Allen v The the King
[2022] NZHC 2407
•20 September 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-409-000114
[2022] NZHC 2407
BETWEEN SAVANNAH LINDA ALLEN
Appellant
AND
THE KING
Respondent
Hearing: 1 September 2022 Appearances:
K T White for the Appellant
G E R Alloway for the Respondent
Judgment:
20 September 2022
JUDGMENT OF NATION J
Introduction
[1] Savannah Allen pleaded guilty to a charge of being an accessory after the fact to aggravated robbery.1 She was sentenced to three and a half months’ home detention by Judge Garland on 17 June 2022, after his Honour declined an application for discharge without conviction.2 Ms Allen appeals the decision to not grant her a discharge without conviction. She alternatively appeals the sentence on the basis it was manifestly excessive.
Background
[2]The summary of facts stated:
1 Crimes Act 1961, ss 71(1), 235(b), and 312: maximum penalty five years’ imprisonment.
2 R v Allen [2022] NZDC 11693.
ALLEN v R [2022] NZHC 2407 [20 September 2022]
CHARGE Aggravated Robbery (Accessory after the fact)
Crimes Act 1961 Section 235(b) & 71(1) Penalty: 14 years imprisonment
INTRODUCTION
At 8:55am on Sunday the 13th of June 2021 an aggravated robbery was committed at the Keystone Dairy at 152 Keyes Road, New Brighton, Christchurch.
Tobacco products to the value of $5,000 were taken in this robbery.
The defendant in this matter, Savannah ALLEN is the partner of one of the defendants in the aggravated robbery matter Ethon BAKER-CLEVELAND.
CIRCUMSTANCES
The defendant in this matter, Savannah ALLEN has been in the company of BAKER-CLEVELAND since the aggravated robbery.
On Thursday 24 June 2021, the defendant was advised by Police that BAKER- CLEVELAND was sought and would be arrested by Police for four aggravated robberies.
The defendant then intentionally misled Police by advising them she was at a location that she was not at in order for her and BAKER-CLEVELAND to avoid arrest.
The defendant was with BAKER-CLEVELAND as he evaded-Police-at various locations where they were residing.
On Tuesday, 6 July 2021 the defendant was located at the Classique Lodge on Blenheim Road, Christchurch with BAKER-CLEVELAND where they had been residing for several days.
DEFENDANT COMMENTS
The defendant was spoken to Police [sic] and admitted being with BAKER- CLEVELAND throughout this time but denied deliberately helping the defendant to evade arrest.
The defendant has previously appeared before the Court. MVY693
07/07/2021
[3]Ms Allen first appeared in court on 7 July 2021.
[4] The charging document described the offence as being an accessory after the fact to robbery and cited ss 235(b) (aggravated robbery) and 71(1) (accessory after the fact) of the Crimes Act 1961. The charging document was amended. The date of the offence was changed from 13 June 2021 to between 13 and 24 June 2021. It was changed to a representative charge and the maximum penalty was changed from 14 years’ imprisonment to five.
[5] Ms Allen was remanded on bail on a number of occasions. In August 2021, there were two remands because of COVID-19.
[6]Ms White appeared as counsel for Ms Allen.
[7] On 6 October 2021, Ms Allen pleaded guilty to an amended charge. Ms Allen was remanded on bail awaiting sentence and a pre-sentence report was directed. It is not clear from the record whether the amendments on the charging document were noted at the time the guilty plea was entered. The handwriting and signatures would suggest the amendments were noted by the Judge presiding at Ms Allen’s next appearance on 25 November 2021.
[8] The pre-sentence report was prepared by the Department of Corrections on 15 November 2021. The offence was described as “AGGRAVATED ROBBERY (TOGETHER WITH ANOTHER PERSON/S – S235(B)”.
[9] On 3 November 2021, Ms Allen filed an affirmation to support an application for a discharge without conviction. She said she had pleaded guilty to a charge of accessory after the fact to aggravated robbery on 6 October 2021.
[10] In her affirmation, Ms Allen said she did not know her then boyfriend, Mr Baker-Cleveland, was involved in the robberies until the Police called. Even then, he said he was only the driver and not involved, and Ms Allen said she believed him. She said she travelled with him as his fiancée but did not assist him.
[11] In her affirmation, Ms Allen provided information as to her family background and particular difficulties that had arisen in her life while at school and through an ex- partner who she met when she was 15 and was involved with for six years.
[12] On 18 November 2021, the Crown filed submissions as to sentencing. In those submissions, the charge was described as “aggravated robbery (accessory after the fact)” with a maximum penalty of five years. The summary of facts attached to the submission was the summary of facts for the four defendants who had been involved in three aggravated robberies of dairies. There can however be no suggestion that the Judge would have been misled as to this. The Court had the correct summary of facts. It was not suggested in the Crown’s submissions that Ms Allen had been involved in any way with the actual robberies.
[13] Attached to the Crown’s submissions was a jobsheet prepared by Police with information I refer to later which had been on Ms Allen’s cell phone. The Crown also quoted a call which the Police had recorded between Ms Allen and one of Mr Baker- Cleveland’s co-offenders on 15 June 2021.
