while thecomplainant remained in Wellington. Subsequently, W and the complainantvoluntarily arranged for W to contact her daughter by phone every Sunday in additionto the allotted hour on Wednesdays.[6] On 29 March 2017, W sent a number of unsolicited text messages to thecomplainant demanding contact with their daughter outside the agreed times. Thecomplainant became fed up with the text messages so sent W a text message informingher of this. Despite this, W continued to send text messages to the complainant. On7 April 2017, the complainant contacted the police. Police reminded W of theconditions of her protection order and told her to cease the unnecessary textmessaging.[7] Contrary to the warning from police, W sent a further 38 text messages andmade at least two phone calls to the complainant over the next 10 days. In some ofthese messages W said she was going to report the complainant to the governmentagency now known as Oranga Tamariki. Some of the text messages were also mildlyabusive and claimed that she was mentally unstable. The complainant did not respondto the text messages and made two formal complaints to police.[8] When spoken to by police, W admitted sending the text messages, but said thatthe complainant would not allow her to talk to her daughter and that, as a mother, shewas worried.[9] W is 41 years old and has no previous convictions. By the time of hersentencing, W had full-time care of her daughter and the complainant had moved toAustralia. This followed a second parenting order made in December 2017.Discharge without conviction[10] The Court may grant a discharge without conviction under s 106 of theSentencing Act 2002, only if it is satisfied that the direct and indirect consequences ofa conviction would be out of all proportion to the gravity of the offending.3[11] The Court of Appeal has outlined the following approach to be used todetermine an application for a discharge without conviction:4(a) First, consider all the aggravating and mitigating factors relevant to theoffending and the offender.(b) Second, identify the direct and indirect consequences of the convictionfor the offender.(c) Third, consider whether those consequences are out of all proportion tothe gravity of the offence.(d) Fourth, consider whether the Court should exercise its discretion togrant a discharge.[12] The first three steps are matters of fact, not discretion, which requirereassessment by this Court pursuant to Austin Nichols & Co Inc v Stichting Lodestar.5The final step is an exercise of discretion.3 Criminal Procedure Act 2011, s 107.4 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].5 H (CA680/2011) v R [2012] NZCA 198 at [30]; and Austin Nichols & Co Inc v Stichting Lodestar[2008] 2 NZLR 141, [2007] NZSC 103.Basis for the application to the District Court[13] W filed an affidavit in support of her application for a discharge withoutconviction in the District Court. In this affidavit W provided further context to theevents that led to the charge.[14] She explained that, even though she had moved to Napier, with thecomplainant's agreement she had regular telephone and text contact with her daughterand she would see her on weekends and on holidays. This was arranged by textmessages between her and the complainant. W says that on the evening of 25 March2017 she received a text message from her daughter who was upset. W tried to callher but did not receive a reply. Over the next few days she sent text messages to thecomplainant who told her that he did not appreciate her unnecessary texting. W alsocontacted the police because she was worried about her daughter. The police contactedthe complainant who told them W had been texting him. The police officer told her tobe careful.[15] W accepts that she then sent another 38 texts to the complainant over the nextnine days and twice tried to call him. She said she was "frantic" because she had notheard from her daughter at all and the complainant did not respond either. She sentthe messages because she "desperately wanted to see and speak to [her] daughter".[16] W explained that she has a personality disorder but was now in recovery. Shesaid she now only suffered from mild anxiety. She said:I do not want to make excuses for what I did, but I do think that my anxietyhad some impact on my behaviour and I how I reacted. I did becomeirrational.[17] She also noted that, at this time, she was working full time as well as studyingand this was stressful. She said this was the first time she has been charged with anoffence. This made her anxious and very worried about the consequences for her of aconviction. She had attended a counselling session and had booked another.[18] W was due to graduate with a Bachelor of Arts in May 2018. In 2009 she wrotea short film that was produced and funded by Creative NZ. She was working on twofurther screenplays. Her plan was to undertake further study including overseas post-graduate study in clinical psychology. A safety check is carried out as part of theclinical psychology programme in New Zealand. To become an intern with the NewZealand Psychologists Board she would be required to provide a record of any criminalconvictions and there is a police vetting process.[19] W was concerned that a conviction would make it more difficult to pursue theseplans. From her research about overseas study in the United States she considered shemight not be eligible for a student visa or at the least the process would be morecomplicated and take longer. The position was similar for overseas study in the UnitedKingdom.[20] W was also concerned that a conviction would make it more difficult to get ajob because it was likely that she would have to disclose it. She also considered itmight tarnish her reputation as a screen-writer. At that time, she had employment inan administrative role with an IT company.