A v Police HC Auckland CRI 2007-404-62
[2007] NZHC 1847
•15 June 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2007-404-000062
A
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 11 and 14 June 2007
Appearances: A Bloem for Appellant
C Knight for Respondent
Judgment: 15 June 2007 at 3:00 pm
JUDGMENT OF ASHER J
This judgment was delivered by me on 15 June 2007 at 3:00 pm pursuant to Rule 540(4) of the High Court Rules
………………………………………..
Registrar/Deputy Registrar
………………………………………..
Date
Solicitors:
A Bloem, Barrister, PO Box 6627 Wellesley Street Auckland
Meredith Connell, PO Box 2213 Auckland
A V NZ POLICE HC AK CRI 2007-404-000062 15 June 2007
[1] This is an appeal from a decision of the District Court at Auckland refusing to discharge Mr A of a charge of theft, and convicting him and ordering him to come up for sentence if called upon for six months. It is submitted for the appellant that the decision was clearly wrong in principle and that Mr A should have been discharged without conviction.
The facts
[2] At about 11:30 pm on Wednesday 7 September 2006, Mr A was in the Foodtown supermarket at 76 Quay Street Auckland with a friend. He and his friend each took a bottle of Lindauer sparkling wine valued at $13.99. Mr A hid his in his pants. He then went to the checkout counter where he paid for other grocery items but made no attempt to pay for the bottle of Lindauer. He had been observed and was approached by security staff. When spoken to by the Police he admitted that he had deliberately taken the wine and had hidden it. He said he had made a stupid mistake and that he was sorry for what he had done. He was 18 years
old at the time and a student in the 7th form.
[3] Mr A has no previous convictions, but he has received Police diversion on a charge of wilful damage for marking a school sign with a vivid ink pen. Mr A has now left school. He has had two jobs and is presently working part time. He wishes to become a member of the Police or go to business school.
The decision
[4] The four critical paragraphs in the learned Judge’s decision were the last four:
[5] Mr Burns has very carefully gone through his submissions on his behalf and he has provided an affirmation in support and Mr Burns refers to various aspects of the matter. The Sergeant is opposed to it and I really do not think it stands outside any normal criteria for dealing with this type of offending.
[6] It is his first offence on the basis that he has been previously diverted but that does not come into it. It is his first offence. As far as the Court is concerned, he has an otherwise good record. He has a career and prospects and I do not intend to impose any further penalty other than that he is convicted and he is ordered to come up for sentence if called upon within 6 months.
[7] If he behaves himself within that time I am not prepared to give him a 106 but that is the next best thing.
[8] You are free to go.
[5] Paragraph [6] appears to set out as the reason for imposing the penalty, that he should come up for sentence if called upon within six months. Paragraph [5] appears to be the paragraph where the request for a discharge is dealt with. The critical sentence states the Judge’s reason for declining the application, is that he considers it “stands outside any normal criteria for dealing with this type of offending.”
[6] It is difficult to interpret this sentence. There are no “normal criteria” for dealing with shoplifting offences. Clearly they can range from the minor to the more serious in gravity. There are also no “normal” criteria for dealing with discharges without conviction. There are no requirements or standards that apply, although there is the guidance set out in s 107 of the Sentencing Act 2002.
[7] Section 107 states:
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.
[8] The core exercises to be carried out by a Judge in considering an application for a discharge are to assess the gravity of the offence, then to assess the direct and indirect consequences of a conviction, and then to balance the gravity and consequences on the basis of proportionality. At one end of the spectrum a very minor offence involving very grave consequences for the offender if a conviction is entered, will tend to lead to a discharge. At the other end of the spectrum, a very grave offence involving consequences not serious to the future of the offender is likely to lead to a denial of a discharge.
[9] An appellate Court is not at liberty to just substitute its own views for that of the District Court: Halligan v Police [1955] NZLR 1185 at 1188. It will intervene, however, if the Judge has made an error in approach or taken into account or failed to take into account irrelevant matters, or where the decision is plainly wrong. It will look at the matter afresh if significant new material has become available: O v Police HC CHCH AP97/88 12 August 1988, Williamson J; Kohere v Housing New Zealand HC AK CRI 2007-404-000002 26 April 2007 Asher J at [18].
