J v Police HC Auckland CRI-2009-404-207

[2009] NZHC 1366

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-207

J

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         28 September 2009

Appearances: P Borich for Appellant

S Duncan for Respondent

Judgment:      2 October 2009 at 11:00 am

JUDGMENT OF ASHER J

This judgment was delivered by me on 2 October 2009 at 11:00 am pursuant to Rule 11.5 of the High Court Rules

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Registrar/Deputy Registrar

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Date

Solicitors:

PL Borich, Rice Craig, PO Box 72 440, Papakura

Meredith Connell, Crown Solicitor, PO Box 2213, Auckland

J V NEW ZEALAND POLICE HC AK CRI-2009-404-207 2 October 2009

[1]      Mr J   appeals against a decision convicting and discharging him on a number of burglary charges.  It is submitted on his behalf that he should have been discharged without conviction under s 106 of the Sentencing Act 2002.

Background

[2]      Mr J   is 54 years old.  He has no previous convictions and, until shortly before   this   offending,   had   a   good   employment   record.      At   3:00 pm   on

3 January 2009 he entered the main entrance of the Sky City Casino.  He pretended to be a plumber and stated that he was looking for leaks in the hotel rooms.  He was refused entry.

[3]      He returned at 4:45 pm.  He again pretended to be a plumber and spoke to another member of the staff.  He was given access to the level 1 floor of the hotel. The area is only accessible with security cards.  He spoke to the porter and stated that he was looking for leaks on that particular floor.  The porter relying on this used a  master  key  and  gave  him  access  to  three  rooms,  rooms  156,  158  and  160. Mr J   walked into each room pretending to look for leaks.  While doing this he uplifted various items of property belonging to the various occupants of the rooms. The items included a laptop bag, a Dell laptop, a phone charger and other miscellaneous items.  The total value of the items was $2,500.  He also stole three bottles of Chardonnay belonging to the hotel valued at $90.

[4]      After  some  time  with  Mr J    the  porter  became  suspicious  of  his behaviour and called security.  He was then escorted to an interview room and in due course the police were called.   He initially provided a false name and denied any wrongdoing.  Later when he was arrested and taken to the Auckland Central Police Station he asserted that he was working for the CIA and looking for bombs.

[5]      At the time of sentencing the Court had before it a report from Dr Alexa Srzich, a Consultant Psychiatrist and Psychogeriatrician.  I will refer to her report in detail  in  due  course.    She  diagnosed  Mr J    as  having,  at  the  time  of  the

burglaries, a major depressive disorder of moderate severity.  She found that he was probably also alcohol dependent.

The sentencing decision

[6]      The sentencing Judge determined that the gravity of Mr J  ’s offending was “moderate to serious” and later as “serious”.  He noted that it was premeditated in the sense that Mr J   persisted after being initially denied entry.  He noted that Mr J   had carried out another burglary in December 2008.   He had appeared before the Court in relation to that burglary, although he was not sentenced until some months  afterwards  in  April.    When  he  was  sentenced  he  was  discharged without conviction.

[7]      The Judge referred to a shoplifting charge from around the same time but stated that “really, that is insignificant” in comparison to the clear example of the burglaries.  He stated that he thought that the risk of offending might present itself again.   He applied the proportionality test to his consideration of discharge, and referred to Police v Roberts (1990) 7 CRNZ 197.  He concluded that the gravity of Mr J  ’s offending was high, that he was on notice not to carry out that sort of offending, and that he persisted.   He did not accept that the consequences of conviction were out of proportion to the gravity of what Mr J   had done and convicted him, but then discharged him.

Principles to be applied

[8]      Section 106(1) of the Sentencing Act 2002 (“the Act”) provides:

106     Discharge without conviction

(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.

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.

[9]      Under s 11(1)(a) the Court must on sentence consider whether a discharge without conviction would be more appropriate than entering a conviction.  It is clear that the application of s 106 is guided by s 107 as a “gateway through which any discharge without conviction must pass”: R v Hughes [2008] NZCA 546 at [8].

