B v Police HC Christchurch CRI 2007-409-194

[2007] NZHC 1177

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2007-409-000194

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 November 2007

Counsel:         A J McKenzie for Appellant

K J Bell for Respondent

Judgment:      1 November 2007

ORAL JUDGMENT OF PANCKHURST J

[1]      This is an appeal against a decision declining to discharge the appellant, Mr B  ,  without  conviction  pursuant  to  s106  of  the  Sentencing  Act  2002 following his being found guilty upon a charge of shoplifting.  For reasons which I shall endeavour to explain I have found the appeal difficult, despite the simplicity of the subject-matter or issue at stake.

[2]      Mr B   faced a charge that on 6 October 2006 he stole batteries to a value of almost $70 from a supermarket.  He elected to defend that charge.  The hearing was before Judge J J Moran in the District Court on 11 July 2007.  The Judge found

the charge proved.  She was influenced by elements of the appellant’s conduct in the

B V NEW ZEALAND POLICE HC CHCH CRI 2007-409-000194  1 November 2007

shop which persuaded her that this was a case of deliberate concealment of the batteries before leaving the shop, rather than an instance of oversight.  In short, she thought that the batteries had been concealed on the appellant’s person and that he had taken a circuitous route on leaving the shop, all of which persuaded the Judge it was a case of deliberate dishonesty.

[3]      The question of sentence was dealt with subsequently on 17 August 2007.  It is readily apparent from the sentencing notes that the crucial issue became whether the case was appropriate for a discharge without conviction or not.   For reasons which she explained the Judge did not consider a discharge was a proper sentencing response.  Instead she entered a conviction and imposed a fine of $300 together with court costs.

[4]      Mr McKenzie has argued the appeal with principal reference to two points arising from the Judge’s sentencing remarks.  At the outset he rightly acknowledged the limits of the test which applies when this Court is asked to interfere with a discretionary judgment  reached  in  the  District  Court.    It  is  not  open  to  me  to reconsider the question of discharge afresh.   My role is to consider the decision reached by Judge Moran and decide whether she failed to take account of relevant matters, or took account of matters which were irrelevant and also whether the judgment she reached was plainly wrong.   Unless one or other of these aspects is established following argument, then it is not for me to substitute my view as to what the outcome should have been.

[5]      The first matter relied upon by Mr McKenzie was a comment in para [5] of the sentencing remarks that the Judge had found this to be a case of deliberate dishonesty.  Mr McKenzie submitted that this was a statement of the obvious in that, before a finding of guilty could have been reached after the defended hearing, the Judge had to be satisfied that it was a situation of deliberate dishonesty and not oversight.  The argument continued that by virtue of the comment contained in the sentencing decision a truism had been elevated to the status of an aggravating feature of the offence.   Counsel further submitted that properly analysed deliberate dishonesty was no more than an ingredient of the charge, not something which

aggravated it, let alone could be relevant to the decision whether or not to enter a conviction or not.

[6]      In  response,  Ms  Bell  submitted  that  the  Judge  had  not  inappropriately elevated this aspect as was suggested.   She stressed the context in which the observation appeared.  In the preceding paragraph the Judge referred to a letter from Reverend Joe Durrant.   She noted that he supplied a character reference and had spoken of the appellant’s personal attributes, particularly his skill with disadvantaged people and had added the remark that he could not imagine Mr B   being “deliberately dishonest”.  Hence, the argument continued, the subsequent reference by the Judge to a difficulty because she had found Mr B   to have acted in a deliberately dishonest fashion, occurred against this background.

[7]      I accept this submission as indeed Mr McKenzie did to a large extent.  I do not think it can be said that the Judge did overplay this aspect in entering upon the balancing exercise  which is always  required  where  an  application  for  discharge without conviction is made.  She was saying no more than that, despite the reference from Reverend Durrant, she could not accept that aspect of his letter because it was at odds with the finding she had made on the basis of evidence at the hearing.

[8]      The  second  matter  upon  which  Mr  McKenzie  placed  principal  reliance concerned the circumstance of a previous diversion.  What the Judge said was this:

[7]     I am concerned that there has been a previous charge against you for dishonesty.  You were diverted on that occasion and afforded an opportunity to prove that you would not re-offend.  I accept what Mr McKenzie has said, that there was no finding, but it was a shoplifting charge in 2001.

[9]      Counsel  submitted  that  the  fact  of  a  previous  diversion  was  brought  to account, and inappropriately so, on the basis that the previous diversion, coupled with the subject conviction, indicated a dishonesty streak.  Mr McKenzie submitted that this was inappropriate because the present conviction aside, it could not be safely assumed that Mr B   was guilty of shoplifting on a previous occasion in

2001.  This aspect has been debated in the course of submissions.

[10]     It  is  the  case  that  the  police  manual  of  best  practice  with  reference  to diversion includes as a requirement that an offender must acknowledge guilt before diversion becomes an available option.    If, therefore, there is a genuine acknowledgement of guilt, there is a logical argument for saying that the fact of previous diversion must be of relevance in considering the s106 discretion.  But, as Mr McKenzie forcefully argued, the reality is that despite the requirement, many people who are diverted do not accept their guilt.  Rather, they acknowledge as much because  of  the  police  requirement  but  do  so  for  pragmatic  reasons  which  he identified in argument.

