Irvine v Police
[2024] NZHC 1231
•17 May 2024
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2024-463-37
[2024] NZHC 1231
BETWEEN LUKE VAUGHAN IRVINE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 16 May 2024 Appearances:
AKH McManus for appellant L K McMaster for respondent
Date of judgment:
17 May 2024
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 17 May 2024 at 3.00pm.
………………………… Registrar/Deputy Registrar
Solicitors:
Lance Lawson, Rotorua Gordon Pilditch, Rotorua
IRVINE v POLICE [2024] NZHC 1231 [17 May 2024]
[1] By application dated 22 March 2024, Luke Irvine seeks leave to appeal out of time the 18 January 2024 decision of Judge G C Hollister-Jones in the District Court at Rotorua,1 declining to discharge Mr Irvine without conviction and convicting him on his guilty pleas to two charges of impersonating a police officer each in 2022 and 2023,2 and sentencing him to fines of $800. I heard the application for leave together with the substantive appeal.
Background
[2] Mr Irvine is now just 21 years old. He suffers from type 1 diabetes and poor mental health, for which he is receiving therapeutic counselling. He is employed fulltime as a loss prevention worker by a national retail chain, engaged to prevent thefts and shoplifting at the store in which he works. He understands his “dreams of being involved with emergency services” presently are curtailed by his uncontrolled diabetes, and his applications for employment with the Department of Corrections or as a private security officer with other firms all have been unsuccessful “at least in part, due to [his] having to disclose active charges”.
[3] After failing to be accepted for training as a police officer, to his personal devastation, Mr Irvine became known to emergency services for arriving at incidents they attended. He drives a white Mazda station wagon, considered to bear “a striking resemblance to an unmarked [p]olice patrol car”. The car is equipped with flashing amber lights on the front grill and both front and rear windscreens, and festooned with aerials. The aerials may be linked to a police-style radio (although not capable of frequencies used by police) installed in his vehicle’s centre console. At his home, police found a scanner capable of monitoring emergency transmission frequencies and sought its destruction.
[4] Distinctly from such attendances, at about 7.30 pm on Monday, 11 April 2022, police stopped Mr Irvine, driving on Pukuatua Street running through Rotorua’s central business district, when they observed him across the road operating his
1 R v Irvine [2024] NZDC 1179.
2 Policing Act 2008, s 48. Maximum penalty 12 months’ imprisonment and/or a $15,000 fine.
vehicle’s flashing amber lights. Police considered he was attempting to stop another vehicle by using the lights.
[5] Separately, at about 2.50 pm on Monday, 24 July 2023, Mr Irvine stopped at a traffic light on Amohau Street, also in Rotorua’s central business district. He saw people fighting on the grass verge. When the light turned green, he drove into a nearby car park and ran to intervene in the fight. He told a security guard called in to assist him, and a police officer later in attendance (informed by the security guard Mr Irvine was a colleague), he was an off-duty police officer. His responses to the police officer’s questioning of his status initially were aggressive and defensive, and then apologetic.
[6] The charges to which Mr Irvine pleaded guilty arose out of those two incidents (after his initial not guilty pleas to the two charges, laid at the same time as an intermediate third charge (to which he also had pleaded not guilty) later withdrawn). In explanation to Judge Hollister-Jones, Mr Irvine said he did not seek to justify his offending, acknowledged it was wrong and arose because of his desire to help people which he felt was “like a compulsion”.3
Leave to appeal
[7] Discretion to extend time for bringing an appeal “is to be exercised with regard to the importance of the principle of finality in litigation which the statutory time limit is designed to achieve”:4
Relevant considerations to be taken into account include whether the delay is adequately explained, and whether there are compelling reasons to extend time. The Court may have regard to the seriousness of the charges, the merits of the proposed appeal, the effect on others, and prejudice to the Crown. The overarching consideration must always be the interests of justice.
