Oxenham v Police [2015] NZHC 2156 (7 September 2015)

Last Updated: 21 January 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2015-404-178 [2015] NZHC 2156

BETWEEN	WILLIAM OXENHAM Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	31 August 2015 (Supplementary submissions filed on 2 and 4 September 2015)
Counsel:	B Murphy for Appellant C McCool for Respondent
Judgment:	7 September 2015

_{JUDGMENT OF ANDREWS J}

This judgment was delivered by me on 7 September 2015 at 4.00pm pursuant to Rule

11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Auckland

Counsel:

_{B Murphy, Auckland}

OXENHAM v NEW ZEALAND POLICE [2015] NZHC 2156 [7 September 2015]

Introduction

[1] On 5 June 2015, Mr Oxenham was convicted and sentenced by Judge K Glubb in the District Court at Waitakere to one charge of male assaults female. He applied for a discharge without conviction, but that application was declined.¹

Mr Oxenham now appeals against that decision.

Relevant Facts

[2] Mr Oxenham is in his mid-fifties. At the time of his offending, he and the complainant had been in a relationship for around three-and-a-half years and were living together. In the early hours of the morning of 8 September 2014, Mr Oxenham returned home from a night spent drinking with friends. An argument developed between Mr Oxenham and the complainant around her use of his vehicle and money missing from his wallet.

[3] Mr Oxenham then pushed the complainant over and punched her in the leg several times with a closed fist. He then punched her in the back several times before punching her several times in the head. The complainant tried to cover her head with her arms. Mr Oxenham then grabbed her by the head and pulled her hair, tearing some of it out.

[4] The complainant suffered bruising and swelling to her face and both arms. She also had a cut on her face and lost some hair. As a result of the assault, she ended her relationship with Mr Oxenham, although she supported his application for discharge, and reported that he never previously assaulted her.

District Court Decision

[5] The Judge considered that Mr Oxenham’s offending was moderately serious and placed it around the middle of the spectrum for this kind of offending. His conclusion was based in particular on the fact that the offending occurred in a domestic setting. Additionally, the sustained nature of the violence and the fact that

_{it involved attacks to the head meant the offending could not be described as being at}

¹ Police v Oxenham [2015] NZDC 12189.

the lowest end. On the other hand the Judge accepted that Mr Oxenham had entered a guilty plea quickly and that he had completed a court-directed program addressing domestic violence. These factors, combined with Mr Oxenham’s good character somewhat reduced the seriousness of the offending.

[6] Against that, the only consequence before the Judge was the comment from Mr Oxenham’s then employer that “the path for advancement is still open for [Mr Oxenham] as he has always been a loyal and trustworthy employee. However, a criminal conviction will close off a lot of avenues for him and quite possibly force us to remove some of the areas of responsibility that he now holds.” The Judge rejected counsel’s submission that this meant Mr Oxenham’s employment was in jeopardy, although he accepted that it would harm his future employment.

[7] On this basis, the Judge concluded that the consequences of a conviction were not out of all proportion to the gravity of the offending, and refused a discharge without conviction. Mr Oxenham was sentenced to 100 hours’ community work and ordered to pay $500 in reparations for the emotional harm he had caused.

Application to adduce fresh evidence

[8] After Mr Oxenham’s conviction and sentence, the company that had employed him for some ten years was placed in receivership. Ms Murphy, Mr Oxenham’s counsel, has produced a letter from the Project Manager of the company which has, as I understand it, taken over the business of the former employer. The new employer states that if Mr Oxenham’s conviction stands, his employment will be terminated. Ms Murphy seeks to adduce this letter in support of Mr Oxenham’s appeal.

[9] The general principle for adducing new evidence on appeal is that new evidence should only be admitted if it could not have reasonably been produced at trial.² On the other hand, it has been noted that the failure to act with diligence will

_{not justify excluding evidence when this will result in a miscarriage of justice.}³

² _{R v Bain [2003] NZCA 294; [2004] 1 NZLR 638 (CA) at [22]- [27].}

³ At [26]-[27].