[11]     This is a difficult issue.  I must say that I resist the view that no account can be taken of a previous diversion, particularly one for an offence of a similar kind. On the other hand, from a purist viewpoint, it may be seen as anomalous to have regard to the previous diversion because, absent a formal conviction, whether in fact the allegation could have been proven, remains at large.   In saying that I accept Mr McKenzie’s submission that diversion does occur in a percentage of cases where offenders acknowledge guilt but do so for pragmatic reasons.

[12]     In general terms I agree with the approach taken by Salmon J in Burns v Police HC A87/00 AK 28 July 2000.   He was faced with a similar argument in relation to a young man, a student, who had been declined a discharge without conviction with reference to two charges of unlawful interference with motor vehicles.  The Judge said this:

[14]   In my view the fact of involvement in a diversion scheme cannot be said to be irrelevant, but before it is taken into account there would need to be considerable inquiry into the circumstances surrounding it.  As Mr Haigh said, agreement to be involved in a diversion scheme is not an admission of guilt.  Mr Haigh told the Court that counsel’s experience was that frequently people would agree to participate in such a scheme rather than go through the stress and expense of a defended Court hearing.  It is important to bear in mind that diversion has no statutory backing.  There is no admission of guilt. The fact of diversion cannot be taken as evidence of the commission of an offence and there may be a variety of motives for accepting it.

[13]     Did the Judge in this case place undue emphasis on the fact of a previous diversion?  I am not persuaded that she did.  She expressed some concern on that account, particularly because the previous occasion also involved an allegation of

shoplifting.  I take her observations as nothing more than an indication that where someone has enjoyed diversion on a previous occasion, that is all the more reason to expect that they will not in the future place themselves in a like situation, where a similar allegation of criminal conduct might arise.   Here it did and, moreover, following a defended hearing, the Judge was left in no doubt that the allegation in

2006 was made out, that is that the charge was proved beyond reasonable doubt.

[14]     It was not contended in this case that the Judge’s decision was plainly wrong and that as a Judge sitting on appeal I could intervene on that ground.  It follows that grounds for this Court to allow the appeal have not been established and that the decision of the District Court Judge should not be disturbed.

[15]     But I do not wish to leave the case without referring further to the material that was relied upon in support of the argument for a discharge.  In my view it was substantial material, which is not only relevant to the issue which is before me, but equally  to  decisions  which  may  be  necessary  in  the  future  with  reference  to Mr B  ’s present course of study in social work.

[16]     The first document provided to the Court is a letter from Mr B  ’s general practitioner.  It is well-written and considered.  It confirms that Mr B   is aged 48 and that the writer has been his doctor since 2001.  At that stage Mr B   was on the methadone programme, having taken treatment for a previous drug problem. This doctor attended Mr B   while he was weaned off methadone and has continued to be his doctor until the present time.  He notes that Mr B   continues involvement with a special rehabilitation group which he attends on a monthly basis. The  letter  also  refers  to ongoing issues  which  Mr  B    has  to  confront,  and expresses the views that he has had one or two stumbles along the way, but that essentially he is doing very well.  The letter refers to Mr B  ’s study as a social worker and it contains the assessment that the doctor is optimistic he will do very well during the balance of his life.

[17]     A second document provided to the Court is from the Head of School at the University of Canterbury Department of Social Work.  It confirms that Mr B   is in his first year of study towards a Masters in social work.  In his second year, 2008,

it will be necessary for him to complete a 120 day placement with a social work agency.   Assuming a successful completion of his second year of study and graduation, Mr B   will then require to achieve registration as a social worker, an issue which will be considered by the appropriate registration body.  The gist of the letter is that the entry of a conviction, even a minor conviction for shoplifting, could render it difficult to achieve a placement for the 120 days which is required during the second year of the course.  If this obstacle is overcome the letter also expresses the view that the conviction may have “an adverse effect on this determination”, being the decision as to registration.

[18]     The Judge in the District Court was likewise confronted with this letter but in the  end  result  concluded  that  it  was  appropriate  that  the  registration  board  in particular have knowledge of the conviction in making the decision for which it is responsible.   As the Judge put it, that body should have “full knowledge of the facts”.  I agree.

[19]     The third document is the reference from Reverend Durrant.  This is also a very impressive reference in my opinion.  It speaks of Mr B  ’s abilities in caring for children who suffer from autism and, in another case, a traumatic brain injury and associated epilepsy.  It is evident from the letter that Mr B   has developed a real ability and empathy in relation to work of this kind.  The letter ends with a plea that the case should be met with a discharge without conviction.

[20]     I  have  mentioned  and  recorded  the  content  of  these  three  documents deliberately because, in my view, they emphasise the importance of reading a decision such as this in a broader context.  On the one hand I have found that there is no reason to overturn the decision of the learned District Court Judge.

[21]     But what I wish to stress is that equally that decision should not be seen as the last word with reference to subsequent decisions about Mr B  ’s placement and, hopefully in due course, his registration as a social worker.  One frequently in this job encounters arguments of this kind for a discharge without conviction.  This one impresses me as particularly difficult because it concerns a man of mature years who has obviously achieved a dramatic turnaround in his life and who has achieved a

good deal in recent years.  In those circumstances it would be a great pity indeed if other decision-makers were to accord a conviction for a comparatively minor offence great significance and, in particular, not place it into context alongside the positive material to which I have just referred.

[22]     For these reasons, however, the appeal is dismissed.

Solicitors:

Andrew McKenzie Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent