K v Police HC Wellinton CRI-2007-485-63
[2008] NZHC 342
•17 March 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2007-485-63
K
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 11 March 2008
Appearances: J Miller for Appellant
M W Snape for Crown
Judgment: 17 March 2008
In accordance with r 540(4) I direct the Registrar to endorse this judgment with the delivery time of 11.30am on the 17th day of March 2008.
JUDGMENT OF GENDALL J
[1] This is an appeal against a decision of Judge J Johnston, delivered in the District Court at Wellington on 15 June 2007, declining to discharge the appellant without conviction pursuant to s 106 of the Sentencing Act 2002.
[2] The appellant had been found guilty after a defended hearing on 1 November
2006 by Judge J P Clapham, of theft of a defibrillator, the property of Ministry of
Foreign Affairs, Wellington on 13 April 2006. The appellant later pleaded guilty to
K V NEW ZEALAND POLICE HC WN CRI-2007-485-63 17 March 2008
an offence under s 29 of the Summary Offences Act 1981 of being found in a building in Wellington without reasonable excuse on the 10th day of September
2006, and of failing without reasonable excuse to attend at the District Court at
Wellington on 21 November 2006, having been released on bail on 20 October 2006.
[3] When sentenced on all three matters, Judge Johnston convicted and discharged the appellant. He contended that he should have been discharged without conviction, and appeals against convictions being entered.
Background facts
[4] The appellant is a 43 year old American citizen with a medical history of taking psycho-stimulants for Adult Attention Deficit Hyperactivity (Adult ADHD) disorder. On 13 April 2006 he went to the Ministry of Foreign Affairs, where an acquaintance worked, and stole a defibrillator, placing it in his carry bag and left the premises. His actions were recorded on security cameras. When his premises were later searched, the defibrillator was there. He admitted taking it saying that he had been having a heart concerns, with symptoms consistent with panic and anxiety attacks. He had some morbid introspection about his health.
[5] The appellant appeared on the theft charge in the District Court at Wellington on 23 June 2006 and was granted bail. It appears that he was offered a diversion by the Police. The Court record indicates that this was accepted on 12 July 2006. Probably without his counsel’s advice, he advised the Court on 31 August 2006 that diversion was not accepted as he “wished no longer to plead guilty”.
[6] Ten days later, on 10 September 2006, whilst on bail, the appellant committed the offence under s 29 of the Summary Offences Act 1981 of being found in a building without reasonable excuse. The circumstances of that offence, in short, were that the appellant had personal belongings stored at those premises for which he was required to pay storage fees. These had not been paid. An arrangement was made for the appellant and the owner of the premises to meet so that the outstanding rent could be paid and the appellant’s property removed.
[7] The appellant was aware that he could not do so until the rent had been paid. But he entered the storage facility building, removing a large number of personal items and departed with them without paying outstanding fees.
[8] The third offence involved the appellant failing to attend at the Wellington District Court on 21 November 2006 after having been released on bail. He entered no plea to that charge, and pleaded not guilty to the charge of being found in a building without reasonable excuse. After a defended hearing date was set, and the latter charge amended, and a guilty plea was entered on 6 March 2007, as was a guilty plea entered in respect of the failing to answer bail.
[9] In the meantime, the defended hearing before Judge Clapham on the theft charge had taken place on 1 November 2006. The charge was found to be established and the transcript of the oral judgment (dated “15 June 2007” but this is clearly an error) was before Judge Johnston. Judge Clapham’s decision is a carefully reasoned assessment of the facts and evidence.
[10] In convicting the appellant of theft, Judge Clapham had before him reports and correspondence relevant to the appellant’s adult ADHD syndrome (possibly hearsay, but nevertheless admitted), noting that the purpose of these was “restricted to an acknowledgement that the defendant has a particular disability” but there was “no suggestion or no evidence … that would negate the ability of the defendant to form the necessary intent”. That remains the position.
[11] Judge Clapham noted that the appellant went to the Ministry with prior knowledge of the defibrillator, made no inquiry about his friend, took the item from the wall and placed it inside his pack, departing to return to home. He referred to the appellant’s evidence in cross-examination that he had “a right to life. For crying out loud, I thought I was going to die.”