[10] In the present case, the fresh evidence shows that the situation for Mr Oxenham is fundamentally different from that which the Judge considered. In such a case, failure to consider the true situation would not only be irrational, but also lead to a clear miscarriage of justice. I therefore give leave for this evidence to be adduced in support of the appeal.

Appeal Submissions

[11] Ms Murphy referred in particular to Mr Oxenham’s change in employment circumstances, which were not considered by the Judge. She submitted that the consequences of Mr Oxenham’s conviction are more serious than the Judge considered, and there is a real risk that he will lose his job and have difficulty finding alternative employment. As a result, the appellant submits that the consequences are seriously disproportionate to the offending.

[12] For the respondent, Ms McCool submitted that the letter from Mr Oxenham’s new employer should make no difference to the outcome. She submitted that Mr Oxenham’s offending remains moderately serious and that the risks to Mr Oxenham’s employment and the difficulties he will face obtaining employment in the future are not out of all proportion to the offending.

[13] At my request, counsel filed supplementary submissions as to the availability of a discharge without conviction in the context of moderately serious domestic violence cases. I am grateful to Ms Murphy and Ms McCool for the detailed and helpful submissions they have prepared, at short notice.

Approach to Appeal

[14] Section 106 of the Sentencing Act 2002 grants the court a discretion to discharge an offender without conviction. This discretion is subject to the test in s 107 being satisfied, which is that the court must be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. When the s 107 test is met, the court then has a discretionary power to discharge under s 106, however when the test is satisfied this will usually result in a discharge.

[15] An appeal against a refusal of discharge is by way of rehearing with the court hearing the appeal making a new assessment in accordance with its own opinion.⁴

The Court of Appeal in R v Hughes concluded that as the s 107 test was not discretionary, an appeal against the court’s decision on this matter was not an appeal against discretion.⁵ An appeal against discretion would only arise if the court held that s 107 was satisfied but nonetheless chose not to discharge the offender.

[16] The approach to be followed in applying the s 107 test is set out in Z v R

where the Court of Appeal held:⁶

...[w]hen 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...

[17] What this approach requires is that the court must first determine the seriousness of the offense, having regard to both the aggravating and mitigating factors of the offense and also to those factors which apply to the offender. The Court should then determine the direct and indirect consequences of conviction and determine if they are out of all proportion with the offending.

[18] It is not unusual for persons requesting discharge without conviction to do so on the basis that it will make it harder for them to find employment. In Amstad v Police Whata J held that the relatively serious offending in that case (including the taking of a motor vehicle and drunk driving) was out of all proportion to the consequence that Mr Amstad would be completely barred from fulfilling his aspirations and joining the army.⁷

[19] Similarly, in R v Tahitahi, Allan J considered that the difficulty that

Ms Tahitahi would have in finding work was out of all proportion to her offending,⁸

_{given particularly the fact that she had been on a benefit seeking work for twelve}

⁴ _{R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 at [11].}

⁵ _{At [11].}

⁶ _{Z v R [2012] NZCA 599, [2013] NZAR 142 at [27]}

⁷ _{Amstad v Police HC Auckland CRI-2011-404-161, 6 September 2011 at 28.}

⁸ Tahitahi v Police [2012] NZHC 663 at [31].

months.⁹ The offending involved throwing a rock at her ex-partner’s car window and breaking it as he drove out of the driveway.¹⁰ In that judgment Allan J accepted that the risk of difficulty securing employment was a general consequence of a criminal conviction, but held that it was still relevant. In doing so he relied on the

decision in Nash v Police where Mallon J observed that general consequences, including effects on employment, insurance and immigration, could all be weighed in the balance.¹¹

[20] It is relevant to note that ultimately the consequences that a conviction will have on Mr Oxenham’s employment depends on the weight his employer places on the conviction.¹² As such, the Court should be hesitant to usurp the role of a professional body or a particular employer to decide the significance of a particular conviction.

[21] As recorded earlier, I raised with counsel at the hearing an issue as to whether the particular context of domestic violence offending required a particular approach to an application or discharge without conviction, on the grounds that the extent of the problem of domestic violence in New Zealand makes it necessary for the courts to send a clear message that it will not be condoned.

