G v Police HC Auckland CRI 2009-404-78

[2009] NZHC 1682

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-404-78

BETWEEN  G

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         27 April 2009

Appearances: Jo Scott for Appellant

Sarah Pidgeon for Respondent

Judgment:      27 April 2009

JUDGMENT OF HARRISON J

SOLICITORS

Public Defence Service (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

G V POLICE HC AK CRI 2009-404-78  27 April 2009

Introduction

[1]      Mr G   appeals against his conviction in the District Court at Auckland on 3 March 2009 following his plea of guilty to one charge of unlawfully using a document in an attempt to gain a pecuniary advantage.

[2]      Mr G  ’s counsel, Ms Jo Scott, advances his appeal to this Court on the ground  that  Judge  Bouchier  erred  in  refusing  to  discharge  Mr G    without conviction.

Facts

[3]      The facts fall into a small compass and are not in dispute.

[4]      A security guard dropped a bag of cheques while transferring documents from the Sylvia Park branch of the Bank of New Zealand to his van on 16 May 2008. The bag burst open.  Cheques fell onto the ground outside the bank.  The security guard was able to collect the majority of the cheques, but not all.

[5]      Later that day Mr G   found a number of cheques lying on the footpath. One of them was made out to cash to a value of $1,166.05.  Mr G   attempted to bank the cash cheque at the BNZ.  His attempt was rejected because he could not provide photographic identification.

[6]      The next day Mr G   and a friend reached an agreement whereby the friend would cash the cheque on the condition that he retained $200.   The friend carried out the agreement that afternoon.  The bank honoured the cheque by paying

$1,166.  The friend retained $230 and gave the balance of $936 to Mr G  .

[7]      The friend was later apprehended for the crime.  When Mr G   learned of this fact he voluntarily approached the police to confess his participation.  He took this step with the encouragement of his parents.  He was charged as a result.  At the time  of  the  offending  Mr G    was  aged  19 years.     He  had  no  previous

convictions.    However,  he  had  earlier  appeared  on  a  charge  of  possessing  a controlled drug.  On that occasion he was given the benefit of diversion.

[8]      Also it appears that Mr G   was suffering from mental health problems. He has a longstanding history of cannabis dependence and alcohol abuse.  According to  expert  advice,  Mr G  ’s  problems  presently  defy  diagnosis.    However,  a psychiatrist who provided a brief report to the District Court was unable to opine on any relationship between Mr G  ’s offending and his mental state.

District Court

[9]      In the District Court Ms Scott submitted that Mr G   should be discharged without conviction.  She advanced a number of grounds in support of her argument that the consequences of a conviction for Mr G   would be disproportionate to the gravity of his offending: s 107 Sentencing Act 2002.  It appears that Ms Scott relied principally on prospective difficulties for Mr G   in his ability, first, to obtain a British passport and, second, to secure satisfactory employment.

[10]     Judge Bouchier considered these arguments carefully.  However, she was not satisfied as a matter of fact that Mr G    had met the statutory threshold for discharge.  Her reasons were fully explained as follows:

[15]      To go then to s 107 and to relate it to this particular context, in considering the facts that have been put before me and the affidavit that has been placed before the Court and the written submissions of the defence and the informant, I am not satisfied that there is any objective fact before me which indicates that the s 107 test is met.  There is only, in my view, on the documentation that exists before me, suggestions that this may be a matter wherein the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the events.

[16]      The defendant is currently working, he is in a position now where he has a job, whether his employers were to reconsider that would be a matter that they would have to do on the facts as they know it.  There is nothing before me that indicate that he may lose or fail to obtain any other sort of employment.

[17]      As far as the travel issue is concerned I agree with the submissions of the police.  The granting of a passport is by nationality or descent and not a matter of whether the person has convictions or not.  Travel is a  matter, again, which is at the discretion of a country to which the person seeks to

travel and again there was no objective evidence in the matter before me which shows that the direct and indirect consequences of a conviction would be in this defendant’s situation out of all proportion to the gravity of the offence.

[11]     In the event Judge Bouchier convicted Mr G   and ordered him to pay reparation totalling $1,972 (including substantial bank charges).   Ms Scott accepts that that sentence was lenient if a conviction was to be imposed.

Appeal

[12]     In support of Mr G  ’s appeal, Ms Scott has raised different grounds in this Court.   In reliance on a passage from R v Hughes [2008] NZCA 546 at [41], Ms Scott submits that Judge Bouchier failed to give sufficient consideration to the principles of the Sentencing Act. While I appreciate that the Court’s observations in Hughes  referred to both the gateway inquiry under s 107 and the discretionary factors under s 106, it had earlier affirmed that the principal or threshold inquiry is of a factual nature requiring judicial assessment and is not a matter of judicial discretion: at [11]-[12]. Thus on appeal Ms Scott must establish that the Judge erred in fact in concluding that the consequences of a conviction for Mr G were not out of proportion to the gravity of the offending.

[13]     Ms Scott  submits  that  the  Judge  failed  to  give  adequate  or  sufficient consideration to the principles of the Sentencing Act, in particular the gravity of the offending  including  Mr G  ’s  culpability,  a  number  of  mitigating  factors including his offer to make full reparation, and the desirability of consistency with appropriate sentencing levels when dealing with co-offenders.  In oral argument this morning Ms Scott has also emphasised Mr G  ’s willingness to pay reparation as demonstrating remorse, the opportunistic nature of his offending, his action in going to the police when he heard of his friend’s arrest, and the role of mental illness in this offending.

[14]     While I appreciate the weight of all these factors, Ms Scott’s argument falls well short of satisfying the statutory threshold.  All the points she raises are, as she correctly notes, mitigating in nature.   Essentially they go to the severity of the

sentence, not to the separate factual question of whether or not the consequences of a conviction are disproportionate to the gravity of the offending.

[15]     On  appeal  Ms Scott  does  not  place  principal  weight  on  either  of  the arguments advanced before Judge Bouchier.  To the contrary, her candid advice that Mr G   has now obtained employment with the assistance of WINZ undermines any prospect of advancing an argument that a conviction will disproportionately affect Mr G  ’s chances of securing favourable work.   Ms Scott refers to the obligation Mr G   will inevitably have to discharge of disclosing his conviction to a subsequent employer and of the associated embarrassment and stigma.   But those consequences are common to all offenders and are not unique to or exculpatory for Mr G  .

[16]     Ms Scott falls back on an argument of disparity.   Mr G  ’s co-offender was discharged without conviction.  Ms Scott submits that this factor without more is sufficient to provide a ground of appeal.   In my judgment it is not sustainable. Mr G  ’s co-offender was plainly less culpable.  He was drawn into the offending at Mr G  ’s instigation and acted under his direction.   His receipt of $230 or about 25% of the proceeds of the offending is a rough reflection of relative culpability.  Also, without full details, I cannot comment on whether or not the co- offender was able, because of his own particular circumstances, to discharge the factual statutory threshold provided by s 107.

Result

[17]     In the result I am not satisfied that Judge Bouchier erred.  To the contrary, I

regard her reasoning as unassailable.  Mr G  ’s appeal is dismissed.

[18]     It was unnecessary for me to call on Ms Pidgeon in oral argument in answer, but I acknowledge the quality of her written synopsis for the Crown.

Rhys Harrison J