Duggan v Police [2023] NZHC 1948 (25 July 2023)

Last Updated: 6 September 2023

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2023-485-030 [2023] NZHC 1948

DANIEL DUGGAN

v

NEW ZEALAND POLICE

Hearing:	25 July 2023
Counsel	C Sheat for Appellant A Brosnan for Respondent
Judgment:	25 July 2023

JUDGMENT OF CHURCHMAN J

Introduction

• [1] On 24 April 2023, the appellant, Mr Daniel Duggan, was convicted and discharged by Judge Mika at the Family Violence Court in the Hutt Valley District Court¹ after pleading guilty to a charge of assault on a person in a family relationship.² In convicting and discharging the appellant, the Judge declined the appellant’s application for a discharge without conviction pursuant to s 106 of the Sentencing Act 2002. The appellant now appeals the Judge’s decision declining that application on the grounds that the Judge erred in finding that the direct and indirect consequences of conviction the appellant had raised were speculative.

¹ Police v Duggan [2023] NZDC 7734 [decision under appeal].

² Crimes Act 1961, s 194A – maximum penalty two years’ imprisonment.

DUGGAN v NEW ZEALAND POLICE [2023] NZHC 1948 [25 July 2023]

Background to the offending

• [2] The facts are not in dispute and were set out by the Judge in his sentencing notes as follows:

• [3] The relevant facts of the offending are that Mr Duggan and the victim in this matter at the date of the offence had been in a relationship for about two years. The victim was eight months pregnant at the time. Mr Duggan and the victim were at the home address [...] at about 10 o’clock [in the morning]. There was an argument. Mr Duggan was seated in the driver’s seat of the victim’s car. He refused to get out of the car or return the key to the victim when he was requested. At this point, the victim has grabbed Mr Duggan’s Xbox to exchange in return for her car key. Mr Duggan has come out of the vehicle and pushed the victim out of his way. It was hard enough for her to push against an outside wall.

• [4] Mr Duggan took his Xbox from the victim and started to throw items around in their home. Mr Duggan slammed the ranchslider of the cabin against the victim’s leg on multiple occasions as she tried to get in. The victim has removed the car key from the ignition when Mr Duggan tried to get back into the vehicle. Mr Duggan has wrestled the key from the victim, he has attempted to drive away in the car and pushed the victim when she tried to stop him from driving off in her car. The police arrived a short time later. The victim received injuries including bruising to her forearm and to her right leg.

Decision under appeal

• [3] In convicting and discharging the appellant, the Judge declined the appellant’s application to be discharged without conviction.

• [4] In terms of the gravity of the offending, the first stage of the assessment, the Judge assessed the overall gravity of the offending, taking into account the aggravating and mitigating features of the offending, to be “low to moderate for this type of offending.”³

• [5] Firstly, while the Judge noted the physical assault itself might be considered “at the lower end of the scale”, the Judge considered aggravating features of the offending put it into the “moderate category of seriousness for offending of this type”.⁴ In particular, the victim was “very vulnerable”, being eight months’ pregnant with their first child, the appellant assaulted the victim on “a number of occasions”, pushing the victim on two occasions and then slamming the ranchslider against her leg multiple

³ At [16].

⁴ At [11].

times, and the offending resulted not only in physical injuries to the victim, but also had an ongoing psychological impact on the victim, who spent the following two months after the assault worried that the baby would be stillborn.⁵ The Judge declined to accept the submission of the police that a further aggravating factor was the minimising of the offending by the appellant.⁶

• [6] This was, however, tempered by a number of mitigating factors that reduced the gravity of the offending. In particular, the Judge assessed that the appellant was a person of good character, with no previous convictions, he was relatively young at the time of the offending, being 22 years old, and he had entered a guilty plea to the charge.⁷ He was also willing to attend a restorative justice conference and had completed a programme called “Living Without Violence”, in which he had been “fully engaged” and had “showed some insight” into his offending.⁸ Finally, the Judge referred to the mental health issues raised on the appellant’s behalf, including anxiety, depression, possible autism and neuro-diversity. The Judge acknowledged these but noted they had been self-reported so did not carry as much weight as a formal diagnosis.⁹ The combination of these facts led the Judge to conclude that the overall gravity of the offending was, as noted, “low to moderate for this type of offending.”¹⁰

• [7] In terms of the direct and indirect consequences of a conviction, the second stage of the assessment, the Judge accepted that the consequences of a conviction are more serious for young people and noted counsel for the appellant’s submission that a conviction would have an impact on the appellant’s mental health.¹¹ However, he considered that any consequences on the appellant’s future employment prospects were speculative.¹²

• [8] Overall, the Judge was not satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the appellant’s

⁵ At [7]–[9].

