[1] Having pleaded guilty to one count of male assaults female the appellant was sentenced by Judge Tompkins in the District Court at Hamilton to nine months supervision. He appeals against sentence on the basis that he should have been discharged without conviction pursuant to s 106 of the Sentencing Act 2002. To the extent that the appellant is attempting to have his conviction set aside we interpret the appeal as an appeal against both conviction and sentence.

The offending

[2] Because of difficulties that the complainant’s parents were experiencing in coping with her behaviour, the complainant was living with her grandfather, the appellant. At the time of the offending she was 14 years of age.
[3] On 26 May 2009 the appellant’s wife (from whom he is separated, but who was at the appellant’s home at the time) became concerned when the complainant had not arrived home from school. She contacted the appellant who left a meeting and arrived home at about the same time as the complainant. A verbal argument developed between the appellant and the complainant.
[4] When the complainant attempted to leave the room the appellant blocked her way. The argument continued. Then the appellant grabbed the complainant by the collar of her jersey and placed his other closed fist on the complainant’s neck with the result that she had difficulty in breathing. He pushed the complainant over a chair and on to a table where he shook her and pushed her down on to the table. This resulted in the side of the complainant’s head hitting a nearby fridge at least twice.
[5] When the appellant’s wife tried to pull him off the complainant, he pushed his wife away. Eventually he let go of the complainant and walked away.
[6] At some stage during the incident the police were contacted. In his statement the appellant stated that he phoned the police while he was holding the complainant down. According to the complainant the appellant’s wife telephoned the police. In any event the police attended and the complainant was examined by a doctor. No injuries were found.

The appellant

[7] At the time of the offending the appellant was 63 years of age. He does not have any previous convictions.
[8] According to the probation officer’s report the appellant has strong connections within the Waikato Maori community, including roles as a kaumatua for a college and his local church. Several character references were before the probation officer who considered that the following comments in one of those references summed up the situation:

I have ... observed the respect which he [Mr Seymour] commands among many Maori leaders throughout New Zealand, and I can appreciate how, by his actions and wisdom, he has come to earn their respect.

It was the probation officer’s view that Mr Seymour showed “some insight and remorse into his offence and the factors leading up to it”.

[9] In his report the probation officer recounts that Mr Seymour had telephoned Child Youth and Family in April 2009 seeking support in coping with the increasingly poor behaviour of the complainant. However, that Department was unable to assist. A letter to the District Court from the appellant’s wife prior to sentencing confirms that such an approach had been made.
[10] It is also reported by the probation officer that on the day of the offending Mr Seymour and his wife visited a named police constable. This constable disclosed to the probation officer that the appellant and his wife “appeared to be at their wit’s end with regard to their grand-daughter’s ... behaviour and were asking for any available help”. The offence occurred that evening.
[11] Supervision was recommended by the probation officer.

Sentencing in the District Court

[12] Having outlined the facts the Judge recorded that both prosecution and defence had agreed that the offending was at the “lower end of the scale”. But the Judge observed that offending of this nature is nevertheless serious and “despite whatever exasperation may have been caused by her behaviour” the complainant and the community were entitled to expect the complainant would not be subject to the kind of assault that had occurred.
[13] The Judge then moved to what he saw as the central issue: whether or not a conviction should be entered. He noted that defence counsel relied on: the guilty plea; remorse; previous good character; the possibility that a conviction might act as a barrier to Mr Seymour’s future involvement with community based trusts or companies; Mr Seymour’s position as a kaumatua in his community and his own self-esteem; and that any conviction would harm the mana of the appellant. However, the Judge considered that on the other side of the scale was a requirement for the Court to denounce the use of violence against children as a disciplinary technique.
[14] These matters led the Judge to conclude:

[8] ... the facts of this offending are not trivial or minor. This was not an instance of a push or shove comprising the whole of the offending. There was the grabbing of the granddaughter, the application of force by the closed fist to her neck, the pushing of her over a chair and against a table in such a way as causing her to strike her head against the fridge and the continuation of the assault despite the unsuccessful intervention of Mr Seymour’s wife. I do not accept that frustration or exasperation by a grandparent in his sixties is sufficient explanation for the assault which occurred. The direct and indirect consequences of a conviction while significant are not, in my view, out of proportion to the gravity of the offending. Mr Seymour’s standing as a kaumatua and his personal mana has already been diminished by this offending. It is, in my view, appropriate that the Court denounce the inappropriateness of the conduct and mark it as being so by the entry of a conviction.

