Buksh v Police [2014] NZHC 1670 (16 July 2014)

Last Updated: 10 September 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-2 [2014] NZHC 1670

BETWEEN	FARHAT BUKSH Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	15 July 2014
Counsel:	K Li for the Appellant S Elliott and E I Haronga for the Respondent
Judgment:	16 July 2014

_{JUDGMENT OF BROWN J}

This judgment was delivered by me on 16 July 2014 at 1 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Crown Solicitors, Auckland

Public Defence Service, Waitakere

BUKSH v POLICE [2014] NZHC 1670 [16 July 2014]

Introduction

[1] The appellant pleaded guilty to a charge under s 24(b)(i) of the Summary Offences Act 1981 that on 4 August 2013, being reckless as to whether wasteful deployment or diversion of deployment of police personnel would result, he made a statement to Police Northern Communication that gave rise to serious apprehension for the safety of Manjeshna Mani Goundar, knowing that such statement was false.

[2] On 26 November 2013 the appellant was sentenced by Judge S J O’Driscoll in the District Court at Waitakere to a fine of $250 and court costs. The Judge declined the appellant’s application to discharge him without conviction.

[3] The appellant now appeals against the Judge’s refusal to discharge him

without conviction.

Background facts

[4] At the relevant time the appellant was in a de facto relationship with Ms Goundar. On 4 August 2013 he was at their home address while she was out socialising with friends.

[5] When Ms Goundar failed to return home at the expected time, the defendant sent some 25 text messages to her between the hours of 3 am and 6 am, which were described in the summary of facts as having a jealous and possessive undertone. The appellant also telephoned Ms Goundar some 52 times after she failed to reply to his text messages.

[6] Ms Goundar arrived home at about 5.30 am with another person. The summary states that the appellant became extremely enraged and a verbal argument ensued. After a short time Ms Goundar left the address with the friend as she did not want the argument with the appellant to escalate. The appellant then telephoned Ms Goundar’s mother stating that he was going to leave her if she did not return home. He then contacted the police stating that Ms Goundar had been kidnapped.

[7] According to the summary of facts, as a result of the appellant’s actions a considerable deployment of police staff and resources from several districts were deployed in an effort to apprehend the vehicle in which Ms Goundar had allegedly been kidnapped.

[8] When spoken to by the police the appellant said that he had let his emotions get the better of him.

District Court decision

[9] After setting out the material facts the Judge recorded the requirements of ss 106 and 107 of the Sentencing Act 2002 and noted the three-step approach endorsed by the Court of Appeal in the decisions to which I refer below: namely, as a first step, to identify the gravity of the offence; as a second step, to identify the direct and indirect consequences of a conviction; and thirdly, to make an assessment as to whether the direct and indirect consequences of a conviction were out of all proportion to the gravity of the offence.

[10] The Judge noted¹ matters which increased the gravity of the offence, namely:

(a) the significant resources used by the police as a result of the false complaint;

(b) the serious type of crime alleged, namely kidnapping; and

(c) the failure to update the police when the appellant was aware his partner was returning home, thereby perpetuating the offending.

[11] The Judge also noted² matters which decreased the gravity of the offence, namely:

_{(a) the appellant’s lack of previous convictions;}

¹ _{At [8].}

² At [9].

(b) his plea of guilty; (c) his remorse; and

(d) his donation of $100 to St Johns and his voluntary work for the Lions.

[12] In terms of the direct and indirect consequences of a conviction the Judge had regard to two matters: the effect on the appellant’s employment; the effect on the appellant’s ability to travel.³

[13] The Judge undertook the assessment which is required by the third step in the s 107 process in the following paragraphs:

[12] It is necessary for me to make an assessment of this matter in terms of whether the direct and indirect consequences are out of all proportion to the gravity of the offence. I regard the offence as being serious and it is serious because a false complaint of kidnapping was made to the police. It was perpetuated when you had the opportunity to let the police know that your partner was returning home and you did not do that. On the other hand you were subsequently co-operative with the police and pleaded guilty.

[13] I think really that you have downplayed your involvement in this offending. The summary of facts states that you became extremely enraged and there was a verbal argument. Your affidavit before the Court states that you were simply worried about her safety when she drove away. You have indicated in your affidavit that you simply talked to your partner and then decided to let matters finish there. That appears contrary again to the summary of facts. I think that this offending also needs to be seen in the context of your continued text messages to your partner, some 25 along with some 50 phone calls that you were (sic) made to her.