⁶ At [10].

⁷ At [13].

⁸ At [14].

⁹ At [15].

¹⁰ At [16].

¹¹ At [17].

¹² At [17]–[18].

offending.¹³ He therefore declined the appellant’s application for a discharge without conviction.¹⁴

Submissions

Appellant’s submissions

• [9] The appellant submits the Judge erred in finding that the direct and indirect consequences of conviction were speculative. The appellant says there is a real and appreciable risk that the consequences will occur and that even without specific evidence, the general consequences of convictions can be out of all proportion to offending which is low to moderately serious.

Respondent’s submissions

• [10] The respondent submits that the appellant has failed to show that the Judge made a material error in how he assessed the direct and indirect consequences of conviction on the appellant’s employment.

Approach to appeal

• [11] An appeal against a refusal to grant a discharge without conviction is a composite appeal against both conviction and sentence.¹⁵ The basis for determining an appeal against a refusal to grant a discharge without conviction is whether a miscarriage of justice has occurred:¹⁶

(a) by virtue of a material error by the sentencing judge in entering a conviction; or

(b) as a result of an error by the judge in applying the principles of discharging an offender without conviction under s 107 of the Sentencing Act.

¹³ At [19].

¹⁴ At [19].

¹⁵ Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 [7]–[8].

¹⁶ At [12].

• [12] An appeal against a refusal to grant a discharge without conviction is not an appeal against the discretion of the Court but rather proceeds by way of rehearing.¹⁷ Accordingly, the normal appeal principles apply as set out in Austin, Nichols & Co Inc v Stichting Lodestar.¹⁸ The appellate court is not constrained to considering the Court’s discretion at first instance, but the appellant bears the onus of persuading the appellate court to reach a different conclusion, and in discharging that onus the appellant must identify the respect in which the decision under appeal is said to be in error.¹⁹

• [13] The approach to be adopted by an appeal court in relation to s 107 has been summarised in the following way:²⁰

... [W]hen it comes to a decision under s 107, the appellate court must come to its own view of the merits; the weight the appellate court gives to the original decision is a matter of judgment; and that deference to the assessment of the original decision-maker is not necessary, even where the assessment requires a value judgment. If the appellate court considers that the original decision is wrong, it must act on that opinion.

• [14] If the appeal is allowed, the Court must set aside the conviction, and may make any order it considers justice requires.²¹

Relevant law

• [15] The discretion conferred by s 106 is available only if the Court is satisfied under s 107 that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.²² The Court of Appeal has described s 107 as “a gateway through which any discharge without conviction must pass”.²³

• [16] An assessment under s 107 is a three-step process:²⁴

17. R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11]; and Denden v Police [2014] NZHC 1814 at [28].

¹⁸ Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141; and see

Heke v R [2010] NZCA 476 at [17]–[19].

¹⁹ Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [29]–[31].

²⁰ Denden v Police, above n 17, at [28].

²¹ Criminal Procedure Act 2011, s 233.

²² Sentencing Act 2002, s 107.

²³ R v Hughes, above n 17, at [8].

²⁴ Prasad v R [2018] NZCA 537 at [11].

(a) identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;²⁵

(b) identification of the direct and indirect consequences of conviction; and

(c) a determination of whether those consequences are “out of all proportion” to the gravity of the offence.

• [17] In relation to the first step, the Court of Appeal has confirmed that “when considering the gravity of the offence, the Court should consider all the aggravating and mitigating factors relating to the offending and the offender”.²⁶

• [18] With regard to the assessment of direct and indirect consequences of conviction on a defendant, the Court of Appeal has stated that:²⁷

The Judge does not have to be satisfied that the direct and indirect consequences will inevitably or probably occur; it is sufficient if he or she is satisfied there is a real and appreciable risk of such consequences.