[22] In this respect, I note the comment of Gendall J in Vaipo v Police that:¹³

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. But there cannot be (and there is not) any policy or “usual” outcome in those District Courts which operate in a specialised way to hear and determine offences involving family violence. They must still apply the law as enacted by Parliament and bring an individual and separate judgment to each sentencing exercise that is appropriate to the particular circumstances of each offender and offence.

Similar comments have been made in other cases where discharge has been sought for offending coming within the domestic violence context.¹⁴

⁹ _{At [23].}

¹⁰ _{At [4].}

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

¹² See Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March

_{2011 at [14].}

¹³ _{Vaipo v Police HC Auckland CRI 2011-404-141, 29 July 2011.}

¹⁴ See, for example, Cook v Police [2014] NZHC 282 and Pio v Police [2014] NZHC 2047.

Analysis

[23] It is necessary to consider afresh the seriousness of the offending, the likely consequences for Mr Oxenham, and whether those consequences are out of all proportion. Finally, it is necessary to consider whether a discharge should be granted.

Seriousness of the Offending

[24] Judge Glubb was clearly correct to conclude that this offending was moderately serious. It involved a determined and unprovoked domestic assault which involved multiple punches to the head and hair pulling. While the victim was not injured, the trauma she suffered is clear. I accept that the offending was moderately serious.

[25] I also accept that the offending is out of character for Mr Oxenham, who is undoubtedly otherwise a person of good character. In reaching this determination I consider (as did the Judge) that his historic previous convictions should be given no weight. It is particularly relevant that Mr Oxenham himself reported the matter to the Police, he pleaded guilty at a very early stage, he self-referred to the “Man Alive” programme addressing domestic violence, and he has completed that programme. He has paid the reparation ordered, and he has completed (as at the date of the appeal hearing) all but 12 of the 100 hours of community work ordered.

[26] All of these matters are relevant to the assessment of the gravity of Mr Oxenham’s offending. The offending itself was moderately serious, but Mr Oxenham’s response shows remorse, an appreciation of the need to address his offending, and includes confirmation that he has taken the proper steps. These

matters distinguish this case from many others in which a discharge is sought,¹⁵ and

_{mitigate the need for the “clear message” of a conviction.}

¹⁵ See, for example, Booth v Police HC Invercargill CRI 2010-425-21, 1 September 2010 (offending involved a knife, appellant initially lied and blamed the victim); Johnston v Police HC Auckland CRI 2010-404-227, 15 September 2010 (appellant continued to deny offending); Vaipo v Police, above n 13 (significant acts of violence against two victims); and Tuumaga v Police [2015] NZHC 1695 (there was a history of callouts for violence).

Consequences of Offending

[27] The consequences which Mr Oxenham now faces are substantially different from those which the Judge considered. Whereas previously he faced demotion (or lack of further advancement), there is now a clear statement that he will be out of work as a result of a conviction. His employment is conditional on the outcome of this appeal and if convicted he will be unemployed. Given his age, it is not difficult to imagine he will have difficulty finding work. This is likely to have a significant impact on him as he approaches retirement.

[28] I therefore accept that the likely consequences of conviction are moderately serious.

Proportionality

[29] Ultimately the critical question is whether these consequences are out of all proportion to the offending. On the one hand, the seriousness of Mr Oxenham’s offending should not be understated. This was a significant domestic assault, and that type of offending is all too common in this country.

[30] However, as noted earlier, the offending was also clearly out of character and Mr Oxenham has taken significant steps to address it. Despite this, he faces a very real risk that he will not be able to find employment in the future, and given his age this risk is particularly serious. I accept that these consequences are out of all proportion to the offending.

Should the appellant be discharged without conviction?

[31] The final question is whether the Court’s discretion under s 106 should be exercised in favour of discharging Mr Oxenham without conviction.

[32] I am satisfied that in the particular circumstances of the offending in this case, and of this offender, as set out in this judgment, it is appropriate to exercise the Court’s discretion to discharge Mr Oxenham without conviction.

Result

[33] The appeal against sentence is allowed. The conviction and sentence are quashed. Mr Oxenham is discharged without conviction pursuant to s 106 of the

_{Sentencing Act.}

Andrews J