[14] I see this offending as being in the context of your attempt to control your partner. It has all the hallmarks of possessive, domineering and controlling behaviour on your part and when you found out that she had left you ended up becoming infuriated and ringing the police.

[15] I am not satisfied that the direct and indirect consequences as claimed by you are such that you might have difficulties entering Australia. There is no evidence before me. I accept that there does not have to be evidence, but apart from the general proposition that you may have difficulties getting into Australia I have nothing from Australia to indicate that there is a real and appreciable risk that the Australian authorities will say, for a conviction with a maximum term of imprisonment of three months, “You may not enter Australia”.

³ At [10]-[11].

[16] At the time that your application was made, again there was no evidence of any specific employment that would mean that if you were convicted you would not be able to be employed. I repeat that I have been told that you have made a job application and as a result of disclosing that you have these matters that you did not get the job.

[17] I do not have anything from that prospective employer that these Court proceedings were the exact reason why you did not get that employment. I accept that there may be difficulties for you in obtaining employment. I accept that there may be difficulties for you entering Australia, or any other country for that matter, but I think that the consequences that you have alleged here are too speculative and too vague.

[18] If I was to grant a s 106 application in your case then it would virtually be open for anyone who said that they wanted to travel to Australia to be discharged without conviction and for anyone who was unemployed to then say, well I should be discharged without conviction because a conviction will prevent me from getting a job ever in the future. I do not think that that is the position here. I think that the consequences as you have claimed are not out of all proportion to the gravity of the offending, particularly when looking at the nature of the charge and the significant use of the police resources in order to follow up on the complaint that you have made.

[14] For those reasons the Judge was not prepared to exercise his discretion to discharge the appellant without conviction and he imposed the fine of $250 with court costs.

Grounds of appeal

[15] The grounds of appeal in the notice of appeal dated 9 December 2013 are:

That the consequences of a conviction for the appellant was out of all proportion with the gravity of the offending and a discharge without conviction should have been granted. The learned Judge overstated the gravity of Mr Buksh’s offending and gave insufficient weight to the consequences of a conviction for Mr Buksh.

The substantive law

[16] Section 106(1) of the Sentencing Act 2002 states:

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.

[17] Section 107 then states:

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.

[18] As the Court of Appeal noted in R v Hughes⁴, although the heading to s 107 refers to “Guidance for discharge without conviction”, it is clear from the words of the section that the requirement in s 107 is mandatory. Consequently, before a Court may exercise its discretion under s 106, the Court must be satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence. The Court of Appeal said that s 107 provides a gateway through which any discharge without conviction must pass and stipulates a pre-condition to the exercise of the discretion under s 106.

[19] The Court said:⁵

[10] ... the Court must first consider whether the disproportionality test in s 107 has been met. If, and only if, the court is satisfied the s 107 threshold has been met may the court proceed to consider exercise of the discretion to discharge without conviction under s 106.

[11] The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles (Rajamani at para [5]). The discretionary power of the court to discharge without conviction under s 106 arises and exists only if the court is satisfied that s 107 threshold has been met.

[20] The Court further observed that in practice a favourable exercise of the s 106 discretion is likely to follow from a decision that the s 107 test is met and the factors informing both stages will overlap to a large degree.

[21] Hughes was considered by the Court of Appeal in Blythe v R⁶ which was in turn considered by the Court of Appeal in Z v R⁷ where the Court further discussed

⁴ _{R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].}

⁵ _{R v Hughes, above n 4, at [10]-[11].}

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

⁷ Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142.

the issue of the proper approach to aggravating and mitigating factors in relation to ss 106 and 107. The Court in Z v R said:

[26] Blythe is, we accept, unclear on the proper approach to aggravating and mitigating factors in relation to ss 106 and 107. The best sense that we can make of Blythe is that the Court considered that the aggravating and mitigating factors in relation to the offending were relevant to step one, the gravity of the offence, and the mitigating and aggravating factors in relation to the offender came into play in step three, the disproportionality analysis. As we have said, that was the approach the Divisional Court took in Brown. It is also the approach that Judge Perkins took in the present case.