[10] It is not clear from the District Court judgment whether the right test was applied or not. It is possible that in referring to “normal criteria” the learned District Court Judge had in mind the words of s 107 and the exercise of assessing proportionality referred to. It seems more likely, however, that an error was made and that the Judge did not turn his mind to the s 107 proportionality exercise.
[11] Given the fact that it is likely that the Judge made an error, and it is not possible to determine this from the words of the judgment, I am obliged to put the judgment to one side and consider the matter afresh. To proceed otherwise would be unfair to the appellent when in a very short judgment such as this, the possibility of an erroneous approach is established. It would be wrong to assume in favour of the Crown, that despite the apparently erroneous words used, the right test was applied.
Does a question of onus arise?
[12] There was some contention between the appellant and the Crown as to the reliability of the assertions put forward on behalf of Mr A . Section 107, which sets out guidance for discharge without conviction states that the Court “must not” discharge an offender without conviction unless a Court is “satisfied” that the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offence. The word “satisfied” does not place an onus on the party seeking a discharge. The word is used in the sense described in R v Leitch [1998] 1
NZLR 420 at 428:
The need to be “satisfied” calls for the exercise of judgment by the sentencing Court. It is inapt to import notions of the burden of proof and of setting a particular standard, eg beyond reasonable doubt. As this Court said in R v White (David) [1988] 1 NZLR 264 at p 268 with reference to s 75(2), “The phrase ‘is satisfied’ means simply ‘makes up its mind’ and is indicative of a state where the Court on the evidence comes to a judicial decision. There is no need or justification for adding any adverbial qualification . . .”.
[13] I adopt this approach, and I respectfully agree with the observation of Young J in BC v Police HC WN CRI-2003-485-101 2 June 2004 at [8] in that it is not helpful to approach the s 107 exercise from the perspective of there being any onus on any party. The proper course is for the Court to consider all the relevant and cogent evidence put before it and to decide whether or not it is satisfied that the s 107 test is met.
Factors of relevance in this case
[14] It became apparent at the end of the hearing before me, that Mr A ’s co-offender was discharged without conviction in the District Court. On sentence he faced an identical summary of facts and appears to have been in a similar situation to Mr A , being a student of roughly the same age. In the circumstances, there is a disparity between the penalties imposed on these co-offenders.
[15] Disparity between co-offenders is a relevant matter to be considered in the sentencing process. I refer to s 8(b) of the Sentencing Act 2002, and the statement in R v Lawson [1982] 2 NZLR 219 (CA) at 223 of McMullin J:
But a marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute. The Courts must bear in mind that public confidence in the administration of justice is best preserved if justice appears to be administered even-handedly.
[16] The District Court Judge was not informed of the fact of the discharge of the co-offender. Indeed, it may not have occurred by the time Mr A was sentenced. I have no doubt that if the Judge had been aware of the discharge of the co-offender that he would have felt obliged to have discharged Mr A as well. Anything less would be unfair and bring the administration of justice into disrepute. It would simply not be even-handed to convict one young man and discharge the
other, when they are co-offenders who have committed the same offence and have the same background.
[17] Putting to one side the issue of parity, in any event Mr A had a reasonably strong case to put forward in support of a discharge.
[18] I first consider the gravity of the offending. Both his earlier transgression in marking the school sign, and this shoplifting offence, have the markings of youthful indiscretion rather than any criminal propensity. While theft is a serious offence and shoplifting is a scourge, this is theft under s 223 of the Crimes Act 1961 with a maximum period of imprisonment of three months. It is at a very low level of seriousness. While it is technically correct to describe the shoplifting as a dishonesty offence, it is rather harsh on an offender to place this sort of very minor shoplifting incident into the same adjectival category as that of serious theft or fraud. In terms of its gravity it is to be placed at the lowest end of the spectrum.