[8] Mr Irvine’s appeal was filed a month late, after confirmation of legal aid for the appeal and counsel became available to attend to its filing. No prejudice is claimed; the delay is reasonable in substance and modest in time; in light of the course any
3 R v Irvine, above n 1, at [14].
4 Marshall v R [2023] NZCA 625 at [14], citing R v Knight [1998] 1 NZLR 583 (CA) at 587; R v Lee [2006] 3 NZLR 42 (CA) at [96]–[99] and [103]; and Ellis v R [2019] NZSC 83 at [15].
appeal is to run,5 Mr Irvine’s appeal has merit; and I therefore will extend time for the appeal to be brought.6
Judgment under appeal
[9] As prospectively “more appropriately” dealing with an offender’s guilt, discharge is to be considered before entering a conviction and imposing a sentence.7 Mr Irvine was entitled to be discharged without conviction only if the direct and indirect consequences of his convictions would be out of all proportion to the gravity of his offending.8 The proportionality test is a question of fact requiring judicial assessment.9 A three-step analysis — the gravity of the offending; the direct and indirect consequences of a conviction; and if those consequences are out of all proportion to the gravity — is required.10 There must be a “real and appreciable” risk any given consequence will arise; this recognises the court is assessing future likelihood.11 Only then may a sentencing judge decide if to exercise residual discretion.12
[10] Judge Hollister-Jones discounted a psychologist’s advice Mr Irvine’s complex trauma history and presentation with symptoms of post-traumatic stress disorder, depression and anxiety may give rise to his impaired decision-making in stressful situations.13 Rather, the Judge observed Mr Irvine’s offending was self-initiated and unremedied.14 Overall, the gravity of the two category 2 offences was to be regarded as “in the mid to upper range of low gravity offending”.15
5 See [19] below.
6 Criminal Procedure Act 2011, ss 231(3) & 248(4).
7 Sentencing Act 2002, s 11(1); Bolea v R [2024] NZSC 46 at [43].
8 Sections 106–107; Williams v R [2024] NZCA 57 at [4].
Dickins v R [2012] NZCA 265 at [14], citing H (CA680/2011) v R [2012] NZCA 198 at [30] (citing
R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11], citing R v Rajamani [2007] NZSC 68,
[2008] 1 NZLR 723 at [5]).
10 Sentencing Act, s 107; Williams v R, above n 8, at [5], citing R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16] and [22]–[23], Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13], and Z (CA447/2012) v R [2012] NZCA 599 at [27].
11 Bolea v R, above n 7, at [53], citing R v Taulapapa [2018] NZCA 414 at [22] (citing DC (CA47/2013) v R [2013] NZCA 255 at [43]); and referring to Iosefa v New Zealand Police HC Christchurch CIV-2005-409-64, 21 April 2005.
12 Jackson v R [2016] NZCA 627.
13 R v Irvine, above n 1, at [15]–[16].14 At [16].
15 At [17].
[11] The Judge considered the consequences of conviction on Mr Irvine were “quite nuanced”.16 His present employment was not affected. His “dream of working in emergency services” already was diminished by disadvantageous police vetting reports, not then informed by the present offending.17 The Judge accepted convictions nonetheless were likely “to be a bar” to Mr Irvine’s emergency service employment or as a licensed private investigator or security guard.18
[12]Having regard for proportionality, the Judge said:19
[T]he Court will not hide matters that give rise to charges from bodies that have a right to know. My view is that the emergency services have a right to know about the two charges before the Court because those services deal with vulnerable people and they exercise power. The defendant’s offending evidences obsessive behaviour and poor judgement and it is critical that if you want a job with an organisation like the police, Fire and Emergency New Zealand or as a private investigator, that those organisations know the full facts about the person. Accordingly, my view is that a conviction for these matters is a proportionate outcome rather than a disproportionate outcome.
[13] The Judge acknowledged disclosure of Mr Irvine’s convictions in any other context still would be to “evidence unusual behaviour which is likely to result in [him] having to provide some form of explanation”.20 But that also was “not wholly disproportionate to the gravity of the offending”, and the Judge declined to discharge Mr Irvine without conviction and sentenced him to $800 fines instead.21
[14] For Mr Irvine, Aidan McManus argues the Judge erred in his assessment of the gravity of the offending and consequently in its consequences’ disproportionality. She submits, despite the repeat offending, Mr Irvine’s “personal mitigation … is significant”. She points to Mr Irvine’s youth as a 19-year-old at the time of the 2022 offending (not charged at the time), mental health issues, remorse, lack of previous convictions and compliance with bail conditions. Mr Irvine’s bail conditions included a week-night curfew and exclusion from Rotorua’s central business district.