• [19] This standard “recognises that the Court is assessing the likelihood of something that may happen in the future”.²⁸

• [20] In relation to the final step, the Court of Appeal has affirmed in R v Smyth

that:²⁹

[12] It is not enough that the consequences of a conviction outweigh the gravity of the offending. Significantly more is required. The consequences must be out of all proportion to the gravity of the offending before the court has jurisdiction to grant a discharge without conviction.

• [21] If the Court is satisfied in terms of s 107 that the consequences of a conviction are out of all proportion to the gravity of the offence, it may then determine whether it should exercise its discretion to grant a discharge without conviction.³⁰

²⁵ Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].

²⁶ At [27].

²⁷ DC (CA47/2013) v R [2013] NZCA 255.

²⁸ Prasad v R, above n 24, at [11].

²⁹ R v Smyth [2017] NZCA 530.

³⁰ Z (CA447/2012) v R, above n 25, at [21]; and R v Hughes, above n 17, at [8]–[12].

Analysis

Gravity of offending

• [22] The appellant accepts the characterisation of the offending by the Judge as of low to moderate severity.

• [23] I record my agreement with the Judge’s assessment of the offending as being of low to moderate severity for the reasons identified by the Judge and which the respondent has outlined in their submissions.

Consequences of conviction

• [24] As noted, however, the appellant submits that the Judge erred in finding that the consequences of conviction were speculative.

• [25] At the time of sentencing, the appellant was in employment, and counsel for the appellant argued that a conviction would have consequences were the appellant to apply for a new job. The Judge found it was speculative whether the appellant would move to a new job and even more speculative what the consequences of a conviction would be if the appellant were to apply for a new job.³¹

• [26] In R v Taulapapa, the Court of Appeal stated:³²

[46] When determining the effects of conviction on employment the court must identify the consequence, assess the evidence offered for it, evaluate the risk that the consequence will happen to the particular applicant, and form an overall assessment of seriousness.

• [27] The Judge correctly noted that the test for the consequences of a conviction is whether there is a “real and appreciable risk” that they will happen.³³ I am satisfied the Judge did not err in finding that the indirect and direct consequences of a conviction on the appellant’s employment prospects were speculative. I set out the reasons for my conclusion.

³¹ Decision under appeal, above n 1, at [18].

³² R v Taulapapa [2018] NZCA 414.

³³ Decision under appeal, above n 1, at [18].

• [28] First, the appellant is currently in employment, and there is no evidence to suggest that the appellant’s current employment is at threat due to a conviction for the present offending. As Katz J noted in Taavili v Police, when it comes to gaining employment, “[a]ll other things being equal, persons without convictions are likely to be preferred over those who have a criminal record.”³⁴ However, the appellant is not in a position of seeking employment currently and is therefore not directly affected in the way that someone without work might be affected. The choice to change job and to move to other employment would be within the appellant’s control and should he choose to change job, he has the option of waiting until he had secured new employment before doing so.

• [29] There is also no evidence that the appellant is enrolled in or planning any vocational training which might be at jeopardy if he has a conviction against his name. Neither is there evidence of what other kind of employment the appellant may seek in the future which would be similarly jeopardised.

• [30] Finally, I note that the appellant’s conviction is subject to the Criminal Records (Clean Slate) Act 2004 and will be permanently erased from his criminal record in seven years if he refrains from any further offending. I also do not consider that a conviction for the present offence suggests the appellant’s offending was more serious than it was in reality. To the extent that there is stigma arising from such a conviction that is a natural consequence of this type of offending.

• [31] Overall, there is no evidence before the Court of any “real or appreciable” risks to the detriment of the appellant’s possible future.

• [32] I accept, however, that consequences can be of a more general nature. I turn to consider whether such general consequences make a conviction for this offending out of all proportion to the gravity of the offending in this case.

³⁴ Taavili v Police [2012] NZHC 2323 at [32].

Are the consequences of a conviction out of all proportion to the gravity of the offence?

