MATHIESON v R [2019] NZCA 406

MATHIESON v R [2019] NZCA 406 [3 September 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA791/2018[2019] NZCA 406BETWEEN WARREN DAVID MATHIESONAppellantAND NEW ZEALAND POLICERespondentHearing: 19 August 2019Court: Brown, Simon France and Dunningham JJCounsel: D H P Schellenberg and K Petrie for AppellantE J Hoskin for RespondentJudgment: 3 September 2019 at 11.30 amJUDGMENT OF THE COURTA The appeal against conviction and sentence is allowed.B The convictions for male assaults female and threatening to kill are quashed.The appellant is discharged without conviction on both charges.____________________________________________________________________REASONS OF THE COURT(Given by Simon France J)Introduction[1] This appeal against a refusal to discharge without conviction proceeds pursuantto a grant of leave to bring a second appeal.11 Mathieson v Police [2019] NZCA 97.[2] Mr Mathieson pleaded guilty to charges of male assaults female andthreatening to kill. His first appearance was recorded as 8 August 2017 in theDistrict Court. From thereon in the charges were managed in the Family ViolenceCourt. His first appearance in the Family Violence Court was on 12 September 2017.Prior to that appearance Mr Mathieson, who had alcohol issues, had started on coursesoffered by Community Alcohol and Drugs Services. He had also made inquiries aboutanger management and non-violence courses.[3] Mr Mathieson's rehabilitative efforts were monitored by the Family ViolenceCourt for a period of 10 months prior to his actual sentencing. During that time,he completed 12 weeks of alcohol and drugs courses, and a 20-week Living WithoutViolence course. His monitoring sessions in the Family Violence Court were largelypositive and supportive events.[4] The primary point on appeal is that the decisions of the District Court andHigh Court, particularly as regards the assessment of the gravity of the offending, givetoo little weight to those positive rehabilitative endeavours.2 It is submitted this is dueto an error in approach which has relegated these efforts to the question of penaltyrather than factored them into the application of s 106 of the Sentencing Act 2002.Facts[5] Mr Mathieson and the complainant had been in a relationship for three years.On an occasion in August 2017, there was an argument over an alleged infidelity.Mr Mathieson grabbed the complainant by the jaw with both hands. He desisted butthen shortly after, as the argument continued, repeated the gesture. He also threatenedto kill her. The complainant suffered a sore head and neck, with visible bruising to thefront of her neck under her chin.[6] Mr Mathieson's charges were referred to the Family Violence Court. After aninitial not guilty plea, and then a change in the charges, six weeks after his12 September appearance in the Family Violence Court he entered guilty pleas. By the2 Police v Mathieson [2018] NZDC 20147 [District Court decision]; and Mathieson v Police [2018]NZHC 3153 [High Court decision].time of that appearance he had commenced the Community Alcohol and Drug Servicesprogramme and had taken steps to be enrolled in stop violence programmes.[7] Mr Mathieson had case review and monitoring appearances before the FamilyViolence Court on 27 October 2017 and 23 January 2018. The feedback was positive.It seemed as if sentencing might occur on 17 April 2018 but a confusion over datessaw Mr Mathieson miss that appearance. The case was referred off for anothersentencing date.Judgments under appeal[8] Both judgments set out what is now a standard approach to s 106 applications:3(a) First, assess the gravity of the offending. This involves considerationof the seriousness of the actual offending, but also includes anyaggravating and mitigating factors that apply to the offender.(b) Next, identify the direct and indirect consequences of a conviction.(c) Finally, apply the statutory test of whether those consequences are outof all proportion to the assessed gravity of the offending.[9] Judge Orchard assessed the actual offending to be moderately serious.4Her Honour noted there were two assaults, bruising to the neck area andaccompanying threats to kill. Whilst the sentencing remarks also identifiedMr Mathieson's rehabilitative efforts, these did not result in any adjustment to theinitial assessment of moderately serious. That was the gravity of the offending againstwhich the balance of the process was conducted.[10] Concerning consequences, Mr Mathieson had pointed to a clause in hisemployment contract which entitled the employer to consider termination if an3 District Court decision, above n 2, at [7]; and High Court decision, above n 2, at [5].The authorities usually cited are Z(CA447/2012) v R [2012] NZCA 599, [2013] NZAR 14; andBlythe v R [2011] NZCA 190, [2011] 2 NZLR 620. The principles were recently reviewed inR v Taulapapa [2018] NZCA 414.4 District Court decision, above n 2, at [9].employee is charged with a criminal offence. Mr Mathieson had not informed hisemployer of his situation. Her Honour noted this to be a consequence that flows fromthe fact of charging, not conviction.5[11] In the High Court Mr Schellenberg argued, as he does again on this secondappeal, that insufficient recognition was given to Mr Mathieson's post-assault effortsto address the causes of his offending. Brewer J responded in these terms, a responseMr Schellenberg submits contains errors of principle:6[13] I understand Mr Schellenberg's point, but I think it is largely a matterof semantics. The penalty imposed by the Judge was a fine of $350 and anorder for the payment of Court costs of $130 on the charge of male assaultsfemale. On the charge of threatening to kill, Mr Mathieson was convicted anddischarged. This penalty shows the Judge must have taken Mr Mathieson'spersonal circumstances as reducing the gravity of the offending from themoderately serious.[14] As Judge Orchard recognised, domestic violence is inherently serious.The repeated use of violence in this case, directed to the area of the head andcoupled with threats to kill, made it a moderately serious example of maleassaults female. That does not change through post-assault efforts.What changes is the extent to which the Court must sanction Mr Mathiesonfor his moderately serious offending. So long as this is recognised, I do notthink a Judge needs to change the word picture. It would be inappropriate,for example to say words to the effect: "This was moderately serious offendingbut because of what you have done after the incident, I will now characteriseit as offending which is not very serious at all."