Whitehouse v Police HC Auckland CRI-2010-404-000263 [2011] NZHC 544 (8 June 2011)

Last Updated: 19 June 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2010-404-000263}

BETWEEN ANTHONY RICHARD WHITEHOUSE Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 30 May 2011

Appearances: M Hislop for Appellant

N Whittington for Crown

Judgment: 8 June 2011

_{JUDGMENT OF VENNING J}

This judgment was delivered by me on 8 June 2011 at 11 am, pursuant to Rule 11.5 of the High Court

Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Crown Solicitor, Auckland

Copy to: M Hislop, PO Box 210, Shortland Street, Auckland 1140 [e-mail]

WHITEHOUSE V NEW ZEALAND POLICE HC AK CRI-2010-404-000263 8 June 2011

Introduction

[1] Following a defended hearing in the District Court at North Shore on 18

December the appellant was convicted of male assaults female. On 17 June 2010

Judge McNaughton declined his application for a discharge without conviction but accepted the assault was very much at the lower end of the scale. He convicted the appellant and ordered him to pay Court costs of $130. The appellant appeals from the refusal to discharge without conviction.

Background

[2] Late on 14 February 2010 the appellant and his partner of seven years were in their car. His partner was driving. The appellant was receiving text messages. There was an underlying tension in the relationship at the time. The complainant was jealous and anxious to know what was being said in the text messages. She kept asking the appellant about them. The appellant became frustrated at her, lost his temper and, while holding the phone in his hand, struck the complainant on the side of her head with that hand.

[3] The complainant described a lump like an egg arising from where she had been hit. She wanted medical attention. The appellant eventually took her to a medical centre. The police became involved and the appellant was charged.

[4] The appellant denied hitting the complainant. He maintained that denial before the Court. The Judge rejected the appellant’s evidence. He found the appellant had hit the complainant and that the appellant must have used a reasonable degree of force because the blow had immediately produced a lump. The Judge concluded that the appellant had intentionally struck the complainant in the head with the phone.

The sentencing exercise

[5] In support of the submission to the District Court that the appellant should be discharged without conviction Mr Hislop made the following points:

the complainant did not want the appellant to have a criminal conviction;

the appellant had undertaken an anger management programme and there had been no repeat of the violence;

at the age of 52 the appellant had no relevant previous convictions;

the appellant was supported by his employer; and

the appellant was concerned the conviction might impact on his career as a real estate agent. The appellant had obtained a letter from his employer Mr Garner, the principal at Satellite Realty in which he stated:

I believe that Anthony is and am concerned for Anthony that a conviction will restrict or remove the opportunities that he has to be employed as Salesperson.

there was a practice in the Family Violence Court, particularly at Auckland, Manukau and Waitakere, but perhaps not at the North Shore, of granting

_{discharges without conviction for assaults at the lower end of the scale.}

[6] While he acknowledged the mitigating factors, the Judge was not prepared to grant a discharge without conviction. He considered that the evidence of impact on the appellant’s career was too vague. He also considered that, if there was a practice in the Family Violence Courts of readily discharging offenders provided they completed anger management programmes that practice was difficult to reconcile with the provisions of s 107 of the Sentencing Act. The Judge considered himself bound by the Act. On balance he considered the appellant failed to meet the test for a discharge without conviction.

Decision

[7] Section 107 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.

[8] In R v Hughes the Court of Appeal said:[1]

[41] ... 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.

[9] There is no onus on such an application, but rather the test calls for the exercise of judgment.[2]

The circumstances of the offence and the offending

[10] The assault was, as the Judge categorised it, very much at the lower end of the scale. It was a one-off blow that occurred against a background where the appellant was apparently frustrated with the complainant’s suspicions regarding the texts he was receiving. He lashed out with the cell phone in his hand.

The circumstances of the offender

[11] The appellant is a 52 year old man with no relevant previous convictions.

