IN THE DISTRICT COURT AT DUNEDIN BETWEEN: NEW ZEALAND POLICE Informant AND: EDWARD HAMILTON LIVINGSTONE Defendant SUBMISSIONS IN SUPPORT OF AN APPLICATION FOR A DISCHARGE WITHOUT CONVICTION DATED THIS DAY OF NOVEMBER 2013 A Weslgate Barrister 0 Box 538 DUNEDIN Phone: (03) 477 5229 Fax: 477 0624 INTRODUCTIOQ 1. The defendant recently pleaded guilty in the Dunedin District Court to one charge of conlravening Protection Order. (no firearm). contrary to the Domestic Violence Act 1995. section and 4e(1J(a). At the time Counsel requested that a conviction not be entered and the defendant now seeks a discharge without conviction pursuant to s'i06 of the Sentencing Act 2002. 2. It is submitted that a discharge should be granted as the consequences of a conviction would be out of all proportion to the gravity of the offending. THE OFF NB 3. Attached is a summary of facts which is accepted. it is submitted that the offending was at the lowest and of the scale contemplated by this section of the Domestic Violence Act 1995 and was as a result of significant personal issues the defendant was struggling with. (the. particulars of which are outlined more fully In the affidavit . . THE 4. Section 106 of the Sentencing Act 2002 empowers the Court to grant a discharge without conviction. The test for this is set out in still' of the Act: "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".- The Court will be well familiar with the law in this area and the three step approach endorsed by the Court of Appeal in miles [2009] 3 NZLR 222. [jg GRAVITY OE THE OFEENDING It is submitted that the gravity of his offending is at the lowest and of the scale. He 6. telephoned the victim and left a message. the particulars of which are referred to in his affidavit. 7. There was nothing threatening nor intimidatory about the message in and of itself. (although it is accepted it was in breach of the order). 'I_'flE COESEQUENOES OF A OONVICTIQN The defendant is currently employed as a visits reception property at the Otago Correctional Facility, (Department of Corrections). 8. .-- - 11. 12.. 16. His employer has become aware of this charge and background leading up to culminating In an initial suspension which was then lifted by formal notification on 14 October 2013. it is clear from the attached correspondence that his employer has commenced a formal investigation, (suspended until this matter is resolved). it is clear that his arrest and charge for oontravenlng a Protection Order. (on 8 August 2013. In respect of which he was diverted). together with this most recent charge of contravening the Protection Order is: 'likely to amount to serious misconduct under the Department's code of Conduct and demonstrates behaviour which falls below our expectations." The correspondence confirms that serious misconduct, where proven. can result in penalties up to and Including dismissal from his employment. it is submitted that if he were convicted, (although his employer has not predetermined the issue). as opposed to discharged without conviction. there is a real and appreciable risk that he would be dismissed from his employment. It the defendant lost. his employment givanhis personal situation. (reference is made- to his it is submitted that it would be very difficult for to iind other employment. Reference is made to the decision of I3 Ranchhool [2009] NZCA 340. where the court noted at [23] that the nature of the offending may be so minor that there should be no Jeopardy or enquiry at all from a body or organisation: "it is not for the Court to anticipate or determine the outcome of the enquiry. Rather in some cases the Judge may be in a position to say that the nature of the offending is such that it would not be a proportionate response for there to be any Jeopardy at all and so it is fair to avoid that by granting a discharge'. In addition, it is submitted there are general consequences of a conviction. in the decision of )ya_sh gong (HG Wellington 22 May 2009) at [19] the Court held: are general consequences that follow from a conviction. in a variety of ways, employment, insurance. immigration), people are asked to disclose whether they have criminal convictions. For those who are remorseiul there can be a loss of pride and self--esleem hr at least embarrassment in having to answer that question honestly'. As the Court stated at [10] "The circumstances which might meet the test and warrant the exercise of the discretion are limitless". Finally. it was recognised in Boyce (HG Whangarei 28 August 2003 Rodney Hanson J.) that the: 'recurring need to explain an incident which should be left in the past'. was a consequence of a conviction upon which weight could be 'placed. RET ECO SE CES OF CONVICTION OU A 0 OR 0 TOT GRAV (HO Christchurch. 21 April 2005). Randerson J. stated at paragraph [34] that: is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitable or probably occur. it is sufficient if the Court is satislied that there is a real and appreciable risk that such consequences would occur.' The principal issue for the Court is therefore whether there is an appreciable risk of the defendant's employment being jeopardised if a conviction were entered. As the Court of Appeal has pointed out in Biytize 3 [2011] NZCA 190, it is at this stage that personal mitigating factors and the purposes and principles of sentencing are to be taken into account. Firefly, Mr Livingstone is a middle aged man with no criminal history whatsoever. it is man's life would be out of all proportion to the gravity of the offending and would adversely affect him in the future. Secondly. the path the defendant took towards his guilty plea demonstrates a sense of insight and responsibility. As disclosed in his affidavit flied herewith. he undertook the appropriate steps to address underlying issues and was simply grieving for the loss of his relationship and struggling with depression and other issues which are now being satisfactorily controlled and addressed. Attached are various letters from his and Given the low level of offending. the responsible altitude and steps taken by the defendant. including seeking professional help, it is submitted that this is a matter where it wouid be out of all proportion to the gravity of the offending to expose the defendant to the appreciable risk that his employment might be terminated for what Mil be seen as serious misconduct, (or at least initial indications. support that there is an appreciable risk that that will occur). it is therefore submitted the Court should grant the defendant a discharge without AND The Registrar, District Court, Dunedin (attention: Rhonda Taylor) Police Prosecutions, Dunedin (attention: Paul Knox)