[15] In short, Judge Orchard recognised the degree to which the Courtshould respond punitively to Mr Mathieson's offending given his efforts afterthe offending and his other personal circumstances. It is against that picturethat the next stages of the test have to be addressed.(Emphasis added.)[12] As for the next stage, his Honour's assessment of the consequences of theoffence largely mirrored that of the District Court and the appeal was accordinglydismissed.Decision[13] Mr Schellenberg submits the italicised observations are errors of principle inthat they appear to relegate the mitigating factors to issues of penalty rather than as5 At [12].6 High Court decision, above n 2.being relevant to the assessment of the gravity of the offending for the purposes of thes 106 application. We accept they can be read that way, and if that was the intention,it would be incorrect. However, we note the Judge earlier in the decision set out thecorrect approach,7 and do not consider he was suggesting the law to be different.[14] Where we do differ from the Judge is in his assessment that the District Courttook account of the mitigating factors when assessing gravity of the offending.8We agree the ultimate penalty of a fine of $350 is explicable only by having regard toMr Mathieson's rehabilitative efforts, but do not see any evidence that the sameconsideration was undertaken in relation to the gravity of the offending assessment.The reality is that the initial grading of the offending itself never changed.[15] Assuming for present purposes that an assessment for the actual offending ofmoderately serious was correct, then the relevant mitigating factors were many andstrong:(a) at the time of sentencing Mr Mathieson was a 40 year old who had onlya careless driving conviction committed when he was 19 years old;(b) he has been in constant employment all his adult life;(c) he had completed courses addressing the causes of his offending andappeared to display considerable insight into his offending;(d) he was remorseful and offered to participate in restorative justice, so hecould apologise directly; and(e) the impetus for undertaking the rehabilitative courses came from himbefore any formal engagement with the Court.[16] We do not consider it possible for a proper consideration of these factors notto have resulted in a significant reassessment of the overall gravity of the offending.7 At [5].8 This conclusion is reflected in [13] and [15] of the High Court decision; set out above at [11].In terms of the observation made by the High Court, we observe such a reassessmentdoes not constitute a recharacterisation of the seriousness of the offending. They aretwo different evaluations, reflecting the two steps inherent in the first stage of the s 106assessment discussed above at [8]. The first is an initial grading of but one aspect ofthe case — the actual offending; the second evaluation is a much broader analysis ofall relevant considerations, including the actual offending. That the overall assessmentof gravity is lower than the narrower assessment of the offending merely reflects thatat the second step within the gravity assessment there are positive mitigating factorsto also consider.[17] We accordingly disagree with the High Court's endorsement of theDistrict Court assessment of gravity. We consider the District Court did not apply thecorrect approach because its assessment of the overall gravity of the offending did nottake into account the very positive mitigating factors. Had that been done, theconclusion would have been an overall assessment of low seriousness.[18] We turn next to the consequences. The requirements of s 107 of the SentencingAct in this regard were recently reviewed in R v Taulapapa and we do not repeat theexercise. It is established that there must be a real and appreciable risk thatconsequences will eventuate in order for them to be considered. Evidence is normallyrequired, but it is a matter for a court as to whether what is available is sufficient.The difficulties of obtaining evidence from a current employer may mean judicialnotice of facts may be appropriate.9[19] We consider that it is important in the present case not to over analyse theemployment contract, and whether a termination process is triggered by a charge or aconviction. What can be said is that the contract provides evidence that the employerconsiders an employee's engagement with the criminal justice system as a defendantis relevant to their job. There is an obvious risk it will lead to a review of theemployment. We consider it can be fairly inferred that within this process a convictionwill be seen as more significant than a charge. Thus, there is a real and appreciable9 R v Taulapapa, above n 3, at [41]–[46].risk that a conviction will impact on Mr Mathieson's employment status. Beyond thatwe cannot go, but in these situations, courts usually cannot say more.[20] Another consequence raised was that Mr Mathieson had plans to emigrate toAustralia. We agree with the courts below that these were too lacking in specificity tomerit weight. Nor is there evidence that potential impact on travel in this case is anydifferent from the ordinary consequence attaching to a conviction.[21] Concerning the balancing test, neither of the courts below have looked at thematter from the viewpoint that the gravity of the offending is at a low level ofculpability. We are satisfied that once one does, a discharge without conviction isappropriate. There is no basis to consider Mr Mathieson offers any risk of reoffending;to the opposite effect, the signs are that he is now a person with insight into his actionswho has taken considerable steps towards addressing the causes of his offending.Given the overall low culpability, we consider the impact of a conviction for maleassaults female and threatening to kill on a 41 year old in stable employment and whois effectively a first offender would be out of all proportion.Result[22] The appeal against conviction and sentence is allowed.[23] The convictions for male assaults female and threatening to kill are quashed.The appellant is discharged without conviction on both charges.Solicitors:Crown Law Office, Wellington for Respondent