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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gill v Police

Details

AGLC: Gill v Police [2017] NZHC 2858
Case: [2017] NZHC 2858
Decision Date: 21 November 2017

CaseChat Overview and Summary

Jaspal Kaur Gill appealed against a decision of Judge Andrée Wiltens declining to discharge her without conviction, after she pleaded guilty to theft of less than $500, committed during her employment as a caregiver at a rest home. The District Court Judge found the theft to be grossly dishonest, and a breach of trust, and rejected Ms Gill's submission that the consequences of conviction would be out of all proportion to the gravity of the offending. Ms Gill argued that the Judge erred in not adopting the three-step approach identified in R v Hughes, and in not properly assessing the gravity of the offending and the consequences of conviction. The Court of Appeal found that although the Judge's approach was compressed, it did not necessarily follow that the Judge committed reversible error. The gravity of the offending was serious, and the consequences of conviction, while possibly serious, did not appear to be grossly disproportionate to the gravity of the offending. The appeal was dismissed.

Orders