Aye v Housing New Zealand Corporation HC Auckland CRI-2011-404-231
[2011] NZHC 1291
•19 October 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-404-231
BETWEEN MYA MYA AYE Appellant
ANDHOUSING NEW ZEALAND CORPORATION
Respondent
Hearing: 17 October 2011
Counsel: S Magnussen for Appellant
P Brown for Respondent
Judgment: 19 October 2011
JUDGMENT OF BREWER J
This judgment was delivered by me on 19 October 2011 at 3:00 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
SOLICITORS/COUNSEL
Sacha Magnussen (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent
AYE V HOUSING NEW ZEALAND CORPORATION HC AK CRI-2011-404-231 19 October 2011
Introduction
[1] The appellant pleaded guilty to three charges of using a document to obtain money. The documents she used enabled her to obtain rent subsidies to which she was not entitled and which totalled $16,828. On 2 June 2011 Judge Gittos in the District Court at Auckland convicted the appellant and sentenced her to 120 hours’ community work. He also ordered the appellant to pay reparation to the New Zealand Housing Corporation in the sum of $16,828.
[2] The appellant appeals the conviction and sentence. She contends that she should have been discharged without conviction pursuant to s 106 of the Sentencing Act 2002.
[3] Section 106 empowers the Court to discharge an offender without conviction and deems such a discharge to be an acquittal. However, s 107 provides the following guidance:
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.
[4] As the Court of Appeal affirmed in Blythe v R,[1] the Court must first consider whether the disproportionality test in s 107 has been met.
[1] Blythe v R [2011] NZCA 190; [2011] 2 NZLR 620 (CA).
[5] In R v Hughes[2] the Court of Appeal set out the three-step process a Court may find helpful in deciding whether the criteria for a discharge without conviction have been met:
[2] R v Hughes [2008] NZCA 546 – and found to be helpful by the Court of Appeal in Blythe v R.
(a) Identify the gravity of the offending by reference to the particular facts of the case;
(b) Identify the direct and indirect consequences of a conviction; and
(c) Determine whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending.
(a) The gravity of the offending
[6] In assessing the gravity of the offending for the purposes of the s 107 disproportionality test, the Court must take into account all relevant circumstances of the offence, the offender, and the wider interests of the community.[3]
[3] Ibid, at [41].
[7] The relevant circumstances to my mind are:
(a) The appellant was 17 years old at the time of the commencement of the offending. She was a solo mother on a domestic purposes benefit for whom English was very much her second language. Her partner was living with her for five to six days a week. Although she has acknowledged criminal liability for her actions, she nevertheless, I accept, acted naively and without particular reflection in using the documents on the three occasions she did;
(b) The amount that she fraudulently acquired is not insignificant.
Although a reparation order has been made, the appellant has no present ability to make significant payments and I was advised from the bar by Ms Brown that to date no reparation has been made;
(c) The offending did involve planning. It was not spur of the moment offending and the acts of dishonesty took place over a period of two years;
(d)The appellant pleaded guilty to the offending at the earliest opportunity;
(e) The appellant has no previous convictions;
(f) The appellant has expressed her embarrassment at the offending and, on the advice of her lawyer, completed four weeks of voluntary work at a child care organisation.
[8] Putting aside the contention by the appellant that she should have been discharged without conviction, the actual end sentence of 120 hours’ community work coupled with a reparation order could not be said to be clearly excessive or inappropriate in the circumstances. The appellant does not suggest that it was.[4]
[4] The apparent failure by the sentencing Judge to give credit for the guilty pleas in accordance with Hessell v R [2010] NZSC 135 has not resulted in an excessive sentence.
[9] My conclusion is that the appellant’s offending was of moderate gravity for its type and that her personal characteristics and ready acceptance of culpability are reflected in her sentence.
(b) Direct and indirect consequences of the offending
[10] The basis of the appeal is that the appellant is embarking upon the obtaining of a qualification in early childhood care. She is afraid that if these convictions stand she might not be able to continue with her programme of education and, even if she does, might find it difficult to obtain employment subsequently.
[11] The appellant deposes that she is currently enrolled in an early childhood course at the Manukau Institute of Technology. This began in July 2011. In order to qualify for that course she completed a preliminary course with Pathways He-Ara, based in Panmure. This helped her with communication, literacy and numeracy skills to the point where she is able to effectively participate in the course. Her wish is to obtain the Early Childhood Certificate. Annexed to the appellant’s affidavit is a letter dated 14 April 2011 from the appellant’s tutor at the Pathways He-Ara course. The tutor says:
I feel that the consequences of a conviction against MyaMya, for using or obtaining a document for pecuniary advantage is likely to result in MyaMya not being able to find employment in her chosen industry or to further her education in Early Childhood.