[14] Ms Allen’s sentencing scheduled for 25 November 2021 was adjourned on several occasions for Ms Allen to attend a Limited Service Volunteer (LSV) course with the New Zealand Army at Burnham. She was released from the course on 18 February 2022 for disrespectful behaviour towards staff and trainees. Her sentencing was rescheduled for 17 June 2022.
[15] When she was released from the course, a social worker recorded a recommendation “for trainee to access psychological support around managing emotions. Consideration to be given to Clinical Psychology input if funding is available.”
[16] An updated presentence report dated 8 March 2022 referred to Ms Allen’s offence as “AGGRAVATED ROBBERY (TOGETHER WITH ANOTHER PERSON/S) - S235(B)”. It recommended supervision.
[17] In supplementary submissions for the rescheduled sentencing, Ms White provided information and an explanation for what had occurred at the LSV course but submitted involvement with the course had benefited Ms Allen. With the submissions were letters from pro-social family members noting Mr Allen’s change in attitude and motivation levels since returning from the LSV course. There were also further submissions to support the application for a discharge without conviction.
District Court decision
[18] The District Court Judge assessed the application for a discharge without conviction and also the appropriate sentence for Ms Allen.
[19] The Judge considered the gravity of the offending to be low to moderate. In coming to this assessment, the Judge considered:
(a) the seriousness of the charge, being one with a maximum penalty of five years’ imprisonment and involving a person interfering with the due administration of justice;
(b) the aggravating factors of this offending, being that Ms Allen deliberately misled the Police and assisted Mr Baker-Cleveland in avoiding arrest for an extended period of time. Ms Allen knew Mr Baker-Cleveland was in trouble from 15 June and she expressed a willingness at that time to help him avoid apprehension;
(c) the case law, especially R v Duff, R v Everitt and R v Te Tomo;3
(d) the fact Ms Allen had no previous convictions, although she has had the benefit of previous diversion;
(e) the fact the offending could be partly attributed to Ms Allen’s loyalty to Mr Baker-Cleveland at the time;
3 R v Duff HC Rotorua CRI-2009-063-6473, 9 December 2010; R v Everitt HC Whangarei CRI- 2006-088-3601, 28 February 2007; and R v Te Tomo [2012] NZHC 71.
(f) the difficult situation for Ms Allen growing up, including the criminal environment in which she was placed and the abusive relationship she was in;
(g) her young age of 21; and
(h) her remorse and steps taken to improve her life since the offending, including her evidence (without independent verification) that she was no longer using methamphetamine, that she was currently trying to find employment and that she was undertaking studies to better herself.
[20] The Judge then considered the consequences of a conviction. The main contention was that a conviction would effect Ms Allen’s prospects of future employment. Ms Allen was, at the time of sentencing, on a job seeker benefit. He said she had a few days of employment experience working in hospitality, but that was the extent of her experience. Ms Allen did not have the benefit of extensive schooling and did not achieve academic qualifications at school. She has since achieved some qualifications in hospitality.
[21] The Judge accepted that it would be more difficult for Ms Allen to find work with a criminal conviction. The Judge concluded that:
[47] Significantly you are not charged with dishonestly offending yourself. Given your age and your otherwise unblemished record I would think it likely that any reasonable and fair employer would be likely to make enquiry as to the circumstances of the offending behind the conviction and not just dismiss your interests in employment outright. While I accept a conviction may make it more difficult to get a foothold in the hospitality industry and retail industry, I consider it is just as likely that your limited schooling and qualifications, your time spent since leaving school not working and your limited work experience and qualifications in hospitality will influence any prospective employer equally, even a fair-minded employer who is appraised of the background of the conviction.
[22] The Judge noted the importance of not depriving potential employers in the retail and hospitality industry relevant information. Although he said this was not a conviction for dishonesty, the Judge noted the offending did involve an attitude towards authority that should not be disguised. The Judge noted Ms Allen was
discharged from the LSV course and considered this tended to show she continues to harbour disrespect for authority.
[23] Regarding her age, the Judge considered that she is a young adult, and the consequences of a conviction were the same as he covered regarding her employment. Regarding Ms Allen’s embarrassment, loss of pride, stigma and shame, the Judge considered these feelings were not out of the ordinary for those who appear before the court.
[24] Overall, the Judge considered the direct and indirect consequences of the conviction to be low to moderate at their very highest. He therefore considered the direct and indirect consequences of a conviction were not out of all proportion to the gravity of the offending, and so declined the application.
[25] For sentencing, the Judge considered an appropriate starting point was 12 months’ imprisonment, having regard to the cases listed above.4 He gave a 40 per cent discount for Ms Allen’s early guilty plea (taking into account the delays caused by COVID-19), her lack of previous offending, her remorse and her youth. That left a sentence of seven months’ imprisonment, which the Judge commuted to a sentence of three and a half months’ home detention. She was also to attend and complete any recommended intervention for alcohol and drug use to the satisfaction of a probation officer.