[21] The affidavit annexed letters of support from Mr Browning, a Member ofParliament, and from her mother. Amongst other things, they were concerned that aconviction would cause a set-back for her mental health issues and a conviction wouldserve no positive purpose when W had already learnt from her conduct.Victim impact statement[22] The complainant provided a victim impact statement. He said he found thesituation very stressful and upsetting and he wanted W to stop contacting him and togo through the proper channels.District Court decision[23] In considering the application for a discharge without conviction, the Judgenoted the approach as follows:[19] The Court must consider when looking at these applications the two-stage enquiry set out in Z v R.6 The first stage is the disproportionality test6 Z (CA447/2012) v R, above n 4.and there are three steps in that part. Step 1 is the gravity of the offending.Step 2 is the consequence of conviction. Step 3 is the proportionalityassessment. The second stage is the exercise of the residual discretion unders 106.[24] As to step 1, he said:[20] Here as I have said the offending is serious because it is a breach of aprotection order and the High Court requires me to approach it in the way Ihave earlier referred to ensure that the Court responds sternly, so it is not aminor matter.[21] Although to be fair to [W], the breach is not the worst. It is at alow level but because of the persistence of the calls, it is at the higher of thelow level at the risk of sounding contradictory.[25] The High Court authority referred to was Morris-Stewart v Police.7 The Judgeconsidered that the Court was required to uphold the integrity of protection orders andto respond sternly to those who flout their force.[26] As to step 2, the Judge noted the application was advanced on the basis of theconsequences of a conviction on her overseas post-graduate study opportunities andher future employment prospects. He noted that W had now obtained employmentand had declined an opportunity to put before the Court her employer's attitude if shewas convicted. The Judge did not discuss the consequences of conviction on her futureemployment prospects. He said:[22] Looking at step 2, the consequences of a conviction. Are there goingto be any is the question that presents itself to my mind. [W] by instructingMs Anderson to not make enquiries of D****** effectively closes off theability to have that factor from carrying much weight because there is nothingbefore me one way or another.[23] Clearly [W] was correct when she took the employment on and shedid not have a conviction. What happens now is a matter for the employeronce my decision is reached. Whether [W] tells the employer is a matter for[W] whatever the outcome.[24] Given the cessation of the post-graduate studies, then immigration andtravel really cannot be seen to be real consequences because there is noevidence to support the fact that she will be precluded from entry to anycountry and for that to be looked at there would have to be some evidence thatthere was some proposed travel.7 Morris-Stewart v Police [2016] NZHC 1030.[27] As to step 3, the Judge said:[25] Step 3 is the disproportionality assessment. Do the consequences ofa conviction outweigh the gravity of the offence? In the absence of any realconsequences able to be shown, it is difficult to get to a conclusion that, yes,the consequences are such that they do outweigh the gravity of the offence andso there is no ability for me to come to that conclusion.[28] When considering the residual discretion, the Judge referred to ninecounselling sessions that W had by then attended but, absent information from thecounsellor about the success of those sessions, he was left with a concern aboutwhether her behaviour patterns had been modified. The Judge also took into accountthat W now had the care of her daughter and there had been no further offending. Hereferred to the usual consequences on travel and future potential employmentprospects that anyone who appears in Court faces if convicted. He concluded that hewas not prepared to exercise his discretion to grant the application because theintegrity of the protection order should be upheld and W's breach occurred despite awarning from the police.Further evidence[29] W seeks leave to adduce a further affidavit on appeal outlining eventsfollowing her sentencing in the District Court. The affidavit also contains otherinformation about her mental health difficulties and further research she has doneabout the consequences of a conviction on her employment prospects. W's counselsubmits the affidavit should be admitted, primarily because it is crucial to the mainissues on appeal.8 The Crown does not oppose the admission of this evidence.[30] The affidavit discusses W's borderline personality disorder diagnosis andprovides her medical records relating to this. It is not necessary to go into the detailof those records in this judgment. I simply note the records provide details of instanceswhere W has been very unwell. W explains that she is "high functioning" but "can bemanic at times" and that she suffers from "hyper-inflated anxiety and stress", whichcauses her to "act irrationally at times when [she is] under stress".8 Lundy v R [2014] 2 NZLR 273, [2013] UKPC 28 at [116]–[118].[31] W says she was acting irrationally when she breached the protection order. Sheregrets doing so. Since the charge was laid she has engaged counselling and beenprescribed anti-anxiety medication. She has recently made an appointment for morehelp with her mental health.[32] W explains that she resigned from her job at the IT company in the weeksfollowing her conviction. She says she was struggling in the role due to lack oftraining and experience and that she mutually agreed with her employer that it wasbest for her to leave. She never told her employer about her conviction. She was tooembarrassed to do so.[33] She says:Not receiving a discharge without conviction, and losing my job , last yearwas quite a step back for me mentally. It makes me sick in the stomach anddepressed about how this conviction will impact on my ability to get work inthe future. I have always had trouble with anxiety and stress, and theconviction definitely exacerbated this, making sleeping difficult, constantlyworrying, and even making me nauseous.[34] Since leaving her job, W has been on a benefit. She says that she is strugglingfinancially because most of her benefit goes towards rent and the rest goes towardsfeeding and clothing her daughter and paying back a bank overdraft. She says that shehas been going without food on occasion to ensure that her daughter is fed.