[10]     The Court is required to go through a three-step approach in exercising its discretion: R v Hughes at [16].   It considers, first, the gravity of the offending, secondly, the consequences of conviction, and finally whether those consequences are out of all proportion to the gravity of the offending identified at step 1.  In R v Hughes the statement of Richardson J  in Fisheries Inspector v Turner [1978] 2

NZLR 233 (CA) at 241 was quoted as still applying under the Sentencing Act:

In considering the exercise of the discretion under s 42 the Court is required to balance all the relevant public interest considerations as they apply in the particular case: or, as s 42(1) puts it, "after inquiry into the circumstances of the case", which must refer to all the circumstances that are relevant in the particular case before the Court. It must have due regard to the nature of the offence and to the gravity with which it is viewed by Parliament; to the seriousness of the particular offending; to the circumstances of the particular offender in terms of the effect on his career, his pocket, his reputation and any civil disabilities consequential on conviction; and to any other relevant circumstances. And if the direct and indirect consequences of a conviction are, in the Court's judgment, out of all proportion to the gravity of the offence, it is proper for a discharge to be given under s 42.

[11]     The sentencing Judge appeared to have these considerations in mind when he made his decision.

[12]     However, in approaching the appeal I follow the appellate approach outlined in Austin, Nichols & Co. Inc v Stichting Lodestar [2008] 2 NZLR 141 at [16]:

[16]      Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that

matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

The alleged errors of the sentencing Judge

[13]     It was submitted by Mr Borich for the appellant that the sentencing Judge placed too much emphasis on the unresolved shoplifting charge, which ultimately was withdrawn.   It was also submitted that the sentencing Judge wrongly characterised the seriousness of the offending as moderate to serious and on another occasion as serious, and that he overstated the prospects of Mr J   re-offending. However, the essential submission was that the Judge’s assessment of the proportionality test was, in the end, flawed.  He overweighted the culpability of the burglaries, and underweighted the effect of the convictions on Mr J  .

[14]     The Judge stated at [13]:

I have also been referred to a shoplifting charge, which is still before the Courts, from around the same time.  But, really, that is insignificant, when we already have this clear example of you being prepared to carry out further burglaries while facing a charge of burglary.

As already noted, this shoplifting charge was not proceeded with.   There was no conviction in relation to it at the time.  It was common ground between counsel that the charge should not have been considered at all by the sentencing Judge.

[15]     While the Judge stated that the charge was insignificant, that was only in relation  to  the  example  he  had  given  of  being  prepared  to  carry  out  further burglaries.  It cannot be said that he totally discounted the shoplifting charge.  This was  an  error.    It  should not  have been  considered  at  all,  or  should  have  been expressly discounted.

The gravity of the offending

[16]     There were three burglary charges, but this was because of the three different hotel rooms.  The maximum penalty on each charge was ten years’ imprisonment. However, there can be a wide range of culpability in burglary charges, ranging from

a spontaneous act where goods of low value are recovered, to a planned professional break in and removal of high value items with severe consequences for the victim.

[17]     Here all the goods taken were recovered immediately, and there is nothing to indicate that any of the victims suffered any impact.  There was clearly an element of premeditation about the burglaries, given that Mr J   tried twice in the same afternoon.

[18]     However, there is also a slightly fantastic aura about his actions, reflective no doubt of his psychological state at the time.  Given the fact that he was accompanied throughout the burglaries by a porter, it was always likely that he was going to be apprehended.   That is exactly what happened, before indeed the burglaries were complete in the sense that Mr J   had left the hotel.   This absurd quality is heightened by Mr J  ’s assertion to the police that he was working for the CIA and looking for bombs.

[19]     While three burglaries of three different hotel rooms might be treated quite seriously, and a sentence of imprisonment might well be considered in relation to a starting point, the peculiarities of this offending, its naivete and consequences, make it hard to categorise it, as the Judge did, as moderate to serious.   His ultimate conclusion that “the gravity of your offending is high” is wrong.  The culpability of Mr J  ’s offending was not high.  At most it was moderate, and indeed could be even characterised as low, when the circumstances are seen and considered from an overview.

The risk of re-offending

[20]     The  Judge  stated  that  there  was  “at  least,  some  likelihood  of  your  re- offending”, and then later “this risk may present itself again”.  He appears to have been influenced by the earlier conviction a month before of the burglary of premises in Turangi the day after he had been made redundant.  Apparently Mr J  , while very drunk, had broken into a sports shop and stolen some fishing gear.  This had been recovered later behind the shop, and Mr J   had been found collapsed down

the street partly naked.  Mr J   had appeared for the first time in relation to this offending prior to the offending in question at the Sky City Hotel.

[21]     The sentencing Judge considered this earlier offending as a separate and unconnected incident, indicating a propensity towards offending of this type. However, Mr Borich argued that the Turangi offending had to be seen as part of a continuous   situation   starting   from   Mr J     being   declared   redundant   and continuing through to the time of the Sky City offending.  In this regard he relied on the report of Dr Srzich.

[22]     Dr Srzich works for the Bexley Clinic.  She explained that Mr J   was a

55 year-old married Canadian who had been living in New Zealand since 1995.  He currently lives with his wife and their 14 year-old son.  He had been working as an engineer for large industrial equipment and installation companies for a number of years.  Until early 2008 he had been working for a waste treatment facility.  When that  company was  taken  over  and  he  had  assisted  in  the  transitioning  of  some equipment, but then he was made redundant.

[23]     He then began working for an electrical company and was contracted to manage large projects.  The project was based in Turangi and he regularly commuted between there and Auckland.  However, in mid-December of last year he was made redundant again without warning.  This was a great shock for him.  His parents were visiting from Canada at the time.

[24]     Dr Srzich then commented:

Immediately when this happened Mr J   noted a drop in his mood.  He said he became very anxious, low in mood and was uncertain about his future.   Although he had previously drunk reasonably heavily, his alcohol use increased considerably.  His relationship with his wife deteriorated and they began to fight frequently.  He estimated that he drank 500mls of vodka and half to one bottle of wine a day.   He was not sure why his drinking increased so much, but it did appear to help his anxiety and depressed mood. He was not able to enjoy anything and the worry about his and his family’s future dominated his mind.  His sleep deteriorated with the development of marked middle insomnia.   His appetite was initially okay although it subsequently deteriorated considerably.  His concentration was impaired and his self esteem deteriorated.  He began to feel hopeless and helpless about his future, and started to wonder whether his family would be better off if he

was dead.  These thoughts of suicide were fleeting and occasional, and were not associated with any intent.

[25]     It was in this context that the Turangi offending took place.   However, his illness continued after that.  He was diagnosed as suffering from a major depressive disorder of moderate severity.  The clear triggering stress was the redundancy.  The use of alcohol contributed to his vulnerability as a coping strategy.  Dr Srzich noted in her concluding remarks:

The incident and subsequent charge in Turangi almost certainly contributed to  a  further  deterioration  in  his  mental  state.    Although  not  causative, Mr J  ’s distressed and regressed state and increased alcohol use both appear to have contributed to his offending on the 3rd  of January this year. The impulsive, naïve, and extremely poorly thought out nature of the offence suggest that his decision making ability was significantly compromised at the time, almost certainly due to his psychological and probably intoxicated state at the time.  Having said this, he knew what he was doing and knew that it was wrong.

[emphasis added]

[26]     Dr Srzich noted that Mr J   was remorseful and ashamed of what had happened.  He was making genuine efforts to address his alcohol and cannabis abuse and to have his depression treated and sensibly managed.  It seems that Mr J   has been able to continue to control his mental state, and has ceased using alcohol. He is now holding a regular engineering job, although it is far more menial than before.  He installs air-freshener dispensers at $15 an hour.

[27]     It can be seen, then, that the offending in Turangi and the offending at the Sky City Hotel can be seen as arising from the same acutely depressed state, caused by his redundancy.  Now that he has managed to remove himself from that depressed state and control his alcohol use, he is no longer offending.  It is stated at s 9(1) that it is a mitigating factor if the offender has at the time the offence was committed, “diminished intellectual capacity or understanding”.   I am satisfied that given his depressive illness, he did have a diminished understanding at the time.  I do not take into account his use of alcohol, and indeed that must not be taken into account pursuant to s 9(3).   It may be seen as a symptom of his depressive illness.   His conduct was part of continuum of unusual and aberrant behaviour following his redundancy.

[28]     His  offending  has  to  be  seen  also  in  the  context  of  him  never  having previously offended.  It is fair to see all his offending as arising from a single and out of character episode of illness.

[29]     This factor was not referred to by the sentencing Judge.  It was an error not to take this into account, and to recognise the Turangi offending in its broader context.

Prospects of re-offending

[30]     Ms Duncan for the Crown submitted that a pattern of offending could be properly discerned in Mr J  ’s actions.   I do not accept that submission.   The offending is properly seen as out of character, and out of the pattern of Mr J  ’s life, and resulting from a series of distressing events which created a depressive illness.

