Goodricke v Police
[2015] NZHC 736
•17 April 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2010-485-26 [2015] NZHC 736
BETWEEN PETER GUY GOODRICKE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 14 April 2015 Counsel:
Appellant in person
S W P Woods for RespondentJudgment:
17 April 2015
RESERVED JUDGMENT OF MACKENZIE J
I direct that the delivery time of this judgment is
12.00 pm on the 17th day of April 2015
Solicitors: Crown Solicitor, Wellington, for Respondent
Copy to: Mr Goodricke
GOODRICKE v NEW ZEALAND POLICE [2015] NZHC 736 [17 April 2015]
[1] This appeal has a rather chequered history. In it, Mr Goodricke submits that a sentence of conviction and discharge, imposed following his guilty plea to a charge under s 24(b)(i) of the Summary Offences Act 1981, is manifestly excessive, and that he ought to have been discharged without conviction under s 106 of the Sentencing Act 2002.
[2] It is necessary to set out the background in some detail. Mr Goodricke in August 2009 was an information technology technician contracted to the Department of Internal Affairs, along with two other computer specialists, to “virtualise” the computer systems of the Department. In the course of his work under that contract, it was alleged that he had accessed certain information, relating to his own application for New Zealand citizenship, and his own passport information, in circumstances where that access was unauthorised. He was charged on
7 October 2009 with two offences, under ss 250(2)(a) and 252(1) of the Crimes Act
1961.
[3] Mr Goodricke’s computer equipment was seized in the investigation of those two charges. On 15 October 2009 he rang police to request his computer equipment back. He was advised that it would not be returned. He became extremely agitated and during the course of his telephone discussion said that he had no other option, that he had a noose around his neck and he was going to hang himself. The police operator asked him if she had heard him correctly and he stated to her that he had a noose around his neck and was going to jump off the balcony. Police made a rapid deployment, with urgent duty driving, to get to Mr Goodricke’s home in response to that intimation. When police arrived, they spoke to his wife who went downstairs and located Mr Goodricke. Following that incident, a third charge was laid, under s 24(b)(i) of the Summary Offences Act 1981.
[4] The case was heard in the District Court at Wellington on 28 January 2010. Mr Goodricke was represented by Mr Lithgow QC. Agreement had been reached with police that of the two Crimes Act charges, the more serious charge under s 250 would be withdrawn if a plea of guilty to the lesser charge, under s 252, was entered. Mr Lithgow’s submissions about that are recorded in the transcript of his oral remarks in these terms:
So although in order to deal with it he would accept the police offer to plead guilty to the lesser charge, that could only be really on a sentence indication of discharge without conviction, because this is his work. He has worked on serious security systems in Australia for Prime Systems, he has worked on Department of Justice systems here, and he has been offered jobs involving defence and security systems. So it is very important to him.
[5] The District Court records show the entry of a guilty plea, and a discharge under s 106, to the charge under s 252. The charge under s 250 was withdrawn.
[6] The Judge also dealt with the Summary Offences Act charge. His sentencing notes are as follows:1
[1] Mr Goodricke, I have dealt with this matter on the basis that you have heard me discuss with Mr Lithgow, because irrespective of what your motivation may have been, and I have no doubt that you were frustrated by reason of the fact that your computer equipment had not been returned to you as you, I would imagine, had been led to believe or had thought it would be, notwithstanding that and the steps you had taken to get it returned, this was quite a deliberate action on your part, which provoked a response from the police.
[2] Their response, in my view, was quite a proper one because they were responding to what they thought was a potential emergency, but in hindsight it was a false statement by you, and consequently they wasted their time. In my view that must be reflected in the penalty. I will convict and discharge you. I am not prepared to take it further than that.
[3] I have already dealt with the other matter and I do not intend to reiterate what I have said this morning in respect of that in discussions with Mr Lithgow and the police, but those matters are dealt with.
[4] On this one, you are convicted and discharged.
[7] On 23 March 2010, Mr Goodricke filed a notice of appeal in this Court against his conviction on the Summary Offences Act charge. That notice was out of time, and the Court file records that Mr Goodricke was advised of the need to file an application for leave to appeal out of time.
[8] No further steps in the appeal were taken by Mr Goodricke. His appeal was called on 4 May 2010 and there was no appearance on his behalf. I dismissed the appeal for want of prosecution.2
[9] Mr Goodricke then sought leave to appeal to the Supreme Court against the dismissal of his appeal. His application for leave to appeal was deemed to be dismissed on 5 December 2014. On 5 March 2015, Mr Goodricke filed in this Court a document headed “Appellant’s submissions” which sought to revive the matter in this Court. The matter was referred to me. I issued a minute on 6 March 2015 in
which I said:3
[4] In his notice of application to the Supreme Court Mr Goodricke claims that he was not notified of the hearing date for his appeal on
4 May 2010. The Court file indicates that Mr Goodricke was notified of the date of hearing on 12 April 2010. However, in view of the possibility that
this may have miscarried in some way, I consider that the appropriate course is to recall my judgment of 4 May 2010 dismissing the appeal for want of prosecution, and to set the substantive appeal against the decision of the
District Court on 5 February 2010 down for hearing.