Further evidence on appeal

[15] The appellant has made application to adduce further evidence on appeal in relation to the impact of the conviction on his attempt to obtain housing accommodation from the Hamilton City Council. For the Crown Ms Jelas did not oppose the admission of this evidence, which was clearly not available at the time of sentencing.
[16] Although we have decided to admit the evidence, we repeat our concern expressed at the hearing that the appellant’s affidavit is cryptic and less than satisfactory in explaining the full consequences of the conviction on the appellant’s ability to obtain housing accommodation other than from the City Council. Those seeking to have a Court exercise its discretion in favour of a discharge without conviction under s 106 of the Sentencing Act should not place the Court in a position where it has to flush out relevant information.
[17] Fortunately for the appellant, notwithstanding the inadequacy of his affidavit, we have been able to arrive at a sufficiently comprehensive picture for the implications of the conviction on the appellant’s attempt to obtain housing to be adequately assessed. We accept from the City Council’s letter of 25 March 2010 that the appellant’s application for housing with the City Council has been declined because of his conviction. Although we have not been provided with information about the appellant’s financial ability to supply his own housing, we know from the probation report that he is a sickness beneficiary and we infer that he is not in a position to do so. We were also informed by Mr Sutcliffe from the Bar that the appellant is currently living with one of his children.

Discussion

[18] Had it not been for the new evidence this appeal would not have had any prospect of success. We accept that on the information before him the Judge properly assessed and weighed all relevant considerations and reached a conclusion that was plainly open to him. However, given the admission of the new evidence it is necessary, as both counsel accepted, for us to consider afresh the exercise of the discretion conferred by s 106. In reality the case before us bore little resemblance to the case presented to the Judge.
[19] The first step is to identify the gravity of the offending by reference to the particular facts of the case. Like the Judge we do not consider that the offending can be accurately categorised as “trivial or minor” and that the use of violence against children as a disciplinary technique needs to be denounced. On the other hand, there were strong mitigating factors. The incident was a spontaneous reaction by a concerned grandparent with an otherwise impeccable character who had been attempting to enlist help to overcome the problem. Added to that the incident was relatively brief, later regretted, and did not result in any injury to the complainant.
[20] We should also add that the charge of male assaults female might suggest to an observer who does not know all the facts an element of culpability that did not in fact exist in this offending. The fact that the victim was a female was entirely incidental to the offending, which was borne of grandparental frustration and not any hostility or anger targeted against women.
[21] Now we consider the direct and indirect consequences of a conviction. As already indicated we do not differ from the Judge as to his assessment of the consequences of a conviction in terms of the appellant’s mana and his involvement with community based trusts or companies. While the Judge accepted that the direct and indirect consequences of a conviction would be “significant”, he did not accept that they were sufficient to justify a discharge without conviction. But we also have to factor in the additional consequence that the conviction will present an insuperable barrier to the appellant obtaining community housing from the City Council. Given his age and current situation this is a severe consequence.
[22] Finally, under s 107 we must be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. This does not import any onus of proof and in arriving at its conclusion the Court needs to assess all relevant material: R v Hughes [2008] NZCA 546 at [49] and [53].[1] For reasons already given we have concluded that the offending in this case is at the lower end of the scale and that there were strong mitigating factors. It involved a highly respected and active kaumatua with an impeccable record. Plainly the offending was out of character.
[23] The nature of this particular conviction could lead those to whom Mr Seymour applies for rest home accommodation to consider him a potential danger to women. In fact he is not a danger to women. We are satisfied, therefore, that the entry of the conviction might unfairly lead to the grave and disproportionate penalty of him not being able to find public residential accommodation in his elderly years, when his excellent past record indicates that he deserves the support of his community.

Outcome

[24] The appeal is allowed and the conviction and sentence of supervision are quashed. The appellant is discharged without conviction pursuant to s 106 of the Sentencing Act.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Hughes [2008] NZCA 546, [2009] NZLR 222 at [49] and [53].

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