Harrison v Police [2023] NZHC 945 (15 December 2023)

Last Updated: 10 May 2024

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000503 [2023] NZHC 945

BETWEEN	INGRID HENDRIKA HARRISON Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	11 December 2023
Appearances:	M Taylor-Cyphers on behalf of G Burns for Appellant R Va’ai for Respondent
Judgment:	15 December 2023

JUDGMENT OF VENNING J

Appeal against conviction and refusal of s 106 discharge

This judgment was delivered by me on 15 December 2023 at 11.00 am.

Registrar/Deputy Registrar

Date...............

Solicitors/Counsel:

Meredith Connell, Auckland

G Burns/M Taylor-Cyphers, Auckland

HARRISON v NEW ZEALAND POLICE [2023] NZHC 945 [15 December 2023]

• [1] Following a defended Judge-alone trial before Judge J M Jelaš in the District Court at Waitakere on 5 July 2022 Ingrid Harrison was found guilty of a charge of intentionally impeding her husband, Mr Dellow’s normal breathing by applying pressure to his throat.¹ She was also found guilty of speaking threateningly.

• [2] The Judge declined Ms Harrison’s application for a discharge without conviction on 15 December 2022.² Later, on 7 September 2023, Judge Jelaš sentenced Ms Harrison to six months’ community detention and 12 months’ supervision.³ At that time Judge Jelaš declined a further request that she make a protection order against Ms Harrison.

• [3] Ms Harrison appeals against conviction and also against the Judge’s refusal to discharge her without conviction.

Background facts to the offending

• [4] I take the facts as found by the Judge in her reasons for convicting Ms Harrison as follows:⁴
  • [8] On the afternoon of 14 February 2022, Ms Harrison was discharged from North Shore Hospital. She had been admitted to hospital on Saturday 12 February 2022 suffering dizziness, shortness of breath and chest pains. Mr Dellow picked Ms Harrison up from the hospital and drove her to their family home.

• [9] Shortly after dropping Ms Harrison home, Mr Dellow left the home and returned to his workplace. After Mr Dellow left Ms Harrison moved the motor vehicle, that she considers to be her own and predominantly drives, into the driveway of the family home.

• [10] At this time, Mr Dellow was primarily using an electric vehicle that belonged to his mother.

• [11] Ms Harrison stated in her evidence that she had previously told Mr Dellow that she did not want the electric car parked in the driveway. Ms Harrison considered the vehicle to be an unwelcomed reminder of Mr Dellow's mother.

¹ New Zealand Police v Harrison [2022] NZDC 13158.

² New Zealand Police v Harrison [2022] NZDC 24890.

³ New Zealand Police v Harrison [2023] NZDC 20017.

⁴ New Zealand Police v Harrison, above n 1 (footnotes omitted).

• [12] Mr Dellow returned home at approximately 8 pm. He was unable to park the electric vehicle in the driveway for charging because Ms Harrison's vehicle was parked in the driveway.

• [13] When Mr Dellow entered the family home, he sought out Ms Harrison in order to ask her to move her vehicle.

• [14] Ms Harrison was in the shower when Mr Dellow arrived home.

• [15] Ms Harrison had hidden the keys to her car before taking a shower.

• [16] Ms Harrison refused to tell Mr Dellow where the keys were hidden.

• [17] There was an altercation in the shower area over Ms Harrison's car and the whereabouts of the keys. Mr Dellow acknowledged in his evidence that he "feigned towards Ms Harrison" with his arm. This gesture was designed to cause Ms Harrison to believe Mr Dellow was going to hit her. Mr Dellow stated he did not intend to, nor did he, hit Ms Harrison. Ms Harrison stated that when Mr Dellow came into the bathroom looking for the car keys, he tried to hit her, but she was quick enough to retreat behind the shower door.

• [18] After Mr Dellow left the bathroom, he began looking for the keys to Ms Harrison's car. In that process he found some stickers in [Ms] Harrison's [under her mattress] bed. The stickers were not produced at the hearing, but I infer the messaging on the stickers were consistent with Ms Harrison's "pro- choice" position in respect of COVID-19 restrictions and vaccinations. Mr Dellow described the stickers as "COVID conspiracy stickers".

• [19] Mr Dellow accepts he took Ms Harrison's stickers in a tit-for-tat act of retaliation against Ms Harrison for not disclosing where her car keys were.

