Cammish v Police

[2019] NZHC 1887

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI 2019-042-1154

[2019] NZHC 1887

BETWEEN

JENNA LORRAINE CAMMISH

First Appellant

HEDEN RAFFIN
Second Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	16 July 2019
Counsel:	T C Lyall and S M Day for Appellants A R Goodison for Respondent
Judgment:	5 August 2019

JUDGMENT OF MALLON J

Introduction

[1]    Jenna Cammish and Heden Raffin (the appellants) pleaded guilty to seven charges of jointly stealing groceries from two supermarkets.1 In the District Court they were convicted and each sentenced to fines totalling $1,400 and court costs of

$130, having been declined a discharge without conviction.2 They appeal against the decision not to grant them a discharge without conviction.

1      Crimes Act 1961, s 219. Section 223(d) provides that the maximum penalty for theft of property not exceeding $500 in value is three months’ imprisonment.

2      Raffin v Police [2019] NZDC 11833.

CAMMISH v NEW ZEALAND POLICE [2019] NZHC 1887 [5 August 2019]

Summary of offending

[2]    Ms Cammish is a British national and Mr Raffin is a French national. They were in New Zealand on working holiday visas. They had been here since October 2018. At the time of the offending they were employed as seasonal workers in a vineyard in the Blenheim area. Ms Cammish was aged 25 and Mr Raffin was 21.

[3]    The offending took place on seven occasions between 13 and 24 January 2019. On each occasion, Ms Cammish and Mr Raffin walked around the aisles of the supermarket with a personal bag placed on a trolley. They would put some items in the trolley which they would pay for at checkout, but also place other items directly into the personal bag which they would not pay for.

[4]    The items they stole included: coffee, hummus, nuts, peanut butter, almond butter, ginger beer, chia seeds, organic kombucha drinks, pâté, Whitaker’s chocolate, cacao and assorted items from the bulk bins. They stole goods to the total value of

$75.70 from three trips to one supermarket, and goods to the total value of $154.70 from three trips to the other supermarket. They were apprehended on the fourth trip to the second supermarket with goods to the value of $76.44 in their personal bag. They paid for these goods upon being apprehended. They explained that they had stolen the goods because they had run short on funds due to an unexpected delay in being paid for their seasonal work. Mr Raffin said that he is gluten intolerant and vegan as an explanation for the nature of the goods stolen.

[5]    Having been apprehended on this  last  occasion,  the  Police  indicated  to  Ms Cammish and Mr Raffin that they were not going to be charged. They signed a “pre-charge warning”.3 However, the supermarkets reviewed CCTV footage which showed the previous six instances of theft by the couple. This led to the seven charges against them for each occasion of theft. The couple were not offered police diversion apparently because shoplifting by tourists is regarded as a problem in Blenheim and because of the repetitive nature of the offending.

3      I infer that this is a record that a warning has been given for offending for which charges will not be brought.

[6]    The appellants first appeared in the District Court on 25 February 2019. They pleaded guilty at their next appearance on 8 March 2019 and paid full reparation on 18 March 2019. They also apologised to the managers of the two supermarkets. They applied for a discharge without conviction on 26 March 2019. At this time, they each offered to pay $300 to an appropriate charity and had those funds available to pay that day. They said they could pay more than this if the Court considered they should, but they would need time to arrange additional funds to do so.

The legal test for a discharge without conviction

[7]    Section 106 of the Sentencing Act 2002 permits a court to discharge an offender without conviction. Section 107 provides that a court must not do so unless satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[8]    The Court of Appeal has outlined the following approach for determining such applications:4

(a)first, consider all the aggravating and mitigating factors relevant to the offending and the offender to assess the gravity of the offending;

(b)second, identify the direct and indirect consequences of the conviction for the offender;

(c)third, consider whether those consequences are out of all proportion to the gravity of the offence; and

(d)fourth, consider whether the Court should exercise its discretion to grant a discharge without conviction.

[9]    The first three steps are matters of fact, not discretion, which require reassessment by an appeal Court according to the guidance of the Supreme Court in

4      Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].

Austin  Nichols  & Co  Inc  v Stitching Lodestar.5     The final step is an exercise of discretion.

District Court decision

[10]   The District Court Judge commenced his decision with the following observations:6

[2]     Sometimes in an attempt no doubt to sanitise this sort of offending, it is referred to as “shoplifting”. It is not shoplifting, it is theft, and I have no doubt that in your respective countries of France and England that theft on this level would be treated reasonably harshly. You come to New Zealand as tourists, and I get the impression that tourists might regard this country as a soft touch because I am told, without any opposition from anybody, in the police submissions that theft from particularly supermarkets by foreign nationals, and often regrettably they are from France, is of almost epidemic proportions in that [Blenheim] area.

