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High Court of New Zealand Decisions |
Last Updated: 16 August 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-404-000141
BETWEEN KATHLEEN VAIPO Appellant
AND NEW ZEALAND POLICE Respondent
Hearing: 25 July 2011
Counsel: V Letele for Appellant
F M T Culliney for Respondent
Judgment: 29 July 2011
In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 3.00pm on the 29th day of July 2011.
RESERVED JUDGMENT OF GENDALL J
[1] The appellant pleaded guilty in the Manukau District Court to two charges of assault and was sentenced on 21 April 2011 to 80 hours of community work (converted to hours of training). She had sought a discharge without conviction but that was declined by District Court Judge C Inglis. This is an appeal against that decision.
Background facts
[2] The appellant was living apart from her former partner and became angry and aggrieved because she believed that he had not followed an agreement they had in relation to their child. On the evening of 7 May 2010 she saw him with a female companion driving a motor vehicle in Manurewa. She pursued the vehicle
endeavouring to attract her former partner’s attention. He obviously was aware of
VAIPO V NEW ZEALAND POLICE HC AK CRI-2011-404-000141 29 July 2011
her pursuit because he tried to shake her off, but she continued to follow his car. He drove to a police station and parked in front of it. The appellant then went to the driver’s side of the vehicle and struck her former partner in the face. The passenger got out of the vehicle to go into the police station for assistance but she was chased by the appellant, grabbed by the hair and pulled to the ground, being dragged and shaken. When the appellant’s partner then endeavoured to intervene, he was punched by the appellant to the face, body and shoulders. The police arrived and arrested the appellant. Her explanation was she was angry because of matters affecting her child.
The Judge’s decision
[3] In declining the application for discharge without conviction, Judge Inglis referred to the provisions of s 107 of the Sentencing Act 2002. She dealt first with the issue of the gravity of the offending. The Judge’s view was that it did not fall at the lowest end of the spectrum of seriousness, there were two victims/complainants and involved following of them to a place where they might have assumed that they were safe. The Judge said the acts of the appellant involved several blows to the face of the male as well as the assault upon his female partner. Judge Inglis acknowledged there was a background context to the offending, that the appellant had undertaken and completed counselling, and was entitled to credit for that as well as for her guilty plea. However, Judge Inglis said the offending was not trivial and was in the “mid range in terms of seriousness” for offending of that kind.
[4] Judge Inglis then turned her mind to the consequences of a conviction stating that they were only “general”. Ms Vaipo is a solo mother not in employment. Whilst there might be some consequence resulting from the entry of a conviction in relation to the suitability of future employment, Judge Inglis said the extent of such consequence remained speculative. She then turned her mind to whether any consequences would be out of all proportion to the gravity of the offence and referred to a number of cases, both in the High Court and Court of Appeal, which had been submitted to her by counsel. In those cases principles were discussed and in some instances discharges without conviction were granted.
[5] Submissions were made to the Judge that because the appellant was being dealt with in what is described as a “Family Violence Court” she should be treated the same as other defendants in such Courts throughout the Auckland area. Counsel contended that in that forum, where there was successful counselling, and with the support of the victim, discharges without convictions often are granted. Judge Inglis noted that the victim in this case did not appear to support discharge without conviction and said that whilst in some cases involving family or domestic violence a discharge without conviction may occur and be warranted, nevertheless it was not
always the case. She said:1
I do not understand that the approach contended for by counsel is the approach adopted in the Family Violence Court although, plainly, there will be some cases were a discharge without conviction is warranted. It is not, at least in my experience, the case that a discharge under s 106 will automatically be granted where counselling has been undertaken. There remains an obvious need to consider the test to be applied in terms of the applicable statute, the facts of the individual case and to determine what the appropriate sentencing outcome is. That cannot, ... be side-stepped and to the extent that counsel is suggesting that there is some sort of policy at work that has the effect of doing so, she is in my view wrong.
Domestic violence is an issue of concern in New Zealand and is of particular concern in South Auckland. There is a need for deterrence (including general deterrence) to send a clear message that offending of this sort is unacceptable and is to be denounced. There is a need for accountability and responsibility in this case ...