• [20] Mr Dellow then left the family home in his electric car.

• [21] After Mr Dellow left the home, Ms Harrison called Mr Dellow by phone more than once. During those phone calls she told Mr Dellow not to do anything stupid, and that he would be better off without her. As a result of these calls and messages., Mr Dellow attempted to contact an emergency mental health crisis team member.

• [22] When Mr Dellow returned home, but before he entered the house, the mental health crisis team returned his call. He spoke with the team outside the home for approximately 20 minutes. The advice he received from the team was to contact the police if further assistance was required.

• [23] Very soon after entering the family home, Mr Dellow noticed his bicycle was missing from the garage. The garage is adjacent to the front door of the house. Mr Dellow acknowledged he attaches a lot of value to his bicycle.

• [24] Ms Harrison accepted she moved the bicycle from the garage, carrying it up two flights of stairs and placing it on the balcony outside her bedroom on the third level of the house.

• [25] Ms Harrison explained that she moved Mr Dellow's bicycle because Mr Dellow was trying to get her to move her vehicle. This was essentially an

act of retaliation by Ms Harrison against Mr Dellow. As Mr Dellow was asking her to move her vehicle, she decided to "displace something he values so he could see how that felt".

• [26] Before going upstairs into the living areas of the home, Mr Dellow turned on the recording function on his phone.

• [27] When Mr Dellow entered the bedroom used by Ms Harrison, he demanded to know where his bicycle was.

• [28] Ms Harrison stated in her evidence that when confronted by Mr Dellow in her bedroom, she demanded the return of her stickers. She also told him his bike was safe and on the balcony. The exact order in which these matters were said was unclear to me.

• [29] Mr Dellow went outside onto the balcony to retrieve his bike and bring it inside the house.

• [30] Both parties were arguing in loud voices which the neighbours could hear.

• [31] Ms Harrison blocked Mr Dellow who had hold of his bike, telling him that he could not "have his bike back yet as she wanted her stickers back". At some point Ms Harrison threatened to throw Mr Dellow's bike off the balcony.

• [32] Ms Harrison put her hands on Mr Dellow's bike in order to prevent him moving it.

• [33] Both fought over the bicycle in using push/pulling type motions. Both were holding on to the cross bar of the bike that runs between the bike seat and the handlebars.

• [34] Mr Dellow hit Ms Harrison's hands/arms several times in an attempt to get her to release her hold on the bike.

• [35] The two fought over the bike, moving around the bedroom in the process.

• [36] Eventually the two fell on the ground. Ms Harrison landed on her back. Mr Dellow fell on top of her. Mr Dellow fell so his back was against Ms Harrison's front and he was facing upwards. Ms Harrison then placed her legs around Mr Dellow and her arm across his neck area.

• [37] Ms Harrison and Mr [Dellow’s] daughter was present while this was taking place.

• [38] Mr Dellow called out to his daughter to get help from the neighbours and to call the police.

• [39] The neighbours heard Ms Harrison shout out that if the police were called that she would "kill you". It is accepted that Ms Harrison's statement was directed at Mr Dellow.

• [40] Shortly after the daughter ran to the neighbours for help, Ms Harrison released her grip on Mr Dellow and the altercation ended.
  • [41] The police were called by the neighbours.

• [42] Mr Dellow and his daughter went to the neighbour's house after the incident ended.

• [43] The police arrived and spoke to Ms Harrison who was located lying on her bed with her son. She told the police that she had been acting in defence of herself.

Procedural matters

• [5] Having found the charges proved on 5 July 2022 the Judge remanded Ms Harrison for sentencing. Ms Harrison’s counsel noted that an application for discharge without conviction was to be pursued. For those purposes, a specialist report from a clinical psychologist, Ms Raethel, dated 29 November 2022 was prepared. As noted, that application for discharge was dismissed on 15 December 2022. In advance of the sentencing hearing, and in light of Ms Harrison’s further disclosures to the probation officer during preparation of the first Provision of Advice (PAC) report of 2 March 2023, a further psychological report was obtained from Ms Bramhall on 12 June 2023. The Judge then proceeded to sentence Ms Harrison on 7 September 2023.⁵

• [6] As noted, Ms Harrison appeals against her conviction and also against the Judge’s refusal to discharge her without conviction under s 106 of the Sentencing Act 2002.