[12] Mr Hislop argued that the conviction will make it difficult for the appellant to follow his current career as a real estate salesman. The Crown did not oppose the introduction of further evidence by way of two letters, one from Ray White Real Estate Agency and one from the appellant’s former employer. The letter from Ray White, addressed to the appellant, stated:

_{Thank you for your application.}

As part of my responsibilities under the Real Estate Agents Act 2008, I am required to be satisfied that any employee is deemed to be a “fit and proper” person.

I understand that your conviction is under appeal. Please feel free to contact me again after this time.

The letter is inconclusive and does not advance the appellant’s case. The other letter is from Satellite Realty Limited, his former employer. Mr Hislop advised that the appellant had withdrawn his services from that employer following the conviction. The letter from the director of Satellite Realty states:

As part of my responsibilities under the Real Estate Agents Act 2008, I am required to be satisfied that any employee is deemed to be a “fit and proper” person.

An essential part of a Salespersons role is to accompany prospective purchasers to properties that are vacant and deal one on one with vendors.

Despite our past association it is my view that some purchasers and vendors may be uncomfortable if they were to be alone with a Salesperson who has been convicted of assault against a female.

Therefore I regret to advise that I am unable to offer you employment at this time.

[13] As Mr Whittington submitted, the letter appears carefully phrased. One might have expected that the concern would arise from the fact the appellant had committed an assault on his partner rather than that he had been convicted.

[14] Significantly there is no evidence from the Real Estate Agents Authority that the Authority would not consider the appellant to be a fit and proper person to act as a real estate agent so that he could not gain such employment. Where there is an independent body, charged with the responsibility for assessing applications for practice, the Courts have been more inclined to enter convictions and allow that body to make its decision with knowledge of all the facts: R v Foox.[3] In this case that would include the description by the Judge of the offending as at the lower end of the scale.

The wider interests of the community

[15] I agree with the approach the Judge took to the submission based on the suggested practice of discharge without conviction in the Family Court. While referred to in Police v Guild there may in fact not be such a policy.[4] Mr Whittington said the Crown was not aware of any particular practice in relation to discharges without conviction.

[16] Mr Whittington provided the Court with a research report prepared by the Ministry of Justice on the Manukau Family Violence Court dated August 2008. The report recorded that in 2005-2006 the percentage of individuals from the Manukau Family Violence Court sample discharged without conviction of 16 per cent was much higher than the earlier sample of the same Court in 2003–04 of two per cent. In the same time the percentage of individuals discharged without conviction nationally increased from six per cent to 10 per cent.

[17] The Judge was quite correct. It is s 107 of the Sentencing Act and the other relevant principles of that Act that must prescribe the basis for discharges without conviction, not any particular practice. While Mr Hislop sought to rely on Police v Guild each case must be dealt with on its own particular facts. Importantly in Guild, there was a guilty plea and an early acceptance of responsibility.

[18] The wider interests of the community will be addressed by consideration of the relevant provisions of the sentencing Act 2002. In this case, the particularly

_{relevant provisions are:}

holding the appellant accountable: s 7(a);

denouncing and deterring violence against women: s 7(e) and (f);

the gravity of the offending: s 8(a);

the seriousness of the type of offence in comparison with other offences:

_{s 8(b); and}

the requirement that the Court take into account the general desirability of consistency with sentencing levels and other means of dealing with offenders,

_{s 8(e).}

Conclusion

[19] While the appellant did carry out an anger management course prior to the hearing, his initial denial to the police which he maintained in his evidence to the Court remains a concern. Early assumption of responsibility is an important factor in these applications.

[20] The ultimate issue is whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. On the evidence, the major consequence of the conviction in the present case is that the appellant may find it more difficult to obtain employment as a real estate agent than he otherwise would. But the evidence falls short of satisfying the Court that it is anything more than that. The evidence just does not go that far. Against that, this was an assault, albeit a minor one, to the head of his partner. It cannot be said that the consequences of the conviction would be out of all proportion to the gravity of the offence.

Result

_{[21] The appeal must be dismissed.}

Venning J

---

[1] _{R v Hughes [2008] NZCA 546.}
[2] At [49].

[3] R v Foox [2000] 1 NZLR 641 at 649-650.

[4] Police v Guild DC Auckland CRI-2008-044-003849, 11 September 2009.