Chauhan v Police
[2015] NZHC 1894
•11 August 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-438 [2015] NZHC 1894
BETWEEN HARMEET CHAUHAN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 28 July 2015 Appearances:
J E Bragg for Appellant
K Eastwood for RespondentJudgment:
11 August 2015
JUDGMENT OF WHATA J
This judgment was delivered by Justice Whata on
11 August 2015 at 3.00 p.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Public Defence Service, Manukau
Meredith Connell, Crown Solicitors, Auckland
CHAUHAN v NEW ZEALAND POLICE [2015] NZHC 1894 [11 August 2015]
[1] Ms Chauhan seeks leave for a notice of abandonment of appeal to be set aside and then appeals against the refusal by Judge Moses to discharge her without conviction.
[2] The Ministry of Social Development is neutral as to whether leave is granted to set aside the notice of abandonment. On that basis, and given that the appellant appears to have abandoned her appeal on a misunderstanding of her employment prospects, I grant the application to set aside the notice of abandonment. I turn then to examine the merits of her appeal.
Background
[3] In August 2011 the appellant obtained part-time employment as a cleaner for the Counties Manukau District Health Board (CMDHB). The appellant did not advise the Ministry of Social Development of this change in her circumstances. Further she submitted forms that falsely stated that she was not in employment or earning any income. The offending occurred between August 2011 and April 2013 and the total overpayment was $26,835.76.
Sentencing notes
[4] The District Court Judge recorded the relevant background facts as follows:
[3] The summary of facts reveals that in December 2010, you had applied for an unemployment benefit, accommodation supplement and a temporary additional support. That was granted from 13 December 2010. On signing the application for the benefit, you agreed to immediately advise the Ministry if there were any changes to your circumstances that may affect your entitlement to benefits, including if you had a change in work situation, such as starting employment and if you had changes to your income.
[4] As a result of information-sharing with the Department of Inland Revenue, it was established that you had commenced work with the Counties Manukau District Health Board on 1 August 2011. You did not advise the Ministry of your change in circumstances. You subsequently submitted a number of forms that falsely stated that you were not in employment or earning any income.
[5] You were interviewed regarding these matters in July 2013 and you said that you were aware of your obligations, however, had not advised of your employment with the Counties Manukau District Health Board because
it was part-time work and you did not have to tell Work and Income. I am advised today that in fact some of the work that you carried out was full-time work and, in any event, part-time work was required to be advised to the Informant.
[6] As a result of your offending, you have received during the period of
1 August 2011 to 8 April 2013 a total over-payment for unemployment benefits, accommodation supplements and temporary additional supports
totalling $26,835.76.
[5] The Judge assessed the offending as serious taking into account the length of the offending period, namely one year and eight months (some 90 weekly payments), the fact the offending was repetitive and that the appellant provided false information on three separate application forms.
[6] The Judge also acknowledged the consequences for the appellant, including the potential loss of employment. The Judge referred to the fact that the appellant had undertaken study to become a qualified health care assistant and was already finding it difficult to obtain employment in that area. Reference was also made to potential difficulties with travelling overseas. The Judge then responded to those issues in the following way:
[13] In that regard, I do note that you have been working on an on-call basis as a health care assistant. There is no evidence before me that a conviction would be an absolute bar to employment as either a health care assistant or as a cleaner. Clearly I accept that having convictions for dishonesty may make it more difficult for you to obtain employment in those areas. However, in my view, that is the ordinary and usual consequence of convictions for fraud, particularly fraud involving a significant sum of money.
[14] In my view, there is a public interest in employers having the opportunity to consider convictions of current or prospective employees when it comes to dishonesty offences and positions which may involve trust.
[15] In terms of the consequences of a conviction for travel, similarly that is, in my view, speculative. It may make it more difficult to travel, particularly perhaps to Canada, but there are clearly provisions in their travel requirements which enable people to overcome criminal convictions. There is nothing before me to indicate that these convictions would form a conclusive and permanent bar to any of the countries that have been listed.
…
[17] Therefore, whilst I do accept there are certain consequences arising from conviction, in my view they are not out of all proportion, which they must be for the application to succeed. I am not satisfied that the grounds have been made out. In my view, in cases where there has been significant
benefit fraud, it is clearly important to send a message that such behaviour is not going to be accepted by the Courts. In this case, for the reasons I have indicated, the application is not successful and is declined.
[7] The Judge then goes on to consider sentence, referring to an offer to make reparation and that there is some indication that the appellant had carried out voluntary work. In light of her previous good record and guilty pleas the Judge adopted a starting point of community work and ultimately imposed a sentence of
120 hours community work, after discounts to reflect her guilty plea and the voluntary community work already undertaken.
Jurisdiction
[8] This is a first appeal against conviction and sentence under ss 229 and 244 of the Criminal Procedure Act 2011. The statutory threshold at s 232 for an appeal against conviction is that I must be satisfied that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred or, in any case, a miscarriage of justice has occurred for any reason. As to sentence, the threshold test is whether there is an error in the sentence imposed on conviction and a difference sentence should be imposed. An appeal against a decision not to discharge without conviction is an appeal against a substantive assessment to which s 107 of the Sentencing Act 2002 applies rather than an exercise of discretion. Therefore, the normal appellate principles in Austin, Nichols & Co Inc v Stichting
Lodestar1 apply to the s 107 analysis.2
Threshold test
[9] Section 106 of the Sentencing Act provides:
106 Discharge without conviction
(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
1 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].
