Pio v Police [2014] NZHC 2047 (28 August 2014)

Last Updated: 24 September 2014

NOTE: EXISTING INTERIM ORDER FOR NON-PUBLICATION OF THE APPELLANT'S NAME AND IDENTIFYING PARTICULARS UNDER S 200

OF THE CRIMINAL PROCEDURE ACT 2011 WILL CONTINUE UNTIL

_{5.00PM, 3 SEPTEMBER 2014.}

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2014-441-031 [2014] NZHC 2047

BETWEEN	SETU PIO Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	13 August 2014
Appearances:	J G Krebs for the appellant G R J Thornton for respondent
Judgment:	28 August 2014

_{JUDGMENT OF CLIFFORD J}

Introduction

[1] The appellant, Setu Pio, pleaded guilty to a charge of male assaults female. In sentencing Mr Pio in the District Court at Hastings on 17 July 2014 Judge Rea declined Mr Pio’s application under s 106 of the Sentencing Act 2002 for a discharge without conviction.¹ The Judge convicted Mr Pio and ordered him to pay a fine of

$1,000 and Court costs of $130. The Judge also declined permanent suppression of

Mr Pio’s name.

[2] In this appeal, Mr Pio argues that the Judge was wrong to decline his application for a discharge without conviction and also wrong to decline his application for permanent name suppression. Mr Pio does not otherwise challenge

_{the sentence imposed.}

¹ Police v Pio DC Hastings CRI-2014-020-000548, 17 July 2014.

Mr Pio’s offending – the facts

[3] Mr Pio is a police constable. That fact is of obvious significance in the context of Mr Pio’s offending, and this appeal.

[4] Based largely on the statement of facts to which Mr Pio pleaded guilty, Mr Pio’s offending can be described in this way.

[5] Mr Pio had previously been in a relationship with the mother of his two year old daughter, the complainant in this matter. Mr Pio and the complainant have separated. At the time of Mr Pio’s offending Mr Pio’s former partner had custody of the daughter on an informal basis. Mr Pio looked after her from time to time when not engaged in his employment as a police constable.

[6] One such occasion was the morning of Sunday 2 March 2014. On that day Mr Pio had collected his daughter from her grandparents,² where she had stayed overnight when her mother had gone out with her new partner. Mr Pio’s former partner arrived to take their daughter to a birthday party. Mr Pio was not happy with that arrangement as he had expected he would be caring for the child for the whole day. As the complainant was preparing to place the child in her car Mr Pio grabbed the child. The complainant tried to hang on to the child, and a brief tug of war occurred.

[7] During this time, Mr Pio pushed the complainant forcefully with an open hand to force her to let the child go. That blow hit the complainant on the top of her chest. Mr Pio then started to push the complainant away by pushing her throat area. The complainant let go of the child and, as she did so, Mr Pio again pushed her forcefully in the chest. The complainant staggered back, hitting a car nearby and fell to the ground. Mr Pio’s family members intervened and the complainant left the address.

[8] At the time of these events, the complainant was five months pregnant. After the event she had sharp pains in her stomach and went to hospital to be checked.

² The parents of Mr Pio’s former partner.

She had an accelerated heart rate and received treatment to ensure she was medically satisfactory. She also had minor abrasions to her elbows and a friction burn to her shoulder.

[9] In explanation, Mr Pio stated that he only held his arms out to push the complainant away with an open hand so that she would not take the child.

The challenged sentencing decision

[10] Having recorded the facts the Judge noted:

[6] This case has some unusual features to it. As a police officer you were deemed not to be suitable for diversion. My understanding is that had you not been a police officer diversion may have been considered appropriate.

[7] The prosecuting Sergeant has put the police position that this is a lower end assault and that may well be the case although it is disturbing to see in the summary that part of the targeted area where you pushed the complainant was around the throat.

[11] In considering Mr Pio’s application to be discharged without conviction, the Judge followed the approach recommended by the Court of Appeal in Z v R.³ He first considered the gravity of the offence; then the direct and indirect consequences of a conviction; and then whether those consequences were out of all proportion to the gravity of the offending.

[12] The Judge categorised Mr Pio’s offending, correctly, as an instance of domestic violence. Whilst it was at the lower end, the Judge did not accept that it was sufficiently low to be regarded as minor. Mr Pio had lost control and had been persistent in his approach to the complainant.