Summary as to the gravity of the offending

[31]     The consideration of the first factor, the gravity of the offending, extends beyond the exercise normally used to assess culpability to fix a starting point for sentence, outlined in R v Taueki [2005] 3 NZLR 372 at [43]-[44]. Rather than this constrained assessment of culpability, the assessment under s 107 looks at the gravity of the circumstances as a whole, including aggravating and mitigating factors relating to the offender personally.

[32]     On that basis Mr J  ’s culpability is relatively low, given the factors of naivete, no loss or suffering of victims, and his mental illness.

The consequences of conviction

[33]     As against this it is necessary to assess the second factor, the direct and indirect consequences of a conviction.

[34]     There are two factors to be weighted.  The first is the ability of Mr J   to obtain employment.  He is the main provider for his family.  There was an affidavit filed by Richard Orgias, a director of a recruiting and business consulting company,

specialising in senior recruitment in the engineering field.  He describes Mr J  , whom he knows in a professional capacity, as having a very good employment history with a previous long-term employer.   He made his difficulties with these convictions  known  to   Mr Orgias,   and   despite   being  recommended   to   three companies he failed to get a job in the area of his expertise.   In respect of one of those employment opportunities, the employer indicated interest in him as he is technically very good,  but  indicated  that  if  convictions  ensued  for  the  burglary matters they would be unable to offer him a position.   They remain interested in offering the job, but only if he is not convicted.

[35]     Mr Orgias comments that Mr J   needs a challenging job.  He says that it will be “nigh on impossible” for Mr J   to get a job in his particular field of work if convictions are entered.   He says that as a matter of course employers require disclosure  of  criminal  convictions,  given  the  nature  of the  work  done  by these engineering organisations.   Convictions for burglary would preclude him almost certainly from employment.  These comments are confirmed by Mr J   himself in his affidavit.

[36]     The other factor of relevance under this head is that Mr J   has relatives in the United States where his mother lives.  He wishes to be able to continue to visit his family.  Further, in the course of his employment he expects to travel often.  In commissioning and maintenance engineering he has been employed in Malaysia, Libya, Brazil, Sweden, Finland and Korea.

[37]     Although the fact that he has faced charges will have to be disclosed to the US authorities, he anticipates that convictions will make entry into the United States problematic.  As a matter of logic this must be so.  It is far more serious to have been convicted of burglary charges, than to have been charged in relation to them, but discharged.

The balancing exercise

[38]     It is necessary to determine whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending.  I conclude that they would be.

[39]     In relation to the first factor, the gravity of the offending, the redundancy and consequent depressive illness are relevant and diminish culpability in that broad sense.    In  this  assessment  Mr J    is  entitled  to  draw  upon  the  fact  of  his diminished  understanding.    He  is  also  entitled  to  draw  on  his  previous  good character, and his early expression of guilt and remorse.

[40]     As  against  this  must  be  balanced  the  very  severe  consequences  of  a conviction.  It is easy to see that in relation to such important work, often in high security facilities, convictions for burglary will preclude his employment.  I accept that it is likely that convictions will stop Mr J  ’s career as a senior installation commissioning and maintenance engineer.

[41]     It may be said that in discharging him without conviction, future employers will be exposed to him committing burglaries.   The response must be that he has never offended during his long history of employment, and the particular offending had nothing to do with his actual employers, but rather a depressive illness following his redundancies.

[42]     In relation to the balancing exercise, it would not be just for him to lose his ability to work in his area of skill and expertise.  To cut him off from employment in the area in which he has a lifetime of experience, would be disproportionate to the culpability of what he did.   The difficulty that will arise for him travelling to the United States is a lesser factor, but is also to be weighed in the balance in favour of discharge.

[43]     In the end, I am satisfied that it would be clearly disproportionate to convict

Mr J  .  In the words of the section, that would be out of all proportion to the

gravity  of  the  offence.    While  the  offences  are,  on  their  face,  serious,  when culpability is analysed their gravity is greatly reduced.

[44]     Returning  to  the  sentencing  discussion,  the  Judge’s  reference  to  the shoplifting charge, his characterisation of the gravity of the offending as high, and his emphasis on persistent offending, show that the balancing process was not correctly conducted, and involved undue weight being placed on irrelevant factors.

[45]     I conclude that the appeal should be allowed, and Mr J  ’s convictions quashed.

Result

[46]     The appeal is allowed.   Mr J   is discharged without conviction on all three charges.

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Asher J