Davis v Police

[2016] NZHC 1216

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-126 [2016] NZHC 1216

BETWEEN

JOSHUA DAVIS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	7 June 2016
Appearances:	P Masani for Appellant A Devathasan for Respondent
Judgment:	7 June 2016

ORALJUDGMENT OF TOOGOOD J [Appeal against conviction]

Davis v NZ Police [2016] NZHC 1216 [7 June 2016]

[1]      On 11 March 2016, Joshua Davis was convicted and discharged on a single charge of unlawfully entering a building, under s 29(1) of the Summary Offences Act

1981. The maximum penalty for that offence is three months’ imprisonment.

[2]      He now appeals the decision of Judge AC Roberts not to discharge him without conviction, arguing that the Judge did not give adequate weight to his youth and that the Judge was wrong not to accept that there was a real and appreciable risk of disproportionately adverse consequences of conviction.

Factual background

[3]      Mr Davis, now 19 years old, was 18 at the time of offending.

[4]      Somewhere between 6 and 10 January 2015, he and some friends entered a vacant holiday home which was for sale.  A real estate agent who was caring for the property was absent for a period of four days and when she returned she found that a number of beds on the property were messy as if they had been slept in, there were cigarette butts and burnt matches discarded on the living room floor and packets of cat food were located under the window, which appeared to have been the point of entry. All of the cupboards and windows at the address had been opened.

[5]      Mr Davis apparently used it as temporary accommodation, although it is not clear from the summary of facts just how long he remained there. He was identified as having been at the house through fingerprints left at the scene.  Mr Davis said that he and some friends were drinking on the beach and decided to go into the house on the spur of the moment. He lives nearby with his parents.

District Court

[6]      Mr Davis was initially charged with burglary, a much more serious offence than the charge to which he pleaded guilty after it was substituted. At the sentencing hearing Mr Masani, who was counsel for Mr Davis, applied for a discharge without

conviction under s 106(1) of the Sentencing Act 2002.  The Police were said to be neutral in respect of the application.

[7]      The Judge noted that restorative justice had been attempted, but Mr Davis could not be contacted about that despite messages being left on his cell phone and visits  being  made  to  his  address.    The  Judge  considered  also  an  offer  of  $20 reparation a week for emotional harm (I am told that the sum offered was $500 in total to be paid off at that rate); the guilty plea; Mr Davis’ youth, and the possible effect of the conviction on his employment opportunities in the future.

[8]      Judge Roberts did not consider the appellant to be particularly remorseful, basing that view on his lack of engagement with restorative justice and the fact that he had not taken the opportunity which restorative justice would have provided, to apologise to the owners face to face.

[9]      The Judge commented that the owners of the house were very concerned about the intrusion, to the point that one of the owners had not felt able to return to the house since.  It may be that the Judge was referring to earlier occasions on which victim  impact  reports  had  been  provided  in  respect  of other intrusions  into  the property, including earlier burglaries.   The Judge expressed himself as being “unimpressed” with what he called ‘a painless drip-feed’ of the restitution payment.

[10]     The Judge considered the consequences of conviction to be low. He noted that Mr Davis was a student at Quality Education Services, with the ultimate goal of enrolling after that at a technical institute to become an electrician.   The Judge described the suggested  adverse effect of a conviction on Mr Davis’s career as “speculative”, noting that a conviction would not preclude his working as an electrician.   Judge Roberts accepted, however, that Mr Davis might be at a disadvantage when a prospective employer had a choice between hiring someone with a conviction and someone without one.  The Judge said, nevertheless, that he was far from satisfied that the consequences of the conviction would outweigh the gravity of the offending, which he considered to be ‘not trifling’.

[11]     On appeal Mr Masani submits that the gravity of the offending was low:  it was a spur of the moment decision motivated by peer pressure and  one which showed a lack of judgment. There was no intention to commit a crime, and none was committed inside the house.  The appellant had simply wanted to spend time with some of the members of the group whom he had met around that time. It is submitted that the offending here was not serious compared to other crimes which the Court has considered to be not serious, such as possession of cannabis by a young man for

personal  use,1   and  the  impulsive  shoplifting  of  a  bottle  of  wine.2      Mr  Masani

emphasises the appellant’s youth and submits that that was insufficiently credited by the Judge.   He says the appellant was influenced by impulsiveness and a lack of judgment and emotional regulation, all of which are features of a young and developing brain, and he refers me to the leading authorities in support of  that proposition.   He notes that youth has been considered a factor by the Courts in granting discharges on other occasions.

[12]     As to the consequences of conviction, Mr Masani submits that there is a specifically identified consequence here, acknowledged by the Judge when he commented  that  a  person  without  a  conviction  is  more  likely to  be  hired  than someone else. Counsel submits, however, that the Judge did not examine the effect of this consequence and its impact on the appellant’s entire future in his chosen career.  He submits that there is a real and appreciable risk that the appellant will be disadvantaged in the future.