[10] The appeal was called on 17 March 2015. Mr Goodricke appeared in person. I adjourned the appeal to 14 April to enable Mr Goodricke to take legal advice and to make application for leave to adduce further evidence on the issue of whether the consequences of a conviction would be out of all proportion to the gravity of the
offending. I issued a minute setting out the steps he should take.4
[11] When the appeal was called again on 14 April 2015, Mr Goodricke appeared in person. He explained that he was not able to obtain the services of a lawyer and that he wished to proceed with the appeal, self represented. He had not made an application for leave to adduce further evidence. He handed up a statutory declaration by him addressing the consequences of the conviction, but there is no formal application for leave to adduce that, or any other further evidence.
[12] With that background, I turn to the merits of the appeal.
[13] The first issue is the point that the original appeal, filed in March 2010, was out of time. That delay was quite short. It is subsumed by subsequent events. I consider that the appropriate course is to deal with the appeal on the merits. I accordingly extend time for filing the appeal.
[14] The appeal is, in effect, against the refusal to discharge Mr Goodricke without conviction following the guilty plea. The essence of Mr Goodricke’s contention is that the conviction has affected, and will affect, his ability to obtain contracts in the field in which he is qualified. Relevant to that is the way his conviction is recorded in the Ministry of Justice Case Management System. On his criminal history, the offence is described as “false statement that offence committed”. Mr Goodricke has questioned the appropriateness of that description in a number of ways since his conviction, without success. He submits that when his record containing that description becomes known to a prospective employer or contracting party, his prospects of employment are adversely affected. He submits that this has occurred, in that he was in 2011 provisionally awarded a five year contract with Coca Cola Amatil in Australia, which was cancelled when the checks of his record were undertaken. That was not a contract in the information technology field. His declaration refers to about 25 other positions which he asserts he has not been awarded when background checks have shown his conviction.
[15] Mr Woods for the respondent, in his very helpful submissions, refers correctly to the approach to s 106 established by the Court of Appeal authorities.5
He submits that it was open to the Judge to convict and discharge Mr Goodricke on the false statement charge and that this was an appropriate response to the offending in the circumstances at the time. He submits that the appeal is essentially answered by the fact that Mr Goodricke’s current employment difficulties have arisen well after the fact of the sentencing exercise and he notes the reluctance of the Court of Appeal to embark on what would essentially be a resentencing exercise in the light
of information arising after the sentencing.6
[16] I acknowledge the force of Mr Woods’ submissions. However, I think in this case a broader approach is appropriate. The sentencing Judge recognised that the consequences to Mr Goodricke of a conviction on the Crimes Act charge would be out of all proportion to the gravity of the offending, because of the potential effect on
his livelihood. That is clear from the s 106 discharge which was granted on the s 252
5 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222; R v Blythe [2011] NZCA 190, [2011]
2 NZLR 620; Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142; DC (CA47/13) v R
[2013] NZCA 255.
6 Levy v R [2014] NZCA 87.
Crimes Act charge. In the circumstances of this case, I consider that it was necessary, in carrying out the balancing exercise required by s 107 between the consequences of a conviction and the gravity of the offence, to have regard to the gravity of the totality of the offending, and the consequences of conviction for all or any part of the offending. It appears from the Judge’s sentencing remarks that the potential effect of a conviction on the Summary Offences Act charge was not specifically addressed.
[17] I do not place weight on the material which Mr Goodricke has put forward to support his submission that the conviction has had an adverse effect on his employment. That is because the evidence has not been formally admitted, and because it is, as Mr Woods submits, evidence of circumstances after the event. However, even without any evidence, it is not difficult to accept the proposition that a conviction which is recorded as making a false statement, would impact adversely on a person’s ability to obtain employment in the IT or computer fields, suggesting, as the mode of recording does, an element of dishonesty. I do not consider that there is any basis in the material which was before the Judge to conclude that the consequences for Mr Goodricke’s employment of a conviction on the Summary Offence charge would be significantly less than the consequences of a conviction on the s 252 Crimes Act charge.
[18] The consequences of a conviction for either offence therefore appear to be broadly comparable. The gravity of the offending, however, is not comparable. Viewing the matter generally, offending under s 252, which carries a two year maximum penalty, is more serious than offending under s 24, which carries a maximum term of three months. Viewing the specifics of this case, the decision of the Judge to convict and discharge indicates that the s 24 offending was not itself serious. The Judge accepted that the gravity of the offending which led to the s 252 charge was not sufficiently serious to outweigh the adverse consequences of a conviction. If similar adverse consequences were likely to follow a conviction on the s 24 charge, then the gravity of that less serious offending could not outweigh those consequences.
[19] In all the circumstances, having regard to the particular unusual features of this case to which I have referred, I consider that the Judge’s decision to convict and discharge, which was in all other respects an appropriate response, has not had sufficient regard to the possibility that the adverse consequence for Mr Goodricke’s employment (which the discharge without conviction on the s 252 charge was designed to avoid) might follow also from the conviction on the s 24 charge.
[20] On the very unusual circumstances in this case, I have reached the conclusion that the consequences of a conviction on the s 24 charge are out of all proportion to the gravity of that offending, so that the appeal should be allowed.
[21] The appeal is allowed. The conviction on the charge under s 24(b)(i) of the Summary Offences Act 1981 is quashed, and the appellant is discharged without conviction under s 106 of the Sentencing Act 2002 on that charge.
[22] Mr Goodricke asked for an order for name suppression. He says that his surname is unusual, and he referred to health issues. Name suppression involves an inroad into the principle of open justice, and is granted only in exceptional cases. I do not consider that it is justified in this case. That application is refused.
“A D MacKenzie J”