Hicks v Police
[2016] NZHC 2132
•8 September 2016
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI-2016-470-24 [2016] NZHC 2132
BETWEEN CHRISTOPHER VIVIAN HICKS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 8 September 2016 Counsel:
KM Davies for appellant
AZM Shore and NTC Batts for respondentJudgment:
8 September 2016
(ORAL) JUDGMENT OF FAIRE J
Solicitors: Public Defence Service, Tauranga
Crown Solicitor, Tauranga
Hicks v New Zealand Police [2016] NZHC 2132 [8 September 2016]
Contents
Introduction ............................................................................................................[1] Factual background ................................................................................................[3] District Court decision ...........................................................................................[7] Legal principles .................................................................................................... [11] Gravity..................................................................................................................[18] Direct and indirect consequences .........................................................................[22] Proportionality assessment ...................................................................................[25] Result....................................................................................................................[28]
Introduction
[1] The appellant, Mr Christopher Vivian Hicks pleaded guilty to one charge of obtaining by deception.1 The charge related to the purchase of goods on TradeMe to the value of $152.30.
[2] He appeals from the District Court Judge’s refusal to grant him a discharge without conviction.2 He says that the District Court Judge erred when balancing the impact on employment with the gravity of the offence.
Factual background
[3] Mr Hicks is 46. At the time of the offending he was living in Wellington. Mr Hicks had previously been in a relationship with the victim. During the relationship she had given him permission to use her credit card to purchase goods online as he did not have one. The relationship ended. On 14 October 2014,
Mr Hicks used the victim’s credit card to purchase a pocket knife for $35. On
1 Crimes Act 1961, s 240(1)(a) and s 421(c), maximum penalty three months’ imprisonment.
2 New Zealand Police v Hicks [2016] NZDC 13024.
29 January 2015, Mr Hicks used the victim’s credit card to purchase a chest protector
for $117.50. The victim did not give Mr Hicks permission to use the credit card.
[4] Mr Hicks told the police that he may have “done it out of spite”. Mr Hicks first appeared in the Wellington District Court and entered pleas of not guilty to two charges of obtaining by deception. A judge-alone trial was set down for 14 April
2016. On 14 April 2016, Mr Hicks intimated that he wished to enter guilty pleas. On
22 April 2016, Mr Hicks appeared in the Tauranga District Court and pleaded guilty to one charge of obtaining by deception under $500.
[5] On 12 July 2016, Mr Hicks appeared in the District Court for sentencing. An affidavit was filed in which Mr Hicks stated that he made both purchases on TradeMe using the ‘Buy Now’ option and that the victims credit card was connected to the TradeMe account as a result of the times he had used it during the relationship. He stated that his comment to the police that he may have “done it out of spite” was a flippant comment in a situation where he was genuinely trying to think what the police were referring to.
[6] Mr Hicks also stated he was willing to take part in restorative justice however the victim declined to participate and Mr Hicks understood her decision.
District Court decision
[7] The Judge noted that he was first required to identify the gravity of the offending. His Honour stated to Mr Hicks that the offending “is not, by definition, high-level offending but is repetitive and in the circumstances must be taken to be deliberate given the gap between the two matters and your explanation to police.”
[8] The Judge then considered the consequences of a conviction stating:
[7] There is clear authority that where an entity such as the Electrical Registration Board is charged with a responsibility for determining fitness to practice in a particular trade or profession the Court should be cautious about removing from them the possibility of considering that information.
[8] I accept that the consequences of the conviction would be that the board would have to consider your position, but that does not seem
to me to be necessarily out of proportion. It is also possible that a conviction of this sort might, in some limited circumstances, restrict the possibility of you gaining access to certain buildings to work on, but that is not expanded on.
[9] Finally, the Judge balanced the gravity of the offending with the consequences and stated:
[11] This offending is not high in terms of gravity. The consequences are those to which I have referred. I do not consider that those consequences would be out of proportion to what amounts to two instances of deliberate activity using somebody else’s card to pay for things and in the circumstances, I am not prepared to discharge you without conviction taking into account the factors to which I have referred.
[10] The Judge convicted Mr Hicks and fined him $500. He ordered Mr Hicks to pay court costs of $132 and reparation of $207.50. The difference between the purchase price of the items and the reparation order was to cover bank fees incurred by the victim.
Legal principles
[11] A court may grant a discharge without conviction pursuant to s 106 of the
Sentencing Act 2002.
[12] That section provides:
(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2) A discharge under this section is deemed to be an acquittal. (3) A court discharging an offender under this section may—
(a) make an order for payment of costs or the restitution of any property; or
(b) make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—
(i) loss of, or damage to, property; or
(ii) emotional harm; or
(iii) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:
(c) make any order that the court is required to make on conviction.