[12] Judge Clapham considered the appellant saw matters that may be clear to many others “in a difficult and confused way” and that “he becomes lost in his own difficulties and his own perception or the manner in which society is moving around him”. The Judge correctly observed that the appellant was trying to self-diagnose
and self-medicate, and that he preferred “taking medication because he can take doubles of it which gives, in his view, a better result.”
[13] The Judge concluded there was no possible honest motive for what the appellant did and that it must have been dishonest, and that any claim to a right to use the defibrillator in an emergency situation could not cover the permanent removal of the item as occurred. The Judge observed there was no evidence to support a claim or a belief that a heart attack was imminent, or as to the ongoing nature of any disability which would demand the defibrillator to be immediately available.
[14] There can be no doubt that Judge Clapham was entitled to find the charge of theft proven beyond reasonable doubt.
Sentencing
[15] Upon sentencing, Judge Johnston had extensive submissions from counsel, a psychologist, and others supporting the appellant in his application for discharge without conviction. Judge Johnston summarised the appellant’s submissions as follows:
•he suffers from adult ADHD which had a major impact on his life and underpinned his offending;
• convictions would prejudice his application for New Zealand citizenship;
• he has no previous convictions in New Zealand;
•mitigating circumstances existed for each offence, including taking the defibrillator after feeling chest pains and, through medication, overlooking appearance in Court.
[16] Extensive submissions were made to the Judge as to the appellant’s previous life history and difficulties and she had an 11-page psychological report which explained his behaviour difficulties and family circumstances. This included
submissions and opinions, from the clinical psychologist who saw the appellant on frequent occasions after 1 September 2006 (after the date of the theft offence).
[17] The Judge noted that the Police opposed discharge without conviction because, amongst other reasons, these were two offences of dishonesty taking place over a period in April and September 2006.
[18] The Judge then turned her mind to whether or not the convictions would be out of proportion to the offending, noting that they involved “dishonesty with a degree of premeditation … [and] involve Mr K going to other premises.”
[19] The Judge referred to there being a “complicated medical background but unfortunately no evidence from a doctor or no medical evidence as such.” But the Judge had information from a Minister of the appellant’s church and the psychologist who saw him after the offending. There was of course medical evidence and material before Judge Clapham to which he refers in his oral judgment. Judge Johnston refers to the psychologist’s report who was able to observe the appellant’s behaviour. She said that:
“Concern being raised whether:
• the appellant accepted any culpability in respect of his offending;
• the need for the Court to hold offenders accountable;
• the offences were not victimless, involving moving safety equipment from premises.
[20] The Judge said that the immigration position was not a matter for:
“this Court to second guess what the Department of Immigration will, or will not, do. They have discretion and the ability to take into account a wide range of evidence and take into account the family circumstances of Mr K .”
[21] The Judge concluded that the medical condition of the appellant justified “some discounting of any penalty” so he was convicted and discharged on all matters, but she said that it was not a proper case to discharge without conviction.
[22] Extensive and able submissions have been filed, and addressed by Mr Miller on behalf of the appellant. Some reports and material were submitted which were not before Judge Johnston when the appellant was sentenced on 15 June 2007. They included a psychiatric report of 4 November 2007; an updated report from the psychologist dated 27 February 2008, and an email from the Department of Labour dated 18 February 2008. As this information was not before the District Court Judge at the time of sentencing, the Police accept that this Court may approach the question of discharge without conviction afresh.
[23] The report of the psychiatrist to a large extent is placed upon what the appellant reported, although he had the benefit of psychological reports and other clinical assessments. He concludes that the appellant suffered from the effects of excessive dosages of psycho-stimulants which had been prescribed for a former “apparent diagnosis of ADHD” which led to effects on his moods, thinking and judgment.
[24] The updated psychological report describes positive progress made by the appellant since engaging its therapy and ceasing medication.