Fresh evidence

• [7] Ms Harrison seeks to rely on the further psychological reports from Anne Raethel and Sarah Bramhall to support both the appeal against conviction and also the appeal against refusal of the discharge without conviction. Applying the principles from Lundy v R,⁶ Ms Taylor-Cyphers seeks their admission on the basis that the evidence is sufficiently fresh and credible, and even if not so, it meets the overriding criterion of serving the interests of justice.⁷

⁵ New Zealand Police v Harrison, above n 3.

⁶ Lundy v R [2014] 2 NZLR 273.

7. Ms Raethel’s report was before the Judge on the s 106 application, but Ms Bramhall’s was not. Neither was before the Judge at the hearing on 5 July 2022.

• [8] Ms Va’ai acknowledged the Court may consider the evidence credible and advised that the Police do not oppose the admission of the reports for the purpose of the s 106 appeal, but oppose their admission in relation to the appeal against conviction.

• [9] The evidence is not fresh. It is based on Ms Harrison’s self-reporting. It could have been obtained prior to trial. As a form of expert evidence it is, however, credible. An important consideration as to whether the Court should accept it as admissible is its cogency. Ultimately, the Court must consider whether the interests of justice support its admission.

• [10] Given the Crown’s position on the new evidence the Court is prepared to admit both reports for the purposes of the s 106 appeal. However, I do not consider the evidence is admissible in relation to the appeal against conviction. I note the caution expressed by Tipping J in R v Bain, namely that:⁸

The public interest in preserving the finality of jury verdicts means that those accused of crimes must put up their best case at trial and must do so after diligent preparation. If that were not so, new trials could routinely be obtained on the basis that further evidence was now available. On the other hand the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been. The stronger the further evidence is from the appellant's point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.

• [11] For the reasons that follow, I do not consider the evidence to be sufficiently cogent or strong enough to support its admission for the purposes of the conviction appeal.

Appeal against conviction – relevance of the psychologist’s evidence

• [12] Ms Taylor-Cyphers submitted the psychologist’s evidence was relevant to the issue of self-defence. Ms Harrison appeals against conviction on the basis the Judge was wrong, both as a matter of law and on the facts in finding that she was not acting in self-defence.

⁸ R v Bain [2003] NZCA 294; [2004] 1 NZLR 638 (CA) at [22].

• [13] Three issues arise in relation to self-defence:

(a) What were the circumstances the defendant believed them to be?

(b) In those circumstances (as the defendant believed them to be) was the defendant acting in the defence of herself?

(c) Was the force used reasonable in the circumstances as the defendant believed them to be?

• [14] Ms Taylor-Cyphers submitted the psychologists’ evidence was relevant to consideration of the second element. She noted that Ms Bramhall’s report confirmed Ms Harrison suffered from PTSD. Ms Raethel’s report concluded she suffered from Battered Woman’s Syndrome.

• [15] Ms Taylor-Cyphers submitted that if the Judge had been aware of those diagnoses, it would have affected her assessment of the circumstances as Ms Harrison believed them to be and her response to the situation that she was placed in on the night of the incident. For example, counsel noted Ms Bramhall concluded:

The index offending appears to have been a culmination of several antecedents including self-reported on-going physical, psychological and sexual abuse, lack of support and vulnerable physical health following her discharge from hospital. Her poor decision making in this context was further impacted by her state of distress at that time (likely exacerbated by PTSD and battered woman’s syndrome) and difficulties regulating her emotions.

• [16] However, against that, it is important to consider the context of both the particular incident which led to the charges and the source of Ms Harrison’s PTSD. The PTSD appears to have been caused by a very serious assault that Ms Harrison described being subjected to when she was 15 years old. Obviously the present incident is quite some distance removed from such circumstances. At the time of the present incident Ms Harrison was in her early forties and had been married to Mr Dellow for approximately 18 years and had two children with him.

• [17] Further, the Judge was aware of the background to the parties’ relationship, including the past incidents of violence between them. Ms Harrison had given

evidence that Mr Dellow had been physically aggressive towards her during past incidents. Mr Dellow had given evidence of Ms Harrison’s violence towards him and had accepted that he had shoved her in the past and hit her arm. That evidence was before the Judge when she was considering what was in Ms Harrison’s mind and the circumstances as she believed them to be during the incident when, as she admitted, she put a judo hold on Mr Dellow’s neck.