[35] W has been looking into finding employment but is concerned about the impacther conviction will have on her ability to apply and compete for positions. Havingcompleted her Bachelor of Arts majoring in Education at Massey University, she iscurrently studying towards a certificate in administration and technology at NelsonMarlborough Institute of Technology. She has provided the Court with numerous jobadvertisements for administrative jobs, all of which refer to the need to have a "clearcriminal record" or at least to undergo a "criminal history check". W has also provideda letter from a recruitment agency confirming that a conviction would effectively barher from pursing any job opportunities through that agency. W says that the kinds ofjobs she is interested in will require her to declare her conviction, which she isincredibly embarrassed about.[36] W also explains that her conviction prevents her from being able to attendschool events for her daughter as a parent volunteer. She has provided the Court witha letter from her daughter's school that explains the requirement to undergo policevetting to be a volunteer at an upcoming school camp.[37] W concludes by accepting that she made "an extremely poor decision" andsaying that she is angry with herself. She says she is not trying to avoid responsibilityfor her actions but just wants to get her life back on track, so she can support herdaughter as best she can and provide for her and not be dependent on the State. Sheis asking the Court to give her a chance to avoid conviction and says she will not beback before the Court.My assessment of the appeal[38] I consider the Judge erred when assessing the gravity of the offending (step 1).It is not the case that every breach of a protection order is serious, requiring the Courtto uphold its integrity by entering a conviction.9 The seriousness of a breach iscircumstance-dependent. In this case the offending involved persistent texting, butfrom a mother distressed about her daughter's wellbeing. There is no suggestion thatthe complainant was fearful of the mother and there were no physical threats made tothe complainant. The offending was very much at the low end of seriousness for thiskind of offence. I therefore disagree with the Judge's assessment that this was at thehigher end of a low-level breach.[39] Additionally, an assessment of the gravity of the offending must take intoaccount all the aggravating and mitigating factors relevant to the offending and theoffender. Here, the Judge did not discuss any of W's personal mitigating factors whenassessing the gravity of the offending. He did discuss some of them when setting outthe background and in considering the residual discretion. But this is no substitute forconsidering them in their correct place, at step 1, which then enables the correctproportionality assessment to be made.9 See, for example, Deeming v Police HC Whangarei CRI-2008-288-61, 24 July 2009; O'Riley vPolice HC Wellington CRI-2011-485-98, 11 February 2009; and Steele v Police HC RotoruaCRI-2007-463-151, 11 February 2009.[40] In this case there were several personal mitigating factors. First, there was W'simmediate acceptance of the offending when spoken to by the police, her guilty pleaand her remorse. Second, W had no previous convictions. Third, W's personalitydisorder explains why she continued to text the complainant despite being told not toby the complainant and the police.10 Fourth, she recognised the cause of her offending(namely, her difficulties with stress and anxiety and her consequential irrationality)and took immediate steps to address this with her counselling sessions. The Judgefocussed on whether it had been shown that the counselling had modified W'sbehaviour, but it was also to her credit that she recognised the cause of her offendingand took steps to address it. When these personal mitigating factors are taken intoaccount, the gravity of the offending falls at the very lowest end.[41] Turning to step 2, I agree with the Judge that the overseas study plans were tootheoretical to be given much weight. However, the consequences of a conviction onemployment were entitled to some weight. This was the kind of offending that on itsface appeared more serious than it was. Once the circumstances of the offending areunderstood, it is not the kind of offending that ought to disqualify W from the type ofwork for which she is suited from her training and experience. However, as the furtherevidence makes plain, W may well not have the opportunity to explain thecircumstances of the offending to prospective employers because the requirement todisclose her conviction may well mean she is disqualified from the role or that she willbe rejected in favour of other applicants who have no convictions. As she says, it isalready not altogether easy for her to secure and maintain work as a person in herforties with limited work experience, and as a single parent with the care of a youngdaughter and with her anxiety issues.[42] The affidavit filed in support of the appeal also provides evidence of otherconsequences. It is clear from W's affidavit that she regards a conviction as quite asetback. I accept W's evidence that having a conviction has increased her anxiety andstress. I accept also that, as a currently unemployed single parent, it is important toher to be able to contribute as a parent to school activities and that she may beunnecessarily disqualified from doing so because of her conviction.10 Although the Judge had less detail about W's personality disorder than is before me, there wassufficient information for it to have been taken into account.[43] I therefore accept that there are material consequences for W if she isconvicted. I consider these consequences are out of all proportion to the gravity of theoffending, which was at the very lowest level. I therefore consider W should bedischarged without conviction.Result[44] The appeal is allowed. W's conviction is quashed and her application for adischarge without conviction is granted.Mallon J