• [33] Counsel for the appellant cites a number of cases in support of the submission that the general consequences of a conviction can sometimes be out of all proportion to the gravity of the offending so as to warrant a discharge without conviction. However, each of the cases cited are distinguishable from the present case and none supports that the consequences of a conviction would be out of all proportion in the appellant’s case.

• [34] The appellant relies on the decision in Gaunt v Police, which I accept bears some similarities to the present case.³⁵ In that case, the Court noted that the “black mark of a conviction alone is a significant consequence on an otherwise clean record, especially for a young person who does not yet have a foothold in a career.”³⁶ The Court noted the appellant in that case had expressed his remorse and acknowledged he needed to be a better father and role model to his daughter. The Court considered that a conviction “would have a detrimental impact on his ability and opportunity to do so.”³⁷ The appellant had struggled to find employment, occasionally finding work in manual occupations, contributed to in part by a disability, namely “severe hearing loss”. The Court accepted the conviction would have a generally inhibiting effect on his employment prospects and allowed the appeal, granting discharge without conviction.

• [35] However, the offending in that case was described by the Court as “very minor”, namely the appellant spitting at his partner in the course of a domestic dispute, such that it barely warranted the intervention of the criminal law.³⁸ That sort of offending is considerably removed from that of the appellant in the present case, which involved multiple physical assaults over a protracted period. The gravity of the offending is substantially higher in this case. Moreover, there was evidence in that case that the appellant there had struggled to find work before the assault and the Court

³⁵ Gaunt v Police [2017] NZCA 590.

³⁶ At [15].

³⁷ At [15].

³⁸ At [13].

accepted a criminal conviction would add to this difficulty.³⁹ That distinguishes it from the present case, in which there is no such evidence.

• [36] As authority for the submission that non-specific consequences could be out of all proportion to the gravity of the offending, the appellant pointed to the decisions in Hamill v Police and Nash v Police, in which the Court considered that although there was no or little evidence of any specific consequences of conviction, in each case the general consequences of a conviction would be disproportionate to the gravity of the offending.⁴⁰ However, in Hamill the offending was “at the bottom end of the range for violence” and was a “momentary act”.⁴¹ In allowing the appeal in that case, Simon France J held that even general consequences were out of all proportion to the offending but only because the gravity of the offending was so low.⁴² Similarly, in Nash the Court found that the domestic assault in that case was “relatively minor” and very much at the lower end of the scale of offending.

• [37] I accept that the authorities stand for a proposition that in certain circumstances, even general consequences of the entry of a conviction may be out of all proportion to the gravity of the offending. But as the decisions also show, this is likely to be only where the gravity of the offending is sufficiently low, being “relatively minor” and “at the bottom end of the range for violence”. That is not the situation in the present case.

• [38] The appellant raises in support several additional authorities, to similar effect.⁴³ However, I accept the respondent’s submission that in all of the cases cited, the appellant was either able to point to specific consequences of conviction that were out of all proportion to the gravity of the offending, or the appellant’s offending was so low-level that even general consequences of conviction were considered to be out of all proportion. That contrasts with the present case, where the appellant has not pointed to any consequences of a conviction on employment where there is a real or appreciable risk that the consequence will occur, and where the offending is not of

³⁹ At [16].

40. Hamill v Police [2015] NZHC 2878; and Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009.

⁴¹ At [12].

⁴² At [13].

⁴³ R v Taulapapa, above n 32; Taavili v Police, above n 34; and Albert v R [2017] NZHC 102.

such a low level, being, as is accepted by counsel for the appellant, offending of low to moderate seriousness for this type of offending.

• [39] The gravity of the offending in this case is such that the general consequences of a conviction are by no means out of all proportion to the offending. In reaching this conclusion, I have noted the appellant’s youth as well as the submissions as to the consequences on his mental health. However, there is no evidence to suggest the consequences of a conviction appear to be any greater than those naturally proceeding from a conviction for criminal offending of this nature.

Conclusion

• [40] I am not satisfied that in declining the appellant’s application for a discharge without conviction, the Judge erred in any material way.

Result

• [41] The appeal is dismissed.

Churchman J

Solicitors:

Crown Solicitor, Wellington

C Sheat, Barrister and Solicitor, Wellington