Gill v Police [2013] NZHC 860 (23 April 2013)

Last Updated: 6 May 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-404-000003 [2013] NZHC 860

RALPH ELLIOT GILL

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing: 22 April 2013

Appearances: P H Tomlinson for the Appellant

K C Francis for the Respondent

Judgment: 23 April 2013

_{JUDGMENT OF GILBERT J}

This judgment was delivered by me on 23 April 2013 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:

Counsel: P H Tomlinson, Auckland: [e-mail]

K C Francis, Auckland: [e-mail]

GILL V POLICE HC AK CRI 2013-404-000003 [23 April 2013]

[1] Mr Gill pleaded guilty in the Auckland District Court to two charges, one of possession of an offensive weapon, namely a chainsaw, in circumstances that showed an intention to use it to commit an offence involving the fear of violence; and one of threatening to injure knowing that his conduct was reasonably likely to intimidate. The maximum penalty for the first of these offences, which was in breach of s 202A(4)(b) of the Crimes Act 1961, is three years’ imprisonment. The maximum penalty for the other offence, which was in breach of s 21(1)(a) of the Summary Offences Act 1981, is three months’ imprisonment, or a fine not exceeding

$2,000, or both.

[2] Judge A J FitzGerald entered convictions on both charges and ordered Mr Gill to come up for sentence, if called upon, within a period of nine months. He also ordered him to pay $100 to the victim as reparation for emotional harm.

[3] Mr Gill appeals against this sentence. He argues that the Judge was wrong to decline his application to be discharged without conviction under s 106 of the Sentencing Act 2002.

[4] A discharge without conviction under s 106 cannot be given unless the threshold test set out in s 107 is met. This involves a three-step process:

(a) First, the Judge must identify the gravity of the offence considering all aggravating and mitigating factors in relation to the offending and the offender.

(b) Second, the Court must identify the direct and indirect consequences of a conviction.

(c) Third, the Court must determine whether those consequences would be out of all proportion to the gravity of the offence.

[5] The Judge followed this process and found that the threshold test was not met. Mr Tomlinson argues that the Judge was wrong in reaching this conclusion.

Gravity of the offence

[6] There was no dispute about the facts. Mr Gill was at home at about 1.00 pm on 23 November 2011. The victim, who is an engineer, was outside the address working on an electricity box. Mr Gill, who had been drinking heavily, walked out onto his balcony, in full view of the victim, and shouted profanities and made threats while holding a kitchen knife in his hand. The victim carried on working. Mr Gill then took a chainsaw from his garage and walked out to the footpath where the victim was standing. Mr Gill then “barraged” the victim with further threats and profanities in an attempt to stop him from working. The victim feared for his safety, retreated and called the police.

[7] The Judge assessed the seriousness of the offending involving the chainsaw as “medium” for offences under s 202A(4)(b) of the Crimes Act. He considered that the gravity of the threatening to injure charge was “medium to high” for that type of offending because it involved brandishing a knife, not simply making threats.

[8] Mr Gill, who is in his mid-forties, was subsequently diagnosed with Bipolar Affective Disorder. Dr Ian Goodwin, a specialist psychiatrist, reported that Mr Gill has an extensive history of alcohol abuse combined with intermittent abuse of benzodiazepines and other medications. Dr Goodwin advises that Mr Gill’s primary risks of “disinhibited and aggressive” behaviour appear to be intimately linked with his alcohol abuse and his underlying mental health disorder. He considered that this risk would be considerably mitigated by Mr Gill receiving appropriate treatment for his mental disorder and by him abstaining from alcohol. Dr Goodwin confirmed that these actions have been taken.

[9] Mr Gill has taken significant steps to address his drinking problem which had contributed to his offending. In particular, he has enrolled with Community Alcohol and Drug Services and has been attending weekly sessions at Alcoholics Anonymous. He says that he has abstained from drinking alcohol since this incident occurred. Mr Gill is also taking appropriate medications to manage his mental health disorder.

[10] The Judge took these matters into account when he assessed the gravity of the offending:

...

[8] At the time this happened you were greatly affected by alcohol and you had been using alcohol for some time to self-medicate a bipolar affective disorder that you were unaware you had until after this incident. It was following these events that you saw a doctor who made that diagnosis. The disorder is now treated by medication which has stabilised your mood. You also referred yourself to CADS and you are receiving ongoing help and support from them to maintain total abstinence. You are attending AA weekly.

...

[11] I accept that the incident was brought about in particular because of your level of intoxication which was at least partly due to the way you had previously been trying to manage the underlying mental health condition. It is, no doubt, a matter of great relief to you to have identified the underlying issue that has led to the offending and to be receiving effective treatment and support.

[12] Dr Goodwin, in his report, notes the treatment that is now being provided and that there are promising signs that that treatment is effective. He also notes your enrolment with CADS, which is entirely appropriate, and it is his opinion that those actions mitigate significantly the risk you pose and as long as you remain in treatment and abstain from alcohol, your risk of similar offending is low.

[11] Mr Tomlinson accepts that the Judge took these matters into account when assessing the gravity of the offence but claims that he then ignored these factors when considering whether the consequences of a conviction were out of all proportion to the gravity of the offending. I will address that submission under step 3 of the s 107 analysis.

[12] Mr Tomlinson argues that the Judge made two errors in his assessment of the gravity of the offending. First, he submits that the offence involving the knife was at the low end of the scale rather than at the medium to high end, as assessed by the Judge. He points out that this offence occurred while Mr Gill was on his balcony on the second level of the house, not in proximity to the victim. Second, he submits that Mr Gill remained on his property when the offence involving the chainsaw occurred, and was not on the footpath as stated by the Judge.