Principles on appeal
[26] The Court may grant a discharge without conviction under s 106 of the Sentencing Act 2002 only if it is satisfied, under s 107, that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.5
[27] Appeals against the proportionality test under s 107 are by way of rehearing, with the appellate Court making its own assessment of whether the criteria are
4 Above n 3.
5 Sentencing Act 2002, s 137.
established.6 If a discharge without conviction should have been granted, then there will have been a material error by the sentencing Judge, or a miscarriage of justice will have occurred for any other reason, and so the appeal against conviction must be allowed.7
[28] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.8 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.9 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.10
Submissions
Appellant’s submissions
[29] Ms White, in thorough and clear submissions, first noted that the conviction had been recorded on Ms Allen’s criminal record as “aggravated robbery”, instead of as “accessory after the fact to aggravated robbery”. She had brought this to the attention of the District Court Registry and had been told this was how it had to be recorded. Ms White submitted, as the sentencing Judge would not have known this was how the charge would be reflected on her criminal record, the Judge did not have regard to this when considering what the consequences of a conviction would be. She asked the Court to take steps to rectify what had occurred if Ms Allen’s appeal against the refusal of a discharge was unsuccessful.
[30] For the appeal against the refusal to grant a discharge without conviction, Ms White contended the District Court Judge erred in assessing the gravity of the
6 H v R [2012] NZCA 198 at [35]-[36].
7 Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].
8 Criminal Procedure Act, ss 250(2) and 250(3).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
10 Ripia v R [2011] NZCA 101 at [15].
offending by holding, contrary to the summary of facts, that Ms Allen provided assistance to Mr Baker-Cleveland for “up to nine days” to evade arrest. She submitted it was more accurate to characterise Ms Allen’s offending as a one-off incident when she misled the Police over the phone. She submitted there was no evidence that, prior to the phone call from the Police, Ms Allen was aware of the aggravated robberies. She submitted Ms Allen should have been sentenced on the basis she knew only that Mr Baker-Cleveland was in trouble through cutting off his electronic-monitoring bracelet. She had not known over the relevant time that he had been involved in an aggravated robbery, an element the Crown would have had to prove for her to be guilty as an accessory after the fact through any assistance she gave Mr Baker-Cleveland over that time. She also submitted there was no evidence that, in the time between the phone call from the Police and her arrest, Ms Allen had supported Mr Baker-Cleveland logistically or financially. Rather, she had been with him simply as his fiancée. Ms White submitted, given Ms Allen’s background, it was not surprising that she trusted Mr Baker-Cleveland and believed him when he said he had not been involved and was only the driver.
[31] Ms White submitted, because Ms Allen’s offending was a one-off incident, it was inaccurate of the District Court Judge to characterise it as being at a similar level to the offending in R v Everitt.11
[32] Ms White also submitted the Judge erred in assessing the consequences of a conviction by:
(a) finding that any reasonable and fair employer would be likely to make enquiry as to the circumstances of the offending after seeing the conviction as the case law illustrates that any conviction (regardless of type) is likely to disadvantage the defendant;12
(b) placing inappropriate weight on the need to not disguise a disrespect of authority from future employers because that would not be apparent from
11 R v Everitt, above n 3.
12 O’Riley v Police HC Wellington CRI-2011-485-98, 25 November 2011 at [12]; and Parkinson v Police [2015] NZHC 3272 at [38].
simply seeing the conviction on her criminal record. Rather, an employer would assume that she was involved in violent and dishonest offending;
(c) proceeding on the basis that Ms Allen’s limited schooling and qualifications, the time she spent not working, and her limited work experience in hospitality and retail would limit her career prospects rather than a conviction. She submitted it took no account of the year she spent working at a sports club and was inconsistent with observations made in other cases as to how convictions can have disproportionate effects on young people;13 and
(d) disregarding the consequence of embarrassment, loss of pride, stigma and shame as “not something out of the ordinary”, as there is no requirement for the consequences to be out of the ordinary for them to be considered on a discharge without conviction application.
[33] Ms White also submitted, the fact Ms Allen’s conviction would be recorded as aggravated robbery, without mentioning she was an accessory after the fact, should have been factored into the consequences of conviction. Ms White submitted this would have further impact on Ms Allen because the crime of aggravated robbery is significantly more damning, given its violent nature and the recent attention on youth crime. This would also affect her in the unlikely event she was to appear before the court again. Ms White submitted that Ms Allen’s rights under s 27 of the New Zealand Bill of Rights Act 1990 are being breached with the inaccurate recording of her conviction.
[34] For the proportionality assessment, Ms White submitted the consequences of the offending would be out of all proportion with the gravity of the offending. She submitted the consequences of the offending would be severe, as Ms Allen would struggle to get employment with employers dismissing her out of hand because of her conviction, particularly so if it continues to be labelled as an aggravated robbery. In the proportionality assessment, Ms White submitted the Court should have regard to
13 Amstad v Police HC Auckland CRI-2011-404-161, 6 September 2011; and R v M [2014] NZHC 1848 at [38].
Ms Allen’s upbringing where she grew up surrounded by crime, was abused and was addicted to methamphetamine from the ages of 16 to 21.
