ALESHA AVIS RODGERS AND NEW ZEALAND POLICE
[2024] NZHC 2848
•1 October 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-388
[2024] NZHC 2848
BETWEEN ALESHA AVIS RODGERS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 30 September 2024 Appearances:
E Kim and S E Giles for appellant N C Vaughan for respondent
Judgment:
1 October 2024
JUDGMENT OF JOHNSTONE J
(appeal against refusal to grant s 106 application)
This judgment was delivered by me on 1 October 2024 at 3pm
Registrar/Deputy Registrar
Solicitors:
Kayes, Fletcher Walker, Auckland
RODGERS v POLICE [2024] NZHC 2848 [1 October 2024]
[1] Alesha Rodgers pleaded guilty to a charge of burglary, and two charges of breaching a protection order. She applied for discharge without conviction, but her application was declined in the District Court at Papakura.1
[2] Ms Rodgers appeals against the decision to decline a discharge, but only in respect of the burglary charge.
Background
[3] Ms Rodgers was in an intimate relationship for four months before she and her partner separated in December 2022. At 8.38 am on 16 March 2023, Ms Rodgers went to her former partner’s home. There was no one else present. Ms Rodgers entered through the front door, and left taking her former partner’s laptop with her. She returned it, damaged, the next day.
[4] Later on 16 March 2023, Ms Rodgers’ former partner obtained a temporary protection order from the District Court at Papakura, forbidding Ms Rodgers from making any unconsented contact. The order was served on Ms Rodgers on 17 March 2023. The order prohibited Ms Rodgers from making any contact with her former partner to which the latter had not given consent, in accordance with the Family Violence Act 2018.2 On 22 March, 1 April and 3 April 2023, Ms Rodgers, without consent, sent her former partner numerous text messages. She was then charged with the burglary and one charge of breaching a protection order.
[5] While those charges were pending, a final protection order was issued on 2 August 2023. Following consensual messaging on 5 September 2023, the victim messaged Ms Rodgers the next day, asking her not to reply or make other contact again. Despite this and the protection order, on 8 September and 19 September Ms Rodgers attempted to call, and on 17 September 2023 she emailed asking the victim to drop the earlier charges.
1 New Zealand Police v Rodgers [2024] NZDC 14455.
2 Sections 90-97.
Approach on appeal
[6] An appeal against a refusal to discharge a defendant without conviction under s 106 of the Sentencing Act 2002 is properly characterised as an appeal against both conviction and sentence.3 The appeal may be granted if the appellant establishes a “miscarriage of justice”, in terms of s 232(2)(b) of the Criminal Procedure Act 2011, occurring by virtue of a material error by the sentencing judge in entering a conviction. Or alternatively, a “miscarriage of justice” in terms of s 232(2)(c), occurring “for any reason”, in the sense that the Judge has erred in applying the discharge principles found in s 107 of the Sentencing Act.4
[7] Under s 107, the sentencing 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 should adopt a three-stage approach:5
(a)First, the court considers the gravity of the offence, taking into account all of the aggravating and mitigating features of the offending and the offender.6
(b)Next, it identifies the direct and indirect consequences of a conviction, and assesses their nature, seriousness and likelihood.7 A “real and appreciable risk” of a consequence is appropriately taken into account.8
(c)Finally, it evaluates whether the consequences of conviction are out of all proportion to the gravity of the offence.
3 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [16].
4 At [12].
5 Prasad v R [2018] NZCA 537 at [11].
6 At [11]; and Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]-[28].
7 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [82].
8 DC (CA47/2013) v R [2013] NZCA 255 at [43] citing Iosefa v Police HC Christchurch CIV-2005- 409-64, 21 April 2005 at [34]; Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20]; and Currie v Police HC Auckland CRI-2008-404-307, 27 May 2009 at [49].