[27] For our part, we consider that there is much to be said for the approach adopted by the Divisional Court in A(CA747/2010). That is: when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).

[28] The approach just outlined seems to us to fit best with the structure of s 107 and to provide the most helpful framework for analysis. While we are conscious that the Court in Blythe expressly disapproved it, we do not consider the approach to be wrong in principle. What we do consider to be wrong in principle is to leave the consideration of personal aggravating and mitigating factors out of the s 107 analysis and to address them only in the context of the s 106 discretion. We do not see how the disproportionality analysis required by s 107 can be undertaken without taking into account the offender’s personal aggravating and mitigating circumstances. However, while consideration of these circumstances must, in our view, be carried out in the context of the s 107 analysis, whether this occurs at the first or third step of that analysis is not of great significance. Provided that all relevant factors are considered in the s 107 context, the precise point at which they are considered is unlikely to be material.

Approach to appeal

[22] As noted above⁸ the decision whether the test under s 107 has been met is a matter of fact requiring judicial assessment. Consequently the decision as to whether the statutory test in s 107 is met is subject to normal appellate principles being those

_{stated by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.}⁹

⁸ _{At [19].}

⁹ Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

[23] The appellant bears the onus of satisfying the appeal court that it should differ from the decision under appeal. It is only if the appellate court considers that the appeal decision is wrong that it is justified in interfering with it. However the appeal court has the responsibility of arriving at its own assessment of the merits of the case and, if the appellate court’s opinion is different from the conclusion of the lower court, then the decision under appeal is wrong in the only sense that matters.

Submissions of the appellant

[24] After drawing attention to the comments of the Court of Appeal in Z v R at [28],¹⁰ the appellant reviewed the circumstances of a number of decisions where discharges without conviction have been granted or reviewed, namely Evans v Police,¹¹ Amstad v Police,¹² Alshamsi v Police¹³ and Gasson v N.¹⁴ The appellant’s submissions emphasised the following points:

(a) Insufficient consideration was given to the maximum penalty for the offence (three months imprisonment or a fine of $2000) and the gravity of the offence sits at the low end of offending generally. Comparison was drawn with Evans and Amstad which it was said involved offences against the Crimes Act 1961 ;

(b) The failure to take into account the fact that the appellant had been offered a diversion interview which, it was said, is only offered in cases of low level offending and thus supports the submission that the gravity of the appellant’s offending was low;

(c) The failure to take into account the testimonials provided on behalf of the appellant indicating his offending was out of character and, similar

_{to Evans, likely to be an instance of “one-off stupid offending”;}

¹⁰ _{At [21] above.}

¹¹ _{Evans v Police HC Wellington CRI-2009-485-97, 6 November 2009.}

¹² _{Amstad v Police HC Auckland CRI-2011-404-161, 6 September 2011.}

¹³ _{Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007.}

¹⁴ Gasson v N [2012] NZHC 2988.

(d) While the appellant accepts he was jealous and sent numerous texts, it was a significant step to infer that the texts were sent with the intention of attempting to control Ms Goundar in a way that would attract the proper attention of the criminal law;

(e) The failure to update police communications should not be considered to be an aggravating factor as it was part of a single continuing act following from the appellant’s false statement; and

(f) The failure to specifically address the appellant’s age which, it is submitted, was relevant in assessing lack of premeditation as discussed in Amstad.

[25] Criticism was also directed to the Judge’s conclusion that the consequences of the conviction relied upon by the appellant were “too vague and speculative”. Relying on Evans it was submitted that courts have often accepted that adverse consequences flow from convictions, such as employment and immigration, and that the general employment and travel consequences for the appellant should have been taken into account despite the absence of direct letters from employers or immigration officials attesting to those facts.

[26] In summary it was submitted that the Judge erred in characterising the offending as “serious” and he failed to give sufficient weight to the consequences of a conviction for the appellant, particularly having regard to his youth.

Submissions of the respondent

[27] The respondent supported the categorisation of the offending as “serious” drawing attention to the three matters which the Judge considered increased the gravity of the offending.¹⁵ It submitted the offending should be viewed in the context of the relationship where, following a heated argument, the appellant found himself unable to manage the situation and knowingly made a false statement to the police. It was submitted that it was an available inference that, by calling the police,

the appellant sought to cause difficulties for, and restrict the movements of, his partner which was controlling behaviour. In order to achieve this purpose the appellant intentionally misled the police as a consequence of which the police deployed a considerable amount of resources in a fruitless search for a non-existent kidnapping victim. The respondent made the point that through his guilty plea the appellant had conceded that intention.

