Cerda v Police [2018] NZHC 2574 (2 October 2018)

Last Updated: 16 October 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-235 [2018] NZHC 2574

BETWEEN	CAMILO PUGA CERDA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	1 October 2018
Appearances:	Appellant in person M Mortimer for Respondent
Judgment:	2 October 2018

JUDGMENT OF LANG J

_{[on appeal against refusal to grant discharge without conviction]}

This judgment was delivered by me on 2 October 2018 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date...............}

CERDA v NEW ZEALAND POLICE [2018] NZHC 2574 [2 October 2018]

[1] Mr Cerda pleaded guilty in the District Court to two charges of common assault.¹ One of these related to an assault on his wife and the other related to an assault on his wife’s current partner. On 12 July 2018, Judge Jelas declined to make an order under s 106 of the Sentencing Act 2002 (the Act) discharging him without conviction.² On the same date she sentenced Mr Cerda to 60 hours community work on both charges and made a protection order in favour of Mr Cerda’s wife.

[2] Mr Cerda appeals against the Judge’s decision declining to discharge him without conviction.

The offending

[3] The charges were laid after an incident that occurred on 3 December 2016. At about 11 pm on that date Mr Cerda went to the address occupied by his wife. He and his wife had terminated their relationship approximately three months earlier after seven years of marriage.

[4] Mr Cerda banged on the front door of the property and demanded to be let inside. When there was no response, he went to the rear of the property and climbed onto an upstairs balcony. By this means he gained access to the upstairs hallway area of the address through an unlocked door.

[5] Whilst in the hallway Mr Cerda encountered his wife, who had come to investigate noises she had heard coming from the area where Mr Cerda had entered the property. Mr Cerda then pushed his wife, causing her to fall backwards into the frame of a doorway. He then entered a bedroom, where he discovered his wife’s current partner. Mr Cerda punched this person four to six times in the face with his fist. When his wife endeavoured to intervene, Mr Cerda twisted her right arm backwards. She then ran out of the house to a neighbouring address where she alerted the police.

[6] By way of explanation Mr Cerda told the police he had become angry when he arrived at the address to talk to his wife and noticed another person’s car in the

¹ Crimes Act 1961, s 196.

² New Zealand Police v Cerda [2018] NZDC 14183.

driveway. He acknowledged he had climbed into the house and punched his wife’s new partner.

[7] As a result of the incident Mr Cerda’s wife sustained a sore right shoulder, whilst her new partner suffered swelling, bruising and bleeding to his forehead.

Relevant principles

[8] An application for discharge without conviction is governed by s 106 of the

Act, which relevantly provides as follows:

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.

...

[9] In applying s 106, the Court must follow the guidance contained in s 107 of the Act. This 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.

[10] When determining an application under s 106 the Court is required to consider three issues.³ It must first assess the gravity of the offending having regard to the facts of the particular case. This exercise is not restricted to the aggravating and mitigating factors of the offending itself. Factors personal to the offender may also be relevant.⁴

Next, the Court must identify the direct and indirect consequences of a conviction being entered. Thirdly, it must determine whether the consequences of a conviction would be out of all proportion to the gravity of the offending. There is a residual discretion not to grant a discharge but that will rarely be exercised where the statutory

_{criteria have been met.}

³ R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16] to [17].

4. Z (CA)447/2012 v R [2012] NZCA 599, [2013] NZAR 142 at [27]; DC (CA47/2013) v R [2013] NZCA 255 at [35].

[11] An appellate court is required to reach its own view as to whether the direct and indirect consequences are out of all proportion to the gravity of the offending. If it accepts the statutory threshold has been met, the court must determine whether the court at first instance erred in principle when exercising its discretion to grant or refuse to grant a discharge.⁵

The Judge’s decision

[12] After correctly setting out the legal requirements under s 106, the Judge summarised the facts giving rise to the charges. She then noted Mr Cerda had undertaken and completed a 20 week Man Alive course. This required a high degree of commitment and application to complete. She also noted Mr Cerda’s assertion in a supporting affidavit that he had learned a lot from these sessions and had been grateful for the opportunity to undertake them.