[6] Judge Inglis concluded by saying that she found it impossible to conclude that a conviction would be out of all proportion to the offending and declined the application.
Appellate approach
[7] Whilst it has sometimes been said that appeals in this area are against the exercise of, or refusal to exercise, a discretion, where a District Court Judge decides that the adverse consequences of a conviction are not out of all proportion to the gravity of offending, so that the threshold test in s 107 is not met, the appeal is
against a substantive decision. In accordance with the established approach
1 Vaipo v Police DC Manukau CRI 2010-092-6856, 21 April 2011 at [36] – [37].
discussed in Austin, Nichols & Co Inc v Stichting Lodestar,2 if an appellate court’s opinion is different from the conclusion of the District Court Judge then the decision under appeal is wrong and cannot stand. As a general appeal this Court is required to come to its own view on the merits and in approaching the appellate task bring a fresh consideration to all relevant matters. There is no onus on the appellant/offender to establish the disproportionality test has been met and the Court is required to exercise its judgement as to whether or not it is satisfied that the disproportionality test has been met.
Statutory provisions
[8] Section 106 of the Sentencing Act 2002 provides for a discharge without conviction which is deemed to be an acquittal. A decision to discharge is subject to the guiding purposes and principles of the Sentencing Act, as well as other relevant considerations, which includes the provisions of s 107. That section provides:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[9] Although the heading speaks of “guidance” it is clear the provisions are mandatory and the section provides a “gateway” through which any discharge without conviction must pass, it being a pre-condition to the exercise of the discretion. As the Court of Appeal stated in R v Hughes a three-stage test is
contemplated:3
(1) The gravity of the offending should be first determined.
(2) The consequences of the conviction should then be identified.
(3) The Court must then consider whether the consequences of the conviction would be out of all proportion to the gravity of the
offending.
2 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
3 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.
[10] The wording of s 107 clearly adopts the test that emerged from the cases of Fisheries Inspector v Turner4 and Police v Roberts.5 The test in Turner dealt with s 42 the forerunner to s 19 of the Criminal Justice Act 1985. Richardson J (as he then was) said:6
Section 42 confers an unfettered discretion on the Court to give an absolute or conditional discharge without conviction in any case where a minimum penalty is not provided for. In the exercise of that discretion the Court must take all relevant considerations into account and must ignore all irrelevant considerations. The real question then is whether statutory consequences of a conviction may be taken into account and given appropriate weight as considerations relevant to the exercise of the discretion. Put in that way, there can be only one answer. In considering the exercise of the discretion under s 42 the Court is required to balance all the relevant public interest considerations as they apply in the particular case: or, as s 42(1) puts it, “after inquiry into the circumstances of the case”, which must refer to all the circumstances that are relevant in the particular case before the Court. It must have due regard to the nature of the offence and to the gravity with which it is viewed by Parliament; to the seriousness of the particular offending; to the circumstances of the particular offender in terms of the effect on his career, his pocket, his reputation and any civil disabilities consequential on conviction; and to any other relevant circumstances. And if the direct and indirect consequences of a conviction are, in the Court’s judgment, out of all proportion to the gravity of the offence, it is proper for a discharge to be given under s 42.
[11] Naturally, each case has to be considered on its own merits and it is obvious in R v Hughes that the guideline provided in s 107 does not alter the approach referred to in Roberts where, the Court of Appeal when referring to the effect of convictions upon a career of an offender, said:7
One of the considerations ... was the effect of a conviction on the career of the offender. ... What the Court must do is “to balance all the relevant public interest considerations as they apply in the particular case”. The public interest may require a conviction to be entered because of the nature of the offence and the particular occupation or proposed occupation of the offender. On the other hand, the offence may be so trivial that public interest does not call for a conviction to be recorded. In that case nothing of any significance is being concealed. It has been said that the discretion should be exercised sparingly and only in exceptional cases but even those expressions tend to fetter the wide discretion ... and are hardly of any assistance. Obviously each case must be considered on its own merits and there would not be a proper exercise of the discretion if cases were treated one way or another depending on their category, such as shop-lifting cases or indiscretions by university students or cases in which a conviction would be relevant to the
4 Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA).