[13] I do not consider that there is any justification for either of these criticisms. As to the first, the Judge was, appropriately, placing the particular offending on the scale of seriousness for offending of its type. As the Judge correctly observed, the first offence did not merely involve threats, but had the aggravating feature that Mr Gill was brandishing a knife while making the threats. I see no error in the approach taken by the Judge or in his conclusion on that issue.

[14] As to the second criticism, the summary of facts was accepted for the purposes of sentencing. The summary records that Mr Gill “walked out to the footpath where the victim was standing”. This indicates that Mr Gill was on the footpath, as the Judge understood. Whether he was on the footpath or at the letterbox near the edge of the footpath has no material bearing on the gravity of the offending. Either way, Mr Gill approached the victim and threatened him with his chainsaw.

[15] I conclude that the Judge made no material error in his assessment of the gravity of the offending and took into account all relevant information placed before him for the purposes of assessing this.

Consequences of a conviction

[16] Mr Gill has worked for many years in the health sector as an IT specialist. He has been working for his present employer for over 10 years. Mr Gill values his employment and is anxious not to lose it. I accept that it would be a significant blow to Mr Gill if he were to lose his employment and that it could impede his recovery.

[17] Mr Gill is concerned that he may lose his job if his appeal is unsuccessful and his conviction remains. He bases this concern on the current management policy manual issued by his employer which lists various matters that may be considered serious misconduct that could result in dismissal. These include a conviction for a criminal offence. There is no other evidence that Mr Gill will lose his employment if he is not discharged without conviction.

[18] The Judge dealt with this issue at some length.1 He noted the relevant provision in the policy manual but took into account that other provisions could also apply to the circumstances, irrespective of whether or not a conviction was entered. To that extent, the entry of a conviction was not necessarily a critical factor. The Judge considered that the employer should be entitled to form its own view as to whether Mr Gill’s conduct was such as to justify dismissal. The Judge was concerned that a discharge without conviction could have the effect of concealing the incident from the employer. Finally, the Judge noted that Mr Gill had been working for the same employer for a considerable period and that his existing convictions had not prevented this.

[19] Mr Tomlinson submits that the Judge did not consider whether or not there was a real and appreciable risk that Mr Gill will be dismissed from his employment if he is convicted. I do not accept this submission. The Judge took the view that Mr Gill’s employer ought to be made aware of the incident so that it can determine whether it has any relevance to his employment. This is one of the reasons why he considered that a discharge without conviction was not appropriate. The Judge recognised the prospect of dismissal but stated:

[16] ... It is open for them to find that the incidents on 23 November last year do not qualify as serious misconduct if they know the full facts and also the action that has been taken since, all of which is positive.

[20] It is clear from this that the Judge did consider that there was a real and appreciable risk that Mr Gill could lose his employment if convicted. While accepting that risk, the Judge considered that the employer might well conclude that he should not be dismissed in all of the circumstances and taking into account the steps Mr Gill has taken to address his issues.

[21] I can see no error in the Judge’s assessment of the consequences of a conviction. I do not accept Mr Tomlinson’s submission that Mr Gill’s employer has the power to dismiss him “instantly”, “without further ado”, and without any process

_{being followed. The employer would be required to follow a proper process and}

1 At [14] to [18] of his sentencing notes.

form an appropriate assessment as to whether dismissal was justified in all the circumstances.

[22] Mr Gill was not at work when the incident occurred. He has worked for the same employer for more than 10 years. The incident appears to have been contributed to by a previously undiagnosed mental health disorder. Mr Gill has now taken significant steps to address these issues. Mr Gill’s parents are also now aware of the problems Mr Gill has faced and are providing him with their full support. I agree with the Judge’s assessment that there is a real and appreciable risk that Mr Gill could lose his employment if convicted. However, I am not persuaded on the evidence that this is likely to occur.

Disproportionality

[23] The third step in the analysis is to consider whether the identified consequences of a conviction are out of all proportion to the gravity of the offending. The Judge did not consider that this threshold test was met.

[24] Mr Tomlinson acknowledges that the Judge took into account the steps Mr Gill had taken to address his issues when considering the gravity of the offending at step 1 of the analysis. However, he claims that the Judge then ignored this at step 3 of the analysis when he considered whether the consequences of a conviction would be out of all proportion to the gravity of the offending. This submission is not sustainable. The Judge correctly followed the three-step process. He carefully considered and summarised all relevant matters relating to the gravity of the offending, including the personal mitigating features. There is no indication in the judgment that he then ignored any of these matters when he carried out the balancing exercise required at step 3.

[25] I agree with the Judge’s assessment that the consequences of a conviction for Mr Gill are not out of all proportion to the gravity of his offending. Mr Gill is a middle-aged man who has suffered from mood variability throughout his life. He has been aware of this condition but was not previously aware of the underlying mental health disorder causing it. His aggressive behaviour at the time of the

incident was the result of this disorder combined with alcohol abuse. The Court is unable to take into account Mr Gill’s voluntary consumption of alcohol as a mitigating factor.2 Although it is to Mr Gill’s credit that he has taken responsible steps to address his issues, his offending was serious. There is a real and appreciable risk that Mr Gill could lose his employment but the evidence does not establish that this is likely. I do not accept that the consequences of a conviction for Mr Gill will be out of all proportion to the gravity of his offending. In my view, the Judge was correct in finding that the threshold test under s 107 is not met in this case.

Result

_{[26] For the reasons I have given, the appeal is dismissed.}

_{M A Gilbert J}

2 s 9(3) of the Sentencing Act 2002.