[13] The direct or indirect consequences of the entry of a conviction were, the Judge found, largely unknown. Whether a conviction was entered or not, decisions about Mr Pio’s continued employment by the police were in the jurisdiction of the Commissioner and his two deputies. Even if Mr Pio was discharged without

_{conviction, that would not mean he would necessarily be able to continue in the}

³ Z v R [2012] NZCA 599, [2013] NZAR 142.

employment of the police. The Judge did accept, however, that if a conviction was entered it would make things more difficult for Mr Pio.

[14] The Judge then considered whether the consequences of a conviction were out of all proportion to the gravity of the offence. The Judge noted the general public concern with domestic violence and the focus on how domestic violence was responded to by the police. The Judge accepted that Mr Pio’s conduct as a police officer had been exemplary, and that he was seen as somebody with a future within the police. The Judge accepted that his employment would be put at risk by a conviction. He did not accept that s 106 discharges were customarily given to police officers in this sort of situation.

[15] The Judge concluded that there was nothing in Mr Pio’s case that rendered his position different to the ordinary situation of a person guilty of domestic violence whose behaviour puts their employment at risk.

[16] The Judge therefore did not conclude that the consequences of a conviction were out of all proportion to the gravity of the offending.

[17] The Judge was not satisfied that extreme hardship would arise for Mr Pio if his name was published. Therefore, the statutory requirement for a suppression order under s 200 of the Criminal Procedure Act 2011 had not been met.

Case on appeal

[18] Mr Pio appeals on the basis that the Judge erred in the exercise of his discretion by:

(a) failing to take into account matters which tended to demonstrate a reduced gravity of offending;

(b) placing too much weight on factors which tended to increase the gravity of the offending;

(c) failing to give sufficient weight to factors which demonstrated the consequences of a conviction;

(d) giving undue emphasis to the uncertainty of the police employment process in support of a conclusion that the consequences of a conviction were unknown; and

(e) failing to give sufficient weight to the prosecutor’s view that a discharge without conviction would not be inappropriate.

[19] For Mr Pio, Mr Krebs submitted that the Judge either failed to have regard to, or did not take sufficient account of, material additional to the statement of facts which was available to the Judge and which put the incident between him and his former partner in its proper context. This was a reference by Mr Krebs to Mr Pio’s affidavit on sentencing, the details of which were not contested by the prosecution, and to the annexures to that affidavit. That material comprised:

(a) a copy of a letter from Mr Pio to his former partner apologising for his actions;

(b) a copy of a recent Police Staff Performance Appraisal Form for

Mr Pio;

(c) a copy of a letter from the Police Association supporting Mr Pio’s

application for name suppression;

(d) copies of letters from each of Mr Pio’s “in-laws”, very much in

support of Mr Pio; and

(e) a letter from the Pastor of Mr Pio’s church, again very much in

support of Mr Pio.

[20] When seen in the light of that material, and especially the letters from

Mr Pio’s in-laws, Mr Krebs submitted the incident was, contrary to the Judge’s

findings, very much a minor incident of domestic violence. The Judge had, therefore, seen Mr Pio’s offending as being more serious than it actually was.

[21] The complainant’s father, whose letter was written three days after the incident, confirmed that Mr Pio had picked up his daughter that morning thinking that he was to look after her for the whole day, and that he was going to return her to her mother the following evening. The victim and complainant had, however, decided she wanted to take the child that morning even after her father told her it was Mr Pio’s time with his daughter and that she should just leave them. The complainant’s father describes his daughter driving in a rage to Mr Pio’s residence, which led to the incident. The complainant’s father described Mr Pio as a great dad to his grand-daughter, a role model not only for young Samoans but teenagers in general within the local community.

[22] The complainant’s mother, whose letter was written two months later and closer to the time of sentencing, provided more general confirmation of Mr Pio’s character and integrity, and his standing within the local community.