[35] For the alternative appeal against sentence, Ms White submitted the District Court Judge erred in failing to consider the least restrictive sentence appropriate in the circumstances, which she submitted should have been a sentence less restrictive than home detention. She submitted the Judge erred by being influenced by Crown submissions that “compelling circumstances” were required to drop the sentence further down the hierarchy to below home detention. She submitted this was incorrect in law.
[36] Ms White submitted the factors raised regarding the discharge without conviction application were also relevant to Ms Allen’s sentencing. She submitted that imposing a community-based sentence would send a message to future employers about the low gravity of this offending. She submitted an appropriate sentence would be supervision combined with community work or community detention. Ms Allen has already served two and a half months of her three-and-a-half-month sentence.
Respondent’s submissions
[37] Mr Alloway, for the Crown, submitted the Judge was correct in holding that Ms Allen knew Mr Baker-Cleveland was involved in the aggravated robbery and she helped him for a prolonged period. Mr Alloway pointed to evidence showing Ms Allen knew about the robbery after she was phoned by the Police. Regarding her assistance, Mr Alloway pointed to a message Ms Allen sent to one of the other offenders in the robbery on 15 June 2021 (before the Police call) that he should have dropped Mr Baker-Cleveland off already and she would have gotten him out of town and he would be fine. He also pointed out that she paid for a motel room on 6 July 2021 (after the Police call). Mr Alloway cited these examples as providing evidence of Ms Allen’s intention to assist and encourage Mr Baker-Cleveland and her logistical and financial support respectively. He said the Judge did not deem the support to have been before the Police call, but a prolonged period of support after the Police call until Mr Baker- Cleveland was apprehended by the Police.
[38] For the consequences of the conviction, Mr Alloway said, as Ms Allen did not currently have employment, the effect of a conviction would be that she would be less likely to be shortlisted for future roles. He submitted this was not out of the ordinary and therefore at the lower end of the scale for the seriousness of the consequences. Mr Alloway accepted that there are issues with how the conviction is currently recorded but, if that was rectified, it would properly reflect Ms Allen’s culpability.
[39] Mr Alloway submitted, as the consequences of the conviction were at the lower end of the scale, it was open to the Judge to conclude they were not out of all proportion to the low to medium gravity of the offending.
[40] For the sentence appeal, Mr Alloway submitted it was open to the Judge to conclude that home detention was the least restrictive sentence available, especially given his Honour considered it was important to denounce and deter the particular offending. Mr Alloway said, while the Crown submitted there was no compelling reason to move away from home detention, that is not the test the Judge adopted in setting the sentence as home detention. The Judge considered that home detention was the least restrictive sentence available in the circumstances.
[41] In reply, Ms White submitted the Crown could not, at sentencing, have relied on statements outside the summary of facts referring to statements from the Court of Appeal, emphasising that sentencing must proceed on the basis of the summary of facts or inferences grounded on established primary facts.14
Analysis
The incorrect recording of the conviction
[42]I deal first with the way Ms Allen’s conviction was recorded.
[43] As it stands, any government department, including the Police, entitled to access to Ms Allen’s criminal and traffic history would see the conviction recorded as
14 R v Apostolakis (1997) 14 CRNZ 492 (CA); Pokai v R [2014] NZCA 356; and R v Whiunui
CA212/05, 9 November 2005.
“Aggravated Robbery (Together With Another Person) (Representative)”. Her sentence is also set out.
[44] The Crown agrees this is misleading and unfair to Ms Allen. Ms White also properly conveyed a concern that other people could be similarly affected if what the District Court did in this instance reflects what happens generally when a person is charged with being an accessory after the fact to another offence.
[45] Ms White had raised the issue with a person at the District Court Registry who responded in a way that indicated she wanted to help and had sought advice from someone more senior over the issue. She responded:
Although the charge was amended from “not representative” to “representative”, and from maximum penalty of 14 years to 5 years, the correct code was used and therefore this was never changed. The offence code is for Agg Rob but this covers and includes as an accessory.
She referred to the way the charge had been worded on the original charging document.
[46] Mr Alloway suggested it seemed there was a systemic problem within the Registry and the conviction had been wrongly recorded because the Ministry did not have a way of coding the particular offence otherwise.
[47] It may be this was not the reason for the error. It may have resulted from the way the offence was described on the initial charging document. There may not be such an error in other circumstances when a person has been charged as being an accessory after the fact.
[48] Whatever the reason, the conviction has been recorded in a way which is inaccurate, seriously unfair and with the potential to disadvantage Ms Allen in any dealings she might have with government departments or other agencies that have access to her criminal record. The Crown said the appropriate way to record the conviction would be “Accessory after the fact (aggravated robbery)”.