5 Police v Roberts [1991] 1 NZLR 205 (CA).
6 At 241 – 242.
7 At 210.
consideration of an independent statutory body or give rise to some absolute statutory prohibition. Those cases all involve particular problems, but in the final analysis, after considering all the relevant circumstances, it is a proper exercise of the Court’s discretion “if the direct and indirect consequences of the conviction are, in the Court’s judgment, out of all proportion to the gravity of the offence”. That must be the overriding consideration. The words, “out of all proportion” point to an extreme situation which speaks for itself.
[12] The application of the dsiproportionality test requires consideration of all the relevant circumstances of the offence and culpability of the offender. It was said by the Court of Appeal in R v Hughes:8
Application of the disproportionality test under s 107 requires consideration of all relevant circumstances of the offence, the offending and the offender, and the wider interests of the community, including the factors required by the Sentencing Act to be taken into account under ss 7, 8, 9 and 10. Having taken account of those factors, the Judge must determine whether the s 107 test is met and whether it is appropriate that he or she makes an order under s 106 to deal with the offender.
[13] But more recently, in Blythe v R that Court doubted the accuracy of that.9 It said:10
That appears partly to misstate the requirements of the s 107 disproportionality test. The aggravating and mitigating factors set out in s 9 of the Sentencing Act, and those listed in s 9A which deals with cases of violence against and neglect of children under 14 years, are obviously relevant to “the gravity of the offence”. But the content of ss 7, 8 and 9 is not. For two reasons, we wonder whether the passage we have set out at [10] is an inadvertent misstatement. First, it cannot be reconciled with the correct statement of the position in the excerpt we cite [from Hughes].11
Secondly, it does not reflect the Court’s approach in reviewing the way in
which [the High Court Judge] applied the s 107 disproportionality test.
As was pointed out in Hughes,12 the Court must first consider whether the disproportionality test in s 107 has been met. Only if it has been may the Court proceed to consider exercising its discretion to discharge without conviction under s 106. It is at that stage – when exercising the residual discretion under s 106(1) and in deciding whether further orders are required under s 106(3) – that the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act, the aggravating and mitigating factors listed in
8 At [41].
9 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.
10 At [11] – [12].
12 At [41] (citation in original).
ss 9 and 9A (as we have pointed out these were relevant to the s 107 disproportionality test), and the matters dealt with in ss 10 and 10B must all be taken into account. That is because all those sections apply, not only in sentencing, but also in “otherwise dealing” with an offender. In that respect, we agree with Hughes.13
Counsel’s submissions
[14] Ms Letele contended that Judge Inglis erred in her assessment of the gravity of the offending. She submitted that, when viewed in the context of the personal circumstances of the appellant, it was at the lowest end of the scale. She contended that the Judge was required to focus on the provisions of the Sentencing Act, the circumstances of the offending and the appellant, including the matters which contributed to her actions, and the Judge failed to have regard to all the mitigating factors in assessing the gravity of the offending. She pointed to the facts that the appellant had no previous convictions, had undergone counselling and expressed remorse, which were all features which required the least restrictive sentence of discharge. Allied to these submissions Ms Letele contended that a trend, or protocol, usually adopted by Judges in “Family Violence” Courts in South Auckland, was that if there were early guilty pleas and counselling undertaken, offenders were given a “second chance for one-off” offending such as this.
[15] Ms Letele submitted that whilst the disproportionality test might be difficult to meet only because the appellant is not in employment, she eventually wished to obtain employment and the fact of a conviction would inevitably affect that. Counsel referred to dicta of Mallon J in Nash v Police, where her Honour spoke of general adverse consequences which might follow from the entry of a conviction include experiencing a “loss of pride and self-esteem”, in a remorseful person who is asked to disclose whether they have criminal connections, that being, it is said, a
“disadvantage” to such a person.14
13 At [38] (citation in original).
14 Nash v Police HC Wellington CRI 2009-485-7, 22 May 2009.
Discussion
[16] I turn first to the gravity of the offending. In assessing this the Court has to not only look at the factual circumstances that go to make up the offence, but also matters which would bear upon the Court’s assessment of overall culpability. This includes guilty pleas, expressions of remorse, assessments of likelihood of reoffending and consequences already suffered.15 Here, although there may have been some provoking circumstances which led the appellant to act in the way she did, and the actions of her former partner may have contributed to her emotional state, what she did was reasonably prolonged. It involved a determined pursuit and
significant acts of violence against two victims. It was rather more than a momentary loss of control, but a pursuit of the victims in a motor vehicle whilst in a very angry state. It was not minor offending.