[19] Section 107 refers to the gravity of the “offence”, and not the offending. However, offences should not be considered in a vacuum. It is necessary to look at the offending itself: Delaney v Police HC WN CRI 2005-485-22 & Ors
22 April 2005, Miller J; Kohere v Housing New Zealand at [20]. The reaction of the offender to the offending is also relevant. Here, the offending was impulsive and a response to peer pressure. There was an immediate admission and appropriate remorse. It was minor in its potential consequences. This was the lowest level of gravity for this sort of offence.
[20] It is then necessary to turn to the consequences of a conviction. I adopt the approach that it is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient if the Court is satisfied that there is a real and appreciable risk that such consequences would occur: Iosefa v Police HC CHCH CIV 2004-404-64 21 April 2005, Randerson J at [34].
[21] Mr A completed his schooling to the 7th form level and passed
NCEA, obtaining the grade of “achieved” in most of his subjects. He received a
favourable testimonial from his school. Before the District Court his counsel stated that he wished to study a business degree at the University of Auckland. However, it became apparent in this Court that his other proposed career path is to join the New Zealand Police. He told his lawyer in the District Court about this intention but his then counsel did not bring it to the attention of the District Court Judge, apparently making the judgment that it would not assist his request for a discharge.
[22] The Court is cautious about accepting claims of particular career intentions from those seeking a discharge without conviction. There is concern that these will be developed after arrest, and be put forward for the sole purpose of adding to a plea for a discharge. However, in this case there is no evidence that the claims of his future intentions are false. He appears in terms of his physical and academic background to have the possibility of successfully applying to join the Police. While his academic record is not distinguished, it is sound. He can be admitted to University and if that is the course that he follows he will have the opportunity to qualify for a Bachelor of Commerce by doing what is known as a “foundation course”.
[23] It is necessary to mention Mr A ’s background. This is relevant to the broad consideration of the offence and the offending. He was brought up in Iraq and was aged four at the time of the first Gulf War. He came to New Zealand from Iraq aged nine, speaking Arabic. He has been through a difficult experience. He has had to learn English, which he has clearly mastered well, and has lived through a substantial change in environment and fortune. This difficult background may have made him more susceptible to suggestions of inappropriate behaviour than otherwise.
[24] The Crown had obtained information indicating that even if he is discharged, the fact that he stole a bottle of Lindauer might well mean that his application to the Police will fail, because of the very strong emphasis put on the honesty of applicants. I can understand that the fact of the theft will be a disadvantage to Mr A if he applies to the Police. Nevertheless either immediately or over the years it can be expected that if Mr A could satisfy the Police of his good character, that the damage done by the shoplifting incident could be overcome.
[25] The consequences need to be seen in the broader context that Mr A is undoubtedly a motivated young man with good prospects in his career ahead of him. The Police, of course, and probably any other employer, will become aware of the shoplifting incident. Nevertheless, this is not a reason to not grant a discharge. As I observed in Kohere v Housing New Zealand: [23], the stigma attached to an incident such as this can be much more profound if a conviction, rather than a discharge, is recorded. A discharge without conviction is an indication to the outside world that the Court did not consider that a conviction was warranted. It can be seen as an expression of confidence in an offender by the Court. I consider that there will be a significant difference in the impact of Mr A ’s career of these events if he is discharged rather than convicted.
[26] I also note Mr A ’s wish to travel. His position is different from that of most New Zealanders. He has close relatives in the Middle East who he will wish to visit. I accept that there may be added difficulties for him in obtaining visas to that region if he has a conviction. While, this factor alone would not have been enough to tip the balance in favour of a discharge, it is a relevant consideration in his favour.
Conclusion
[27] Much of the material that I have set out was not before the District Court. In particular, his wish to join the Police and more importantly the fate of his co- offender, were not passed on to the learned District Court Judge.
[28] Because of the way in which the District Court decision was expressed and because of the new material that is before this Court, I have had to consider afresh the question of discharge without conviction. Carrying out that balancing process, it would have been a fine decision whether a discharge was warranted. However, the need for parity is determinative. It is clear that a discharge without conviction is the only appropriate outcome.
Result
[29] The appeal is allowed. Mr A is discharged without conviction on all charges.
…………………… Asher J
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