Gill v Police

[2017] NZHC 2858

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000332 [2017] NZHC 2858

BETWEEN

JASPAL KAUR GILL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	20 November 2017
Counsel:	NK McDonald for Appellant ZR Hamill for Respondent
Judgment:	21 November 2017

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 21 November 2017 at 4 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:

Kayes Fletcher Walker, Manukau. NK McDonald, Auckland.

GILL v POLICE [2017] NZHC 2858 [21 November 2017]

The appeal

[1]      Ms Jaspal Gill pleaded guilty to one charge of theft, committed during her employment.    Judge G A Andrée Wiltens  declined  to  discharge  Ms  Gill  without conviction.1      On  her  behalf,  Ms McDonald  contends  the  Judge  erred.    For  the respondent, Ms Hamill submits this case provides an obvious example of why Courts do not deprive potential employers of relevant information by discharging an offender without conviction.

The facts

[2]      J is elderly and suffers Parkinson’s disease. She lives in a rest home. J believed someone had taken money from her purse. She told her nephew. He installed a closed- circuit television system in J’s unit.  On 6 February 2017, J went to the movies.  But, she could not pay in cash as $150 was missing from her purse. Her nephew reviewed the closed-circuit television footage.   It showed Ms Gill taking J’s purse from her walker and putting something from it into her pocket on 5 February.  Ms Gill was employed, fulltime, as a caregiver at the rest home.

[3]      Ms Gill initially denied the offending.  She told the manager she did not take the money and was merely looking for J’s dentures. However, on her third appearance in the District Court, Ms Gill pleaded guilty to a charge of theft of less than $500, punishable by a maximum penalty of three months’ imprisonment.2

[4]      Ms Gill filed an affidavit before sentencing.  She has worked for many years with elderly people.  Ms Gill is married with two young children.  One has type 1 diabetes.  Ms Gill says she “bitterly regret[s]” her actions, and “responsibly pleaded guilty … after seeking legal advice”.  Ms Gill was dismissed by the rest home.  She says a conviction would jeopardise future employment with the elderly, and her training and experience “would count for nothing”.  Financial hardship would soon

follow.

1      Police v Gill [2017] NZDC 20486.

2      Crimes Act 1961, ss 219 and 223.

The decision below

[5]      The Judge’s reasons are succinct:

[2]  What you are asking for today is to be discharged without conviction.

[3]  The reason for that is that you say the offending is not particularly serious, and that the consequences to you are out of proportion to the seriousness of the offending because you have lost your job. You will not be able to get work within the caring health industry because of a conviction if it is recorded.

[4]   The bottom line here is that this is dishonest.  It is grossly dishonest.  a

71 year old in full-time care asks to be assisted to go to the toilet, and while she is doing that you help yourself to $150 out of her wallet. I accept it is the

first time that you have been caught doing this.  I do not know if it is the first time that it has ever happened or not, but she is in care, she relies on you to

look after her belongings.  Your employer relies on you to look after her and her belongings. You are in breach of trust, and it is a gross breach of trust. No matter how you look at it, even in terms of the relatively small amount of

money involved, this is still a serious offence.

[5]  A discharge without conviction I am afraid is not possible here. Not only is it wrong in principle, but it seems to me that future employers within the industry should know the background of all those that they employ, and I am certain that they ask.  So what you are actually asking me to do is to conceal your dishonest act from future employers so that you can get employment again in the same circumstances. We cannot countenance that I am sorry. That is not possible. Employers need to know that employees have been dishonest in the past, and if they still want to employ you in those circumstances, that is fine, and a number of employers would do that, but in this particular case it would be completely wrong to conceal it, it seems to me.

[6]  I accept that there are consequences, but they are not out of proportion to the offending.

[7]    The other thing that I disagree with Ms McDonald about is that your employers are not affected by this.  The victim here has made it perfectly obvious in her victim impact statement that she no longer trusts anybody, any member of staff, at this establishment.  The reason for that apparently is that this is the second time this has happened to her, and because it is the second time, and because it has happened once before, her son set up a secret CCTV camera to catch whoever it was that was doing this, and they happened to catch you.

[8]    It is not surprising that the employer’s reputation has diminished as a result of this.

[9]   The application is declined.  I am convicting you.  I am ordering you to pay $150 reparation, plus to do 100 hours of community work.

Ms Gill’s case

[6]      Ms McDonald contends the Judge failed to adopt the well-known three-step approach  to  applications  of  this  type,  as  identified  by  the  Court  of Appeal  in R v Hughes.3   She submits the Judge also failed to properly assess the gravity of the offending by overlooking mitigating features, and erred in not concluding the consequences of conviction, direct or otherwise, would be out of all proportion to the gravity of the offending.4

Analysis

[7]     The Judge’s approach compressed the three-step approach articulated in Hughes—identifying the gravity of the offence;  identifying the consequences of conviction; and assessing whether the latter would be out of all proportion to the former—presumably because the decision was given orally in a busy list court. But it does not necessarily follow the Judge committed reversible error, or that the outcome is wrong.

[8]      The gravity of the offending was serious:

(a)       The victim was vulnerable by dint of age and Parkinson’s disease.

Ms Gill knew that.

(b)The offending involved a gross breach of the victim’s trust, and a breach of trust in relation to Ms Gill’s employer. Ms Gill was relied on by both the rest home and the victim to provide care. Her actions were fundamentally inconsistent with this responsibility.