[17] I agree with Judge Inglis’ view that the offending could not be described as trivial and viewed in its totality was reasonably serious. Naturally, it is mitigating that the appellant had no previous convictions and was acting under considerable emotional stress. But absence of previous convictions is but one factor that the Court will place on the scales and could not, without more, lead to a discharge without conviction. I agree with Judge Inglis’ assessment that this offending fell into the middle range of seriousness for the type of assaults that occurred in the street.
[18] What then can be identified as the consequences of these convictions? They are only those of general prejudice or possible difficulty when it comes to future employment. But they are no more than would usually arise whenever a person has a prior conviction. The evidence was that the appellant was on a benefit and cares for her daughter and is concerned that convictions might jeopardise her employment opportunities in the future. Naturally, any conviction may have some impact upon employment and carry some difficulty in obtaining a certain type of employment. But much will depend upon what that is. Nothing specific was tendered to this Court about employment opportunities or how the consequences of convictions might impinge upon them. It is entirely speculative and no more than the general
consequences would inevitably flow from convictions for family or “domestic”
assaults.
[19] I do not accept that factors such as “loss of pride and self-esteem” through having to disclose convictions are the sort of consequences that would usually be “out of all proportion” to the gravity of offending. I do not think Mallon J meant that in her dicta in Nash.16 She was simply accepting (somewhat benevolently) counsel’s submission that that appellant’s offence was very minor and, consequences included “disadvantages” of loss of pride. If Mallon J was saying that they are always
“consequences” to weigh in the balance in deciding “disproportionality” then I do
not agree with her.
[20] Matters such as embarrassment, shame, loss of pride in having to disclose the fact of a conviction may well be disadvantages, but it would rarely be the case that, without more, they assume such significance as to become a consequence that could elevate them into the category of being out of all proportion to the seriousness of the offending. It will all depend on the gravity of the offence. They may sometimes be a factor where the offending is so trivial that this consideration, or consequence, (along with others) outweighs the gravity of that which would otherwise have led to a conviction.
[21] I reject the argument that, in this case, general matters such as loss of pride, and shame could, if they exist, lead to, and be classed as, consequences that are out of all proportion to the gravity of the two assaults.
[22] It will be that in some cases involving “family violence” a proper application of ss 106 and 107 and the principles contained in the Sentencing Act mandate a discharge without conviction. But there cannot be (and there is not) any policy or “usual” outcome in those District Courts which operate in a specialised way to hear and determine offences involving family violence. They must still apply the law as enacted by Parliament and bring an individual and separate judgment to each sentencing exercise that is appropriate to the particular circumstances of each offender and offence.
[23] I agree with Judge Inglis that in appropriate cases the need for deterrence, especially general deterrence, through the entering of convictions may be an important feature in the sentencing exercise. Public interest may require the entry of a conviction, if the offence is not trivial or minor.
[24] The judgment of Judge Inglis is measured, thorough, and cannot be criticised. I note that the transcript of what she said may have produced an error when it records “I find it impossible to say that a conviction would be out of all proportion to the offending ...”,17 when of course the test is whether it is the “consequences of a conviction” that must be out of all proportion to the offending. I regard this as simply a slip.
[25] I have independently come to the same conclusion as Judge Inglis. Despite obvious mitigating personal factors that exist in favour of the appellant, any consequences that may flow from the entry of the convictions would not be out of all proportion to the gravity of the two assaults, in the circumstances in which the appellant offended. The entry of convictions and sentence of community work (which she has now completed) must be confirmed.
[26] The appeal is dismissed.
J W Gendall J
Solicitors:
Crown Solicitor, Auckland for Respondent
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