JMT v R [2015] NZHC 1936 (14 August 2015)

Last Updated: 3 September 2015

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTS AND CHILD COMPLAINANTS PURSUANT TO S 204(1) AND S 202(D) CRIMINAL PROCEDURE ACT 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000121 [2015] NZHC 1936

BETWEEN	JMT Appellant
AND	THE QUEEN Respondent

_{CRI-2015-404-000122}

BETWEEN ST Appellant

AND THE QUEEN Respondent

Hearing:	20 July 2014
Appearances:	E J Burton for Appellants Z R Hamill for Respondents
Judgment:	14 August 2015

_{JUDGMENT OF WHATA J}

This judgment was delivered by Justice Whata on

14 August 2015 at 3.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Crown Law Office, Wellington

Copy to:

P Hamlin, Manukau City

JMT v THE QUEEN [2015] NZHC 1936 [14 August 2015]

[1] Mr and Mrs T pleaded guilty to six representative counts of assault on a child. They were convicted and sentenced to community detention and community work. They appeal to this Court against the refusal to discharge them without conviction.

[2] They claim:

(a) The District Court Judge failed to properly assess the overall gravity of the offending by omitting to take into account relevant circumstances.

(b) The Judge wrongly applied the law as to whether the consequences must be shown to be certain.

(c) The Judge did not make a proper assessment of the seriousness of the consequences of the conviction.

(d) The Judge treated the consideration of not concealing convictions from the licence authority or future employer as a policy which acted as a bar to giving full weight to the employment consequences or considering other consequences of a conviction.

(e) The proportionality test was not properly applied.

Background

[3] Ms Hamill for the Crown has helpfully provided a detailed narrative of the offending which I adopt. Mr T pleaded guilty to six representative charges of assault on a child based on the following facts:

(a) Between August 2012 and August 2013 M and his younger sibling were arguing over a matter. Mr T confronted M and hit him with the

stick end of a broom three or four times to the middle and side of his back. The broom broke during the assault.

(b) On another occasion during the same span of time, Mr T smacked M with a shoe. He also smacked M with a belt and a broom handle. As a result of these assaults, M was sore to be touched. M was also assaulted by Mr T to the palms of his hands with a wooden spoon, and Mr T smacked him around his body with his hands.

(c) Between April 2012 and August 2013, the appellants’ child D was between five and six years old. During that time Mr T smacked D with a shoe to the head and cheek area, and smacked her with a belt. On a number of occasions he hit her with a wooden spoon. Mr T also smacked her with his hands on other occasions; including when she was aged between four and five years.

(d) Between April 2012 and August 2013 Mr T smacked his daughter J to the head and cheek area with a shoe and also smacked her with a belt and a wooden spoon. He also smacked her with his hands with such force as to result in marks and bruises on her legs.

[4] Mrs T pleaded guilty to six representative charges of assault on a child based upon the following facts:

(a) On one occasion in August 2013 M had eaten some food which he did not share with his sisters, contrary to Mrs T’s instruction. She became angry and took off her shoes and struck M twice to the left side of his face with a sandal with a small heel. She then hit him a number of times to the top of his head, upper thigh and back with the sole and small heel area of the shoe. She then struck M with a belt and wooden spoon around his body. The assault left M sore to the head and with a large bruise in the shape of the shoe outline to the left side of his cheek.

(b) Between early and mid August 2013, Mrs T again became angry with M for not sharing an iPad with his siblings while visiting relatives. When they returned home she made M retrieve a belt and struck him three to five times to his back, and four to six times to his thighs. The assault left bruising in both areas.

(c) Between August 2012 and August 2013 Mrs T struck M to his body and the palms of his hands with a wooden spoon, a shoe, a vacuum cleaner pipe; and with a belt to his face, stomach and upper arm areas. She also struck him about his face with her hands.

(d) Between April 2012 and August 2013 Mrs T became angry with D after she made a mess with some food. She wrapped the buckle of a belt around her wrist and struck D with the belt numerous times to her forehead, stomach and the top of her legs. On other occasions she struck D with a belt to her face and back, and also struck her with a wooden spoon; and struck her around the face with her hands.