[25] The material relevant to the immigration issue comprises statements from the Department as to “normal ineligibility” and waiver of good character requirements. The appellant had a work visa which had expired (although it is not clearly precisely when that was) but he requires a residence permit under s 8 of the Immigration Act
1987. That is discretionary and in order to be granted such permit so as to remain in New Zealand he requires a waiver of the “good character requirement” under the Immigration Policy. It seems that such had been required at an earlier stage by reason of a recorded conviction dated 16 April 2003 in Switzerland (although the appellant disputes that conviction). Counsel for the appellant, in submissions to the District Court, told Judge Johnston:
“Mr K has already been granted a character waiver by NZIS in relation to a charge he faced in Switzerland for “bilking”. This was some time ago, and Mr K provided his own records to NZIS in relation to this event. In light of that information, which is attached, NZIS decided to grant a character waiver.
Nonetheless, Mr K will need to apply for another character waiver if he is convicted of any of the above charges. Counsel has been told (on an informal basis) that if Mr K is convicted of theft in particular, he would be very unlikely to qualify for a character waiver.”
[26] The NZIS email address to the appellant’s counsel dated 18 February 2008 states:
“There is now a history of character issues with your client and he quite clearly falls within s 7 of the Immigration Act and requires a waiver. As you are aware already, I am considering a waiver for your client but at this stage it is looking like a decline, but on saying this I have not completed my assessment and making [sic] no premeditation.
If the character waiver is in fact declined, his application will also be declined. Out of fairness to your client, we will await the outcome of his appeal to the High Court.”
Discussion
[27] The words “out of all proportion” point to an extreme situation that speaks for itself; Police v Roberts [1991] 1 NZLR 205 at 210. A three-step approach to questions of discharge without conviction arose out of the decision of Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA). The Court must first give consideration to the gravity of the offending; then the consequences of conviction, and then finally whether those consequences are out of all proportion to the former. The discretion is unfettered with each case to be considered on its merits and in Police v Roberts, Bisson J said (at 209):
“In the final analysis, after considering all the relevant circumstances, [discharge] is a proper exercise of the Court’s discretion ‘if the direct and indirect consequences of the conviction are, in the Court’s judgment, out of all proportion to the gravity of the offence’. That must be the overriding consideration.”
[28] In Turner Richardson J (as he then was) said, at 241:
“Section 42 confers an unfettered discretion on the Court to give an absolute or conditional discharge without conviction in any case where a minimum penalty is not provided for. In the exercise of that discretion the Court must take all relevant considerations into account and must ignore all irrelevant considerations. The real question then is whether the statutory consequences of a conviction may be taken into account and given appropriate weight as considerations relevant to the exercise of the discretion. Put in that way, there can be only one answer. 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 case. 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 a 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.”
[29] Those cases dealt with s 42 of the Criminal Justice Act 1954 and the later s 19 of the Criminal Justice Act 1985. But the statutory provisions did not then include what is now s 107 of the Sentencing Act which provides:
“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.”
[30] The present s 107 may have been enacted to reflect the judicial pronouncement in Fisheries Inspector v Turner. But the section has inverted the language of Richardson J. It is expressed in the imperative. That is, the Court must not discharge an offender without conviction unless satisfied as to the requisite matters. Whilst the exercise of the discretion is to be based upon whether all the relevant circumstances, relating to the offender, as well as the public interest, result in the consequences of the conviction outweighing to a large extent (is out of all proportion to) the gravity of the offence, unless the Court is satisfied that the last (s 107) feature exist, it cannot discharge without conviction.
[31] There will be infinite circumstances which may justify a Judge exercising the discretion to discharge without conviction. They are limitless. The circumstances may relate to the personal circumstances of an offender, his or her family, work considerations, past behaviour or actions, future travel or career aspirations, whether the offence is trivial or not; the type of offence; the degree of gravity; and there will be others.
[32] But whatever the reasons advanced for a discharge, there remains the statutory prohibition against granting a discharge unless the appellant can pass
through the gateway that the Court must be satisfied that the direct or indirect consequences of a conviction would be out of all proportion to the gravity of the offending.