• [18] Also, the Judge had evidence that Ms Harrison had recently been discharged from hospital and that Mr Dellow had, immediately before this incident, contacted the Mental Health Team because of his concern for her. While there was no evidence of a formal diagnosis before the Judge, she was aware of Ms Harrison’s issues with mental health and her vulnerability at the time of the incident.

• [19] Next, as Ms Va’ai submitted, under cross-examination Ms Harrison accepted she threatened Mr Dellow if help was called but then decided to let him go. Ms Harrison’s own evidence demonstrated that she had an understanding not only of the situation she was in but also of her level of control over the situation.

• [20] It is particularly relevant that during the course of this incident Mr Dellow was calling out for the Police or help and in response Ms Harrison threatened him. That does not support the submission that the fact Ms Harrison “likely meets the diagnostic criteria for PTSD” would have been critical to the Judge’s consideration of whether she was acting in self-defence. As noted, the Judge was generally aware of her personal circumstances and Ms Harrison was in control of the situation at the time.

• [21] For the foregoing reasons I do not consider the evidence regarding the diagnosis of Ms Harrison’s PTSD and Battered Woman’s Syndrome to be sufficiently cogent to be admissible on the conviction appeal. Applying the test from Bain,⁹ the proposed further evidence is not particularly strong. It would not have made a difference to the outcome. I am satisfied there is no risk of a miscarriage of justice if it is not admitted.

⁹ R v Bain, above n 8.

Analysis – conviction appeal

• [22] In the written submissions for the appeal, counsel submits that the Judge erred in law when she said:¹⁰

I must then consider if the police have proved beyond reasonable doubt that Ms. Harrison was not acting in defence of herself when she used force upon Mr Dellow.

• [23] Counsel submits the Judge failed to take into account the circumstances as Ms Harrison believed them to be. That was compounded, in counsel’s submission, by the failure to fully set out the circumstances, particularly that Ms Harrison’s evidence was that she applied a headlock because Mr Dellow was punching her.

• [24] Further, while the Judge went on to note that in any event, in her assessment, the force used was disproportionate, counsel submits that no reasons were articulated for that finding.

• [25] I do not accept the submission the Judge misdirected herself as to the elements of self-defence. When considering self-defence the Judge correctly directed herself as follows:¹¹

[44] Some applications of force upon another can be lawful if done for the purpose of defending one's self, or in some circumstances, in the defence of another. In order for self-defence to apply, I must consider the circumstances as Ms Harrison believed them to be. I must then consider if the police have proved beyond reasonable doubt that Ms Harrison was not acting in defence of herself when she used force upon Mr Dellow. Finally, if I get to that point, I must consider whether the Crown has proved beyond reasonable doubt that the force Ms Harrison used was unreasonable, having regard to the circumstances as Ms Harrison believed them to be.

• [26] Although the Judge did not expressly refer to it later, I accept the Judge was aware of the need to consider the matter from Ms Harrison’s point of view of the circumstances when she concluded:¹²
  • [46] Having heard all the evidence I have concluded that Ms Harrison's acts were not in defence of herself. I have reached the view that the police

¹⁰ New Zealand Police v Harrison, above n 1, at [44].

¹¹ New Zealand Police v Harrison, above n 1, (emphasis added).

¹² New Zealand Police v Harrison, above n 1.

have proved that Ms Harrison's act of applying pressure to Mr Dellow's neck area was not done by Ms Harrison for the purposes of defending herself.

• [47] I consider the evidence clearly demonstrates that Ms Harrison was as much of an antagonist and an aggressor as Mr Dellow on this evening. There has been reference in the evidence to the audio record that was made by Mr Dellow. That audio record has not been produced but it has been referred to on multiple occasions during the evidence. It has been referred to, without challenge, as a recording of Ms Harrison's heightened state of aggression.

• [48] I consider Ms Harrison's application of force upon Mr Dellow to be more motivated by a desire by Ms Harrison to control the situation and bring it to an end. Her actions were not undertaken for the purpose of protecting herself because she felt at grave personal risk as she has described.

• [49] Mr Dellow accepted the possibility that Ms Harrison may have felt threatened. However, I do not consider that concession to be determinative of the issue. As stated, Ms Harrison's own actions were those of an equal protagonist and aggressor.