(e) Between early and mid August 2013, Mrs T struck J to her hand, legs and head with the heel of a shoe; and on other occasions with a shoe, belt or spoon. She also struck J about her arms using her hands.

[5] In sentencing Mr and Mrs T on these facts the Judge observed:

[12] ...In my view, that offending is indeed serious. It involves young children. It involves numerous occasions involving household items which were used as weapons. The children, as I have indicated, due to their age were inherently vulnerable and there has been a significant breach of trust.

[6] The following mitigating factors were identified:

(a) Both defendants attended rehabilitative courses both pre- and post- arrest to deal with attitudes and parenting skills.

(b) Both defendants understood the significance and seriousness of their offending.

[7] The Judge then assessed the consequences of conviction for each of the defendants. He acknowledges advice that Mr T was told by the Land Transport Authority that they were going to decline the renewal of a passenger endorsement for his taxi licence. While that did not happen the Judge accepted that it is a consequence that may well occur. The Judge also noted that Mr T did not have a clean prior record, namely two convictions for drink driving charges. The Judge also acknowledged the submission made that Mr T’s employment as a taxi driver was the main source of income for the family.

[8] The Judge then addressed the consequences for Mrs T noting that she has had to stop her job as a community care worker, working with teenagers. The Judge observes that she may wish to apply for a taxi driver’s licence as well.

[9] Having regard to the foregoing matters, the Judge accepted that there may be significant consequences in terms of employment for both Mr and Mrs T, but that those consequences are natural consequences of convictions for this type of offending and he expressed the view that those consequences would not be out of all proportion to the gravity of the offending.

[10] The Judge observed that the convictions would not be a total bar for obtaining a taxi licence and the renewal of a passenger endorsement. The difficulty for Mr T when combined with his convictions for drink driving were noted, but the Judge observes that Mr T has taken considerable steps to address the underlying issues which led to the offending and that that would be weighed and taken into account properly by the Land Transport Authority in terms of deciding whether or not the present offending would mean Mr T is no longer a fit and proper person. The Judge reaches a similar view in terms of Mrs T’s employment prospects, namely that there is nothing to show that the convictions would amount to an absolute bar to employment in the field of working with young children.

[11] In terms of sentence, the Judge observes that in most cases involving the present offending, starting points of imprisonment would be appropriate. But resolved that community detention and community work should be imposed. The Judge observed that Mr T’s offending was slightly worse, particularly involving the

incident where a broom handle was broken over the back of one of the children. A sentence of six months’ community detention and 150 hours community work was imposed.

[12] An additional discount was afforded to Mrs T on the basis that she has no prior convictions. The Judge imposed a sentence of 100 hours community work on her.

Appellate jurisdiction

[13] This is a first appeal against conviction and sentence under ss 229 and 244 of the Criminal Procedure Act 2011. The statutory threshold at s 232 for an appeal against conviction is that I must be satisfied that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred or, in any case, a miscarriage of justice has occurred for any reason. As to sentence, the threshold test is whether there is an error in the sentence imposed on conviction and a difference sentence should be imposed. But, as noted by Ms Hamill, an appeal against a decision not to discharge without conviction is an appeal against a substantive assessment to which s 107 of the Sentencing Act 2002 applies rather than exercise of discretion. Therefore, the normal appellate principles in Austin, Nichols

& Co Inc v Stichting Lodestar¹ apply to the s 107 analysis.²

Statutory frame

[14] Section 107 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.

[15] The most recent leading authority in terms of s 107 is Z v R.³ The Court of

Appeal stated:

[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

¹ _{Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].}

² _{See also Reng v NZ Police [2014] NZHC 2586.}

³ Z v R [2012] NZCA 599, [2013] NZAR 142 at [27].

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).