[8] If the threshold is met, the sentencing court must still consider, as a residual matter of discretion, whether a discharge should be granted.9
[9] The sentencing court’s application of s 107 is subject to full appellate review by way of rehearing.10
The decision appealed against
[10]When considering Ms Rodgers’ discharge application, the Judge:
(a)found Ms Rodgers’ burglary to be moderately serious and the offending as a whole to be “moderate to serious”, albeit at the lower end by comparison to other family harm offending;
(b)was “not convinced that there [were] any real and appreciable consequences” likely to arise from conviction; and
(c)noted her disinclination to exercise her discharge discretion, even had the consequences of conviction been out of all proportion to the offending’s seriousness, citing Ms Rodgers’ previous convictions, the seriousness of the current charges, and their significant impact on the victim.
Ms Rodgers’ case on appeal
[11]Ms Rodgers appeals on the basis that:
9 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [12]; Z (CA447/2012) v R, above n 6, at [27];
and Prasad v R, above n 5, at [11].
10 Viewing the issue as one of identifying a miscarriage under s 232(2)(b) of the Criminal Procedure Act 2011, the appeal will be allowed if the appeal court takes a different view on the evidence, the sentencing judge in that case necessarily having erred. It is for the appellant to show that an error has been made: Sena v R [2019] NZSC 55, [2019] 1 NZLR 575 at [38]. Viewing the issue as one of miscarriage under s 232(2)(c), the appeal court must determine whether there was an error, irregularity or occurrence in or in relation to or affecting the decision to refuse a discharge, creating a real risk that the outcome was affected: Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [25].
(a)Her remorse and rehabilitative efforts should have seen the gravity of her offending, taking into account personal mitigating features, characterised less seriously.
(b)The Judge overlooked the “real and appreciable” consequences of a conviction.
(c)Her previous convictions are historic, minor and unrelated. Despite the serious impact of her offending, the victim’s primary interest in having Ms Rodgers cease contact has been achieved. Accordingly, the consequences of a conviction for burglary would be out of all proportion to the gravity of that aspect of Mr Rodgers’ offending, and the discretion thus arising under s 107 should have been exercised in favour of a discharge.
Was the gravity of the offending overstated?
[12] The Judge’s view that the burglary, involving a residential property, a visit after the breakdown of Mr Rodgers’ relationship, and permanent damage to the laptop, was moderately serious, cannot be faulted. Nor that the offending was aggravated by repeated contact.
[13] However, in order to assess the gravity of offending against the consequences of conviction, all of the aggravating and mitigating features, not only of the offending but also of the offender, need consideration.11 Ms Rodgers had demonstrated both insight into the cause of her offending and a level of remorse, filing a detailed affidavit outlining those matters. Ms Rodgers’ affidavit also described her having responded to being charged by volunteering her time and skills as a landscape gardener at a childcare centre, and by completing a 16-week non-violence programme. The Judge observed that the latter matters, along with Ms Rodgers’ guilty pleas, justified commuting the 14-month term of imprisonment that otherwise would have been an appropriate response to the offending, to one of 10 months’ supervision.
11 Prasad v R, above n 5, at [11]; and Z (CA447/2012) v R, above n 6 at [27] – [28].
[14] I agree with Ms Kim’s submission for Ms Rodgers that her personal mitigating factors should have seen the overall gravity of the offending for sentence characterised less seriously.
Were there real and appreciable consequences of a conviction?
[15] Currently aged 33, Ms Rodgers achieved well at high school and worked initially in retail sales. She completed a New Zealand Level 4 Certificate in horticulture and received a diploma in landscape structural design. She established a landscaping and maintenance business in 2020, which has been sufficiently successful to require her to hire part-time staff during busy periods. However, she has expressed a desire to move, over time, away from her landscaping and maintenance work into an indoor administrative role.
[16] Ms Rodgers is concerned that a burglary conviction will compromise her immediate and longer term prospects.