Personal circumstances
[33] Adult ADHD is a personality or psychological problem with symptoms of inattentiveness, overactivity, impulsivity or a combination. There may be inability to relax, nervous energy, talking excessively, volatile moods, inability to focus on mundane tasks, difficulty in managing emotions and stress, procrastination and disorganisation. On the other side, positive traits may exist in people with active impulsive minds including creativity, enthusiasm and spontaneity and high energy levels.
[34] Although in the defended case before Judge Clapham the defence contended that the appellant’s personality or psychological syndrome was relevant in assessing his intention to commit the theft, that argument is no longer advanced. However, Mr Miller submitted that it was a feature to be taken into account in assessing the gravity of the offending and the overall culpability of the appellant. I agree, and Judge Johnston appears to have done that in concluding that the appropriate penalty would be conviction and discharge rather than the imposition of any other monetary or sentencing sanction. That outcome, on its face, could be seen to be lenient.
[35] The appellant’s psychological/personality state, and self-medication (the latter only ceasing after the offending, according to the reports before the Court), may explain some of the reasons why he acted as he did, without providing an excuse.
[36] The appellant is married and has a young son (aged 4 at the time of sentence). The appellant’s wife is not a New Zealand citizen and according to the pre-sentence report, she has started a small business in Wellington. The appellant is described as a “film producer/director” but has been unemployed for some time (the reports suggest since he came to New Zealand) as he remained at home to care for his infant son. Material before the Court suggest that he is endeavouring to rekindle his
professional life and is endeavouring work again in developing media projects. He submits that he has had to turn down overseas opportunities through being unable to travel to countries by reason of a criminal record, but there is no hard evidence to support that proposition. Although there appears to have been as recently (in late February 2008) communications between the appellant and a production firm in Australia in which the appellant advised that he is planning to be in Australia in the first week in April. The appellant has no previous convictions in New Zealand and, as mentioned, he disputes the recorded conviction in Switzerland in 2003. Such is recorded as at 16 April 2003. Mr Miller said that letters and other written material before Judge Johnston, and this Court, may cast doubt upon that conviction. They appear to comprise material written by the appellant, letters from the US Consul in Geneva and the appellant’s legal advisor, and a statement made by a person employed by the complainant. I note however, that those items are all dated before the date of the recorded conviction. In any event, for the purpose of sentencing, Judge Johnston “accepted that there are no previous convictions”.
[37] It is not altogether clear whether the Swiss “conviction” was known to the Immigration Officials when a visa was granted – so that a character waiver was afforded because of the appellant disputing the conviction and other factors. Certainly, as a recorded conviction (if known) the guidelines would suggest a waiver would be required, and Mr Miller’s submissions to the District Court state that the appellant was granted such a waiver, Counsel submitted to the District Court, and to this Court, that the Officials have accepted that such “conviction” did not impact upon the appellant’s eligibility for a visa or character waiver.
[38] For the purposes of this appeal the grant of the earlier waiver (or not as the case may be) can be put to one side. Obviously if convictions are entered for the present offences, immigration officers may look at all the surrounding circumstances of an applicant to decide whether they justify waiving the good character requirement which may involve consideration – or the relevant factors may well be more directed to acts and events than convictions (see para [43] item (iv)] where a recorded facts speaks of an event).
[39] But it is not for this Court to second guess Immigration Officials. The issue is solely whether, should convictions be entered, the consequences (which will include obtaining a good character waiver, and the possibility of its refusal), would be out of all proportion to the gravity of the offences.
[40] The Probation Officer described the appellant as “low risk of reoffending” and recommended that the Court could impose a “less restrictive sentence” such as to come up if called upon for sentence, as that would address the principles and purposes of the sentencing in that case. Of course the Judge adopted more lenient approach, by convicting and discharging.
[41] There is nothing particularly unique in the personal circumstances of the appellant other than his psychological personality/mental history. The fact that he is a United States citizen with a United States passport will enable him to travel to his country of origin. There may be limitations on travel to certain countries if a person has a criminal conviction. This is a possibility, but not a certainty, which will always arise whenever someone is convicted of a crime. It was argued that it automatically followed that travel restriction existed and that is a general submission often made in support of s 106 applications. Disclosure of convictions may involve embarrassment and in some cases restrict travel but no specific illustration or evidence of hardship to the applicant has been given. His recent emails to and from an Australian firm do not establish that he cannot travel. Disclosure of the record may produce embarrassment, but that is a general consequence of offending which is to be expected.