16 At [18].
17 At [19] and [22].
18 At [25].
19 At [27].
20 At [28].
21 At [29].
[15] Comparatively, Ms McManus submits, Mr Irvine’s convictions will bar him from certain employment, and impact on his job prospects more generally and detrimentally affect his mental wellbeing. She points to other cases in which conviction’s consequence of risking loss of a security licence,22 or “not fairly reflect[ing] the offender’s character or culpability”,23 or re-traumatising the offender24 justified discharge without conviction. She says the Judge should have recognised conviction was a sufficiently serious consequence in itself similarly to justify discharge.25
Approach on appeal
[16] An appeal against a refusal to grant a discharge without conviction is an appeal predominantly against conviction and contingently perhaps against sentence.26
[17] I must allow an appeal against conviction if I am satisfied the Judge “erred in his … assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or if I am satisfied “a miscarriage of justice has occurred for any reason”.27 The burden falls on Mr Irvine so to satisfy me.28 Otherwise I must dismiss the appeal.29
[18] The statutory definition of “miscarriage of justice” — as meaning something has gone wrong at trial, either to create a real risk against a more favourable outcome for Mr Irvine or to result in the trial itself being unfair or a nullity30 — is difficult sensibly to apply in cases for discharge without conviction, which may have nothing to do with what happened at trial.31 But:32
The principled basis for determining an appeal against a discharge without conviction is to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing judge in entering a conviction, or alternatively a miscarriage of justice has occurred “for any reason” if the Judge
22 October v Police [2023] NZHC 326.
23 R v Taulapapa, above n 11, at [42(b)].
24 HM v Police [2015] NZHC 1910 at [32]; Woller v Police [2022] NZHC 270 at [27].
25 Flavell v Ministry of Social Development [2015] NZHC 214; and Police v SR [2013] NZHC 980.
26 Jackson v R, above n 12, at [8]–[9]; and Ovtcharenko v Police [2017] NZCA 65 at [5].
27 Criminal Procedure Act, s 232(2)(b) and (c).
28 Sena v Police [2019] NZSC 55 at [38].
29 Sentencing Act, ss 232 and 240; R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
30 Criminal Procedure Act, s 232(4).
31 Jackson v R, above n 12, at [12].
32 Gaunt v Police [2017] NZCA 590 at [9], citing Jackson v R, above n 12, at [12].
has erred in applying the principles for discharging an offender without conviction.
And the threshold still is high; not every error will amount to a miscarriage of justice.33
[19] There is divergence in binding authority on how I am to address the appeal against conviction: on the one hand, I am directed to reach my own view as to whether the direct and indirect consequences are out of all proportion to the gravity of the offending, and only then to determine if the first instance court erred in principle;34 on the other, only if Mr Irvine establishes Judge Hollister-Jones was wrong am I to consider his application for discharge without conviction afresh.35 I prefer the latter approach as more orthodox, but the former approach is the more recent and I adopt it.
[20] If the conviction appeal fails, I then may determine if the correct sentence was imposed.36 But there is no challenge to Mr Irvine’s sentence here.
Discussion
[21] Assessing the gravity of offending requires consideration of aggravating and mitigating factors relating to both the offending and the offender.37 It is an evaluative, highly fact-dependent exercise.38
[22] Here, it is Mr Irvine’s dishonesty offending, falsely representing himself with authority in circumstances in which such carries some social weight, to exploit that trust.39 In the breadth of culpability factors for dishonesty offending,40 Mr Irvine’s offending has substance in at least its breach of trust. Its repetition offsets any diminution of gravity as may be available from his expressed remorse.
33 Otis v Police [2019] NZCA 23l at [4]; and McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [38].
34 Williams v R, above n 8; McKenzie v R [2022] NZCA 172 at [48], citing Edwards v R [2015] NZCA 583 at [6]; and.
35 Maraj v Police [2016] NZCA 279 at [11]; citing Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 at [16]; H (CA680/2011) v R, above n 9, at [30]–[34]; and R v Hughes, above n 9, at [63]–[66].
36 Jackson v R, above n 12, at [13].
37 Rahim v R [2018] NZCA 182 at [15], citing Z (CA447/12) v R, above n 10, at [27]; DC (CA47/13) v R, above n 11, at [35]; and Waine v R [2017] NZCA 287 at [21].
