Godoy v The Queen
[2017] NZHC 2172
•7 September 2017
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 CrownJudgment:
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 That decision was rescinded and she is still to be dealt with.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 deserved a conviction.
[9] He considered that the 260 hours of community work she had completed were sufficient to show that she had remorse for what she did so there was no need to impose a further penalty. Reparation of $57.86 was ordered. He noted that the level of remorse and the fact that no sentence had been entered would likely be factors that the immigration authorities would consider.
Submissions
Appellant’s submissions
[10] For Ms Godoy, Mr Ross submitted that a miscarriage of justice has occurred and that the Judge made a material error by entering a conviction. He submitted that:
(a) the Judge overstated the gravity of the offence;
(b)the Judge undervalued the direct and indirect consequences of a conviction;
(c) the Judge should have found that the proportionality test had been met; and
(d)the fact that the appellant’s co-offenders received discharges without conviction showed that something has gone wrong in the administration of justice.
[11] Mr Ross criticised the Judge’s use of the term “gravity of the offending” rather than the correct term “gravity of the offence”. He referred to the approach laid out in Z v R which requires all aggravating and mitigating factors relating to the offending and the offender to be addressed when considering the gravity of the offence.2 Mr Ross submitted that the Judge failed to do this. Mr Ross also submitted that the Judge failed to give account for personal mitigating factors,
particularly when compared to the approach taken for the appellant’s co-offenders.
2 Z v R [2012] NZCA 599 at [27].
[12] Mr Ross submitted that the sentencing judge failed to consider that a conviction would impact on the appellant’s ability to obtain employment in New Zealand. This, combined with the effects on deportation and doctoral study, were real and appreciable and of at least moderate weight.
[13] Mr Ross noted that the Judge made a minor calculation error and reparation should have been $57.93 (half of the stolen amount). The appellant also offers $500 for emotional harm reparation.
Respondent’s submissions
[14] For the respondent, Mr Donnelly submitted that the Judge correctly considered the test for a discharge without conviction and was entitled to find that the consequences did not outweigh the gravity of the offence. He noted that the appellant has since had her application for a work visa declined but submitted that this liability arose when the offence was committed and it is unclear whether a discharge without conviction would influence the likelihood of her being deported. Mr Donnelly submitted that there was nothing exceptional in this case which warranted the Court interfering with the authority of the immigration services and education providers to determine applications before them.
[15] Mr Donnelly submitted that the difference between the appellant’s sentence and that of her co-offenders was due to her higher level of culpability, as found by the Judge.
Leave to appeal out of time
[16] The appellant acknowledges that this appeal is made two and a half weeks out of time. Counsel explains that this was because:
(a) the appellant was represented by different counsel at her hearing;
(b)following her sentencing, the appellant applied for legal aid and counsel was assigned on 9 August 2017; and
(c) the three co-offenders were not sentenced until 23 August 2017.
[17] The overriding consideration for the court in deciding whether to grant an extension of time is whether the interests of justice support an extension. Weight will also be given to the appeal’s merits.3 Leave to appeal out of time is granted as no party has been disadvantaged and the delay in filing was relatively short.
Principles on appeal
[18] The procedure for discharges without conviction is governed by ss 106 and
107 of the Sentencing Act 2002. Section 107 confers to the court discretion to grant a discharge without conviction if it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[19] An appeal against a refusal to discharge a defendant without conviction is characterised as an appeal against both conviction and sentence.4 It is not treated as an appeal against a judicial discretion so normal appellate principles therefore apply. The reasoning behind this was articulated in R v Hughes:5
The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles… The discretionary power of the court to discharge without conviction under s 106 arises and exists only if the Court is satisfied that the s 107 threshold has been met.
Law
Discharge without conviction
[20] The orthodox approach in assessing whether a discharge should be granted was set out by the Court of Appeal in Z v R:6
…when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that
3 Mikus v R [2011] NZCA 298 at [26].
4 Jackson v R [2016] NZCA 627.
5 R v Hughes [2008] NZCA 546 at [11].
6 Z v R, above n 2, at [27].
they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).
