Albert v The Queen
[2017] NZHC 102
•8 February 2017
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2016-063-001418 [2017] NZHC 102
BETWEEN BONNIE ALBERT
Appellant
AND
THE CROWN Respondent
Hearing: 2 February 2017 Appearances:
T Braithwaite for Appellant
S Casey for RespondentJudgment:
8 February 2017
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 8 February 2017 at 3.00 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Albert v The Crown [2017] NZHC 102 [8 February 2017]
Introduction
[1] On 7 June 2016, Ms Bonnie Albert pleaded guilty to one charge of arson.1
She was 17 years old at the time of the offending. At sentencing in the Rotorua District Court on 9 December 2016, Judge CJ McGuire refused to grant her a discharge without conviction. The Judge took a sympathetic view of the matter, however, and directed that Ms Albert should come up for sentence if called upon; he ordered the payment of $200 reparations to the Fire Service. Ms Albert appeals the decision to refuse her discharge without conviction.
Factual background
[2] The Police summary of facts records that, on the afternoon of 27 April 2016, Ms Albert and another person, as well as three associates of the pair, were making their way home from the Rotorua CBD on foot. The group stopped at St Michael’s rugby field, where one of the others enticed the appellant to light a dry patch of vegetation on fire for fun. The small fire was put out. The group then ran across Te Ngae Road and into the Ngapuna walking tracks, where the other person ran ahead and lit a second fire. When the group caught up, they extinguished the fire before it could get out of control.
[3] The summary records that Ms Albert then lit a third fire, which rapidly raged out of control. No substantial damage was caused nor were there any injuries. However, the Fire Service had to be called to extinguish the fire. The Ngapuna walking tracks are a scenic thermal walkway that is popular with tourists. At the time the offence was committed the walkway was in use by members of the public, including tourists and children.
District Court
[4] Judge McGuire noted the particular interest that society has in ensuring young offenders can be rehabilitated and that the law recognises in some
circumstances young people may be less culpable for their offending. The Judge
1 Crimes Act 1961, s 267(3); maximum penalty of 5 years’ imprisonment.
approached the sentencing on the basis of the summary of facts, as he was required to do, and considered that deterrence and denunciation of this type of offending were warranted to ensure the safety of the community and preserve its reputation as a tourist town. The Judge assessed this as “serious offending”, taking into account the potential for tragedy given the use of the walkway by tourists at the time. Likewise, the Judge put weight on the fact that the town relies on the existence and functionality of its tourist amenities.
[5] In assessing whether the real and appreciable risks of the consequences of conviction would be all out of proportion to the offending, the Judge emphasised that while the conviction would be a clear impediment to the appellant’s goal of working in the early childhood field, employers are required to judge her attributes fairly.
[6] The Judge noted that at present the potential consequences were not well- defined, leading to the conclusion that they would not be all out of proportion with the gravity of the offence. Accordingly, the Judge decided a conviction must follow, but accepted that Ms Albert’s youth warranted only an order to come up for sentence if called upon and that she should pay reparations to the Fire Service.
Grounds of appeal
[7] Mr Braithwaite submitted that Judge McGuire erred in assessing the s 107 threshold on the basis that:
(a) the personal circumstances of the appellant were not taken into account when assessing the gravity of the offending;
(b)youth, remorse, and presence of a group dynamic were not adequately considered in assessing the gravity of the offending; and
(c) the youth of the appellant was not given appropriate, if any, weight in making the final assessment.
[8] Counsel argued that the proper assessment of these considerations should have reduced the gravity of the offence and that the balancing exercise should have resulted in a discharge without conviction.
Approach to discharge without conviction
[9] The discretion to grant a discharge without conviction is available to a sentencing court by virtue of s 106 of the Sentencing Act 2002. Section 107 of the Act guides the application of s 106 and sets the threshold that must be satisfied before the court can consider whether to exercise this discretion. 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.
[10] For the Court to be so satisfied, there only needs to be a “real and appreciable” risk that such consequences will occur.2 If the Court is satisfied the threshold is met, this will generally lead to a favourable exercise of the s 106 discretion.
[11] The s 107 test is not a matter of discretion but a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles. The discretionary power of the Court to discharge without conviction under s 106 arises and exists only if the Court is satisfied that the s 107 threshold has been met.3
[12] The approach to the s 107 threshold has been explained by the Court of
Appeal as involving a three-stage analysis:4
(a) The first stage involves assessing the gravity of the offence, including all aggravating and mitigating features relating to both the offending
and the offender.
2 Papuni v Police [2013] NZHC 1958 at [12]; Alshamsi v Police CRI-2007-404-62, HC Auckland,
15 June 2007 at [20]; Iosefa v Police CIV 2004-404-64, HC Christchurch, 21 April 2005 at [34].
3 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].
4 DC (CA47/2013) v R [2013] NZCA 255 at [35]; Z (CA 447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27].
(b)The second stage involves the Court identifying the direct and indirect consequences of a conviction for the defendant, it being sufficient for the Court to be satisfied that there is a real and appreciable risk such consequences will occur.
(c) The third stage is where the Court must then consider whether the consequences of conviction would be out of all proportion to the gravity of the offence.