[49] A conviction should not be recorded wrongly in the way that occurred in this case because of some coding limitation in the platform the court uses for doing this, if that was the reason for the error. The issue is a serious one. Accordingly, I will draw this to the attention of the Chief District Court Judge so he can bring it to the attention of the appropriate people within the Ministry of Justice.
[50] The Court has been advised that the way an offence and conviction has been recorded depends, at least in part, on how the offence has been described by the Police. The Court has been told the coding system in the District Court would have allowed this conviction to be recorded as “Accessory after the fact (general)”.
[51] I thus deal with the issues on this appeal on the basis that, if Ms Allen remains convicted, her record will show her to have a conviction for accessory after the fact (general).
The gravity of the offending and the Judge’s reference to information on Ms Allen’s cell phone and of a call she had made
[52] Ms Allen pleaded guilty to the charge of accessory after the fact (aggravated robbery). It was apparent from the wording of the charge and the summary of facts that, with her plea of guilty, she was admitting to having committed that offence when she lied to the Police about where she and Mr Baker-Cleveland were on 24 June 2021. For her to be guilty of that offence, she had to be admitting that she knew at that time Mr Baker-Cleveland had been involved in an aggravated robbery. For her to claim she had not believed him to have been involved in the days afterwards, before her arrest, was inconsistent with her guilty plea.
[53] I next consider the gravity of the offending, a matter relevant to both discharge without conviction considerations and the ultimate sentence.
[54] In the circumstances of this case, I do not ignore the evidence put before the Judge as to the communications on Ms Allen’s cell phone as provided to the Court with the Crown’s submissions for sentencing. Ms White pointed to authority where
the courts have held, where sentencing is to proceed on an agreed summary of facts, the Court cannot depart from that summary of facts for sentencing nor on appeal.15
[55] Lang J in Waiapu v R, referring to authorities, held that where a Judge wants to take into account an aggravating factor not apparent from the summary of facts or relied upon by the prosecution then the defendant must have the opportunity to contest the fact at a disputed facts hearing if they dispute the fact.16
[56] In Archer v R, the Court of Appeal discussed the factual basis on which a sentencing must proceed.17 The Court said:
[15] In this regime, it is an essential part of counsel’s responsibilities to identify disputed facts that may be thought material, to discuss them with the court and to call for a hearing if necessary. If counsel has failed to act at the time, it may not be easy on appeal to show that something has gone wrong.
[57] In applications for a discharge without conviction, defence counsel often provide additional details as to the culpability of the defendant without these being contained in a summary of facts. Where these are contested by the Crown, this could require a disputed facts hearing.18
[58] There were disputed facts in this case in the sense that Ms Allen contended she did not have knowledge of the aggravated robberies prior to being told by Police and she did not believe Mr Baker-Cleveland to be involved until after they were arrested. This information was not in the summary of facts and was from her affirmation. These were relevant and important factors in determining the gravity of her offending relevant to an application for a discharge without conviction. It was appropriate for the Crown to respond to these matters insofar as they relate to the discharge without conviction application and sentencing. They did that by putting before the Court information that was on Ms Allen’s cell phone and thus information she knew about, the accuracy of which she could verify.
15 Above n 14.
16 Waiapu v R, [2016] NZHC 2491, [2016] NZAR 1561 at [14]. Emphasis added.
17 Archer v R [2017] NZCA 52 at [9]-[15].
18 Cowley v R [2020] NZHC 638 at [30].
[59] Given the differences between what Ms Allen said in her affirmation as to her beliefs at the time and inferences that could be drawn from the information on her cell phone, there could have been a disputed facts hearing under s 24 of the Sentencing Act. This was not suggested or requested by either Ms Allen or the Crown.
[60] The reality of sentencing in the District Court has to be recognised. It is not unusual for both the Police and the defence to recognise that certain disputes can be resolved without the delay and burden of a separate disputed facts hearing.
[61] In this case, it is hard to see how there could have been any dispute that the relevant communications had been made to Ms Allen and her knowledge and actions would have been consistent with what was recorded on her phone. It was not suggested by her counsel on appeal that there was anything inaccurate in the information put before the Court in this way. As such, I consider there was no unfairness in the Crown asking the sentencing Judge to draw certain inferences from that information, in the same way a sentencing Judge is entitled to do based on the summary of facts.
[62] The ultimate test on appeal against conviction is whether there was a miscarriage of justice; for an appeal against sentence, whether there was an error in the sentence imposed and whether a different sentence should be imposed. In the circumstances of this case, the Crown was responding to information provided by Ms Allen that went beyond the summary of facts. I do not consider a different sentence should be imposed because information on Ms Allen’s cell phone was considered by the sentencing Judge, or that there was a miscarriage of justice on that basis.
[63] As referred to by Mr Alloway, but not included in the information Police gleaned from searching Ms Allen’s phone, on 15 June 2021, Ms Allen texted the co- offender saying he should have dropped “him” off and she would have got “him” out of town.
