Hanley v Police [2019] NZHC 1544 (2 July 2019)

Last Updated: 26 April 2022

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI 2019-441-20 [2019] NZHC 1544

BETWEEN	BESSIE MIHIROA HANLEY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	2 July 2019
Counsel:	R B Philip for Appellant A Bryant for Respondent
Judgment:	2 July 2019

JUDGMENT OF SIMON FRANCE J

• [1] Ms Hanley was convicted after trial of the sole charge she faced, namely indecent assault.¹ The sentence imposed was one of 12 months’ supervision, together with reparation of $1,500.² Ms Hanley appeals the decision of the District Court not to discharge her without conviction,³ and, in the alternative, the length of the term of supervision.

• [2] The indecent assault charge embraced a course of conduct carried out by Ms Hanley, at this stage very drunk, on a work colleague. The venue was a local bar. Having similarly but less seriously molested another colleague, Ms Hanley approached the victim:

¹ New Zealand Police v Hanley [2019] NZDC 5396; and Crimes Act 1961, s 135; maximum penalty of seven years’ imprisonment.

² New Zealand Police v Hanley [2019] NZDC 9342.

³ New Zealand Police v Hanley [2019] NZDC 8992.

HANLEY v NZ POLICE [2019] NZHC 1544 [2 July 2019]

(a) she made a vulgar comment about “fingering” the victim;

(b) she lunged at her vagina with a move described as between a grab and a punch;

(c) told not to, Ms Hanley repeated the gesture. On both occasions she contacted the victim on her genital area, albeit over her clothing; and finally

(d) she wrapped her arms around the victim, kissed her on the cheek and muttered about conduct she was going to do, thereby achieving a level of vulgarity that exceeded her initial comments. The District Court described the comments as consisting of “obscene and vulgar sexual things you would like to do to her”.⁴

• [3] Ms Hanley defended the matter, disputing there was any contact, indecency or indecent intent, and claiming it all to be a misinterpretation. Her intention was merely to be friendly to a colleague she thought was down in mood. The Judge accepted the complainant’s evidence, supported as it was by contemporaneous events and comments, and held himself to be satisfied “without hesitation” the prosecution allegations were proved.⁵

• [4] Ms Hanley appeals the conviction under s 232 of the Criminal Procedure Act 2011. She submits she ought to have been discharged without conviction. The power of a court to order a discharge without conviction is set out in s 106 of the Sentencing Act 2002. Section 107 is the threshold which must be met before discretion can be exercised under s 106. Section 107 states:

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.

• [5] A determination under s 107 has been held to be a three-stage process:⁶

⁴ Police v Hanley, above n 3, at [8].

⁵ Police v Hanley, above n 1, at [16].

⁶ R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]–[17], R v Blythe [2011] NZCA 190,

[2011] NZCA 190; [2011] 2 NZLR 620 at [7]- [14]; and DC (CA47/13) v R [2013] NZCA 255 at [31].

(a) consider the seriousness or gravity of the offending;

(b) consider the direct and indirect consequences of a conviction on the offender; and

(c) determine whether the consequences would be out of all proportion to the gravity of the offending.

• [6] The Judge assessed the gravity of the offending in the mid-range. This is the first point of challenge, it being submitted it is low-range. Matters relied on in relation to the incident are the short duration of an assault over clothing, and that it was not premeditated or predatory.

• [7] For the purposes of an application such as this, the assessment of the gravity of the offending also includes weighing up all aggravating and mitigating factors. In this regard, it is pointed out Ms Hanley was until this incident in steady employment as a youth justice social worker and had been for 11 years. She is a mother of two with no previous convictions and Ms Hanley is assessed as recognising her conduct was unacceptable, and as being remorseful. She has indicated a wish to apologise to the victim and tendered a letter to the Court.

• [8] In terms of the gravity of the offending, I begin with an assessment of the offence itself. I reject labels such as “inappropriate” as masking the true nature of the offending – this was an aggressive sexual assault, the motivations made clear by Ms Hanley’s comments while making contact with the victim. That Ms Hanley was grossly intoxicated does not alter the nature of what she did. It is moderately serious offending.

• [9] Turning to mitigating factors, Ms Hanley at aged 36 can fairly call upon a productive life to date in which she has never offended, is raising a family and has been in steady employment in an important area. She has been seeing a psychologist for counselling, having referred herself. That said, I am less accepting of the presence of other factors such as remorse and insight. The objective reality is that Ms Hanley

defended the charge, denied the conduct and in effect made suggestions that the victim and the woman who was the subject of earlier misconduct had colluded.

• [10] In affidavits provided to the Court after trial, Ms Hanley annexed correspondence with her employer. Included in that correspondence was a record of a meeting with the employer at which Ms Hanley maintained a position that certainly cannot be said to display insight. I acknowledge she has subsequently written a letter to the victim apologising and expressing remorse, but it is a fair statement to say the bulk of the letter is about her and the impact the offending has had on Ms Hanley.

• [11] I am not persuaded the District Court was wrong to assess the overall offending as in the mid-range and regard it as not in any way an over assessment. Mr Philip accepted correctly that if this gravity assessment could not be shifted, this aspect of the appeal could not succeed. This is not to downplay the significant consequences for Ms Hanley and her family that have flowed, and will flow, from the conviction. It is a real shame that her actions have led to this.

• [12] Ms Hanley works in the youth justice area and a conviction for indecent assault will be an initial barrier it will be difficult to surmount. However, for the reasons given, indecent assault is not an incorrect label for the conduct; it is what happened and what Ms Hanley did, and persisted with after the first unwelcome lunge. The consequences are inevitable and a shame for the family but are not out of all proportion given the nature of the offending.

• [13] In terms of the sentence appeal the Judge initially had in mind imprisonment reduced to home detention but was satisfied supervision was an available alternative. That is an understandable approach given the consequences for Ms Hanley already represent a significant punishment. The focus of the appeal is on the length of the sentence. Looked at from a rehabilitative perspective,⁷ 12 months’ supervision seems unnecessary given the likely courses Ms Hanley would undertake. She already has significant life skills and programmes are likely to be limited to assist with the proper use of alcohol. The respondent accepts there is merit in this part of the appeal, and the sentence will be reduced to six months.

⁷ Sentencing Act 2006, s 46.

Conclusion

• [14] The appeal against conviction is declined.

• [15] The appeal against sentence is allowed. The sentence of 12 months’ supervision is quashed, and in its place, I impose a sentence of six months’ supervision.

• [16] The order of reparation stands unchanged.

Simon France J