Assessing the gravity of the offence
[13] On 6 November 2016, Ms Albert swore an affidavit in support of her application for a discharge under s 106 in which she admitted lighting the first and second fires (which she quickly extinguished) but not the third fire that blazed out of control. Mr Casey, counsel for the Police, properly did not object to my consideration of this evidence on the hearing of the appeal since it was material which had been before the District Court at the time of sentence.
[14] Mr Braithwaite appeared for Ms Albert at the sentencing. He acknowledged before me that he had not drawn the discrepancy between Ms Albert’s account and the Police summary to the attention of the sentencing Judge. He had not acted as counsel at the time Ms Albert pleaded guilty but he recognised nevertheless that the disputed facts procedure under s 24(2) of the Sentencing Act 2002 should have been followed at sentencing if Ms Albert did not accept the allegation that she had lit the third fire.
[15] However, Mr Casey accepted that, in view of the affidavit evidence, the prosecutor would have been unlikely to have proved beyond reasonable doubt that Ms Albert lit the most serious fire. On the basis that she had been responsible for the two small fires which were quickly put out, Mr Casey acknowledged that the offending was very much at the lowest end of the scale of offending of this type.
[16] It is not insignificant that Ms Albert was charged under s 267(3) of the
Crimes Act. While the heading to s 267 describes the offences contained in the
section as “arson”, the legislative scheme of s 267 creates three different offences, having different degrees of seriousness and, therefore, maximum penalties. The section reads:
267 Arson
(1) Every one commits arson and is liable to imprisonment for a term not exceeding 14 years who—
(a) intentionally or recklessly damages by fire or by means of any explosive any property if he or she knows or ought to know that danger to life is likely to ensue; or
(b) intentionally or recklessly, and without claim of right, damages by fire or by means of any explosive any immovable property, or any vehicle, ship, or aircraft, in which that person has no interest; or
(c) intentionally damages by fire or by means of any explosive any immovable property, or any vehicle, ship or aircraft, with intent to obtain any benefit, or to cause loss to any other person.
(2) Every one commits arson and is liable to imprisonment for a term not exceeding 7 years who—
(a) intentionally or recklessly, and without claim of right, damages by fire or by means of any explosive any property in which that person has no interest (other than property referred to in subsection (1)); or
(b) intentionally or recklessly damages by fire or by means of any explosive any property (other than property referred to in subsection (1)) with intent to obtain any benefit, or with intent to cause loss to any other person.
(3) Every one is liable to imprisonment for a term not exceeding 5 years who intentionally damages by fire or by means of any explosive any property with reckless disregard for the safety of any other property.
(4) In this section and in section 269, benefit means any benefit, pecuniary advantage, privilege, property, service, or valuable consideration.
[17] Although the section provides that the offences under subsections (1) and (2) are arson, the less serious offence under s 267(3)5 is more appropriately described as “intentional damage by fire”, a description that has a less pejorative or unfavourable
connotation.
5 As demonstrated by the maximum penalty provided.
[18] The Judge was entitled to conclude that there was potential for serious harm to arise from the offending. Any unauthorised lighting of an uncontrolled fire in a public space involves potential risk to members of the public and, especially, to members of the Fire Service who may be required to attend. But Ms Albert quickly extinguished the two small fires she lit and there was no suggestion of any damage and or risk of harm from them.
[19] While the third and much more serious conflagration created demonstrable risk of damage to persons or property, I am satisfied that Judge McGuire acted under an understandable but significant misapprehension as to the seriousness of what was actually done by Ms Albert.6
[20] Moreover, in Delaney v Police, Miller J held that the reference in s 107 to “the ‘gravity of the offence’ should be read as including not only the offence itself but also anything that may affect the Court’s subsequent assessment of overall culpability.”7 This approach reflects the views of the Court of Appeal in Z (CA
447/12) v R8 and was referred to with approval in R v Hughes, where the Court of
Appeal said:9
[T]he approach taken by Miller J in Delaney … is supported by the application of the factors in ss 8, 9 and 10 (which “must” be applied) to decisions to “otherwise deal with” an offender (including under s 106). His inclusion within the concept of “gravity of the offence” of matters affecting overall culpability is also supported by the similar wording in s 8(1) where “gravity of offending” is said to be inclusive of “the degree of culpability of the offender”.
[21] At the time of the offending, Ms Albert was only 17 years old. She has no previous convictions nor any recorded interaction with the criminal justice system. She pleaded guilty at an early stage, and demonstrated genuine remorse and fresh enlightenment as to the potential for harm from impetuous actions she described as “really stupid” and “idiotic, childish and inconsiderate”. She said in a letter to the
Judge that she had found her arrest and court appearances to be “very excruciating
6 Given the way in which the Police approached the case against Ms Albert, it is now too late, and would be unfair, for the case to be re-cast as one in which she was a secondary party to the lighting of the third fire. There is no evidence to support such an allegation.
7 Delaney v Police HC Wellington CRI-2005-485-22, 22 April 2005 at [29].
8 Z (CA 447/12) v R above n 4.
9 R v Hughes above n 3, at [38].
and brutal”. She participated in a restorative justice programme and volunteered to
make a reparation payment to the Fire Service.