[64] On 17 June 2021, Ms Allen received Snapchats from Mr Baker-Cleveland showing him in the company of another party involved in the aggravated robberies. In that video Mr Baker-Cleveland said “I don’t know if you’re looking at this now or
when we’re in the pen, but I love you and we’ll get through this together and thanks for being there for me and the bro …”.
[65] On 22 June 2021, there was a screenshot of a bank transfer of $40 from Ms Allen to Mr Baker-Cleveland’s sister.
[66] On 24 June 2021, there was the phone call from the Police in which Ms Allen lied about where they were.
[67] On 25 June 2021, Mr Baker-Cleveland’s sister messages Ms Allen on Snapchat in terms that indicate they have worked together to make sure arrangements have been made so they and Mr Baker-Cleveland could stay in a motel.
[68] On 26 June 2021, there was a communication from someone else referring to some person or place having been raided. In the course of that exchange, Ms Allen told that other person about what she had told the Police on 24 June 2021. The other person messaged “tell him [obviously Mr Baker-Cleveland] he an ass for robbing my dairy that lady used to tik me ciggys”.
[69] On 29 June 2021, there were messages from Mr Baker-Cleveland using Ms Allen’s account which show he was communicating with someone about and referring to one of the aggravated robbery co-offenders being in jail.
[70] On 6 July 2021, there was a message from Ms Allen to Mr Baker-Cleveland’s sister saying “paid for the room”. On 6 July 2021, Ms Allen and Mr Baker-Cleveland were arrested.
[71] In his decision, the Judge referred to several of these communications and said they cut against Ms Allen’s comments that she had no idea Mr Baker-Cleveland was involved in the robberies. There was no error in that statement.
[72] I am also not satisfied from the statements made in Ms Allen’s affirmation that she could have naively thought Mr Baker-Cleveland had not been involved in the robbery even after the Police called and spoke to her on 24 June 2021. Ms Allen said, after that call, she challenged Mr Baker-Cleveland about it and he told her he had been
a driver for his friends, “but that was it and he was not involved”. I consider, given what Ms Allen said of her background, she would have known that, if he assisted the others in that way, then he was involved. In her affirmation she said, referring to her conversation with the Police officer on 24 June 2021, she had been annoyed and she “told the officer he couldn’t charge me, he could only do that if I was with Ethan [Mr Baker-Cleveland] if he was involved at all”.
[73] In her affirmation, she described the difficulties she had after she was 15, in a previous relationship that continued on and off for six years. She said how that person was into stealing cars and then later people’s tools and other stuff. She said, around 2020, this person got her to pawn some items at shops for him, this had led to her being charged with receiving for which she received diversion, it would seem in June 2021.
[74] In response to my putting some of these matters to Ms White, counsel accepted Ms Allen could have been wilfully blind to Mr Baker-Cleveland’s involvement with the aggravated robbery. The Police had provided the Judge with information that Ms Allen had been involved in the arrangements for them to stay at a motel, and had given the sister $40 on 22 June 2021. It would therefore appear that Ms Allen provided some assistance for Mr Baker-Cleveland while he was evading the Police.
[75] On the other hand, Ms Allen did not have a history of serious criminal convictions. The initial pre-sentence report prepared for her on 15 November 2021 referred to her then boyfriend, Mr Baker-Cleveland, as a:
… prolific violence offender, who is currently a sentenced prisoner and facing a raft of serious charges. He is unlikely to be a positive influence on Ms Allen in terms of offending risk.
[76] That report said Ms Allen had assisted Mr Baker-Cleveland out of loyalty to him.
[77] In her affirmation, Ms Allen said she was around crime from a young age because of her family (not her stepfather who she regards as her father, or his partner).
[78] In her affirmation, Ms Allen said, after Mr Baker-Cleveland cut off his EM bracelet, they stayed at his mother’s place for a while and, while there, became
engaged. The mother had wanted them all to go to Hanmer Springs on a camping trip to celebrate. His mother must have known her son had cut off his EM bracelet so it would be reasonable to infer she had promoted the idea of her son leaving town at a time the Police were looking for him. The actual practical assistance Ms Allen may have given Mr Baker-Cleveland to evade the Police over a longer period was likely limited.
[79] I do not however consider there was any material error in the Judge proceeding on the basis that Ms Allen had the knowledge and acted so as to be an accessory after the fact to aggravated robbery for a period that went beyond just the lie she told the Police on 24 June 2021.
[80] The Judge said Ms Allen had known from social media communications that Mr Baker-Cleveland was in trouble of some kind from 15 June 2021 and had expressed a willingness at that time to help him avoid apprehension. The Judge then referred to the circumstances in other cases and the starting points adopted in those cases. He referred to Ms Allen’s personal circumstances and background. He said, taking all those factors into account, he assessed the overall gravity of the offending to be low to moderate. It is not suggested there was any error in that regard.
The consequences of conviction
[81] As to the s 106 application, the Judge then considered what the consequences of a conviction would be for Ms Allen. The Judge accepted there was a real and appreciable risk that a conviction would make it more difficult for Ms Allen to find employment, as he said is the case for all persons who come before the Court charged with criminal offending.