[13] The Judge then referred to the effects of the offending on the victims. Both victims were greatly shaken by the events that gave rise to the charges. They also feared Mr Cerda would endeavour to return to the property where the offending had taken place. They had decided to move to a new address, the whereabouts of which would not be known to Mr Cerda.

[14] The Judge recorded that at 27 years of age this was the first occasion on which Mr Cerda had appeared before the Court. Furthermore, he has not been charged with any further offences since the incident giving rise to the present charges.

[15] Although the Judge acknowledged Mr Cerda had accepted responsibility for his offending and had done what he could to mitigate the situation, she considered the overall gravity of the offending to be moderately serious. It involved unlawful entry into the victim’s address late at night and appeared to be fuelled by Mr Cerda’ inability to deal with the termination of his relationship with his wife as well as the fact that she had commenced a new relationship. The Judge also took into account that the

⁵ Edwards v R [2015] NZCA 583 at [6].

offending involved family violence in the home, an aggravating feature identified by the Court of Appeal in Solicitor-General v Hutchison.⁶

[16] Turning to the likely consequences of a conviction, the Judge noted that

Mr Cerda had been working for the last four years as an apprentice plumber. His employer had provided a letter in support confirming it had found Mr Cerda to be an honest and reliable employee. The employer considered the offending to be out of character for Mr Cerda, and noted that he was remorseful for his actions.

[17] The Judge also had access to an abstract from the New Zealand Plumbers, Drainlayers and Gasfitters Association website. This recorded that, in order to be registered as a member of the Association, Mr Cerda needed to meet the test of being a fit and proper person to be registered. Mr Cerda was concerned that, when considering his application for registration, the Association may conclude the convictions meant he was not a fit and proper person. That would have a significant detrimental effect on Mr Cerda’s chosen career. The Judge dealt with this issue as follows:⁷

[24] I accept that a consequence of a conviction will be that the board is most likely going to want to make further enquiries of you and may even wish to see my notes in respect of your present application. However, when looking closely at the factors set out in paragraph 5.5 of the fit and proper person policy, it would appear unlikely, having regard to all factors that your application should be declined. While it is not for me to make that determination but for the board [sic]. When I look at all factors considered in the round, it would be open for the board to conclude that this was a one-off incident in an emotionally charged situation where you were having extreme difficulties dealing with the cessation of your marriage.

[25] This offence did not occur until the age of 27. The fact there has been no criminal offending before or since, further supports that view. There is nothing about this offending which would affect the quality or your ability to carry out your work as a plumber and you would have the support of your employer as evidenced in the letter I have from them of 2 July 2018, where they value you as a reliable and honest employee and support your registration. They too, have formed the view that they see this offence to be out of character.

[26] Mr Masani [counsel for Mr Cerda] has pointed to the criteria set out in subparagraph (j) being how a member of the public who engages with you might view this offending. I consider that factor needs to be looked at in the context of a member of the public having all the facts, which I have. It would

⁶ Solicitor-General v Hutchison [2018] NZCA 162 at [27].

⁷ New Zealand Police v Cerda [2018] NZDC 14183.

be well open to a member of the public to also conclude that this was a one- off offence in a highly charged emotional situation that you were having difficulty coping with. But you have taken all steps that you can to ensure that if faced with such a situation again, you would respond quite differently.

[18] The Judge also noted that Mr Cerda was concerned that the convictions may affect his ability to travel to Bali, where the family of his new partner resides. They might also affect his ability to travel to Australia. The Judge noted, however, that

Mr Cerda had “no firm travel plans in place at present”.⁸ She therefore found these

consequences to be of a speculative nature rather than consequences that could be given weight. Furthermore, the Judge noted that the convictions might not prevent travel to Bali or Australia. Rather, they may require Mr Cerda to undertake a different process in order to be able to travel to those countries.