[22] The present offending has all of the characteristics of youthful impetuosity and thoughtlessness. It is right that the courts should regard as less culpable acts by a young person which might be characterised more gravely if performed by a mature adult.10 It is apparent also that Ms Albert’s new insight into the offending justifies the conclusion of the probation officer who reported to the Court that she carries a low risk of reoffending.11
[23] Looking at Ms Albert’s actions in the context of her youth, and considering her response to her apprehension and prosecution, I am satisfied that this should be characterised as minor offending.
The direct and indirect consequences of a conviction
[24] The appellant submits that there are several severe consequences of conviction:
(a) A black mark on an otherwise clean record. (b) General difficulty in finding employment.
(c) A particular career impact in that Ms Albert intends to study early childhood with a view to teaching, and a conviction could seriously impact employment prospects in this field.
[25] The first two are not consequences specific to Ms Albert, but rather are the likely general consequences of conviction for any offending. Nevertheless, they
10 R v Churchward [2011] NZCA 531 at [77]; Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ
868 at [69].
11 See the approach taken by the Court of Appeal in R v Chankau [2007] NZCA 587 at [26].
should not be dismissed: a conviction in itself is a significant consequence,12
especially where the offender has no previous record of offending.13
[26] There hardly needs to be authority for the proposition that a person’s employment prospects will suffer through being convicted of an offence; commonsense indicates as much. And there have been numerous cases in which a discharge without conviction has been held to be appropriate where the consequences of a conviction on a person’s future employment would be out of
proportion to the gravity of the offence.14 In this case, the assumption is supported
by Ms Albert’s reported experience. She has deposed that, leading up to the sentencing hearing, she had no success in finding employment when she honestly disclosed she was facing a charge of arson.
[27] Moreover, Ms Albert appears to be a motivated young woman with a genuine desire to work in the field of early childhood education. She is currently enrolled in a business and administration course at Manukau Institute of Technology which is a prerequisite for an early childhood education course.
[28] Although the courts have demonstrated considerable reluctance to pre-empt decisions of potential employers, especially when considering the consequences of offences involving dishonesty,15 different considerations arise in the present case. It is not fanciful to suggest that potential employers might be unlikely to inquire behind a disclosed conviction for the serious offence of arson and that, in most cases, Ms Albert would be deprived of an opportunity to refer to the courts’ decisions on
her case or proffer an explanation. There is a real and appreciable risk that the mere reference to the nature of the conviction would preclude prospective employers from
assessing Ms Albert’s merits on a fair and even basis.16
12 Taavli v Police [2012] NZHC 2323.
13 DC v R, above n 4, at [45].
14 See, for example, Evans v Police HC Wellington CRI-2009-485-97, 27 October 2009; Nash v Police HC Wellington CRI-2009-485-07, 18 May 2009; Tahitahi v Police [2012] NZHC 663 at [27] and [31]; and DC v R, above n 5, at [44].
15 Aye v Housing New Zealand Incorporation HC Auckland CRI-2011-404-231, 19 October 2011 at [19] and [22].
16 Wells v Police [2016] NZHC 1235 at [35].
[29] A young person’s “best interests” are a “primary consideration” in assessing the proportionality of the consequences of a conviction to the gravity of the offending.17 I respectfully agree with the views of Winkelmann J in R v M, a case involving a discharge without conviction for the serious charge of assault with intent to injure.18 In that case, M’s actions were found to be foolish and unjustified. The offending was considered to be at the low to moderate range of seriousness for an assault of its type and M’s youth, previous good character and genuine remorse were taken into account, as was the fact that he was unlikely to reoffend. Winkelmann J considered that there was a “real and appreciable risk” that a young offender’s transition into adulthood would be significantly prejudiced should a conviction for violence be entered.19 The Judge noted that a criminal conviction can significantly damage a young person’s employment and educational opportunities and have an exaggerated, and thus ultimately disproportionate, impact on their development.20
Accordingly, Winkelmann J considered that these consequences were out of proportion with what was considered to be low-moderate offending, and granted a discharge without conviction.21
[30] The application of the disproportionality test under s 107 “requires consideration of all relevant circumstances of the offence, the offending and the offender, and the wider interests of the community”.22 Given Ms Albert’s good character, genuine remorse and her future prospects for making a positive contribution as a valuable member of society, it would not promote the interests of the community to impose on her the adverse consequences of a conviction for minor
offending, brought about by youthful impetuosity, which carried no risk of harm to
persons or property.
17 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [82]; Convention on the Rights of the
Child, GA Res 44/25, A/Res/44/25 (1989), art 3.1.
18 R v M [2014] NZHC 1848.
19 At [38].
20 At [38].
21 At [39].
22 R v Hughes, above n 3, at [41].
[31] I am satisfied that the direct and indirect consequences for Ms Albert of a conviction would be out of all proportion to the gravity of her offence.
[32] Accordingly, I allow the appeal and quash the conviction and sentence. I order under s 106 of the Sentencing Act 2002 that Ms Albert shall be discharged without conviction.
………………………………
Toogood J
4
8
1