Herkt v Police - [2019] NZHC 1014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-000033

[2019] NZHC 1014

BETWEEN
ROCHELLE OLIVIA HERKT

Appellant

AND

NEW ZEALAND POLICE

Defendant

Hearing: 8 May 2019

Appearances:

O K Jarvis for Appellant

J H Whitcombe for Respondent

Judgment:

9 May 2019

JUDGMENT OF GENDALL J

Introduction

[1] The appellant, Rochelle Herkt, pleaded guilty in the District Court to one charge of theft by a person in a special relationship. She applied to the court for a discharge without conviction under s 106 of the Sentencing Act 2002, but that application was dismissed by Judge Garland.1 His Honour instead entered a conviction and sentenced the appellant to 150 hours’ community work and reparation of $1000. The appellant appeals her conviction on the grounds that a discharge without conviction should have been imposed.

Facts

[2] The appellant was 23 at the time of the offending, and worked at New World Ilam as the Lotto Manager. She was entrusted with the combination to the safe at the

1 Police v Herkt [2019] NZDC 3142.

HERKT v NEW ZEALAND POLICE [2019] NZHC 1014 [9 May 2019]

store as part of her duties. A condition, however, was that she was not allowed to take cash from the store for any reason.

[3] On 11 August 2018, while the appellant was at work, she went into the cash room and carried out some regular duties before leaving the room. She returned shortly afterwards wearing a jacket. The appellant opened the safe using the combination, took about $2,000 in cash, and placed it in her pocket. She then left the store with that money, taking it to her car.

[4] Later, the appellant gave $1,000 of the stolen cash to her then partner to repay a debt to him. She kept the other $1,000 for her own purposes. This $1000 amount was subsequently recovered.

District Court decision

[5] In his decision, Judge Garland outlined the provisions of the Sentencing Act relevant to discharge without conviction.2 The test is whether the direct or indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[6] First the Judge considered the gravity of the offending. His Honour noted that the offence carries a maximum penalty of seven years’ imprisonment. It involved here a serious breach of trust and an abuse by the appellant of a position of responsibility. Judge Garland assessed that there was a degree of premeditation and, in his words, he noted that the $2000 stolen was “a not insubstantial sum of money”. The cash was only taken on one occasion, however, which the Judge found suggested the premeditation was not extensive.

[7] Judge Garland then looked at factors personal to the appellant. He noted that she was then aged 24 (23 at the time of offending), had no prior convictions, and her referees had said she was otherwise a reliable and responsible person. The appellant claimed she was under financial stress…

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 Herkt v Police

Details

AGLC: Herkt v Police [2019] NZHC 1014
Case: [2019] NZHC 1014
Decision Date: 9 May 2019

CaseChat Overview and Summary

Rochelle Olivia Herkt appealed her conviction in the High Court, arguing that she should have been granted a discharge without conviction. The District Court had dismissed her application for a discharge without conviction under section 106 of the Sentencing Act 2002, instead entering a conviction and sentencing the appellant to 150 hours of community work and reparation of $1000. The High Court was required to decide whether the District Court judge erred in his assessment of the evidence, resulting in a miscarriage of justice.

The court considered the appellant's arguments that the District Court judge had incorrectly assessed the seriousness of the offending as moderate and had erred in his assessment of the consequences of conviction. The court found that the District Court judge had outlined all relevant factors when assessing the seriousness of the offending, and that the appellant's offending was correctly assessed as moderate. The court also found that the consequences of a conviction for the appellant were reasonably low, as the natural result of her offending. The court agreed with Judge Garland's characterisation of the seriousness of the consequences of a conviction as being reasonably low.

The appeal was dismissed, and the conviction and sentence imposed by the District Court was upheld.

Orders