Herkt v Police
[2019] NZHC 1014
•9 May 2019
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 at the time of the offending. She took responsibility and entered an early guilty plea. Judge Garland noted that the appellant
2 Sections 106 and 107.
cooperated with police during the investigation, but suggested she was left with little choice based on the evidence against her. Since the offending, she had offered to attend restorative justice, and she had also engaged the services of a budget advisor. Based on this information, the Judge assessed the offending as being at a moderate level of its type.
[8] The next step of the proportionality test was to consider the direct and indirect consequences of a conviction. The Judge identified the appellant’s primary concern as being a potential inability to obtain work as a veterinary nurse, the career she is currently studying towards. His Honour considered there was insufficient evidence that a conviction would impact this. He noted that employment law would appear to require the appellant to disclose offending to a prospective employer regardless of whether a conviction was entered.3 His Honour also stated that most employers would be prepared to look beyond the bare fact of a conviction.4
[9] Given that Judge Garland had found the gravity of the offending to be moderate and the consequences of conviction to be low, he was not satisfied that a conviction would be out of all proportion to the gravity of the offence. He therefore declined the application for discharge, and sentenced the appellant, as I have noted, to 150 hours’ community work and reparation of $1000 at a rate of $20 per week.
Principles on appeal
[10] Section 232 of the Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.5 In this section, a trial includes a proceeding in which the appellant pleaded guilty.6
3 At [18], citing ASG v Hayne [2017] NZSC 59.
4 At [20], citing Edwards v R [2015] NZCA 583.
5 Section 232(4).
6 Section 232(5).
Submissions
Appellant’s submissions
[11] Ms Jarvis, for the appellant, argues first, that Judge Garland was incorrect to assess the seriousness of the offending here as moderate. She states that the Judge failed to take into account the genuine remorse of the appellant, her age and the stage of life she was at, the steps she had taken to address the causative issues of the offending and her offer of reparation. Ms Jarvis further suggests that the Judge placed too much weight on the breach of trust on the part of the appellant here given this was inherent in the offending and not an aggravating feature.
[12] Secondly, Ms Jarvis contends that the Judge erred in his assessment of the consequences of conviction. A submission that a conviction would hinder the appellant’s ability to obtain a job as a veterinary nurse had been put forward in the District Court. That has been furthered on this appeal with two written affirmations which are now before this Court. The first, from Lindsay Colwell (Doctor of Veterinary Medicine at Prebbleton Veterinary Service and Hospital) states that the veterinary industry is extremely competitive and that an applicant with a conviction would automatically be rejected by her veterinary practice from an application process. The second, from Jessica Sonne (a veterinary nurse at Rolleston Veterinary Services), supported the opinion that there are limited jobs in the vet nursing industry. She added too that the role of a veterinary nurse rarely involves handling money.
[13] Ms Jarvis then went on to submit that Judge Garland had incorrectly analysed the decisions in Edwards v R and ASG v Hayne and this impacted on his assessment as to the consequences of a conviction.7 Edwards was suggested to be authority for the proposition that most employers would be willing to look past the mere fact of a conviction. Ms Jarvis submits this has been rebutted in the present context by the evidence provided by practitioners. The Judge referred to Hayne as authority that the appellant would have had to disclose her offending to future employers regardless of whether a conviction was entered. Ms Jarvis submits that this was incorrect but argues that because the Court has now been given evidence that handling money is not a
7 Above n 3 and 4.
primary role of a veterinary nurse, the dicta in Hayne is irrelevant anyway. She states that Hayne involved a link between the defendant’s offending and the role of security in the job he applied for, and no such link applies between the appellant’s offending and her intended career.
[14] In Ms Jarvis’ submission, these errors led to a miscarriage of justice. She argues that the appellant should be granted a discharge without conviction because the gravity of her offending is only low or, at worst, low to moderate and the consequences of a conviction upon her employment prospects would outweigh the gravity of the offending.
Respondent’s submissions
[15] In response, Mr Whitcombe, for the respondent, submits that Judge Garland was correct in his findings. He refers to the case JSJL v Police to support an argument that the gravity of the offending here was correctly assessed as moderate.8
[16] With regard to the consequences of conviction, Mr Whitcombe maintains that a dishonesty conviction will naturally impact a person’s employment prospects, but that is not on its own a serious consequence. He properly outlines the importance of potential employers here being well informed about the appellant’s entire background, regardless of whether the appellant would be in a similar position in a new job handling cash as a veterinary nurse. Mr Whitcombe concludes that the Judge was correct to find the consequences of conviction for the appellant were low.