Grounds of Appeal

[16] The grounds for appeal are noted at [2]. It is convenient to address them in light of the frame provided by the Court in Z v R, namely:

(a) Step 1 – Assess the gravity of the offending, including aggravating and mitigating factors personal to the offender;

(b) Step 2 – Assess the direct and indirect consequences of conviction on the offender;

(c) Step 3 – Assess whether the consequences are out of all proportion to the offending.

Step 1 – aggravating and mitigating factors

[17] Ms Burton contends that the District Court failed to properly take into account the following matters which mitigated the initial gravity of the offending:

(a) The offending was carried out in the context of an inappropriate expression of parental discipline by parents under stress and drawing on their own traditional Samoan upbringing;

(b) There was no gratuitous violence; (c) There were no lasting injuries;

(d) The types of weapons in the offending were household items;

(e) The steps taken by Mr and Mrs T to address the reasons underlying their offending; and

(f) The successful rehabilitation that has taken place with the children.

Assessment

[18] I do not accept that Judge Moses failed to properly take these matters into account. Each of the matters raised featured in the judgment, except that at the time of the sentence full repatriation with the children had not yet occurred. I agree with Ms Hamill that the assessment undertaken by the Judge was thorough and the Judge made no obvious error in terms of that exercise.

[19] In any event, I broadly concur with the Judge’s substantive assessment of the seriousness of the offending. It involved multiple acts of physical violence to vulnerable young children over a lengthy period, representing a significant breach of parental responsibility. I agree that the matters identified by Ms Burton, including the cultural context of the offending are explicatory factors in terms of culpability. These were not acts of gratuitous abuse, but were intended to be acts of parental discipline within the cultural norms and experience of the offenders. This is particularly relevant to the T’s capacity to address the underlying causes of the offending, which they have done. The rehabilitative steps that have been taken by the T’s must be given significant mitigating weight. Nevertheless, the offending was and still is properly categorised as serious.

Step 2 – consequences

[20] In terms of the assessment of the consequences of conviction, Ms Burton submits that:

(a) The Judge was wrong to proceed on basis that the consequences “are the natural consequences of this type of convictions for this type of offending”;

(b) The Judge did not make a proper assessment of the seriousness of the specific consequences that were put before the Court;

(c) The Judge wrongly assumed that the consequences must be shown to be certain;

(d) The Judge incorrectly applied a test of whether a conviction would be a “total bar” to Mr T’s employment prospects or to Mrs T’s employment with young people; and that

(e) The Court erred in the weight given to the consideration that future employers were entitled to know about the charges - while it is a relevant consideration, it is not an absolute rule, citing Police v Roberts⁴ and Phipps v Police.⁵

(f) The proper test is simply whether there was a “real and appreciable risk” that such consequences would occur, citing Iosefa v Police⁶ and Harvey v Police.⁷

[21] As to the risk, Ms Burton emphasised that:

(a) Mr T has to apply for a “P endorsement”, which is a licence endorsement for carrying passengers commercially⁸ and that Mr T was initially declined a P endorsement given his outstanding and then pending assault charges.

(b) Mr T was only able to renew his P endorsement after counsel carried out negotiations with Auckland Transport.

(c) As to Mrs T, she was required to resign from her job after 15 years and she successfully interviewed for a similar position, but the offer

⁴ _{Police v Roberts (1990) 7 CRNZ 197 at 201.}

⁵ _{Phipps v Police [2015] NZHC 614.}

⁶ _{Iosefa v Police HC Christchurch CIV 2005-409-54, 21 April 2005.}

⁷ _{Harvey v Police HC Christchurch CRI 2007-409-000236, 13 February 2008.}

⁸ Land Transport (Driver Licensing) Rule 1999, r 26.

was rejected when the employer carried out a standard police check

_{and discovered the pending assault charges.}

Assessment

[22] The threshold test is whether there was a real and appreciable risk that the consequence might follow as stated by Randerson J in Isoefa:⁹

[34] I agree with the view expressed by Ronald Young J in BC v New Zealand Police HC WN CR12003-485-101 2 June 2004 at [8] that the use of the word "satisfied" in this provision does not imply an onus or standard of proof, particularly one falling upon the offender. I agree with Ronald Young J that "the proper course is for the Court to assess all of the relevant evidence and decide whether it is satisfied that the statutory test is made out". I agree with Mr Hampton that it is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient if the Court is satisfied there is a real and appreciable risk that such consequences would occur.