[19] These factors led the Judge to conclude that the consequences of conviction were those that would ordinarily flow from moderately serious offending of this type. She therefore did not find them to be disproportionate to the overall culpability of

Mr Cerda’s offending.

Grounds of appeal

[20] In a letter filed prior to the hearing Mr Cerda says he attended the Man Alive programme in the belief that this would result in him not receiving a conviction. He also emphasises that he has no previous convictions, and says the entry of convictions for the present offending is likely to significantly affect his ability to participate in his children’s school activities and church events. He also expresses concern regarding the effect the convictions are likely to have in any application he might make for New Zealand citizenship.

Decision

[21] As I have already indicated, I am required to reach my own conclusion regarding the issues to be determined under s 107.

⁸ At [27].

Gravity of offending

[22] The offending obviously had significant aggravating features. The most serious of these was the fact that it involved entry into a dwellinghouse late at night in circumstances where the occupants could be expected to be asleep. It also involved the infliction of violence on two separate victims. In the case of the male victim, it took the form of repeated blows to the head with a fist. All of this occurred in circumstances where children were present at the address and could be expected to hear what was going on.

[23] As the Judge found, the fact that the violence occurred within a domestic context is a further aggravating factor. Mr Cerda’s wife was entitled to live at her address in the company of her new partner free from any concern that Mr Cerda might enter the property surreptitiously at night and act in a violent fashion towards both her and her current partner.

[24] Mr Cerda is entitled to rely upon mitigating factors, including his lack of previous and subsequent convictions and the entry of guilty pleas. Guilty pleas were not, however, entered at the earliest opportunity because they were not entered until the day allocated for a defended trial. The fact that Mr Cerda completed the Man Alive programme obviously carries weight, but without more could not justify a discharge without conviction.

[25] Even taking these mitigating factors into account, however, the aggravating factors of the offending lead me to concur with the Judge’s assessment that the overall gravity of the offending was moderately serious.

The likely consequences of conviction

[26] Had the convictions been likely to jeopardise Mr Cerda’s career prospects, the position may have been different. Importantly, however, Mr Cerda’s present employer remains supportive of him. There is also little prospect his convictions will affect any application he might make for registration as a member of the New Zealand Plumbers, Drainlayers and Gasfitters Association. The offending was not connected in any way with Mr Cerda’s work as a plumber. Nor should it impact on his ability to deal with

members of the public who require his services in that capacity. Provided Mr Cerda meets the Association’s other requirements for registration it is difficult to see why he would be denied membership.

[27] Mr Cerda’s letter filed in support of his appeal did not repeat his concerns about the potential restrictions on his travel should the convictions be confirmed. This is understandable given the Judge’s comments regarding the issue of travel being speculative at best at this stage.

[28] The remaining arguments Mr Cerda has advanced on appeal do not carry great weight. The body tasked with considering any application by Mr Cerda for citizenship will no doubt take into account the circumstances in which the convictions were sustained. Without more, it is difficult to see why they would disqualify Mr Cerda from obtaining citizenship. Furthermore, and as Mr Mortimer for the respondent points out, Mr Cerda will in any event be required to disclose the fact that the Court has made a protection order against him as a result of the present charges. Any discharge without conviction would not affect that fact.

[29] Finally, it is difficult to see why the conviction would result in any religious or educational organisation automatically barring Mr Cerda from participating in its activities.

[30] My overall conclusion is therefore that the impact the convictions will have on

Mr Cerda’s career and lifestyle is likely to be low.

Conclusion

[31] The overall gravity of the offending is therefore moderately serious, whilst the likely consequences of convictions are low. That being the case, Mr Cerda cannot meet the statutory threshold of demonstrating that the likely consequences of the convictions will be out of all proportion to the overall gravity of the offending.

Result

_{[32] The appeal is dismissed.}

Lang J

Solicitors:

Crown Solicitor, Auckland

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