• [50] A further factor I have considered is that if Ms Harrison was acting in defence of herself because she feared for her wellbeing and safety, she would not have uttered the threat against Mr Dellow's life when Mr Dellow requested assistance from the police (see paragraphs [36]-[40] above). In my view, Ms Harrison's threat to Mr Dellow's life is highly inconsistent with Ms Harrison's narrative that, at that point in time, she was acting in defence of herself from Mr Dellow.

• [27] As the Judge noted, it is relevant that at the time Ms Harrison says she was trying to keep herself safe by placing the judo hold around Mr Dellow’s neck, she said that if her daughter went to the neighbours or called the Police she would kill Mr Dellow. I accept the Police submission that that threat of further violence supports the Judge’s conclusion that Ms Harrison’s motive for strangling Mr Dellow was not self- defence. Ms Harrison could have used that opportunity to request help from others. By her threat she sought to stop others intervening. Ms Harrison was in a position to allow others to help but did not. Rather she threatened Mr Dellow and persisted in the assault on him in the presence of one of the children.

• [28] Further, although the Judge did not articulate her reasons, there was sufficient evidence before the Court for her to determine that Ms Harrison’s use of force in the circumstances was excessive, albeit the force used may only have been sustained for a short time. Ms Harrison accepted that she is experienced at judo and that she had her arm (elbow) around Mr Dellow’s neck. Mr Dellow’s evidence was that while Ms Harrison had her arm around his neck he could not breathe for a few seconds.
• [29] The appeal against conviction is dismissed.

Appeal against s 106 decision

• [30] In dismissing the application for discharge without conviction the Judge concluded that the gravity of the offending fell in the moderate range, and that the consequences of conviction were in part speculative and did not outweigh the moderate gravity of the offending.¹³

• [31] Ms Taylor-Cyphers submitted that while the Judge accepted the initial assessment of the offending as moderately serious ought to be reduced for personal circumstances she fell into error by ultimately concluding it still fell within the moderate range. Ms Taylor-Cyphers noted the Judge did not expressly refer to Ms Harrison’s good character and lack of previous convictions.

• [32] Next, it was submitted on Ms Harrison’s behalf that the Judge did not consider the significance of the consequence of a criminal conviction for Ms Harrison. Counsel submitted that, given the significance of the consequences of a criminal conviction it was within the Court’s contemplation to find the proportionality test was met and to go on and exercise its discretion and grant the application. For that reason the discharge without conviction should have been permitted.

Analysis – s 106 application

• [33] The Judge correctly identified the relevant approach to an application under s 106:¹⁴

[5] A court considering an application for discharge under s 106 must consider three issues. 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. Next, it must identify the direct and indirect consequences of a conviction being entered. In this context there must be a "real and appreciable" risk that any posited consequence will occur. Thirdly, the Court 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.

¹³ New Zealand Police v Harrison, above n 2, at [36].

¹⁴ New Zealand Police v Harrison, above n 2.

And later:

[11] The gravity assessment requires the Court to consider factors beyond the circumstances of the offence.

• [34] The Judge initially assessed the gravity of the offending itself as moderately serious, given the nature of the offending and before any personal factors were taken into account. That was appropriate given the aggravating features of family violence in the presence of the couple’s 10 year old child, the accompanying threat and the injuries which included bleeding to Mr Dellow’s ear. She then went on to note the gravity of the offending was reduced given the impact of a long-term dysfunctional relationship on Ms Harrison and her fragilities on the day of the offence. The Judge expressly referred to Ms Raethel’s report which confirmed Ms Harrison suffered from, amongst other issues, Battered Woman’s Syndrome. I take the Judge’s reference to her “fragilities” to be a reference to those conditions. The Judge did reduce her assessment of the gravity from moderately serious to moderate for those personal factors.

• [35] However, I agree with counsel’s submission that it does not appear other factors personal to Ms Harrison which might have further reduced the gravity of the offending were taken into account, such as lack of previous convictions and good character. When those factors are taken into account, in my judgment, the gravity of the offending is best assessed as low to moderate rather than moderate. On a scale where 1 reflects the lowest culpability having regard to the particular offending and 10 would be the most serious, the gravity of Ms Harrison’s offending would sit at around 3.