[23] But I do not accept that the Judge:

(a) Approached the assessment on the basis that the consequences must be shown to be certain, or

(b) Unduly deferred to a prospective employers need to know.

[24] Reading the judgment as a whole, I am satisfied that Judge Moses understood that Mr and Mrs T might not be able to obtain gainful employment in their chosen professions or areas of employment because of the convictions. The Judge states as much at [15]-[19] of the judgment. There is also nothing inherently erroneous in the comment that their convictions are not a total bar to future employment. The Judge was not expressing a threshold test. Rather, in my view, the Judge was simply observing that, as Mr T’s experience illustrates, the potential to obtain employment in those fields is not automatically lost to them. As to the Judge’s reference to the right of employers to know about the convictions, I do not discern that the Judge applied this factor as if were determinative. He simply added it to the mix of relevant

_{considerations, as is appropriate.}¹⁰

⁹ _{Iosefa v Police, above n 6 at [34].}

¹⁰ A(CA747/2010) v R [2010] NZCA 328 at [30].

[25] Problematically, the naturalness of the consequences for this type of offending appears to have assumed undue prominence in the proportionality assessment – refer [19] – [21] of the sentencing notes. The proper focal point is whether those consequences for Mr and or Mrs T are out of all proportion to the gravity of the offending. I propose therefore to examine this issue in case Judge Moses placed inordinate weight on the inevitability of the consequences of the convictions.

Step 3 - Out of all proportion?

[26] Ms Hamill submitted (in short) that:

(a) Given the serious and protracted nature of the offending against young children, involving the forceful use of weapons, the convictions were not out of all proportion with the offending.

(b) Cultural factors are relevant, but the offending departed from important community standards which reflect an intolerance of violence towards children.

(c) The prospect of unemployment is not as high as the appellants’ suggest, noting that Mr T’s has retained his licence even though convicted and referring to examples where the District Court has reversed a decision of the licensing authority to terminate a taxi licence based on the conviction of the taxi driver.¹¹

(d) The impact on Mrs T employment prospects in the field of youth counselling is a necessary corollary of the nature of the offending and may in any event follow with or without the convictions.

Assessment

[27] As I have said, the gravity of the offending is serious for reasons described by the Judge and by me at [19]. Indeed, given the serious breach of community

¹¹ Citing Bonica v Land Transport Safety DC Christchurch MA 237/00, 2 April 2001.

standards as relates to the care of vulnerable children, this type of offending could be expected to receive a conviction and a sentence of imprisonment to reflect the need for denunciation and deterrence, and to protect the public.¹²

[28] Balanced against this:

(a) Conviction is not inevitable for assault of a child: see H v R [2012] NZCA 198 and DC v R [2013] NZCA 255 where discharges without conviction were granted on appeal.

(b) There is a real and appreciable risk that both primary breadwinners will not be able to obtain permanent gainful employment if convicted. Mrs T’s inability to work in her specialist field provides sufficient evidence of this. Furthermore, Mr T is 56 and Mrs T is 48. Finding alternative long term employment opportunities outside of their training and experience will be difficult for them.

(c) The long term unemployment of both parents would have a very significant effect on the family as a whole. Their children are still young and dependent on them. To illustrate, Mrs T was the primary earner for the family and as a consequence of leaving her job and being unable to obtain further employment, the mortgage could not be paid and the family home had to be sold.

(d) The family have very recently started to rebuild their lives together after 18 months of separation (itself a traumatic effect on the family). The destabilising effect of unemployment on this process of rehabilitation and reconciliation is an additional important factor to be

_weighed.