[21] The courts have taken the view that a threat of deportation should not necessarily result in a discharge without conviction because that usurps the role of the immigration authorities. In A v R, the Court of Appeal held:7
Given the seriousness of the departure from community standards involved in this offending, we consider it appropriate for the relevant registration bodies, employers and the Immigration Service to be able to decide for themselves the effect the convictions should have. We do not think it appropriate for the Court to usurp the role of those bodies in this case.
[22] Asher J observed in Zhang v Ministry of Economic Development that:8
In relation to a conviction affecting an offender's immigration status, or indeed ability to travel overseas, the courts often conclude that it is appropriate for the consequences of conviction to be resolved by the appropriate authorities, rather than the Court attempting to pre-empt that decision-making process by a decision to discharge without conviction … There is nothing that requires the courts to intervene to try and impose their perception of what the right immigration consequences should be. That is best left to the immigration authorities. But a Court's assessment of culpability in the sentencing exercise may assist those authorities. And there will always be occasions where in a finely balanced case a discharge may be warranted on these types of grounds…
[23] There will be cases when the gravity of the offending is so minor that the s
106 discretion should be exercised and the matter not left for determination by the
Minister of Immigration.9 This depends on the gravity of the particular offence.
[24] In Jeon v Police, the threat of deportation was greater than the gravity of the offending so a discharge against conviction was given.10 The appellant was an immigrant from Korea and he and his family had been given residency status. The offence was dangerous driving. The appellant failed to stop at a stop sign on a side road. He drove through it at a moderate speed (30-40 kilometres per hour) and
collided with a truck. The truck driver received moderate injuries and the appellant’s
7 A v R [2011] NZCA 328 at [30].
8 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [14].
9 Chang v Police [2017] NZHC 1119 at [15].
10 Jeon v Police [2014] NZHC 66.
wife more serious ones. On appeal, the Judge considered the gravity of the offending to be low because, while dangerous, it was the result of a moment’s inadvertence. The risk that the appellant could not attain citizenship was considered to be greater than this, so a discharge without conviction was granted.
[25] In Hicks v Police, a defendant was granted a discharge without conviction on one charge of obtaining by deception.11 This arose from his use of his ex-partner’s credit card to purchase items totalling $152.30 without her authority. The defendant told police that he may have “done it out of spite’. He initially pleaded not guilty but changed to a guilty plea on the morning of his hearing. The defendant had no previous convictions. He was a registered electrician and was required to regularly renew his licence. This included disclosing any criminal convictions as part of a ‘fit and proper person’ test. The High Court considered that the gravity of the offence was low and, while it should be hesitant to usurp the role of a professional body or employer, the consequences outweighed the gravity.
Disparity between co-offenders
[26] In R v Lawson, the Court of Appeal held that the disparity between co- offenders must not be such as to lead a reasonably minded independent observer to believe that something has gone wrong with the administration of justice.12
However, the Court of Appeal has also recognised that there will often be legitimate reasons for disparate sentences between co-offenders:13
Whilst it is vital for a sentencing court to strive for parity in sentencing co- offenders (whether sentenced separately or together), parity will not be achieved by a simple measurement against a co-offenders culpability. Parity means treating like cases alike and others with due regard for relative differences. It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedents and taking into account any aggravating or mitigating features personal to the offender.
11 Hicks v Police [2016] NZHC 2132.
12 R v Lawson [1982] 2 NZLR 219 (CA) at 223.
13 R v K (2003) 20 CRNZ 62 (CA) at [20].
Gravity of the offence
[27] Counsel for the appellant criticises the way the Judge used the term “gravity of the offending” rather than the term “gravity of the offence”, as that term was used by the Court of Appeal. I do not consider the Judge can be criticised for the way he referred to “gravity of the offending” given the appellant had pleaded guilty to theft on a number of occasions. I do however consider there is more substance in the submission that, in applying the approach mandated by the Court of Appeal in Z v R and in considering the gravity of the offending, the Judge failed to bring into account significant factors relating to the offender personally.
