Godoy v The Queen - [2017] NZHC 2172

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-425-000038 [2017] NZHC 2172

BETWEEN
CAMILA SCHIAVINATTO GODOY

Appellant

AND

THE CROWN Respondent

Hearing: 6 September 2017

Appearances:

J Ross for the Appellant
R Donnelly for the Crown

Judgment:

7 September 2017

JUDGMENT OF NATION J

[1] On 11 July 2017, Ms Godoy was convicted of theft and sentenced.1 The Judge refused her application for a discharge without conviction. The appellant now appeals the conviction and sentence on the basis that she should have received a discharge without conviction.

Facts

[2] Ms Godoy is a 29 year old Brazilian woman who has been living in New Zealand on a working visa. She was employed at Alpine Supermarket for about 21 months. Between 12 February 2017 and 13 April 2017 there were six transactions where the appellant purchased items from the store, knowing that the checkout operator had not charged her for the full value of all the items. The total amount
involved was $115.86.

1 Police v Godoy [2017] NZDC 15066.

GODOY v R [2017] NZHC 2172 [7 September 2017]

[3] There was apparently a culture of this happening between the employees at the store.

[4] When interviewed by Police, Ms Godoy said she did not like her employer and did this to get back at him. In an affidavit sworn in support of her original application, Ms Godoy referred to the conduct of her employer, not as justification for her actions but as an explanation for her becoming involved in offending which would appear to have been very much out of character.

[5] Four other employees were charged. Three were discharged without conviction. I was told the charge involving the fourth was transferred to Auckland. She was initially granted diversion by the Police. That decision was rescinded and she is still to be dealt with.

Judge’s decision

[6] In considering the gravity of the offending, the Judge put it in the medium bracket because, while the value was not high, there was an expressed motive to get back at her employer and a frequency of offending. He noted that the appellant pleaded guilty early on and there were no aggravating factors of a personal nature. He also noted that the appellant had done a significant amount of voluntary work to show that this offending was out of character.

[7] The Judge noted that the consequences of conviction would be that it may prejudice her application to complete her doctoral studies and, more importantly, may mean she would be liable for deportation. He noted that the Immigration Department was aware of the charge so the risk of deportation was already present.

[8] Having undertaken these assessments, he considered whether the consequences were out of all proportion to the gravity of the offending. Noting that there was a serious breach of trust and the appellant’s intention to get back at her employer, the Judge found that the offending was premeditated. He considered that this…

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 Godoy v The Queen

Details

AGLC: Godoy v The Queen [2017] NZHC 2172
Case: [2017] NZHC 2172
Decision Date: 7 September 2017

CaseChat Overview and Summary

Camila Schiavonatto Godoy, the appellant, has appealed against her conviction and sentence for theft. The District Court had rejected her application for a discharge without conviction. The appellant submitted that the Judge had erred in finding the consequences of conviction were not out of all proportion to the gravity of the offence. The Court of Appeal considered the appeal against conviction and sentence as an appeal against both conviction and sentence and not against judicial discretion. The appeal was allowed. The Court of Appeal found the sentencing Judge had erred in the first step of the proportionality test by not adequately considering the personal circumstances of the appellant, particularly the voluntary work she had carried out, in assessing the gravity of the offending. The Court of Appeal also found that the disparity between the sentences of the appellant and her co-offenders was such that it could bring the administration of justice into disrepute. The appellant was discharged without conviction. She was ordered to pay reparation in the sum of $57.93 and emotional harm reparation of $500.

Orders