[82] There are several ways in which my assessment, as to what the consequences of a conviction for Ms Allen are likely to be, would differ from that of the District Court Judge. At two points in his assessment, the Judge referred to the fact this would not be a conviction for dishonesty. He said, given Ms Allen’s age and her “otherwise unblemished record”, he thought it likely any reasonable and fair employer would be likely to make enquiries as to the circumstances of the offending behind the conviction and not just dismiss outright Ms Allen’s interests in employment.
[83] I consider a conviction for accessory after the fact to aggravated robbery would be just as damning or prejudicial as a dishonesty conviction as far as future employment prospects are concerned, even to a fair-minded employer. Robbery involves theft with violence or the threat of violence so it does involve dishonesty.19 Aggravated robbery would be commonly understood by many in the community, including prospective employers, as being more serious again. The potential sentence for aggravated robbery is 14 years which is significantly more than the potential sentence for theft or most offences involving fraud.
[84] Ms Allen’s criminal record will be amended to show she has a conviction for “accessory after the fact (general)”, so it will not be immediately clear to prospective employers that she was an accessory after the fact to aggravated robbery. However, if any employer makes further enquiries, then Ms Allen will have to disclose the details of her conviction, including the fact it related to her helping her then boyfriend who was on the run after an aggravated robbery.
[85] As Ms White mentioned, there has been judicial recognition of the way a conviction will affect employment prospects of young people. Ms Allen’s lack of qualifications and limited work experience since school will create difficulties for her in obtaining employment, but that does not mean the consequences of a conviction will be less serious for her than someone who has been working or who has attained further qualifications.
[86] There was evidence from Ms Allen, but also from others, to indicate Ms Allen is now committed to making changes in her life which should lead to improved employment prospects. In that sense, she is at the crossroads so the consequences of a conviction as far as future employment prospects are concerned will be significant. The Judge acknowledged that a conviction will have those consequences. Where an employer has to consider a number of applicants for a position, it would not be unusual for that employer to whittle down the number of applicants they have to consider by initially asking all applicants to disclose whether they have a criminal conviction. It would not be unusual for the employer to then cull out those with a conviction without
19 Crimes Act, s 234.
any further consideration of the actual circumstances of that offending or matters that might have been positive for an applicant.
[87] The way in which I would assess the consequences of a conviction does thus differ from that of the sentencing Judge. Despite that, my ultimate conclusion would be the same.
[88] I have considered carefully the serious nature of the charge and also the serious offending Mr Baker-Cleveland had been involved in. Ms Allen lied to the Police to help Mr Baker-Cleveland evade the Police, knowing he was, at the very least, suspected of involvement in a serious aggravated robbery. She supported him while he was on the run, even if this was primarily through the emotional support she provided over that time.
[89] Ms Allen has not satisfied me, as she did not satisfy the sentencing Judge, that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[90] Ms Allen’s appeal, insofar as it is against the refusal of a discharge without conviction, is dismissed.
The appeal against sentence
[91]I now deal with the appeal against sentence.
[92] At the outset of his sentencing remarks, the Judge did not expressly say he considered home detention the least restrictive sentence but that does not mean he did not take it into account. He said a rehabilitative element of sentence would be appropriate. He gave Ms Allen credit for having no previous history of offending, her appearing to be remorseful, what she had said about her difficult life in the past and the steps she was now taking to improve herself. He noted the support she had from her family and her age being 21. On account of overall mitigating features, the Judge reduced what he had found to be an appropriate starting point sentence by 40 per cent, or five months. That then led to the adjusted starting point of seven months’ imprisonment and then the three and a half months’ home detention.
[93] I differ from the Judge however in that I attach more significance to the changes Ms Allen said she was making in her life. The Judge was probably a little sceptical about this given the way the LSV course had ended for Ms Allen and the way information on her cell phone rather undermined her assertion as to her belief that Mr Baker-Cleveland had not been involved in a robbery.
[94] Nevertheless, Ms Allen’s affirmation before the scheduled November 2021 sentencing explained in detail the environment in which she had been brought up and the way ultimately it had led to her leaving school at a very young age without qualifications. The information she provided as to the lifestyle that followed and the associations she then made indicate she would have been seriously at risk of becoming involved in criminal offending. She mentioned in her affirmation the way she had become involved in using methamphetamine, an admission she did not have to make but which tends to suggest that the picture she painted of her background was likely honest. There was information before the Court which indicated that she recognised she was at the crossroads.
[95] She said in 2021 her family stepped in. They said she had to choose, “either it was meth or them”. She said she chose her family. As the Judge said, she has positive support from her family. This would seem to be primarily from her stepfather who has been in her life since she was five years old. She said he is a good influence in her life. Before the Judge was what reads as a thoughtful and considered letter from her stepfather’s partner. It indicated how she and Ms Allen’s stepfather had insight into how Ms Allen’s life had gone off the rails and were, in practical ways, helping her to do what she needed to do “to get a job and start taking responsibility for herself”. Her stepfather’s partner said in a letter of 2 November 2021 that Ms Allen:
… has made great progress over the last few months and I have seen a real change in her. I never thought I’d be writing this and saying that I now feel comfortable leaving my special needs daughter with her while I attend appointments. I would never have said that 6 months ago.