[28] In his sentencing decision, the first step was under the heading “Gravity”. The Judge said he was required to weigh up “the gravity of this offending”. He then discussed the circumstances of the offending, the potential penalty, the modest value of the items stolen, the motive for the offending as explained to the Police and the way others were involved in similar offending. He said all of that meant the gravity of the offending was at the middle of the range.
[29] The Judge then referred briefly to factors relating to her personally, her early guilty plea, her lack of previous convictions and the fact she had done 260 hours of community work on a voluntary basis. There was however no suggestion in his sentencing that matters relating to her personally had caused him to regard the offending as any less serious.
[30] The Judge then went on to consider the potential consequences of conviction and then whether the consequences were out of all proportion to the gravity of the offending.
[31] I consider the Judge ought to have given greater consideration to the way in which the appellant had accepted responsibility for her offending and demonstrated her remorse for what had happened in assessing the gravity of the offending.
[32] In her affidavit, Ms Godoy said she had cooperated with the Police and voluntarily attended the Police Station for an interview. She had endeavoured to offer reparation directly to her employer. She said she had immediately advised Immigration that she had been charged with the offence. Most significantly, she said that, to display her remorse and give back to the community in which she had lived and now offended against, she had begun performing voluntary work in the community. With her affidavit was a letter from the Salvation Army Family Store of
4 July 2017 indicating that she had then completed a total of 213 hours at the time of that letter, had attempted to offer her services as a volunteer a full month before her starting and had been willing to assist in a way that would have enabled her to complete 411 hours. In her affidavit, Ms Godoy said it had been her intention to do
300 hours of voluntary community work. The manager said Ms Godoy had been “a truly exemplary colleague” in her time at their store and had “excelled in all areas of work across the store”.
[33] Ms Godoy obviously did this work, while voluntarily, in the hope that it would assist her to obtain a discharge without conviction. However, I do not consider the significance of it should be minimised on that basis. It is consistent with the principles of the Sentencing Act that due recognition be given for such a tangible acceptance of responsibility as an indication of real remorse for what she had done.14 It also suggests that the appellant regards the potential consequences to her of a conviction are real and are not being advanced on some fanciful basis to avoid the potential stigma of a conviction.
[34] Her carrying out voluntary work to this extent, in the context of facing a criminal charge, also demonstrated to those who knew her and to others in the community that there would be consequences from her offending. That reduced the need for a conviction to be entered or for some further penalty to be imposed as a way of holding her accountable to the community for her offending and as a
deterrent against further similar offending.
14 The Court of Appeal recently indicated in Willis v R [2017] NZCA 383 that a lack of remorse will increase the gravity of the offending.
[35] The appellant also produced references from professors at the University where she had completed first a Bachelor ’s degree and then a Master’s degree in chemical engineering and had successfully completed a research placement for one year at a university in Germany. One reference referred not just to her academic attainment but also to her “dedication, professionalism and discipline”.
[36] Those references and others, and the way the appellant took responsibility for her offending, do indicate that this offending was very much out of character. In that regard, it was also of some relevance that she became involved in this offending because of a particular culture that had developed in the store. This does not make the offending less serious, but it explains why she became involved in offences of dishonesty which neither she nor others who knew her would have expected of her.
[37] Taking matters relating to the appellant personally into account, I consider the Judge could and should have assessed the offending as being at a low level. Judge Dawson considered the offending of the three people he discharged without conviction on 23 August 2017 to be at the lower end.
Consequences of offending
[38] The sentencing Judge then considered the potential consequences of a conviction. I do not consider there was any error in that regard.
[39] In her affidavit, Ms Godoy had not provided any specific information as to how her future employment prospects would be affected by a conviction. She was concerned as to how a conviction would potentially affect her ability to pursue PhD studies in New Zealand, a matter which she was actively pursuing with Victoria University.