[17] For the New Zealand Police, Ms Vaughan referred to Ms Rodgers’ previous convictions and to her decision not to appeal her convictions for breaching the protection order. Ms Vaughan noted the possibility of future employers checking on Ms Rodgers’ convictions, and submitted that such future employers would be unlikely to regard the burglary conviction as a tipping point.
[18] When considering this submission, I note that in R v Taulapapa, the Court of Appeal relevantly observed that:12
(a)Conviction carries a social stigma which the law sustains by recording and publishing convictions. It may affect a person’s career, but that consequence must normally yield to the employer’s right to know. This principle extends to independent bodies charged with assessing the character or suitability for a particular career. It applies to all offenders for whom convictions are recorded, including the young.
(b)The consequence may be severe if employers are unwilling to look behind the conviction to consider the person’s merits and that reaction is unfair to the offender in the sense that the conviction itself ought not exclude them from the career or job concerned. Such risk may arise where the conviction speaks to character or records a serious
12 R v Taulapapa [2018] NZCA 414 at [42] (footnotes omitted).
offence but does not fairly reflect the offender’s character or culpability. Theft may be an example of an offence that may lead employers to reject an applicant without further inquiry.
…
(d)The court may assume that applicants with convictions are likely to be excluded without inquiry where employers must filter many applications before arriving at a shortlist for interview; this may apply particularly to unskilled or semi-skilled work.
(e)The consequences of conviction may be severe where an offender points to a specific career or job to which conviction is likely to present a barrier; and that may be especially so where the offender has already spent some time training for that career.
…
[19] In my view, there is a real and appreciable risk that potential future employers of Ms Rodgers, in both her current occupation and her desired future occupation, will seek details of her previous convictions and be unwilling to look behind a conviction for burglary. I recognise that this conclusion involves a relatively fine judgment. It turns on:
(a)the impression a burglary conviction is likely to create, as against convictions for breaching a protection order and (historically) for driving-related matters; and
(b)the prospect, if an opportunity for explanation is assumed, of Ms Rodgers being unable to address concerns about the former rather than the latter.
[20] I consider burglary to be another example of the kind of ostensibly character-related or serious offence described in Taulapapa, likely to lead employers to reject an applicant without further inquiry. This is particularly so where, as here, the employment in question in likely to involve working around unoccupied private premises or other situations requiring the applicant to be trusted.
[21] The significance of this risk is heightened given the extended nature of Ms Rodgers’ efforts to educate herself and to build her business. It required consideration as against the overall gravity of the offending, in accordance with s 107.
Were the consequences out of all proportion to the offence’s gravity, taking all personal aggravating and mitigating features into account?
[22] Undertaking that comparison, I find that the direct and indirect consequences for Ms Rodgers of a conviction on the burglary charge would be out of all proportion to the overall gravity of that aspect of her offending.
[23] Ms Rodgers’ offending was uncharacteristic. Previously, she had been convicted only of three driving-related offences, two of driving without a licence and one of driving with excess breath alcohol, all committed more than 10 years previously, in 2011. Plainly, it was sourced in her emotional response to the breakdown of her relationship.
[24] While the offending was indeed moderately serious, involving unlawful entry into a home and damage to the laptop, it occurred in daylight when her former partner was absent. No violence was offered, and the removal of the laptop would obviously be discovered, so was likely the product of misguided thinking relating to the end of the relationship, rather than desire purely for commercial gain. Ms Rodgers’ partner expressed fear that Ms Rodgers might return, but her larger sentiment was simply that Ms Rodgers should not remain in contact. Ms Rodgers’ affidavit confirms that she has indeed moved on.
[25] On that basis, I find that the discretion to discharge was available to the Judge, and should have been exercised in Ms Rodgers’ favour.
Result
[26] Ms Rodgers’ appeal is allowed. Her conviction in respect of the burglary charge is quashed, and she is discharged without conviction. Ms Rodgers’ other convictions and sentences for breaches of the protection order remain in place.
Johnstone J
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