[28] The respondent submits that the factor of youth was considered notwithstanding that there was no explicit indication where in the s 107 analysis that occurred. It submits that the factor is not relevant to the gravity of the offence but is relevant at the third stage in the disproportionality test. It submitted that the fact that the appellant has secured gainful employment demonstrates that as a young person he has the ability to overcome the challenge of a criminal conviction and it further drew attention to the “Clean Slate” legislation as further mitigating that challenge.

[29] The respondent took issue with the contention that diversion interviews are only offered to low-level offending. However it made the further point that all candidates for diversion must meet certain offender-based criteria, namely admitting they committed the offence and showing remorse. It submitted that the appellant presented with a poor attitude and did not accept responsibility for the offending. Indeed it argued that the appellant continued to down-play his offending and in his affidavit filed with the Court he made self-serving claims that were contrary to the accepted summary of facts. It submits that the diversion guidelines were followed but that diversion was declined because the appellant was an ineligible candidate by reason of his failure to accept responsibility and show remorse. In any event it submitted there was no indication that the Judge took into account the discretionary decision by the police not to allow diversion.

[30] On the issue of direct and indirect consequences the respondent submits they are minimal in light of the appellant’s demonstrated ability to gain employment and his eligibility for relief under the Criminal Records (Clean Slate) Act 2004. It drew attention to the lack of any specific evidence, noting the decision in Police v M.¹⁶

[31] A similar submission with reference to the absence of detailed and reliable evidence was advanced in relation to the contention about foreign travel difficulties. The point was also made that it can be important that a conviction be disclosed, citing Steventon v Police¹⁷ and Currie v Police.¹⁸ It was submitted that the direct and indirect consequences of this conviction, to the extent that they may be certifiably quantified, are not serious.

[32] Turning to the third stage, the respondent submitted that, whereas the consequences of a conviction for the appellant were vague and speculative both in the context of employment and travel and/or immigration, false reports to the police undermine what must be a system whereby it is desirable that every complaint is responded to with urgency and despatch. The fact that the police were used in an attempt by the appellant to control his partner was advanced as an aggravating feature of the offending. Hence it was submitted that the answer to the question whether the consequences of a conviction were out of all proportion to the gravity of the offending must be answered in the negative.

Analysis

[33] It is apparent that the Judge correctly directed himself as to the three-step approach mandated by s 107 and that he carefully followed that approach.

[34] I am unable to discern any error in the Judge’s consideration of the gravity of the offending. I do not accept the submission that there was an error in treating as an aggravating factor the failure to advise the police when the appellant became aware that his partner was returning home. As I discuss below¹⁹ the offending conduct needs to be viewed in the context of the sequence of messages and demands that spanned a period of some two hours. I consider that the appellant would have been well aware of the chain of events which he had set in motion and which should have

_{been halted at the first opportunity.}

¹⁷ _{Steventon v Police HC Auckland A108/01, 2 November 2001.}

¹⁸ _{Currie v Police HC Auckland CRI-2008-404-307, 27 May 2009.}

¹⁹ At [43]-[44].

[35] Nor do I consider that the maximum penalty for the offence supports the contention that it should properly be categorised as “low” in terms of its seriousness. I agree with Mr Elliott’s contention that in the context of that offence this conduct sits between the middle to high end of the spectrum.

[36] Nor do I see as pertinent the appellant’s suggestion that, if he had not questioned aspects of the summary of facts and if he had expressed more remorse at the diversion interview, it is possible he would have been offered diversion for this charge. The fact is that he did not act in that way and hence diversion was not offered. I recognise that the Judge did not refer expressly to the two testimonials.

However it is apparent²⁰ that he had read the appellant’s affidavit to which the

testimonials were exhibited and he referred²¹ to the appellant’s voluntary work for

the Lions which was the subject of the first testimonial.