[11]   The Judge set out the summary of facts and then summarised the submissions advanced on behalf of the appellants. In doing so the Judge commented that the fact the appellants did not receive diversion “simply underscores the fact that in the Blenheim area this offending is regarded as being rife”.7 He rejected the submission that the appellants were in a desperate situation because they had not been paid, commenting that if this were true then “the items that you took would have been rather different in character than those you did take”.8 He also rejected the submission that the amounts taken were of low value, commenting:

[15] … Well, I doubt that the respective owners of the supermarkets would agree. The Court hears often that supermarkets and other retailers in the food area work on very slender margins, and we hear statistics indicating that theft from these institutions runs into millions of dollars every year, and so I do not regard the amount as being low at all.

[12]   Turning to the test for a discharge without conviction and his view on whether it was met, the Judge said:

[21]      In the New Zealand context the Court is able to stand back from conviction having gone through a three stage process. That process involves,

5      H (CA680/2011) v R [2012] NZCA 198 at [30]; and Austin Nichols & Co Inc v Stichting Lodestar

[2008] 2 NZLR 141, [2007] NZSC 103.

6      Raffin v Police, above n 2.

7 At [14].

8      Above.

firstly, an assessment of the seriousness of the offending, then, secondly, an analysis of what the direct and indirect consequences of entering a conviction against you would be and, thirdly, then making an assessment as to whether there is a disproportionality in your favour.

[22]      As to the seriousness of the offending, I hope it will be clear from what I have already said that I regard this as quite serious offending. That is because of its repetitive nature, the fact that the shops were being victimised on more than one occasion in each case, that there was a certain sophistication and therefore pre-planning as to how you went about this, and that I do not regard the amounts as low for the reasons I have already explained.

[23]      Therefore, I then move to the questions of what are the consequences for you if I do convict you, and clearly the focus is on Canadian travel although I accept there are other matters raised, and I have no doubt that there will be difficulties occurring for both of you should there be in fact convictions entered.

[24]      As against that, I then move to the third step and ask about disproportionality. It appears that the grandmother who is very ill was known about for some months, and no doubt at the time you were embarking on these deliberate offences. In these circumstances I regard it as not being disproportionate that you be convicted.

[25]      I understand the difficulties you might have in travel, but it seems to me that it would send entirely the wrong message to tourists like you who think you can come to this country and just steal with impunity. You cannot.

[13]   The Judge convicted the appellants on the charges and ordered them each to pay $200 per charge and court costs of $130 on one charge.

Subsequent events

[14]   The Judge’s decision was covered by Stuff in this country. It also received coverage in the Daily Mail under the headline “Wave of hipster shoplifting hits New Zealand as backpackers help themselves to hummus, kombucha and chia seeds because ‘food is too expensive’”. The article that followed began with “A pair of hipster tourists visiting New Zealand on work and holiday visas have gone on a shoplifting spree, targeting several stores and stealing luxury food items”.

[15]   At the District Court hearing it was argued that a consequence of a conviction for Ms Cammish was that she would not be able to visit her terminally ill grandmother in Canada. Since then Ms Cammish has received a letter from the High Commission of Canada advising her that she is not eligible for an Electronic Travel Authorisation because she has been convicted of two offences not arising out of a single occurrence.

Ms Cammish has also filed an affidavit providing further information about why she wishes to travel to Canada. Ms Cammish explained that when the offending occurred she was aware her grandmother had breast cancer but also knew she was receiving treatment. On 25 March 2019, she received a message letting her know that the cancer had spread to the bone and maybe the brain as well. She received a call after this message informing her that the cancer was terminal.

[16]   At the appeal hearing I was informed that the appellants had left New Zealand and were now in Thailand. I was also informed that the appellants were still willing to make a payment to an appropriate charity. Subsequently, I have received confirmation that the appellants have now each paid $300 to the Salvation Army in Blenheim, which operates a food bank for those in need.

Assessment of appeal

[17]   On appeal it is said that the Judge erred in his assessment of the gravity of the offending (step one in the test set out above9). This is because: the Judge failed to take into account that the offending was a course of conduct that occurred over a brief period; overstated the level of sophistication involved; wrongly rejected that the goods were of low value; took into account that nationwide thefts from supermarkets run into millions of dollars annually without evidence of this; took into account that this type of offending by tourists, often French nationals, was rife in Blenheim without evidence of this; and failed to take into account the mitigating factors.

[18]   I accept those submissions. It is true that it is aggravating that the offending occurred on seven occasions. Nevertheless, it was relevant that it was a course of conduct over a confined period which in total involved goods of a relatively low value ($306.84). Although repetitive, it contrasts with an offender who continues to offend after being apprehended. These appellants acted dishonestly over an 11-day period when they were apparently short of cash. Their apprehension has brought home to them that their conduct was criminal.