¹² See for example Teilauea v R [2014] NZCA 391. I note however that the police prosecutor in submissions in relation a sentencing indication for Mr T considered, after a survey of authority, that a starting point of four to seven months was appropriate and that after discount for guilty plea a non-custodial sentence could be considered.

(e) As the Judge noted, both Mr and Mrs T have undertaken courses to address their offending. They understand the cause of their offending, including outdated cultural norms which they can readily address, and indeed have taken steps to address. I have also had the benefit of reading their affidavits. The family is embedded within an extended family and community committed to the support and protection of the children. In my view therefore, Mr and Mrs T present a very low risk (if any) of reoffending or ongoing danger to the public. This conclusion is further supported by the decision by CYFS to allow the children to return home.

(f) I have not seen any victim impact statements. But there is no suggestion that the children have any ongoing concerns.¹³

[29] Turning to the proportionality assessment, it must be recalled that the threshold test is whether the consequences of conviction are “out of all proportion” to the gravity of the offending. A disproportionate result is not enough. It must be grossly disproportionate. The central issue is whether the direct and indirect effect of the convictions as a whole is out of all proportion to the serious assaults of the children.

[30] Overall, I have come to the view that convictions of both Mr and Mrs T would likely have ongoing severe consequences for the T family. The T family, especially the children, have suffered greatly as a consequence of the offending, the (necessary) intervention by CYFS and the criminal process, including the loss of the family home. Convictions will significantly aggravate this harm if both of Mr and Mrs T cannot find work. While all of these consequences naturally follow from the offending, the children will inevitably bear, perversely in my view, the full brunt of them. In a context where Mr and Mrs T no longer present a risk of further offending and have demonstrably rehabilitated, the ongoing direct and indirect consequences of

_{convictions, especially for the children, raise the spectre of disproportionate effect.}

13. This is a case where independent representation of the children may have assisted in terms of the evaluation of the harm caused by the offending and the consequences of conviction for them.

[31] Ultimately however I am not satisfied that the consequences of the convictions are out of all proportion to the seriousness of the offending. The need for deterrence is a very significant consideration in this case given the nature and scale of the abuse. Conviction for such offending marks the community’s deep concern about it and in particular the need to deter others from doing it. While the severe personal cost to the T family is, in my view, disproportionate to their personal culpability, I cannot say it is out of all proportion to the offending, because the public utility and interest in convictions for offending of this nature is very high.

[32] Having reached this conclusion, I wish to make a few observations about my assessment of Mr and Mrs T in terms of their suitability for future employment. They both present a very low risk of reoffending and a minimal, if any risk, to the public. I say this because the causes of their offending, including in particular their outmoded cultural norms and experiences have been squarely addressed by them. For my part therefore, and while it is of course a matter for the Land Transport Authority, the convictions should not weigh heavily if at all for the purpose of their enquiry under

the Land Transport Act 1998.¹⁴

Outcome

[33] I have come to the view that the convictions would likely have an effect that is not out of all proportion to the gravity of the offending having regard to the circumstances of the offending and to the circumstances of the offenders as required by the Court of Appeal in R v Z. The appeal is therefore dismissed. I record however my view that given the minimal risk represented by Mr and Mrs T, these convictions should not weigh heavily, if at all, in any future assessment pursuant to the Land Transport Act.

Suppression

[34] I invite submissions within five working days on whether the names of the appellants and any identifying particulars of the children should be suppressed. I

_{note in H v R the Court of Appeal suppressed the details of the appellant but without}

¹⁴ Land Transport Act 1998, ss 30C – 30D require a “fit and proper person” assessment to be undertaken to renew a commercial passenger licence which takes into consideration any previous convictions.

reasons. Interim suppression orders will be imposed pending receipt of those submissions.¹⁵

Addendum

[35] After considering submissions from the parties, the name address, occupation or identifying particulars of the appellants and their children are suppressed pursuant to s 204(1) and s 202(d) of the Criminal Procedure Act 2011. This judgment has

_{been anonymised accordingly.}

¹⁵ H v R [2012] NZCA 198.