[40] The Judge was justified in taking the view that any university where she wanted to pursue further study and the immigration authorities should be in a position where they could make their own assessment as to the seriousness of the matters for which she had been convicted.
[41] On many occasions when a discharge for conviction is sought, the offender will have to establish the specific and likely significant consequences of a discharge on future employment, study or other particular prospects to obtain a discharge. On other occasions, the obvious normal stain of a conviction, particularly for dishonesty, may, in all the circumstances, be sufficient. In a competitive job market, the mere fact that an applicant for employment has a conviction may deter a prospective employer from considering any further the possibility of employing that person and from making any further enquiry as to the seriousness of the offending or the extent to which that conviction might put the employer at risk. On a number of instances, the High Court has recognised that a dishonesty conviction of the sort that has arisen here can have serious consequences on a person’s potential and future career, especially when accrued at a young age.15
[42] In identifying the consequences of conviction, it is not necessary for the Court to be satisfied that the identified direct and indirect consequences will inevitably or probably occur. It is sufficient if the Court is satisfied there is a real and appreciable risk such consequences will occur.16 When sentencing and granting a discharge for the three other main offenders, Judge Dawson said “for all three of you, there would be a stain upon your records for your future. In my view that is the main consequences”.
[43] Consistent with that, I have been told that, to extend the time she could lawfully be in New Zealand, Ms Godoy had to obtain a working visa. For that, she required the support and sponsorship from a prospective employer. McDonalds had indicated they would be willing to support her in that way but withdrew that support when her conviction was confirmed. In his submission, Mr Donnelly for the Crown confirmed that on 1 August 2017 Ms Godoy was declined her application for a work visa, relying on s 61 of the Immigration Act 2009, but said that was because of her
offending, not necessarily dependent on whether there was a conviction.
15 Boonen v Police HC Wellington CRI-2003-485-41, 14 October 2003 at [14]; Police v Paki [2014] NZHC 3112; Richardson v New Zealand Police [2015] NZHC 1431; Tuisila v New Zealand Police [2012] NZHC 3416.
16 Iosefa v Police HC Christchurch CIV-2005-409-64, 13 April 2005 at [34].
[44] To avoid the possibility and consequences of being unlawfully in New Zealand and then being deported, Ms Godoy has to leave New Zealand before her current visa expires. She has accordingly arranged to leave and return to Brazil on
11 September 2017 but is hopeful that, if her appeal is successful, there may be some prospect of obtaining an extension to her visa from the immigration authorities. In that regard, I also note that it is not necessary for a conviction to be entered to ensure those authorities are aware of this offending and can be taken into account in any decision which they have to make. They will be fully aware of what occurred and how it has been dealt with by the courts. The granting of a discharge or the entering of a conviction may however be of some relevance in that it reflects the Court’s ultimate view as to the seriousness of what occurred in all the relevant circumstances, including matters relating to the offender personally.
[45] I do not consider the sentencing Judge made any error in the way he assessed the potential consequences of conviction for the appellant but these are all matters which I have also weighed in the balance in my ultimate decision.
The proportionality step
[46] The third step in considering whether a discharge should have been granted was to consider whether the consequences of a conviction out-weighed the gravity of the offending. The sentencing Judge appropriately embarked on that exercise but I do consider that in that exercise there was ultimately an error because of the way, in the first stage, he had failed to give adequate consideration to the personal circumstances of the appellant, especially the voluntary work she had carried out, in assessing the gravity of the offending. In light of that, I consider that the consequences of a conviction would be out of all proportion to the gravity of the offence.
Disparity
[47] On this appeal, in a way the sentencing Judge was unable to do, I must also consider the difference in the way the various offenders have been dealt with by the Court. I have the summary of facts relevant to the other offenders. Ms Fernand was involved in one dishonest transaction on 24 January 2017 for $33.90. Ms Chedid
was involved in nine different transactions between 24 January 2017 and 15 March
2017 involving $291.22. Ms Perera was involved in eight different transactions on
24 January 2017 for a total of $152.74. Judge Dawson distinguished their situations from that of Ms Godoy on the basis Ms Godoy had been employed in the particular employment for significantly longer and because, it appeared from the explanation she had initially provided to the Police, Ms Godoy involved herself in this offending and had acted out of some sort of grievance against the employer.