[13]     Counsel points to the fact that Police vetting must be undertaken for any contractor working in schools, which an employer would view as a risk factor in hiring an electrician and that the Court may take future aspirations into account where there is no evidence that they are false.  Mr Masani submits that the general stigma associated with a conviction, the fact that a conviction in and of itself can be

a serious consequence of offending,3   means that a general assessment can be taken

1        Fraser v Police [2014] NZHC 2437.

2        Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007.

3        Citing DC v R [2013] NZCA 255 and Tahitahi v Police [2012] NZHC 663.

even  if  there  is  no  specific  career  or  employment  that  would  be  immediately affected.

[14]     In  this  case,  the  appellant  has  been  enrolled,  since  last  August,  in  an introductory  course  which  entitles  him  to  NCEA  equivalent  qualifications  in different  trade  areas.  This  appears  to  be  the  equivalent  of  a  pre-tertiary  study bridging course. I accept that Mr Davis is doing well, with grades from Achieved to Excellence level. It seems that he will graduate in July and then be entitled to enrol at the Manukau Technical Institute. Mr Masani submits that Mr Davis is on track to reach a clear goal of becoming an electrician, and that given his young age a conviction will also affect other decisions he may wish to make as regards further study or business ambitions.

[15]    In summary counsel submits that the consequences were not adequately considered in the balancing process, and that the Judge gave too much weight to the perceived seriousness of the offending. Counsel emphasises that Mr Davis pleaded guilty at the earliest opportunity, and that he did express remorse by an apology letter despite not engaging in the restorative justice process, which might have resulted in a face-to-face apology being delivered.   The appellant maintains his offer to pay reparation of $500 and says that the payment could be made immediately.

Appeal against refusal to grant discharge without conviction

[16]     Section 106 of the Sentencing Act 2002 provides that the court may discharge an offender without conviction, if the test in s 107 is satisfied. Section 107 states:

107      Guidance for discharge without conviction

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.

[17]     For  the  court  to  be  so  satisfied,  there  only  needs  to  be  a “real  and appreciable” risk that such consequences will occur.4     But I emphasise that the

Court’s discretion to discharge does not arise unless the Court is satisfied that that real and appreciable risk exists.

Discussion

[18]     I accept, as does Miss Devathasan for the Police, that the offending is at the low  end  of  the  scale.    It  was  impulsive  and  reckless  rather  than  premeditated; although Mr Davis and  his friends left the house messy, they caused  no  actual damage and did not steal anything.  But it has been acknowledged that in the context of burglary cases intrusion into a holiday home can be considered just as culpable as intrusion into a residential home.5    I accept that there was no one home at the time but  I  have  no  doubt  that,  as  on  previous  occasions,  the  owners  in  this  case experienced a real sense of violation and emotional harm as a result of this further intrusion.6

[19]     The consequences of this type of offending for the victim whether or not any property was taken or damaged makes it more serious, in my view, than the mere possession of a cannabis joint or petty shoplifting.   By imposing no penalty other than a conviction Judge Roberts gave appropriate recognition to Mr Davis’s youth and his guilty plea and, although perhaps less charitably than another Judge might have done, to his apology.

[20]     Addressing  the  key  issue  in  the  appeal,  however,  I  consider  that  Judge Roberts was entitled to find that the suggested consequences of conviction in this case were speculative.  I accept that the Judge did not have to be satisfied that the direct and indirect consequences would inevitably or probably occur, and that it would have been sufficient if he had been satisfied of their real and appreciable risks of such consequences.  But the material before the Court in this case does not reach that threshold.  In other words, it does not identify a real and appreciable risk that the appellant  would  be  precluded from  working as  an  electrician,  and  it  cannot  be assumed  that  a  prospective  employer  will  not  look  beyond  the  bare  fact  of  a

conviction on a charge of this nature.   The consequences of conviction here are

5            Penniket v R [2016] NZCA 154 at [43].

6            Sentencing Act 2002, s 9(1)(b).

simply the ordinary consequences of a conviction which has some potential adverse impact on employment prospects.

[21]     The appellant’s youth is relevant but it does not create a special circumstance which outweighs the general consequences of conviction.  I bear in mind that it is not for a Court to usurp the ability of a particular employer or professional body to decide the significance of any particular conviction.  The judgment of the Supreme Court in Austin, Nichols & Co v Stitchting Lodestar7 does not mean that an appellant is simply given a second bite at the sentencing cherry on appeal.  The Court must examine whether there was any error in the approach taken in the Court below and I emphasise my earlier comment that the discretion under s 106 is not unfettered.

Decision

[22]     In this case Judge Roberts weighed the relevant factors and concluded that the test in s 107 of the Act was not met.  I agree with that conclusion and consider the Judge was right.   That meant that he had no discretion to discharge without conviction and I dismiss the appeal accordingly.

……………………………

Toogood J