[23] On Mr Pio’s behalf, Mr Krebs filed (without opposition from the respondent) an affidavit from Mr Kerry Ansell, a member of the Police Association. The gist of that affidavit was, as the Judge had acknowledged, the fact that the entry of a conviction, as opposed to a guilty plea and a discharge without conviction, would add to the difficulties Mr Pio faced in maintaining his employment with the police. Mr Ansell described the entry of a conviction against a police officer as opposed to merely an admission of guilt as providing “a far greater hurdle” for an officer to retain their employment with the police. Mr Thornton, for the respondent, did not challenge the accuracy of that assessment.

[24] Mr Krebs also submitted that Mr Pio continuing in employment with the police was in the interests of both his former partner and their child, in terms of Mr Pio’s ability to provide ongoing financial support.

[25] In his written submission Mr Krebs argued that the approach of the District

Court in Police v Rose, where a policeman was discharged without conviction on a

charge of assault, should be followed as a matter of principle.⁴ The principle that Mr Krebs said should be acknowledged was that, because diversion was not available, police officers in positions such as this were treated more harshly than others. Before me, I understood the submission to be that the approach in Rose, rather than being a matter of principle to be endorsed by the Court, was appropriate given the facts of Mr Pio’s offending and the difficulties he faced as a police constable in being diverted rather than prosecuted.

[26] On the question of permanent name suppression, Mr Krebs initially argued that application in the way it would appear to have been argued in the District Court, including by reference to the adverse consequences of publicity on the chances of Mr Pio retaining his position as a police constable. On reflection, Mr Krebs discontinued that line of argument.

[27] For the respondent, the New Zealand Police, Mr Thornton argued that the Judge’s decision revealed no error. The Judge had correctly assessed the gravity of Mr Pio’s offending. His sentencing notes also show that he had taken account of all the materials before him. He correctly concluded that whilst Mr Pio’s offending was at the lower end of the scale of domestic violence, it was not sufficiently low to be regarded as minor. In particular, the Judge’s approach to the consequences of a conviction for Mr Pio were in line with the approach of the Court of Appeal in

Blythe v R.⁵ Mr Thornton submitted that Rose should be considered alongside other

cases of police officers who commit offences whilst not acting in the course of duty and where discharges without conviction were declined. Mr Thornton placed before the Court a copy of the police policy on diversion. This showed that, where issues of domestic violence involving a former partner or spouse are involved, diversion will be infrequent. That policy applies generally, and not only to police officers. Because Mr Pio was a police officer, however, whether or not diversion was appropriate in his case had to be considered by senior officers, and not the District

_{Prosecution Manager as is the general position.}

⁴ _{Police v Rose DC Christchurch CRI-2013-009-007762, 19 November 2013.}

⁵ Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.

[28] As for name suppression, Mr Thornton’s submission was that there simply was no evidence of “extreme hardship” to support an order under s 200 of the Criminal Procedure Act.

Analysis

[29] The Judge decided, in terms of s 107 of the Sentencing Act, that the consequences of a conviction for Mr Pio would not be out of all proportion to the gravity of his offending. The Judge therefore concluded, correctly, that he did not have jurisdiction to grant a discharge without conviction under s 106 of the Sentencing Act.

[30] Both Mr Krebs and Mr Thornton approached this appeal on the basis that the Judge’s decision under s 107 was a discretionary one: therefore this was not an appeal by way of re-hearing (in terms of Austin, Nichols)⁶ but an appeal against a discretionary decision. As I indicated at the outset of the hearing, I do not think that is the correct approach.

[31] In H (CA680/2011) v R, the Court of Appeal confirmed its earlier decision in R v Hughes,⁷ that a decision under s 107 of the Sentencing Act 2002 is a decision involving judicial evaluation whereas a decision under s 106 is discretionary.⁸ On appeal, therefore, the normal appellate principles as articulated in Austin, Nichols & Co Inc v Stichting Lodestar apply to an appeal against a decision under s 107 as to

whether the consequences of conviction are out of all proportion to the gravity of the offending. The Court observed: ⁹

... The proportionality test was characterised in Hughes not as a matter of discretion but as a matter of fact requiring judicial assessment. As such it was subject to normal appellate principles.

[32] I therefore proceed accordingly. In making my assessment, however, I think that it is appropriate that I recognise the particular experience of the District Court in

_{dealing on a daily basis with these types of domestic violence incidents.}

⁶ _{Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 at [16].}

⁷ _{R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.}

⁸ _{H (CA680/2011) v R [2012] NZCA 198 at [32]- [36].}

⁹ At [30].

