Tahitahi v Police [2012] NZHC 663 (4 April 2012)

Last Updated: 10 May 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-10 [2012] NZHC 663

KAYLA MARIE TAHITAHI

Appellant

v

THE POLICE

Respondent

Hearing: 27 March 2012

Appearances: D Schellenberg for appellant

K Chang for the respondent

Judgment: 4 April 2012

_{JUDGMENT OF ALLAN J}

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of am on Wednesday 4 April 2012

Solicitors:

Public Defence Service Auckland [e-mail]

_{Crown Solicitor Auckland [e-mail]}

TAHITAHI V THE POLICE HC AK CRI 2012-404-10 [4 April 2012]

[1] Having pleaded guilty to two charges of wilful damage and one of common assault, the appellant appeared for sentence in the North Shore District Court before Judge Dawson on 11 January 2012. The Judge convicted her and ordered her to appear for sentence if called upon within six months. He imposed no other penalty.1

[2] On appeal, Mr Schellenberg argues that the appellant ought to have been discharged without conviction pursuant to s 106 of the Sentencing Act 2002.

Offending background

[3] The incident which gave rise to these charges occurred on 19 March 2011. The appellant was then 18 years old. She had been in a personal relationship with the victim for a period of some months, but the relationship had come to an end in circumstances that left the appellant somewhat distressed.

[4] On the day of the offending, the appellant’s ex-partner arrived at the appellant’s home accompanied by an associate who was driving his own car. Some of the ex-partner’s belongings were loaded into the car. An argument developed between him and the appellant, who became rather emotional. She picked up a full length mirror and smashed it against the rear left window of the vehicle. The victim and his associate got into the vehicle and reversed up the driveway. As they did so the appellant approached the car and threw a large rock at the passenger window, in an attempt to hit the victim. The window broke. Neither the victim nor his associate suffered any injuries in the incident, and there is no suggestion that either was actually struck by the rock or the mirror.

Procedural background

[5] The appellant appeared in the North Shore District Court on 25 March 2011 and was then remanded without plea for police diversion consideration. Diversion

1 Police v Tahitahi DC North Shore CRI 2011-044-1809, 11 January 2012.

was subsequently declined. She elected summary jurisdiction and entered not guilty pleas to the charges on 15 April 2011. That appears to have been because she disputed some aspects of the summary of facts.

[6] However, on 19 May 2011, the appellant was advised by a duty lawyer to plead guilty to the charges. She decided to do so because, although she still disputed some of the alleged factual material, she wanted to bring the Court proceedings to an end. Accordingly, she pleaded guilty to all three charges on that day.

[7] Judge Morris indicated at that time that a discharge without conviction might be considered if the appellant completed 50 hours of voluntary community work and an anger management course. She did both.

[8] When she appeared for sentence on 11 January 2012, Mr Schellenberg applied for a discharge without conviction. He drew the Court’s attention to the domestic character of the offending, to the appellant’s voluntary work at the North Shore Hospice, to her completion of a Living without Violence programme, and to the payment of reparation of $154.76 to the victim. He submitted that to convict the appellant on the offences would be out of all proportion to the gravity of what had occurred.

[9] The Judge, sitting in a busy list Court, confined himself to the following sentencing remarks:

Mr Tahitahi, you are here today for sentencing on a charge of assault, a charge of intentional damage to the car window, and a charge of intentionally damaging the mirror of a person. This all occurred on 19 March 2011 when your now ex-partner was leaving the property and taking the various items with him.

An unseemly row appears to have developed, causing you to attempt to assault him, and to throw a rock at the vehicle, and also further damage a mirror by breaking it. I note there was some reparation claimed by the victim, and that has already been paid by you. The offending occurred 10 months ago now. You have attended a Living without Violence programme and completed all 12 sessions of that course, and the report says you have worked hard with your counsellor to deal with your issues. You have also worked as a voluntary helper at the North Shore Hospice Trust, and that also has resulted in a very favourable report coming to the Court.

I am of the view that all three offences are at the minor end of the scale. You entered guilty pleas relatively early, and you have done all you can since to put matters right. Given your age and your lack of previous convictions, on all matters you are convicted and ordered to appear for sentence if called upon within six months. That means that if you stay out of trouble for the next six months, these matters go away. If you come back to Court on any further offences, you may be sentenced on these matters also. You are also required to pay Court costs of $132.89.