9 At [8].

[19]   There was nothing sophisticated about the offending. Presumably, they thought they would not be detected because they were paying for some items. However, putting some items in a personal bag that is sitting on the trolley seems a rather obvious way to hide additional items. The offending was more foolish than it was sophisticated. It was easily detected as is evident by the fact they were apprehended on the seventh occasion and because the other six occasions were captured on the CCTV cameras operating in the stores.

[20]   The Judge regarded the offending as serious based on the police submissions that offending of this kind, particularly from French nationals, was rife in the Blenheim area and also because he had heard the supermarkets operated on slender margins and shoplifting losses ran into the millions of dollars. There are several problems with this:

(a)First, the information was not necessarily reliable. The police in Blenheim may have this view, but without statistics or some other reliable way to measure it, this would seem to be no more than an impression. Similarly, it is unclear what the Judge’s understanding of the profitability of supermarkets and their losses was based on.

(b)Secondly, this information was not in the summary of facts on which the appellants were to be sentenced. The appellants did not have the opportunity to contest it if they wished to do so. By way of illustration, on appeal, the appellants’ counsel presented statistical information that showed thefts were less prevalent in Blenheim than they were in the West Coast on a per population basis.

(c)Thirdly, the comment that offenders were often French nationals was not only potentially unreliable, it was also irrelevant. Mr Raffin was to be sentenced for the offending in accordance with the purposes and principles of the Sentencing Act and not on the basis that he was French. Mr Raffin may have been left with the impression that he was dealt with more harshly than he otherwise would have been had he not

been French. I am confident that this was not the case, but the comment was unhelpful.

(d)Lastly, the offence with which the appellants were charged (theft of property under $500) had a maximum penalty of three months’ imprisonment. It was not more serious offending because it was theft from a supermarket.

[21]   Most importantly, the Judge’s assessment of the gravity of the offending did not take into account the appellants’ mitigating factors. In setting out the first step under s 107 of the Sentencing Act, the Judge did not acknowledge that the offenders’ mitigating factors where relevant to the assessment of the seriousness of the offending. His subsequent discussion of why he regarded the offending as quite serious did not refer to them either. There were, however, several mitigating factors. The appellants had paid full reparation promptly. They had apologised to the store managers. They entered guilty pleas at the first opportunity. They did not have previous convictions. They were relatively young. They were willing to give back to the community by way of an appropriate donation to charity.

[22]   In my view, these mitigating factors significantly reduced the gravity of the offending. The offending was low-level, foolish and opportunistic theft by a young couple not turning their minds to the possibility of being caught and the consequences of that. Once apprehended, the couple displayed their remorse and endeavoured to make amends in every way they could. The two supermarkets have not suffered any financial loss from their offending. Although the couple have left the country they have now made a payment to an appropriate charity. They have also suffered the embarrassment of media coverage of their offending.

[23]   I consider the gravity of the offending was low given the amount taken and its opportunistic nature even before the personal mitigating factors are taken into account. The low-level nature of the offending is illustrated by the fact that the appellants might have received diversion for it had they not been tourists and shoplifting in a town where the police considered that offending was regarded as rife. When the personal mitigating factors are taken into account the gravity of the offending is near the lowest

end. In such circumstances, less in the way of consequences of conviction are required for them to be out of all proportion to the gravity of the offending.

[24]   The specific consequence of a conviction advanced in the District Court was the possibility that Ms Cammish would not be able to see her dying grandmother in Canada. The Judge discounted this because Ms Cammish’s grandmother had been unwell for a while and at the time that Ms Cammish chose to offend. While that is so, as Ms Cammish has explained, her parents in the United Kingdom are no longer alive. She has extended family in Canada and intended to visit them and her grandmother. Her grandmother’s terminal illness, of which she learned after the offending had taken place, has likely crystallised her desire to do so.

[25]   Since being convicted she has made enquiries of the Canadian authorities about travelling there. While the letter from the Canadian High Commission does not say she will not be able to travel there, it is less straightforward because of her convictions. The fact that she received seven convictions, despite the theft being a connected course of conduct, potentially gives an impression of offending of greater seriousness than was the case.

[26]   It is unclear whether travel to Canada is of great moment to Mr Raffin. However, he is a young man who will be saddled with the general consequences of a conviction as he makes his way in life. As the Judge recognised, inevitably there will be general consequences that follow from a conviction for both Mr Raffin and Ms Cammish. In a variety of ways (eg. employment, insurance and immigration) people are asked to disclose whether they have criminal convictions). Even when the offending is of a low-level nature, as here, having to answer that question truthfully may count against them.

[27]   In these circumstances, I consider the consequences of a conviction are out of all proportion to the gravity of the offending for each appellant. This couple have learnt their lesson and made amends. A discharge without conviction is appropriate.

Result

[28]   The appeal is allowed. The convictions and sentences entered in the District Court are quashed. The appellants are discharged without conviction.

Mallon J