[37] I am also unable to discern any error in the Judge’s analysis of the direct and indirect consequences for the appellant of the conviction. Ms Li made the point that it was unrealistic in a case such as the present for a letter to be produced that identified a difficulty in procuring some specific employment. The fact is that the Judge did accept that there might be difficulties for the appellant in obtaining

employment.²²

[38] However he made the point that if a discharge were to be made in this case it would virtually be open to anyone who was unemployed to then say that he or she should be discharged for that reason. Ms Li countered that point by emphasising the appellant’s age and the fact that the employment which he had since obtained was only at entry-level and not a permanent foothold on a career.

[39] Like Whata J in Amstad,²³ I agree that the appellant’s youth is a significant

consideration. I agree with the respondent that the relevant point for consideration of the appellant’s youth was at the third stage of the s 107 analysis.²⁴ On the face of

²⁰ _{From [13].}

²¹ _{At [9].}

²² _{At [17].}

²³ _{Amstad, above n 12, at [22].}

24. In Z v R the Court of Appeal suggested that an analysis of the personal aggravating and mitigating factors of the offender could be carried out at either the first or the third stage.

it, it is a cause for concern that the factor of the appellant’s youth was not specifically addressed at the third stage. That said, the Judge noted at [4] that the appellant was 19 years old. Furthermore in the course of the exercise of his s 106 discretion²⁵ the Judge stated that he took into account the appellant’s age and made the comment “as I have already done in considering this matter”. In my view that must be a reference back to his s 107 analysis. In combination those two points

satisfy me that the Judge did weigh the appellant’s youth in the course of the

disproportionality analysis.

[40] In the result the appellant has not caused me to conclude that there was any error by the Judge at any stage of the s 107 process. Notwithstanding that, I am still required to make my own assessment of the merits of the case.

[41] I have reached the same conclusion as the Judge that the nature of the offending was serious notwithstanding the maximum penalty that applies.

[42] In addition to the matters noted by the Judge, I have also taken into account the history and content of the texts sent by the appellant as explained by Mr Elliott in the course of his submissions. It would appear that prior to the primary 111 call,²⁶ the appellant made reference to his having already called the police in seven texts to Ms Goundar between 17.23.52 (GMT) and 17.59.08 (GMT). Prior to those texts, he sent two earlier texts²⁷ to Ms Goundar’s companion, the first of which stated his intention to call the police if Ms Goundar was not home before 5 am and the second of which advised that he had called the police.

[43] That evidence suggests to me that the relevant conduct was not a spontaneous action which lacked premeditation, as Ms Li suggested in the course of her submissions directed to the appellant’s youth. On the contrary it appears that, in an attempt to persuade his partner to return, the appellant initially threatened to call the police and then carried through with his threat, which resulted in a course of conduct

_{that spanned almost two hours prior to the primary 111 call. Whether or not such}

²⁵ _{At [19].}

²⁶ At 18.10.49 (GMT) on 3 August 2013 of some 15 minutes duration. There was an earlier shorter

_{111 call at 17.50.48 (GMT) of 2 minutes 17 seconds duration.}

²⁷ At 16.15.06 (GMT) and 17.03.52 (GMT).

conduct is viewed as possessive or controlling, in my view it is not a single impulsive act, the nature of which is often emphasised in applications for discharge.

[44] While I recognise there will inevitably be some implications for the appellant of a conviction with reference to both his employment and travel prospects, there is no specific evidence in this case which elevates the consequences above the norm. I note that in Brunton v Police²⁸ Clifford J observed that travel difficulties are seen as universal consequences of a conviction and that in the absence of specific evidence they will not provide an adequate basis for discharge. I consider that Mr Elliott’s

submissions that the present case sits at the low tide mark in terms of consequences is fairly made.

[45] The weighing exercise of the gravity of the offending with the consequences of conviction is not concerned simply with one factor outweighing the other. The final step in the s 107 inquiry asks whether the consequences of a conviction would be “out of all proportion” to the gravity of the offending.

[46] In the present case I consider that the consequences of the conviction, to the extent that they have been identified, are entirely in proportion with the offending given the view I take of its serious nature. Consequently I consider that the appellant does not pass through the s 107 gateway and he fails to satisfy the pre-condition to the exercise of the discretion under s 106.

Disposition

[47] The appeal against the District Court’s refusal to discharge the appellant

_{without conviction is dismissed.}

_{Brown J}

²⁸ Brunton v Police [2012] NZHC 1197 at [16].