[10] Curiously, the Judge made no reference whatever to Mr Schellenberg’s

submissions, which appear to have been confined to an argument for discharge.

[11] It is to be inferred that the Judge considered, but rejected, the discharge application. However, because there is simply no reference to it in the sentencing remarks, counsel agree that this Court must of necessity approach the question of discharge afresh.

Discharge without conviction – legal principles

[12] The jurisdiction of the Court to discharge without conviction is conferred by ss 106 and 107 of the Sentencing Act 2002, which respectively provide:

[106] Discharge without conviction

(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

(2) A discharge under this section is deemed to be an acquittal. (3) A court discharging an offender under this section may—

(a) make an order for payment of costs or the restitution of any property; or

(b) make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—

(i) loss of, or damage to, property; or

(ii) emotional harm; or

(iii) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:

(c) make any order that the court is required to make on conviction.

[(3A) Sections 32 to 38A apply, with any necessary modifications, to an order under subsection (3)(b) as they apply to a sentence of reparation.]

[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.

[13] Section 106 confers upon the Court a discretion to discharge an offender without conviction for an offence for which the Court is not required to impose a minimum sentence. But it may not do so unless it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of

the offence.2

[14] As was said in R v Hughes:3

... Section 107 thus provides a gateway through which any discharge without conviction must pass. It stipulates a pre-condition to exercise of the discretion under s 106.

[15] A decision as to whether the test under s 107 has been met is not a matter of discretion. Rather, it is a matter of fact requiring judicial assessment and so is subject to appeal on normal appellate principles.4

[16] In Hughes the Court said that 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 10.5

[17] However, the Court has more recently reviewed that approach. In R v Blythe, the Court noted that while the Hughes’ approach was generally sound, the provisions

_{of s 7, 8 and 9 of the Sentencing Act were not to be taken into account in the course}

2 _{Sentencing Act 2002, s 107.}

3 _{R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].}

4 _{R v Rajamani [2007] NZSC 68, [2008] 1 NZLR 723 at [5].}

5 Hughes at [41].

of determining disproportionality. Rather, they were relevant at the point at which the residual discretion under s 106 arose; that is, after the issue of disproportionality had been determined in the offender’s favour.6

[18] Counsel are agreed that the approach mandated in Austin, Nichols & Co Inc v

Stichting Lodestar applies.7 There, Elias CJ said:8

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

(footnote omitted)

[19] Of course, in this case, the Judge having rejected the application for discharge only by necessary implication, this Court is in any event unable to take into account the Judge’s reasons for doing so, because there are none.

The gravity of the offence

[20] Mr Schellenberg cites Delaney v Police, in support of an argument that issues such as the entry of the guilty plea, expressions of remorse and assessment of risk of future re-offending, together with consequences already suffered, may be taken into account in determining the gravity of the offence.9 However, that approach, which to some extent mirrors Hughes, was expressly rejected in Blythe.10

[21] Mr Schellenberg submits that the offending is at the lower end of the scale. Ms Chang agrees, but submits that it could not be described as trivial or inconsequential. She notes the attempted use of a weapon in the form of a rock, and

_{the fact that there was some property damage. She says also that the victim impact}

6 _{R v Blythe [2011] NZCA 190, [2011] 2 NZLR 620.}

7 _{Austin, Nicols & Co Inc v Stichting Lodestar [2007] NZSC 103;, [2008] 2 NZLR 141}

8 _{At [16].}

9 _{Delaney v Police HC Wellington CRI 2005-485-22, 22 April 2005.}

10 Blythe at [15].

statements illustrate a degree of emotional distress on the part of the victim and his associate.

[22] It is however relevant to take into account that this was essentially a domestic incident, that an argument had developed between the appellant and her former partner, and that the offending occurred in the heat of the moment. The victims suffered no injuries. I consider the sentencing Judge to have been correct when he expressed the view that all three offences were at the minor end of the scale.

Consequences of conviction

[23] Mr Schellenberg submits that there is a real and appreciable risk that these convictions will affect the appellant’s ability to gain employment. Formerly she had part-time work, but that job was lost for reasons unconnected with the present offending. She has been on the unemployment benefit for 12 months. She has actively tried to find employment but has been unsuccessful, partly by reason of the absence of formal qualifications and her youth. She has completed a course through Work & Income NZ, aimed at assisting her to find employment. She thinks she may have to go to Australia to find work. Mr Schellenberg submits that the convictions would equally affect her there.

