Craig v Police

[2016] NZHC 685

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2016-435-00002

CRI-2016-435-00003 [2016] NZHC 685

BETWEEN

RODNEY ALLEN CRAIG

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	12 April 2016
Counsel:	V A Pearson for appellant A R Winsley for respondent
Judgment:	14 April 2016

RESERVED JUDGMENT OF DOBSON J

[1]      After making a false insurance claim, Mr Craig pleaded guilty to one charge of obtaining a pecuniary advantage dishonestly.  On his sentencing in the Masterton District Court on 16 February 2016, Judge Morris declined to enter a discharge without  conviction  or  to  grant  name  suppression.    Instead,  the  Judge  ordered

Mr Craig to come up if called upon within 12 months.1

[2]      Mr Craig has now appealed against both the refusal to discharge him without conviction and to grant him permanent name suppression.2

[3]      Under financial pressure caused by a gambling addiction, and wanting to rid himself of the $70 per week payments owing on his car, Mr Craig arranged for an associate to take the vehicle.  He then made false claims to the Police and his insurer that the vehicle had been stolen.  The Police were concerned about the legitimacy of

the claim and made inquiries.   When Mr Craig was challenged on his claim, he

1      Police v Craig [2016] NZDC 2294.

2      Interim name suppression has continued, pending determination of the appeal.

CRAIG v POLICE [2016] NZHC 685 [14 April 2016]

admitted  what  he  had  done.    Mr Craig  was  remorseful  and  embarrassed  at  the circumstances of his offending and was assessed in a pre-sentence report as being at a low risk of re-offending.

[4]      A  report  was  also  produced  by  Wairarapa  Private  Addiction  Services, assessing Mr Craig’s history of addiction to alcohol and cannabis.  It reported that he had overcome those addictions and had no current issues with them.  However, the report also acknowledged a two year history of gambling, with Mr Craig using a credit card to play on-line poker, leading to debts of $8,000, a substantial part of which related to gambling.  He had initiated contact with an organisation providing services for gambling addiction and was committed to continuing with therapy sessions that he found beneficial.

[5]      Judge Morris dealt first with Mr Craig’s application for name suppression. The application was not brought on the basis of a claim of extreme hardship for himself.3   Rather (assuming publication of the circumstances, irrespective of whether conviction  was  avoided  or  not)  Mr Craig  was  concerned  that  extreme  hardship would be caused to his employer, a motor vehicle dealer who had recently started in business.  The owner of the business provided a letter to the Court expressing a high

level of concern that his business’s reputation for integrity would  be tainted by association  if  Mr Craig’s  lapse  became  known  in  their  relatively  close-knit community.

[6]      The Judge was not satisfied that these reputational concerns could constitute extreme hardship for Mr Craig’s employer.   Although it had not been specifically raised, the Judge also noted that the threshold of extreme hardship could not have been  made  out  by  Mr Craig  in  respect  of  his  own  position.    Accordingly,  the application for name suppression was dismissed.

[7]      Dealing with the application for a discharge without conviction, the Judge undertook the assessment required under ss 106 and 107 of the Sentencing Act 2002 as to whether the direct and indirect consequences of a conviction would be out of all

proportion  to  the  gravity  of  the  offending.     In  assessing  Mr Craig’s  relative

3      Criminal Procedure Act 2011, s 200.

culpability, the Judge took into account that there were two victims: the Police and the insurance company, although in the end no financial loss was caused.   It was planned  offending involving Mr Craig’s  associate and  it  continued  until  he was challenged by the Police.  Weighing up all these considerations, the Judge treated his culpability as being in the middle range in terms of this type of offence.

[8]      The Judge also acknowledged that Mr Craig had pleaded guilty at a very early opportunity and accepted responsibility for what he had done.  The offending was a single lapse in character with a prior, minor conviction being so long ago as to not assume any relevance.  The attempt to take pecuniary advantage occurred when Mr Craig was under significant financial pressure.