• [36] Ms Harrison swore an affidavit in support of her application for discharge. She completed her BA with a double major in Education and Psychology focusing on child development in 2010. She then became committed to her children who were born in 2011 and 2013 and did not pursue her career at that time. Ms Harrison says she intended to complete her honours degree in psychology and from there apply to the educational psychology programme or special education teaching. She then proposed to work in a diagnostic role in educational psychology or teach in the field of special education. Both roles involve working with children. In her affidavit she confirmed

that she had accepted a place on a BA Honours degree through Massey University. She says that a criminal conviction would affect her prospects of teaching in schools or working with children and she considers her chances of pursuing such a career would be virtually non-existent with a conviction.

• [37] Ms Harrison also says that if she had a criminal conviction she would not be able to participate to the same extent in her children’s school activities as parents are required to complete a Police vetting process.

• [38] Schedule 3, reg 2(a) of the Education and Training Act 2020 provides for registration by the Teaching Council:

2 Registration of applicants as teachers

The Teaching Council must register an applicant under clause 1 if satisfied that the applicant—

(a) is of good character;

(b) is fit to be a teacher; and

(c) is satisfactorily trained to teach; and

(d) meets the criteria for teacher registration established under section 479(1)(e); and

(e) either—

(i) has not been convicted of a specified offence as defined in section 23(1) of the Children’s Act 2014; or

(ii) has been granted an exemption under section 35 of the Children’s Act 2014 in respect of every conviction for a specified offence as defined in section 23(1) of that Act.

• [39] The convictions in the present case are not “specified offences”.

• [40] Regulation 48A of the Teaching Council Rules 2016 provides that if an application raises concerns as to good character then the chief executive may refer the application to the Registration Panel.

• [41] The short point is that the current convictions are not of themselves an automatic disqualification from the ability for Ms Harrison to teach. Ms Harrison will

have to disclose the incident and the convictions, but that is appropriate. Any consequences will flow from her actions rather than from the conviction itself.¹⁵ Ms Harrison would also have to disclose her diagnoses of PTSD and ASD. As the Judge noted, ultimately it will be for the Teaching Council to determine whether or not she should be registered as a teacher.

• [42] I agree with the Police submission that effects on employment are general consequences of a criminal conviction.¹⁶ Also, the Court is reluctant to usurp the role of a professional disciplinary or registration body, particularly where, as in this case, the outcome cannot be reasonably predicted.¹⁷

• [43] The next factor relied on before the Judge was largely speculative, namely the possible impact on Ms Harrison’s ability to engage in her children’s education and offer support at the Rudolf Steiner school the children attended.

• [44] I agree with the Judge that the school the children attend is well placed to assess Ms Harrison’s suitability to provide support for the school and children on camps from its contact with her. The school is in the best position to make that assessment. Ms Harrison has been involved in a supportive role at the school so will be well known to the school.

• [45] Finally, the Judge did appropriately consider Ms Harrison’s personal wellbeing and the effect of the conviction on her. The Judge accepted there would be a real and appreciable risk of some psychological consequence on Ms Harrison, but reasonably concluded the consequences were not elevated beyond deep disappointment and noted that Ms Harrison had the support of friends and Ms Raethel. I note that Ms Bramhall also reports that Ms Harrison had “accepted responsibility for actions and has insight into the impact of her marriage on her wellbeing and behaviour”. Ms Bramhall did not consider there were any significant areas of need for offence focused treatment, but recommended Ms Harrison remain engaged in counselling.

¹⁵ Andrews v New Zealand Police [2015] NZHC 3212 at [7].

¹⁶ Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009.

¹⁷ Rahim v R [2018] NZCA 182 at [29].

• [46] I assess the consequences of a conviction in the present case as more than low, but well short of moderate. Again, on a scale where 1 would be the lowest possible consequence and 10 the most extreme consequence, I would assess the consequences of conviction in Ms Harrison’s case at around 3 to 4 at most.

• [47] Applying the test under s 107 it cannot be said that the consequences of a conviction are out of all proportion to the gravity of the offending as is required for a discharge without conviction.¹⁸

Result

• [48] The appeal against conviction is dismissed.

• [49] The appeal against refusal to grant a discharge under s 106 is dismissed.

Venning J

¹⁸ R v Smyth [2017] NZCA 530; and R v Hughes [2008] NZCA 546.