[12] Also attached to the appellant’s affidavit is part of the course programme for a certificate in early childhood education. Under the heading “entry requirements” is the following:
Be prepared to sign a Disclosure of Information Form for the New Zealand Police. If an applicant has been convicted of a crime, they may be excluded from entry to the programme.
[13] Ms Magnussen for the appellant submits that the Court can, and should, take a common sense anticipatory view of the consequences of conviction.[5] There is a real and appreciable risk for the appellant that convictions for dishonesty would have a disqualifying or, at the very least, chilling effect on her prospects of completing her education and gaining employment.
[5] Cook v Police HC Auckland A01/03, 28 February 2003, Harrison J.
[14] Ms Magnussen submits that while the gravity of the offending might be considered to be relatively serious, the culpability of the offending is moderately low. This is because of the personal circumstances of the appellant referred to above and the availability of a finding that the appellant was naïve rather than criminal. The appellant has demonstrated her remorse and has worked diligently to complete her sentence of community work in addition to the four weeks of volunteering in the early childhood sector. Ms Magnussen submits that the Court could consider the appellant’s actions to be one-off offending by an otherwise basically decent young person who has blotted an otherwise clean copybook.
[15] The respondent submits that the possible effect of convictions on the appellant’s desired career is speculative only. The appellant’s tutor is expressing an unqualified opinion. The material on prerequisites for the course does not state that convictions will exclude a student. It is not necessary for a person working in the field of early childhood education to be a registered teacher. However, somebody with a certificate in early childhood education which meets the requirements of the Education Act 1989 can apply to be registered by the Teachers Council. Such registration will be granted if the Council is satisfied that the applicant is of good
character, is fit to be a teacher, is satisfactorily trained to teach and has satisfactory
experience.[6] The respondent submits that the Teachers Council should be aware of convictions when making its determination and that there is a public interest that this be the case.[7]
[6] Education Act 1989, s 122.
[7] R v Rollo CA1/04, 8 October 2004.
[16] My conclusion is that it is possible that the fact of convictions would prevent the appellant from continuing her course of study. It is probable that the fact of convictions would affect the Teachers Council’s consideration of any application for registration by the appellant. It is probable that any future employer in her chosen field would give particular consideration to the fact of convictions.
(c) Whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending
[17] The final step in the analysis which is required by s 107 of the Sentencing Act
2002 is an assessment of whether the consequences of conviction for the appellant would be out of all proportion to the gravity of the offending. I have decided that they would not be.
[18] In my view, the appellant’s offending was of moderate gravity. While I accept that her culpability was not very high given her personal circumstances, she nevertheless obtained dishonestly a benefit over a period of two years requiring three separate offences. The amount of the benefit was not inconsiderable and despite the reparation order there is no real prospect in the medium term of her being able to repay the money she obtained dishonestly.
[19] Further, and decisively, the assessed consequences of convictions on the appellant are general only. All persons convicted of offences of dishonesty are likely to face a higher barrier to obtaining employment in roles which require a foundation of trust between employer and employee. That is inevitable.
[20] In this case the appellant wishes to pursue a career in early childhood education. She is enrolled at the very beginning of a course which might or might
not see her achieve a qualification in that area. It is not known whether convictions
would see her enrolment terminated nor whether at some time in the future registration would be refused by the Teachers Council because of them. That might be the assessment of the Teachers Council; it might not. I suspect that much would turn upon the appellant’s record over the next year or so. Of course, registration as a teacher is not a prerequisite to obtaining work in the early childhood education sector. Registration merely gives access to employment of a more senior and responsible kind.
Section 106 discretion
[21] The disproportionality test in s 107 not having been met, I do not need to consider my discretion to discharge without conviction under s 106. However, I will make some observations.
[22] In my view this Court should be slow to make a decision to conceal dishonesty, by discharging without conviction, for the purpose of depriving a professional registration body of knowledge of dishonesty; particularly where assessing the nature of the dishonesty and the culpability of the applicant is part of the function of the registering authority. Similarly, the Court should be slow to conceal a record of dishonesty so that potential employers in a field where trustworthiness is important will be unaware of the record of dishonesty.
[23] Of course, there will be circumstances involving admitted dishonesty where it would truly be out of all proportion to the gravity of the offending to enter convictions and where the s 106 discretion should be exercised. I am not satisfied that this is one of those cases.
[24] I note that the s 106 discharge argument was made in full to Judge Gittos. Although I have reached my view by considering the entire case afresh, I was assisted by the reasoning of the Judge who came to the same conclusion.
[25] Accordingly, the appeal is dismissed.
Brewer J
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