(3A) Sections 32 to 38A apply, with any necessary modifications, to an order under subsection (3)(b) as they apply to a sentence of reparation.
…
[13] Section 107 provides:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[14] The courts have interpreted this to be a three-stage analysis requiring consideration of:3
(a) the gravity of the offence;
(b) the direct and indirect consequences of a conviction; and
(c) whether those consequences are out of all proportion to the gravity of the offence.
[15] The discretionary power of the court to grant a discharge without conviction pursuant to s 106 only arises when the s 107 threshold is met.4 Therefore, an appeal against a finding that the test in s 107 has not been met is an appeal on ordinary appellate principles as set out in Austin, Nichols & Co Inc v Stichting Lodestar.5
[16] The threshold for matters that are to be taken into account in the analysis was set out in Iosefa v New Zealand Police:6
[34] … it is not necessary for the Court to be satisfied that the identified
direct and indirect consequences would inevitably or probably occur.
3 Z (CA447/12) v R
4 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].
5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16]; R
v Hughes, above n 4, at [63]–[66].
6 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005.
It is sufficient if the Court is satisfied there is a real and appreciable risk that such consequences would occur.
[35] However, the nature and seriousness of the consequences and the degree of likelihood of their occurring will be material to the Court's assessment of whether those consequences would be out of all proportion to the gravity of the offence. In other words, the higher the likelihood and the more serious the consequences the more likely it is that the statutory test can be satisfied.
Gravity
[17] The Court of Appeal in Z(CA447/12) v R held that there was much to be said for considering the aggravating features of the offender and the offending in the first step of the analysis, however the precise point at which those features were considered was unlikely to be material.7
[18] The Judge identified that the gravity of the offending was not “by definition, high-level offending” but he did note that it was repetitive and he took it to be deliberate rather than accidental. The Judge also noted that Mr Hicks did not immediately plead guilty.
[19] I agree with the Judge that the offending was not at a “high-level”. I would go further and say that the offending was low-level offending given both the value of the goods purchased and the manner in which the offending occurred. It must also be noted that Mr Hicks is 46 and has no previous convictions.
[20] Although the Judge was correct to note that Mr Hicks did not immediately plead guilty, it is also relevant that he was remorseful and willing to pay reparation including any bank costs incurred by the victim as well as emotional harm reparation. He was also willing to undertake restorative justice processes.
Direct and indirect consequences
[21] In terms of the conviction that Mr Hicks would receive it is relevant to note the observations of Asher J in Alshamsi v Police.8 His Honour said:
7 Z (CA447/12) v R, above n 3, at [27]–[29].
8 Alshamsi v Police HC Auckland CRI-2007-404-62 at [18].
While it is technically correct to describe the shoplifting as a dishonesty offence, it is rather harsh on an offender to place this sort of very minor shoplifting into the same adjectival category as that of serious theft or fraud.
[22] While Mr Hicks’ offending was not shoplifting or quite as minor as the offending in Alshamsi, I consider that the same principle applies. In this case, the direct consequences of a conviction would be that Mr Hicks would have a conviction for obtaining by deception, a dishonesty offence.
[23] Additionally, Mr Hicks is an electrician and his licence is required to be renewed bi-annually by the Electrical Workers’ Registration Board. At registration, the person applying must satisfy the Board that they are a fit and proper person and must declare whether there are any matters which the Board ought to be aware of as regards their character. Mr Hicks has also submitted that a conviction for a dishonesty offence may also hinder him gaining access to particular buildings, both commercial and private premises.
Proportionality assessment
[24] The direct and indirect consequences of a conviction on Mr Hicks are by no means of the most severe nature. However, it must be remembered that in conducting a proportionality assessment the direct and indirect consequences must be out of all proportion with the gravity of the offence committed. In this case, the offence was a low-level offence committed by a man with no previous convictions. Although he did not plead guilty immediately, he has shown remorse and attempted to correct his actions.
[25] If a discharge without conviction is not granted, Mr Hicks will have a conviction for ‘obtaining by deception’. This is likely to impact on his ability to gain employment in his chosen field. In relation to the Board, it is important to note that it has been held many times that “the court should be hesitant to usurp the role of a professional body or a particular employer to decide the significance of a particular
conviction.”9 The reasoning behind that principle is solid and it should not be
understated. However, in this case, a dishonesty conviction and its resulting
9 Stewart v Police [2015] NZHC 165 at [30].
consequences are nonetheless entirely disproportionate to the offending committed by Mr Hicks.
[26] Accordingly, I consider that the Judge erred in finding that the consequences would not be out of proportion with the offending.
Result
[27] The appeal is allowed. Mr Hicks’ conviction is quashed. He is discharged
without conviction. The other sentencing orders made in the District Court stand.
JA Faire J
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