[33] As the Judge noted, there are three steps involved in applying the s 107 test. The first step is to assess the gravity of the offence committed. That assessment takes into account aggravating and mitigating factors relating to the offending. The usual course, and the one I will take, is for the aggravating and mitigating factors relating to the offender to also be taken into account at this stage.

[34] Mr Krebs, for Mr Pio, did not challenge the Judge’s description of what had happened in this incident. As the Judge noted, it would appear that Mr Pio lost control and that his actions were more than a momentary response. In particular, Mr Pio appears to have pushed the complainant, with some force, two or three times. Having said that, Mr Krebs did submit that the Judge had overlooked relevant material, in particular Mr Pio’s own sentencing affidavit and the accompanying letters from his in-laws. In response, Mr Thornton submitted that the following observation by the Judge confirmed he had read that material:

I accept without reservation having read the material before me that in terms of your daily operation as a police officer your conduct has been exemplary and you are seen as somebody with a future within that organisation.

[35] At the hearing, I was not persuaded that this remark should be taken as referring to the letters from Mr Pio’s in-laws. On reflection, I am of the view that the Judge did read that material given that it accompanied Mr Pio’s sentencing affidavit, as did the material dealing with Mr Pio’s conduct as a police officer. Judge Rea is a very experienced District Court Judge.

[36] Having said that, I recognise for myself, and for the evaluation that I am required to make, the necessity of having regard to that material.

[37] In his affidavit Mr Pio explained how he was initially upset when he learnt his former partner had left their child with her parents to go out with her new partner. Mr Pio’s reaction was that if his former partner was not going to look after their child, then as her father he should do so. I do not know enough about the background of events to assess that issue. What is clear is that Mr Pio picked up his daughter and that, when he did so, it was understood between him and his in-laws, who were looking after her at the time, that he would look after her for the rest of the day.

[38] Mr Pio’s father-in-law, who wrote his letter of support some two or three days after the incident, confirmed that it was Mr Pio’s turn to have time with his daughter on the day in question. Speaking of Mr Pio’s former partner, his own daughter, he said:

However, my daughter decided that she wanted to take her that morning even after I told her not to as it was Setu’s time with his daughter and that she should just leave him. My daughter refused to and in a rage drove out to Setu’s residence which led to the incident where the police were called and he was arrested.

[39] Mr Pio’s father-in-law went on to observe that whilst he did not condone what happened, he certainly felt for Mr Pio and his frustration with the ever decreasing time he was allowed to have with his daughter, as well as the stress of returning from his uncle’s funeral in Samoa, looking after his own immediate family, and his police work. Mr Pio’s father-in-law commented, with insight: “It’s a lot to bear for a young man who only ever wanted to have his own family”.

[40] More generally, Mr Pio’s father-in-law confirmed that Mr Pio was a great dad, as well as a role model for both young Samoans and teenagers in general within the local community. He said Mr Pio was a person of good heart and character, high in integrity and honesty and he displayed those characteristics constantly: “I am proud to call him my grand-daughter’s ‘dad’”.

[41] The letter from Mr Pio’s mother-in-law was written closer to the time of the sentencing. She confirmed that she still regarded Mr Pio as her son-in-law, even though he and her daughter had been separated for two and a half years. She spoke highly of his general character and his work in the local community. As a father he was totally committed to the care and wellbeing of their grand-daughter. The custody arrangement that then existed was, she said, a more fair arrangement: previously the informal agreement had been totally in her daughter’s favour, which she and her husband thought was unfair as it was constantly being changed to suit her.

[42] Those comments – which I have no reason not to accept – throw considerable light on the gravity of the offending.

[43] The brief tug of war that the statement of facts referred to was occasioned by the arrival of Mr Pio’s ex-partner. On her own father’s assessment, she was very angry; he used the word “rage”. Mr Pio’s participation in that tug of war is not to be excused. Domestic violence is never an appropriate response to domestic conflict. That this tug of war involved a two year old child is also deplorable. But the push and shove that followed the complainant’s taking of the child has to be understood in terms of Mr Pio’s reasonable expectation that he was to look after his daughter for the day, and the way (based on her father’s assessment) the complainant would appear to have arrived at the scene and simply taken the little girl.

