MacCabee-Bismark v Police [2016] NZHC 2749 (17 November 2016)

Last Updated: 10 February 2017

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2016-454-22 [2016] NZHC 2749

BETWEEN	ADELA MACCABEE-BISMARK Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	8 November 2016 (by AVL)
Counsel:	S N Hewson for appellant M J Blaschke for respondent
Judgment:	17 November 2016

_{RESERVED JUDGMENT OF DOBSON J}

[1] This is an appeal from a decision of the District Court to deal with the appellant other than by way of a discharge without conviction, after she had pleaded guilty to a charge of threatening to injure. On 28 April 2016, Judge Ross entered a conviction against the appellant in the Palmerston North District Court, and ordered

that she was to come up for sentence if called upon within six months.¹

[2] The appellant was represented when the matter was dealt with in the District Court. However, having been declined legal aid to pursue an appeal, she commenced one on her own behalf. When the appeal was called on 23 August 2016, Williams J adjourned the appeal to allow reconsideration of a grant of legal aid for the appellant to be represented. Mr Hewson has subsequently been retained and has

_{filed written submissions and appeared in support of them.}

¹ _{Police v Maccabee-Bismark [2016] NZDC 10199.}

MACCABEE-BISMARK v POLICE [2016] NZHC 2749 [17 November 2016]

[3] Williams J described the circumstances of the offending in the following terms:²

[4] On 8 December 2015, Ms Bismark was having what a lay person might call a nervous breakdown. Her father had died. She was close to him. Her life had not been going well. She had nowhere to stay and visited her brother and sister-in-law asking for accommodation. She was declined. The police summary says that Ms Bismark became verbally aggressive towards her brother and sister-in-law and approached the sister-in-law in a threatening manner. The police were called and an altercation ensued. Ms Bismark then spent six weeks in a mental health ward and has been, by her consent as I understand it, assisted by mental health authorities over the past six months or so. ...

[4] Counsel appearing for the appellant on sentencing did not seek a discharge without conviction. Certainly, Judge Ross did not record any consideration as to whether that would be an appropriate outcome. It is clear that I am substantially better informed about her personal circumstances, and in particular the nature and extent of her mental health issues, than Judge Ross was.

[5] Consideration of discharging a defendant without conviction is governed by ss 107 and 106 of the Sentencing Act 2002 (the Act). Section 107 provides:

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.

[6] If the test of disproportionality in s 107 is made out, then s 106 recognises the sentencing judge has a discretion as to whether discharge without conviction is the appropriate outcome. It is generally recognised that if the s 107 test is made out, then the discretion under s 106 will not readily be exercised against a discharge without conviction.

[7] The Court of Appeal has treated the s 107 test as involving a three-step process. First, the Court must assess the gravity of the offending, and in doing so take into account all aggravating and mitigating factors of both the offending and the

_offender.³ _{Secondly, the Court must assess the direct and indirect consequences of}

² _{Minute of Williams J, 23 August 2016.}

³ R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11], [22].

the conviction. Thirdly, the Court must determine whether those consequences are out of proportion with the gravity of the offending.

[8] In this case, the appellant’s conduct was inarguably at the least serious end of conduct that comes within the contemplation of a charge of threatening to injure. Expanding on Williams J’s sketch of the circumstances, the appellant’s brother and sister-in-law had been aware for some time of attempts to access mental health support for the appellant. Their calling the Police to the altercation was a cry for help that they did not intend to lead to criminal consequences for her. When the confrontation between the appellant and her sister-in-law occurred, her brother placed himself between the two of them and remained there until the Police arrived to limit the impact on his wife of his sister’s distress. No physical harm occurred.

[9] As a result of the incident, the appellant was made the subject of a compulsory treatment order under the Mental Health (Compulsory Treatment and Assessment) Act 1992, and spent six weeks as an in-patient in a mental health ward. That has been followed by on-going support from mental health services. The appellant’s mental health is described as having been stabilised, and Mr Hewson advised me that she has moved to Australia, in part to be near her mother.

[10] The appellant is 43 years old. She has no previous convictions, apart from driving with excess breath alcohol and refusing to accompany an enforcement officer, which appear to have arisen in the same time period when she was in a state of high mental distress. Although the District Court Judge was not aware of the outcome on those charges when dealing with the present one, I was advised that she was convicted, disqualified from driving and fined.

[11] Counsel were agreed that the most significant factor in the circumstances of the offending was the appellant’s very disturbed mental state. When added to the relatively innocuous nature of the altercation, her diminished responsibility for her conduct because of her mental disorder must place the offending at or even below the very minimum level that justifies the intervention of the criminal law. The medical reports available to me, but not provided to the District Court Judge, consistently identified a persecutory-type delusional disorder.

[12] The second consideration is an assessment of the direct and indirect consequences of the conviction. The appellant works as a teacher. Her continued registration is being investigated by the New Zealand Education Council (the Council), which is aware of the incident and is continuing to monitor her. It is not argued for the appellant that the existence of a conviction for threatening to injure would automatically bar her from working further in the teaching profession. Mr Hewson sensibly accepted that the circumstances of the charge and her mental health issues that led to it were a matter that the Council should know about.

[13] As with other bodies regulating professional vocations, the existence of such a conviction will ordinarily lead to an investigation of a person’s fitness to continue, rather than being an automatic disqualifier. Such decisions are better made on the substantive considerations going to the person’s fitness to continue teaching, rather than the formal fact of a conviction. It is clear, however, that the existence of a conviction for this type of offending constitutes a black mark that, in the generality of cases at least, gives rise to scrutiny by the regulating body that will ordinarily causes stress, and gives rise to the prospect of constraints on continued employment.

[14] Counsel were agreed that this was not a case in which the s 107 disproportionality analysis was driven by a conviction excluding the appellant from her chosen career. The issue of significance here is the state of her mental health, and the Council should be fully informed on that topic.

[15] Instead, Mr Hewson argued that, if the Police had been fully informed at the time they were called to the appellant’s brother’s home, and appreciated that the appellant’s brother and sister-in-law did not wish a conviction to follow from calling the Police, then a charge may not have ensued at all. Equally, if the charge had been laid but the District Court Judge was adequately informed, then it was a clear case where any criminality was de minimis.

[16] In addition, although the topic was not addressed in the mental health reports available, it is a fair assumption that the existence of a conviction will add a material measure of pressure to the appellant’s attempts to deal with her mental health issues.

Rehabilitative concerns justify an approach that that additional pressure should be avoided if grounds reasonably exist for doing so.

[17] Applying these considerations to the third stage of the s 107 inquiry, I am readily persuaded that the consequences of the conviction are out of all proportion with the gravity of the offending. The disproportionality arises in an unusual context. Most such cases evaluate the impediment a conviction would create for job aspirations, or restrictions on compelling reasons for travel. The disproportionality here, as Mr Blaschke suggested, is different, but nonetheless may be readily made out to the requisite standard.

[18] I allow the appeal. The conviction is quashed and instead I discharge the appellant without conviction.

Dobson J

Solicitors:

Ord Legal, Wellington for appellant

Crown Solicitor, Palmerston North for respondent