[17] Based on these assessments, Mr Whitcombe contends that Judge Garland did not err in his assessment that the consequences of conviction were not out of all proportion to the appellant’s offending and thus he submits that the appeal should be dismissed.
Analysis
[18] Judge Garland did outline all of the relevant factors that go toward the seriousness of the offending. The appellant, it must be acknowledged, is reasonably
8 JSJL v Police [2017] NZHC 635.
young, although no longer a teenager, she has a clean record and good references of character. She says she was under monetary stress at the time of the offending. This is of some relevance particularly relating to her claim she owed $1000 to her then boyfriend, and it is likely she could have faced some repayment pressure from him. This does not explain, however, her decision to steal a further $1000, albeit that she immediately returned it upon being questioned. It is acknowledged that the theft occurred on one occasion only, not in incremental amounts over a period of time. This might perhaps signal some level of desperation on the appellant’s part. Premeditation, however, played a part here. Ms Jarvis goes on to submit that the appellant has shown genuine remorse here, and was willing to take part in restorative justice.
[19] However, as Judge Garland noted, $2000 is not an insubstantial amount of money and the appellant’s actions here involved a serious breach of the significant and ongoing trust her employer placed on her. On this basis I am satisfied the incident was correctly assessed as moderate offending, as the District Court Judge did.
[20] The consequences of a conviction for the appellant here potentially are said to be reasonably significant. Some evidence of its impact on her ability to pursue a career in her chosen field, as I have noted, has been supplemented on appeal. A conviction may well be some hindrance to her goal of being a veterinary nurse.
[21] On these aspects, information is before this Court which was not before the District Court detailing how veterinary nursing is a competitive profession and jobs are difficult to obtain. Ms Colwell, a Doctor of Veterinary Medicine and the owner of a veterinary services business, as I have noted, has deposed that there are rarely job vacancies in her business with many applicants for each position when jobs do become available. One method used by Ms Colwell to filter applications, amongst others, is to disregard any applicant with a conviction at the initial screening stage. A result of this would be that the appellant would not be considered for employment at Ms Colwell’s business. This too is supported by the “new” evidence of Ms Sonne noted above at [12].
[22] There is no evidence before me, however, that overall this is a widespread and general industry practice. However, even if it is a common practice, this consequence
must be weighed against the need for potential employers to be well informed about an employee’s entire background. As Wild J said in R v Martin:9
I subscribe to what is now a solid body of authority that Courts should not conceal (by discharging without conviction) criminal wrongdoings on the ground that it might affect future unemployment prospects. Rather, I agree with many other Judges who regard it as important that the authorities should know applicants’ backgrounds, and be able to make fully informed decisions.
[23] Judge Garland also referred in his decision to the Supreme Court decision in ASG v Hayne.10 The Court in that case accepted that an employee might in some instances be required to disclose offending that the employee had pleaded guilty to but on which the employee subsequently had been discharged without conviction.11 Here, the offending in question took place in the context of the appellant’s employment and it involved a significant breach of her employer’s trust. Regardless of whether the appellant may be handling cash or be otherwise involved in financial transactions in future employment situations, either in the context of veterinary nursing employment or otherwise, a future employer would have a legitimate interest in knowing about her previous work history, including any previous misconduct.
[24] The overall consequences of a conviction in this case, as I see it, really come down to a suggested difficulty the appellant may have in finding full-time employment in her preferred area. This, however, is merely the natural result of her offending.
[25] The appellant having a conviction here, especially for a serious dishonesty offence, may well have a negative impact to some degree on her specific employment prospects. Again, as I see it, I repeat this is a natural consequence of any conviction and on its own does not represent a sufficiently serious consequence here to require a discharge without conviction. And it is not suggested that the appellant, at worst, would lose the chance of alternative employment opportunities, even if her first choice of veterinary nursing proved unattainable. Therefore, I agree with Judge Garland’s characterisation of the seriousness of the consequences of a conviction here as being reasonably low.
9 R v Martin HC Whanganui CRI-2003-083-432, 30 April 2004 at [22].
10 ASG v Hayne, above n 3.
11 At [82].
[26] I agree that the gravity of the appellant’s offending in this case is moderate and the consequences of her offending are reasonably low. Therefore, the consequences of a conviction in this case are not out of all proportion to the appellant’s offending.
Conclusion
[27] For all these reasons, I am of the view that Judge Garland did not err in his decision here and no miscarriage of justice has occurred. A discharge without conviction is not appropriate in all the circumstances.
[28]The appeal is dismissed.
...................................................
Gendall J
Solicitors:
Public Defence Service, Christchurch
Raymond Donnelly & Co, Christchurch