[44] As Judge Rea noted, domestic violence is a topic that is constantly before the public. There has also been a real focus by the police, and the community more generally, on how domestic violence is policed, how it is prosecuted and how the courts deal with it. Acknowledging all those factors, by my assessment this is nevertheless, in terms of Mr Pio’s culpability for what happened, a relatively minor one-off incident of domestic violence.

[45] I turn then to the particular consequences of a conviction for Mr Pio. As Judge Rea noted, those consequences are largely unknown to the courts. Those consequences will be more an outcome of the police’s assessment of the seriousness of the offending and its impact on Mr Pio’s suitability to continue in his role as a police officer, rather than a particular reaction to the fact of the conviction itself. Moreover, and as the Courts have acknowledged more generally, where consequences of convictions are considered by professional or disciplinary bodies, the assessment of those employment consequences in is many ways best left to those bodies rather than the Courts.

[46] However, I now have the benefit of additional material found in Mr Ansell’s affidavit. Mr Ansell’s assessment, based on his experience, is that a conviction will provide a far greater hurdle for Mr Pio to retain his employment with the police than would an admission of guilt.

[47] That conclusion is also reflected in another aspect of Mr Ansell’s affidavit.

After Mr Pio pleaded guilty, he remained on restricted duties. Following the entry of

his conviction, he was advised that it was no longer appropriate for him to continue performing those restricted duties. That tends to confirm the additional significance for Mr Pio of a conviction, as opposed to a guilty plea.

[48] Mr Pio is otherwise seen as having a very positive future in the police.

[49] When I consider these matters as a whole, and particularly on the basis of the new information contained in Mr Ansell’s affidavit, which upon further reflection is of greater significance than I indicated when I heard Mr Pio’s appeal, I am satisfied that the consequences of a conviction for Mr Pio are out of all proportion to the gravity of his offending.

[50] In making that assessment I note, as did Gendall J in Vaipo v Police, that despite the clear need in New Zealand to send a message that domestic violence is unacceptable:¹⁰

It will be that in some cases involving “family violence” a proper application of ss 106 and 107 and the principles contained in the Sentencing Act mandate a discharge without conviction.

This is one such case.¹¹

[51] In reaching this conclusion, I am mindful of the issues relating to diversion that have been raised. Whilst I accept that diversion might not have been easily obtained because the case involves domestic violence, I think the fact that Mr Pio is a policeman quite properly makes the whole question of diversion far more difficult.

[52] I am also mindful of the views of Mr Pio’s former partner, conveyed to the Court by a Hawkes Bay restorative justice facilitator. That advice noted that a conference for the parties had not been convened but that that question may be revisited once the complainant’s baby had been born. Importantly, the complainant is recorded has having stated that she did not believe an event like this would happen

_{again. At first, she had wanted Mr Pio punished but, on reflection, she thought that}

¹⁰ _{Vaipo v Police HC Auckland CRI-2011-404-141, 29 July 2011.}

¹¹ For other example see, for instance, Seymour v R [2010] NZCA 138, Martin v Police HC Wellington CRI-2009-485-82, 18 February 2010; Montgomery v Police HC Palmerston North CRI-2005-454-70, 11 April 2006.

would “ruin him and it will affect their daughter”. She would, therefore, be happy with a meaningful apology. Hopefully, she said, it would make Mr Pio even better out there in his job. By my assessment, those remarks show considerable insight.

[53] I therefore allow this appeal against the Judge’s decision to convict Mr Pio, quash Mr Pio’s conviction and discharge him without conviction.

[54] I am, however, quite satisfied that permanent suppression would not be appropriate. The statutory test of extreme hardship is not met. Moreover, I think it is important that sensitive and difficult questions such as those raised by this case, involving police officers, are dealt with openly and transparently.

[55] Mr Pio’s appeal against the Judge’s decision on name suppression is therefore

dismissed.

[56] I understood from the hearing that it is unlikely Mr Pio will further contest that matter. In case that is now not the position, however, I continue interim suppression until 5.00 pm, 3 September 2014. If no appeal against this decision has been filed by then, suppression will automatically lift.

“Clifford J”

Solicitors:

Gifford Devine, Hastings for appellant. Carlile Dowling, Napier for respondent.