2 See Weng v NZ Police [2014] NZHC 2586.
[10] Section 107 then sets out the threshold test that must be met before the discretion in s 106 can be exercised:
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.
[11] The Court of Appeal in Z(CA447/2012) v R clarified the appropriate approach to the threshold test namely:3
[W]hen considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as this Court said in Blythe, it will be a rear case where the court will refuse to grant a discharge in such circumstances).
Argument
[12] Ms Bragg submits (in summary):
(a) The Judge did not take into account a number of mitigating factors when making the assessment of the gravity of the offending including:
(i) The level of Ms Chauhan’s remorse;
(ii) Her good character;
(iii) The extent of her voluntary work; and
(iv) The offer to pay reparation.
(b)The Judge failed to properly assess the seriousness of the consequences of a conviction for Ms Chauhan, including:
(i) The risk of losing her current employment;
(ii)The risk presented in terms of employment in the health industry, being an area in which she has devoted considerable time and energy for the purposes of her training;
(iii)As to an employer’s “right to know”, Ms Chauhan’s current employer already knows of the offending and she is likely to lose her employment if convicted. And as any employment in the health care industry is likely to be through the same employer (namely the Health Board) then more difficulty is foreseen for the purposes of that employment;
(iv)Each case must turn on its own merits and the likelihood of loss of employment in this context is high;
(v)In terms of her personal circumstances, Ms Chauhan does not have the support of family and is 54 years old so is highly dependent on retaining employment;
(vi)Citing Bullock v Police,4 there is no rule of law that the public must know; and
(vii)A conviction will have significant consequences for her in terms of visiting her sons who are resident overseas (in
Canada, for example).
The Crown
[13] Ms Eastwood for the Crown responds:
(a) The offending is properly described as moderately serious.
(b)It is accepted that some mitigating factors were not expressly referred to in the discussion on s 107, but were referred to when fixing
sentence, suggesting that they were taken into account for the purposes of that section.
(c) The employment difficulties faced by Ms Chauhan are a corollary of the type of offending where there is high public concern about dishonesty, particularly in contexts involving or requiring the offender to be placed in a position of trust.
(d)There is nothing in the context or circumstances to justify departure from the normal approach.
(e) The impact on her ability to travel is not out of all proportion.
(f) Ms Chauhan had the benefit of significant discounts to take into account her personal circumstances and factors, such as her rehabilitation.
Assessment
[14] While the Judge does not appear, on the face of the judgment, to incorporate all mitigating factors into his assessment pursuant to s 107, I am of the view that in any event the consequences of conviction are not out of all proportion to the gravity or seriousness of the offending. My reasons follow.
Process of assessment
[15] A three step process is required:5
(a) Identify the gravity of the offending, including all the aggravating and mitigating factors relating to the offending and the offender;
(b)Identify the direct and indirect consequences of conviction for the offender; and
(c) Consider whether those consequences are out of all proportion to the gravity of the offence.
Gravity
[16] Ms Chauhan’s dishonesty offending occurred over a prolonged period, netting some $26,000. A significantly aggravating feature is that it involved three clear separate acts of deception. The maximum sentence for such offending is seven years’ imprisonment. This is indicative of the serious nature of the offending. The need to deter and denounce such offending is high, given the administrative cost and social harm to the public caused by benefit fraud.
[17] Mitigating factors include the steps taken by Ms Chauhan to repair the harm done by her, including her voluntary work and the offer to pay reparation. She is also demonstrably remorseful. Taken together, Ms Chauhan’s personal circumstances including her prospects of rehabilitation and her remorse materially reduce the seriousness of her offending, and the risk she presents to the public.
Consequences
[18] The key consequence for Mr Chauhan of conviction is the real and appreciable risk that she will lose her current employment in the health sector, either as a cleaner and or as a caregiver. This is a significant matter to be weighed, including in light of her age, 54, and limited prospects for future employment. But the indirect effects of unemployment are not clear. It does not appear that Ms Chauhan has dependants that rely on her income. There is nothing to suggest she will be rendered impecunious as a result of the unemployment or will, for example, lose the family home. She will also receive social welfare support in times of unemployment. I conclude therefore that the impact of the conviction in this context is moderately serious only.
[19] Ms Bragg submits that Ms Chauhan may have difficulties with travel overseas to see her sons who live in Canada. But the evidence in relation to this issue was sparse. It is not at all clear to me that the convictions will fetter, let alone preclude that travel.
Out of proportion
[20] It is unsurprising that counsel could not find a single authority where a discharge without conviction had been granted in relation to dishonesty offending of the scale in this case. Conversely, conviction is invariably the result for benefit fraud of the present scale. In reality, the consequences for Ms Chauhan, while serious, fall well short of meeting the “out of all proportion” threshold test. At its simplest, the social harm or cost of Ms Chauhan’s offending is significant. It is not simply the quantum of financial loss to the community. It is the cost of the machinery needed to manage and avoid this type of offending. Furthermore, as Ms Eastwood noted, offending of this nature engages most strongly the right of prospective employers to know about the convictions. I accept that the personal cost to her of conviction is also serious. But, even when the personal mitigating factors are taken into account, including the low prospect of re-offending, I am not satisfied that the personal cost is out of all proportion to the harm caused by the offending.
Concluding remarks
[21] In reaching this conclusion I do not want to be seen to be suggesting that Ms Chauhan is not an appropriate candidate for employment in health care. Far from it, Ms Chauhan has taken clear appreciable steps to remedy the harm caused by her offending, reflecting I think, a genuine commitment to rehabilitation.
Outcome
[22] The appeal is dismissed.
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