(c)      The offending also involved a breach of the victim’s privacy.  A purse or  wallet  typically  contains  more  than  just  money,  and  attracts  a

reasonable expectation of privacy.

3      R v Hughes [2008] NZCA 546.

4      Sentencing Act 2002, ss 106 and 107.

(d)Victim impact: the victim no longer trusts others at the rest home.  She ought to be able to do so, and to believe her property is safe there.

[9]      It follows the modest amount of money taken and corresponding nature of the charge must be assessed in this context. The offence is a bad example of its kind.

[10]     As Ms McDonald observes, there are mitigating features the Judge did not recite.  Ms Gill’s offered to meet the victim in a restorative justice conference,5 and has performed voluntary community work on behalf of the Salvation Army since being charged.  Nor did the Judge refer to Ms Gill’s personal circumstances.  Parenting a child with type 1 diabetes is challenging.   And stressful.   These various factors, however, do not greatly diminish the seriousness of the offending, for, they are contextual in nature rather than directly connected to the commission of the offence.

[11]     The extent of Ms Gill’s remorse is difficult to gauge.  The pre-sentence report refers to remorse as “genuine”, and is positive. As observed, Ms Gill offered to meet the victim and has undertaken community work.  However, Ms Gill has not told her husband or family of her offending.  Or her current employer.  Ms Gill has casual or part time employment.  Detail is unclear, save Ms McDonald’s submissions refer to Ms Gill as having had this employment since before the offence, and the pre-sentence report refers to work at a hospital.  The same report suggests care of the elderly is involved.

[12]     Ms Gill’s reticence is not necessarily inconsistent with remorse, albeit genuine remorse is often associated with candour. It is difficult not to conclude Ms Gill hopes her offence will remain unknown, even to those closest to her.  Relatedly, Ms Gill’s guilty plea was prompt, but not immediate.  And, it was entered only after an initial denial with associated inaccuracy—the checking of dentures observation.

[13]     The Judge noted this was Ms Gill’s first offence.  She is now 35.

[14]     Overall, mitigating features affect the picture—but not greatly. The gravity of the offending diminishes from serious to moderately serious.

5      The victim could not be contacted.

[15]   Probable consequence of conviction centres on employment and related financial stress.  In her affidavit, Ms Gill says:

A conviction of this nature will have to be disclosed to any future employer and most certainly will debar me from obtaining a position in the Health/Aged Care Sector.

No employment in that Sector would mean that my training and qualifications related to Aged Healthcare would count for nothing.  Given the current “Job Market” a conviction for theft would also prevent me from obtaining a position in other fields.

Currently my sole source of income is from my casual work.   With this restricted income we are finding it difficult to meet our basic weekly outgoings.  If a conviction is entered I would lose even this form of casual employment.  Financially this would result in extreme hardship for our entire family.

[16]     As  will  be  apparent,  the  affidavit  deals  with  consequence  at  a  level  of generality.  Conviction for theft may damage Ms Gill’s employment prospects in this sector, but much depends on circumstance. There is no evidence about what questions a job applicant in this sector must typically address, or whether some employers ask only about convictions as against something much broader; for example, whether the applicant has ever been charged with an offence, the subject of Police diversion, or discharged without conviction. Sophistication of question may turn on the nature and size of the organisation, experience or other factors.  Some potential employers may require the facts of this offence to be disclosed even if it attracts no conviction.

[17]    The affidavit also presupposes potential employers will necessarily react adversely to disclosure of a conviction, irrespective of mitigating circumstance. True, some employers may react this way.  It is, however, speculative to assume all will do so.

[18]     Ms Hamill emphasises the importance of those in the sector making this decision on an informed basis, rather than the Courts by proxy:

… prospective employers in the “health industry”, particularly retirement homes with elderly and vulnerable residents, should be aware of the appellant’s dishonesty offending and gross breach of trust (of an elderly woman with Parkinson’s disease) when considering whether … to employ her. The appellant should not be able to conceal or hide this information given the reliance and level of trust placed on workers in this industry.

[19]     This argument accords with longstanding principle.  Courts are reluctant to usurp the role of professional bodies or individual employers in assessing the significance of a conviction and related fact.6   The instant case provides an obvious illustration of rationale: honesty is integral to a caregiving role, particularly when the beneficiary of care is vulnerable; and employers in this context are best placed to determine whether Ms Gill should be retained having regard to totality of circumstance, including mitigating features.

[20]      Overall, consequences or likely consequences of conviction are moderate—

perhaps serious.

[21]     Discharge without conviction is not possible in these circumstances, as there is no gross disproportionality between the gravity of the offending and the consequences, direct and indirect, of conviction.   Indeed, no other view is readily available.   “Character damage” is inherent to a dishonesty conviction.7    And, this offence was committed during Ms Gill’s employment, while she was supposed to be caring for others.  Again, mitigating features exist, but these do not greatly detract from the gravity of the offending.   Serious consequences may possibly flow from conviction, but much depends on circumstance.   This is a case in which potential employers are entitled to make this decision themselves.

[22]     The appeal is dismissed.

……………………………..

Downs J

6      For a recent example of the principle see Lawrence v Police [2016] NZHC 148.

7      Vujasin v Police [2014] NZHC 2974 at [13].