[96] Although Ms Allen was released from the LSV course, the letter from the registered social worker was not entirely negative. Her letter of 18 February 2022 began:
You attended LSV S01/22 and completed 19 days of the 41 day course. Your time at LSV has been a challenging journey for yourself and there were times when you wished to submit a self-release form, but you made the decision to work through some of the challenges and were open to finding ways of dealing with frustrations (time away from the situation, talking to staff). Unfortunately you were involved in an incident which has resulted in you being released on Disciplinary grounds.
[97] The pre-sentence report of 8 March 2022 referred to that social worker’s report, information obtained from Ms Allen’s stepfather and partner, and their advice that there had been a noticeable change in Ms Allen’s attitude and motivation levels since her return from LSV. They confirmed that Ms Allen had taken the initiative to enrol herself in a business administration course at Polytech and appeared to be more future- focused. They were satisfied that her relationship with Mr Baker-Cleveland was over and confirmed they had no current concerns regarding her other associates or her substance use.
[98] The information Probation obtained from Ms Allen’s stepfather and his partner was consistent with a letter they had provided for the Court which was presented with Ms Allen’s supplementary submission of 10 June 2022. Given their awareness of why she was before the Court, the relationships she had been previously involved in, and the ultimatum they must have given Ms Allen as to her drug use, it is significant that, in their letter, they were able to say:
We are both [sic] of the steps that she has made so far and we are both looking forward to seeing her continue on her development[.]
We are very proud of her[.]
[99] There was also a letter dated 6 January 2022 from her Case Manager at the Ministry of Social Development confirming she had been working with Ms Allen for the past six months to help her find her pathway into further education, training and employment. In that letter she said she had been impressed with Ms Allen’s attitude and “how she is now taking responsibility and is making positive choices to change her life”.
[100] There was a letter form the Open Polytechnic confirming Ms Allen’s enrolment in a Business Administration course that was to begin on 14 March 2022, ending on 31 July 2022.
[101] In the District Court, Ms Allen’s counsel had sought a sentence of supervision perhaps coupled with community work, if the application for discharge was not successful.
[102] Despite the seriousness of the charge, in the particular circumstances of this defendant, the rehabilitative approach should have been given priority. The Judge agreed that approach was appropriate. Home detention is an alternative to prison. Here, a lesser restrictive sentence should have been imposed. That could have been a sentence of supervision. That sentence would have provided Ms Allen with the regular oversight of contact with a probation officer which would have been of assistance to her in making the progress she said she was committed to.
[103] With supervision there could also have been the requirement for her to engage in particular rehabilitative programmes which Probation assessed would be beneficial to her. It may well have been appropriate for that to be coupled with community work as a way of holding her accountable for the harm she had done through making it more difficult for the Police to apprehend Mr Baker-Cleveland for the offending which she knew he had been involved in. Ms Allen has however now been under the significant constraints of a home detention sentence for two and a half months.
[104] I consider the imposition of that lesser sentence would also have been of particular assistance to Ms Allen and her rehabilitation because it would have mitigated the consequences of a conviction as far as future employment prospects are concerned. A sentence of supervision would indicate to a prospective employer that the offending may not have been as serious as might be assumed with just the description of the conviction as accessory after the fact (general). Seeing the sentence of supervision, a prospective employer might well be encouraged to make further enquiries. Through that, it is more likely Ms Allen would have the opportunity to show she has made positive changes in her life so that she will be able to make a positive contribution as an employee if given the chance to do so.
[105] For all the reasons discussed, I allow Ms Allen’s appeal against the sentence of home detention. That sentence is quashed. Ms Allen is sentenced to supervision for one year.
[106] It is a condition of that sentence that Ms Allen attend and complete any recommended intervention for alcohol and drug use to the satisfaction of a probation officer or any other programme Probation considers will assist her in obtaining employment and avoiding the sort of associations which led to this offending.
[107] It is also to be a special condition of that sentence that Ms Allen reside at an address approved by her probation officer. Ms Allen’s stepfather and his partner have clearly provided support for her in changing her lifestyle. She resided at their address while on home detention. I consider without their support there is a risk Ms Allen will start to take drugs again and reoffend. Ms Allen has, herself, recognised that the people with whom she has associated in the past have put her at risk of offending. Requiring her to reside at an address approved by her probation officer should reduce the potential for her to renew or embark on the sort of associations that led to this offending and the earlier drug taking that she acknowledged in her affirmation.
[108] I direct the Registrar of the District Court to correct the Court record so that Ms Allen’s conviction is recorded as being accessory after the fact (general).
[109] Ms Allen must contact Community Corrections within 48 hours of receiving this decision.
Solicitors:
Public Defence Service, Christchurch
Raymond Donnelly & Co., Christchurch.
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