[9]      As to the consequences of a conviction, the Judge appreciated that it would put Mr Craig’s present employment in jeopardy. At the time of sentencing, Mr Craig also had the prospect of a further job which the prospective employer would only consider  if  Mr Craig  was  discharged  without  conviction  and  had  his  name suppressed.   In addition to those specific concerns, the Judge appreciated that a conviction for dishonesty would make it more difficult to obtain other employment, which was a serious consideration when he had obligations for a wife and three young children.

[10]     However, the Judge found that those adverse consequences were not out of all proportion with the gravity of the offending.

[11]     On appeal, Ms Pearson criticised this analysis on a number of grounds.  First, she argued that the Judge ought to have considered the applications in the opposite order, namely whether a discharge without conviction was warranted and, in light of that outcome, whether name suppression was justified.   Ms Pearson criticised the Judge’s reasoning on the application for discharge, which took into account the fact that there would in any event be publicity about the offending because the Judge had decided  not  to  suppress  Mr Craig’s  name.     That  factor  contributed  to  the consequences of a conviction appearing to be less out of proportion to the gravity of the offending than might have been the case if the prospect of name suppression was still to be resolved.

[12]     I am not persuaded that the sequence adopted was a material error.  Although the opposite sequence is likely to be favourable to an applicant for such orders in many situations, there is a complementarity about the considerations in whichever order they are addressed.

[13]     The second principal criticism was that the Judge’s rankings of Mr Craig’s culpability were inconsistent.  The Judge ranked his culpability in the middle range in terms of such offending.   However, the sentencing outcome of ordering him to come up if called upon within the following 12 months could only be consistent with this offending being at the very lowest end of the spectrum of relative seriousness of such offending.

[14]     It  may be that  in assessing the  culpability of  the offending,  the Judge’s analysis focused primarily on the circumstances in which the offending occurred, and the potential consequences of it.   The decision on sentencing clearly placed considerable   weight   on   Mr Craig’s   personal   mitigating   circumstances.     The appropriate approach is when assessing the gravity of offending, it is for the judge to incorporate all aggravating and mitigating factors, including those personal to the

offender.4   To the extent there was any error in the analysis, I am not persuaded that

it was material.  The consequences are still not out of proportion to the offending if its relative culpability is downgraded.

[15]     Sadly, the range of potentially serious adverse consequences arising out of this conviction are relatively conventional for those convicted of this type of offending.  The combination of direct and indirect consequences of a conviction for Mr Craig can therefore not be made out as completely disproportionate to the gravity of the offence.

[16]     I agree with the Judge’s analysis and the appeal against refusal to enter a discharge without conviction must be dismissed.

[17]     Reverting then to the decision not to grant name suppression.   Again, the hardship for Mr Craig’s  current employer is,  first, dependent on  his decision to

4      Z v R [2012] NZCA 599, [2013] NZAR 142.

continue employing Mr Craig.   Ms Pearson referred to the positive personal bond between Mr Craig and his employer, which has apparently been a factor in Mr Craig continuing to be employed whilst this matter is resolved.  If the employer adopts the laudable stance that he will take on the risk of adverse impact on the business’s reputation to which it would be exposed if Mr Craig is still employed when publicity of this offending occurs, then that is a level of hardship that the business will no doubt deal with positively.   I am not persuaded that it would constitute extreme hardship.

[18]     On the other hand, if the employer terminates Mr Craig’s employment as a result of conviction and publication of his name, then the employer will have done what he can to distance himself from adverse reputational risk, and a reflection on the historical employment situation could not constitute extreme hardship.

[19]     If the same assessment was undertaken in relation to Mr Craig’s personal position, I also agree with the Judge that extreme hardship could not be made out.  It is hardship which is no doubt serious, but it is entirely conventional for an offender in Mr Craig’s position.  Sadly, those are consequences that flow from offending of the type that he undertook.

[20]     Accordingly, the appeal against refusal to grant name suppression must also be dismissed.

Dobson J

Solicitors:

WCM Legal, Carterton for appellant

Crown Solicitor, Wellington for respondent