[48] Standing back, I do not consider the cases should be distinguished on that basis. All four offenders had been employed at the supermarket for more than a few months. They were all involved in a significant breach of trust as far as their employer was concerned. It was not suggested that Ms Godoy was the initial instigator of this sort of offending. She was sentenced on the basis that the idea of doing this had been initially suggested to her by a supervisor. No issue was taken with the statement in her affidavit that she had been working at the supermarket for a considerable time before she allowed herself to be caught up in the offending of others that was going on.
[49] Judge Dawson noted that, it appeared to him, a bad culture had developed at the supermarket among some supervisors and staff and it appeared to him that the three offenders he was dealing with had gone along with what was happening and had done so wrongly. That appears to have also been the situation with Ms Godoy. Ms Godoy gave an explanation as to how that culture may have developed but did not use it as an excuse for what she had done. I do not consider her providing that explanation is a fair basis on which the sentence for her should be significantly different from that for the other offenders.
[50] In sentencing the three others, Judge Dawson said that, after a careful consideration of their background and the information he had as to what sort of people they might be, he was persuaded that:
… all three of you are otherwise very good people. But you allowed yourselves to be caught up in a bad situation and involved in other people’s bad behaviour. It was a bad lapse of judgment by each of you by joining in what was seen to be the normal thing to do in the place where you were working.
[51] With that conclusion, Judge Dawson said he was satisfied it was highly unlikely that any of them would offend again. For that reason, treating it as a one-off occasion, he granted the s 106 discharge application because, in his view, the gravity of the consequences of a conviction out-weighed the gravity of the offending but ordered them to pay reparation.
[52] I have the benefit of the sentencing remarks for the three other offenders in a way the sentencing Judge for Ms Godoy could not because they were sentenced later. I have more information as to Ms Godoy’s personal circumstances than would have been available to Judge Dawson when he sentenced the three other offenders even if he had the sentencing notes for Ms Godoy. I consider that Ms Godoy’s conviction created a marked disparity in sentences and that disparity is such that, in all the circumstances, it could “bring the administration of justice into disrepute”.17
Conclusion
[53] For all these reasons, I consider the refusal of a discharge has resulted in a miscarriage of justice. I am satisfied there was an error in the process by which that decision was reached and, in the circumstances, the entering of a conviction was manifestly excessive and a different sentence should be imposed.
[54] In sentencing the three other offenders, Judge Dawson required them to pay reparation for the losses resulting from the transactions in which they were involved. He also ordered them to pay emotional harm reparation. The Judge sentencing Ms Godoy entered a conviction but required her to pay a share of the losses resulting from the transactions in which she was involved. The Judge did not require her to make any further payment because of the community work she had done.
[55] I have taken that community work into account in my assessment of the gravity of the offending, including, as it does in this context, matters relating to Ms
Godoy personally.
17 Referring to the test as stated in R v Lawson, above n 12.
[56] It is appropriate that there be an emotional harm payment from Ms Godoy to the victims of her offending as a way of ensuring that, with this decision, she is nevertheless accountable for the harm and the breach of trust as far as they are concerned. She has recognised this through her counsel saying that she would be prepared to make an emotional harm reparation payment of $500.
[57] Accordingly, this appeal is allowed. The decision of the District Court refusing Ms Godoy a discharge and entering a conviction of the charge of theft is quashed. The appellant is discharged without conviction. She is ordered to pay reparation in the sum of $57.93 and emotional harm reparation of $500. These sums are to be paid forthwith and no later than 10 September 2017.
Solicitors:
J Ross, Montrose Chambers, Invercargill
R Donnelly, Crown Solicitors Office, Invercargill.
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