[24] Since the date of sentence in the District Court, the appellant has undertaken a Careers Opportunity course through the Academy of New Zealand. This involves a job placement programme that is said to enhance prospects of subsequent employment. A letter from the Academy indicates that they would expect their graduates to fare better in the employment market without convictions such as these on their record.

[25] I have no difficulty in accepting that, nor do I have any problem with the general submission that, in a difficult job market, the appellant’s quest for employment is likely to be rendered even more difficult if she has these convictions on her record. She has not been in trouble with the police before.

[26] Ms Chang submits that it is a proper inference that the appellant’s problems in securing employment are likely to be attributable chiefly to her youth, absence of qualifications and lack of work experience, although she acknowledges that, all things being equal, persons without convictions may be preferred over those who do have a criminal record. That is simply an ordinary consequence of a conviction and is not related to this appellant’s particular circumstances. Ms Chang says further that any prospective employer who took the trouble to obtain a police report would see that the sentence imposed was at the bottom of the scale, and would draw the conclusion that the offending must have been minor.

[27] There is a degree of substance in Ms Chang’s submissions. However, Mr Schellenberg draws the Court’s attention to a line of well-known recent judgments in which various Judges of this Court have held that employment difficulties may be taken into account if it can be shown that general consequences are likely to flow from a conviction. In Nash v Police, Mallon J observed that general consequences may be weighed in the balance.11 She identified employment, insurance and immigration as fields in which offenders may be asked to disclose whether they have criminal convictions. There may be others. For example, in

Harvey v Police, Fogarty J identified a reduced prospect of obtaining credit from banks in the light of the need to disclose criminal offences.12 In addition to Nash and Harvey, cases in which more general consequences have been taken into account include Harcourt v Police13 and Alshamsi v Police.14

[28] In the present case, the principal consequence identified on the appellant’s behalf is the question of employment. While Ms Chang is entitled to submit, as she does, that various other factors may be impeding the appellant’s quest for work, it is inescapable that, in a difficult job market, the existence of convictions will constitute a significant additional obstacle. Her evidence satisfies me that she is very serious indeed about finding a job, and so the existence of these convictions is very real and

_{important to her.}

11 _{Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009 at [19].}

12 _{Harvey v Police HC Christchurch CRI-2007-409-236, 13 February 2008 at [11].}

13 _{Harcourt v Police HC Hamilton AP42/90 14 May 1990.}

14 Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007.

[29] On any view, this offending was towards the lower end of the gravity spectrum, both in respect of the offences charged and in relation to criminal offending viewed more widely. That was the conclusion to which the sentencing Judge properly came.

[30] I do not overlook the fact that the appellant threw a small rock at the car in which two people were sitting but neither was injured, and overall the damage was confined to two broken windows and a broken mirror.

[31] I accept Mr Schellenberg’s submission that, having regard to the limited scale of the offending, the Court is entitled to consider the likely consequences in the more general sense explained in cases such as Alshamsi, Nash and Harvey. In particular, I accept that the existence of these convictions is likely to render the task of job hunting significantly more difficult for the appellant than would have been the case had she escaped conviction. I consider that the appellant has met the statutory test by showing that the consequences of these convictions will be out of all proportion to the gravity of the offending.

Discretion

[32] Ms Chang responsibly accepts that, if I reach the point at which I am satisfied a case for discharge without conviction has been made out, then there is a strong case for the exercise of the residual discretion in the appellant’s favour. I agree. The appellant is just 19 years old and has no previous convictions. She appears to me to be highly motivated to make something of her life. She attended a three month employment course run by WINZ, undertook 52 hours of voluntary community work at the North Shore Hospice Trust, and completed a 12 week Anger Management programme at North Harbour Living Without Violence. She is attending a full time six months Careers Opportunity course at the Academy of New Zealand. She promptly paid reparation sought by her victims. In my opinion, she is exactly the type of person at whom the provisions of ss 106 and 107 are aimed. For these reasons, I am prepared to exercise my discretion in her favour.

[33] For the foregoing reasons, the appeal is allowed. The convictions on each charge are quashed. The appellant is discharged without conviction pursuant to s 106 of the Sentencing Act 2002.

C J Allan J