38 Rahim v R, above n 37, at [16].
39 See Brown v Police [2017] NZHC 1846 at [22].
40 R v Varjan CA 97/03, 26 June 2003 at [22]–[23].
[23]Mr Irvine’s mental health issues do not appear causative. But his then-youth
— if now closing in on the cusp for distinction — is a factor, to recognise age-related neurological differences between young people and adults, meaning younger offenders may be less culpable or less responsible for their wrong-doing if driven by impulsivity, as appears was Mr Irvine. Youth also has greater capacity for rehabilitation, with longer-run community benefit.41
[24] For myself, I assess the gravity of Mr Irvine’s offending as low. Given the threshold for consequences to be “out of all proportion” to the gravity of the offending, I do not see utility in more granular analysis within that band. But the gravity of Mr Irvine’s offending is not negligible.
[25] So far as substance and degree of conviction’s consequences are concerned,42 either conviction or discharge is likely to be disclosed on any police vetting check. I have nothing to think future police vetting checks are likely to result in any more advantageous position for Mr Irvine, for whom they already have been returned to his disadvantage without regard for the index offending. So those are not consequences of conviction.
[26] Despite Mr Irvine’s perception his ‘dream’ of employment with emergency services or private security firms is terminated by entry of convictions against him, those providers are less resolute. Fire and Emergency NZ emphasise its relevant prohibition on employing dishonesty offenders within seven years of conviction, or the unlikelihood it would employ offenders with more than one conviction in the past five years, “should be used as a guide only. Each situation will be assessed on merit”. Similarly, Hato Hone St John’s aspiration applicants should have “a clean criminal record” only is described as a “key skill”. Its core values include having “open minds”, which suggests a wider appreciation of potential candidates. While dishonesty convictions within the past seven years afford ground for disqualification of an applicant for a licence under the Private Security Personnel and Private Investigators Act 2010, s 33(5) is express the ground only is informative, not determinative, in
41 Rolleston v R [2018] NZCA 611, [2018] NZAR 79 at [28] and [36]; and Churchward v R [2011] NZCA 531 at [77].
42 Sok v R [2021] NZCA 252 at [43]–[44].
deciding if to grant the application. And Mr Irvine lacks the foundation licence influential in the case to which Mr Mills points as put at risk by conviction.
[27] Thus I consider no material weight against prospective employment is added by conviction compared to the position on police vetting checks. There is no evidence conviction may be effective to exclude exercise of any discretion to employ Mr Irvine. If discharge would any more favourably be regarded is supposition. And even then it only is a marginal distinction between conviction and discharge, rather than being qualifyingly disproportionate as between offending and conviction. Where actual consequences turn on a third party’s assessment of the relevant facts, and there is no reason to think the assessment would be made otherwise than in good faith, the better approach is to leave the assessment for that party than for this Court unwittingly to influence those decisions by discharge.43 That very much is the case here, if Mr Irvine’s conviction additionally is, or is required, to be disclosed to decision-makers.44 This is not one of those “rare cases” where decision-makers’ scrutiny itself is of qualifying disproportionality.45 There is not real and appreciable risk Mr Irvine’s convictions will disqualify his applications for sought employment.
[28] Last, I do not accept disclosure of Mr Irvine’s convictions, including if carrying some requirement for his further explanation, is ‘re-traumatising’ in the sense of the cases relied on by Mr Mills. Rather, that is the point of conviction, in part to establish a foundation for rehabilitation. Mr Irvine has opportunity from his present supportive employment to demonstrate his convictions are not material to his future. That is what better reflects his character and culpability than discharge.
[29] Accordingly, I do not consider the consequences of Mr Irvine’s convictions are ‘out of all proportion’ to the gravity of his offending. They instead are condign. The Judge did not err. There is no miscarriage of justice.
43 R v Taulapapa, above n 11; and Ho v R [2016] NZCA 229. Similarly, Sok v R, above n 42, at [50].
44 Maraj v Police, above n 35, at [28], citing Roberts v Police (1989) 5 CRNZ 34 (HC) at 36 (followed in Graves v Police HC Rotorua CRI-2010-463-57, 28 February 2011 at [26]).
45 Zhang v Police [2018] NZHC 285 at [32]. See also Bolea v R, above n 7, at [54], citing Jeon v New Zealand Police [2014] NZHC 66); and George v Police [2014] NZHC 1725 at [46].
Result
[30] The application for leave to appeal is granted. Time for filing Mr Irvine’s appeal is extended to 22 March 2024. The appeal is dismissed.
—Jagose J
3
0
0