[42] The thrust of the argument on behalf of the appellant is that convictions would seriously jeopardise his chances of remaining in New Zealand and being granted a visitor’s permit or residence. And, in that event, the removal of him (and consequently his wife and child) from the country would be disproportionate to the gravity of the offending.
[43] Mr Miller argued that a character waiver would certainly not be granted if convictions were entered. He relied upon the email that counsel received from the Immigration Service. However, I do not see that email as saying that a definite
consequence would be the declining to grant a waiver. Obviously, as counsel submits, the (disputed) Swiss conviction did not affect the granting of the work visa. The Department has not completed its assessment and is “making no pre- determination” but “it is looking like a decline”. That may be thought to be a possibility given the history and two dishonest acts, whether or not convictions are entered. But it is not a pre-determination. The granting of a waiver is discretionary and, as Judge Johnston said, the Court cannot guess what the immigration authorities might do.
[44] It seems under NZIS policy, applicants normally ineligible for a residence visa or permit must be granted a character waiver. That applies to any person convicted at any time of any offence involving dishonesty. The appellant has two such convictions for recent events. But immigration officers are required to not automatically decline residence applications on character grounds. They must consider:
“The surrounding circumstances of the application to decide whether or not they are compelling enough to justify waiving a good character requirement. The circumstances include but are not limited to the following factors as appropriate:
(i) if applicable, the seriousness of the offence (generally indicated by the term of imprisonment or size of the fine);
(ii) whether there is more than one offence; (iii) ….
(iv) how long ago the relevant event occurred;
(v) whether the applicant has immediate family lawfully and permanently in New Zealand;
(vi) whether the applicant has some strong emotional or physical tie to
New Zealand;
(vii) whether the applicant’s potential contribution to New Zealand would be significant.”
[emphasis added].
[45] Officers are required to make a decision only after considering all relevant factors including advice from the National Office of NZIS and compliance with “fairness and natural justice requirements”.
[46] So, it will be seen that a possible consequence of a conviction is the refusal to grant a character waiver, but it is by no means a certain consequence. The fact that no fine or other penalty has been imposed must be relevant, but not determinative. Even if refusal to grant a waiver was certain, the question would still remain whether the consequence (declining a character waiver) is out of all proportion to the gravity of the offences.
[47] In assessing the gravity of the offence, the Court is required and entitled to look at the total culpability of the appellant. The theft offence was not regarded by Judge Johnston, or by this Court, at the most serious level. But it was not trivial nor a juvenile prank. It was the deliberate taking of life support equipment from the Ministry which had the potential to jeopardise availability of emergency equipment for those who might really need it . The value of the item was substantial even though counsel now contend that it was not at the level originally described in the information.
[48] Mitigating features relating to that theft included the appellant’s “wrong headed” motivation and beliefs, and his psychological/personality disorder. But he was not entitled to any credit for having pleaded guilty. Of course that does not represent an aggravating feature, and it does not provide any bar to a discharge without conviction. But it does signify an absence of remorse and contrition, which is a relevant factor in any sentencing exercise. Nevertheless a discharge without conviction can still be granted provided that the consequences which follow are out of all proportion to the gravity of the offence.
[49] It cannot be overlooked that, in this case, there were two offences; discretely separate in time, place and circumstance. Both involved elements of dishonesty because the circumstances surrounding the offence against s 29 Summary Offences Act 1981, were that the appellant unlawfully went to the storage building to remove his belongings without paying the storage fees that he knew had to be paid before removal was allowed. He was avoiding payment. In assessing overall culpability the Court cannot ignore the fact that a second offence occurred. Weight to be given to it, depends on an overall assessment of all the circumstances. But the appellant was on bail for an offence of dishonesty when he committed the further offence of
being found in a building without reasonable excuse. It may have been an act of stupidity, but equally it was not spur of the moment or impulsive. It was another dishonesty act, designed to avoid financial liability, at a time when the appellant was on bail. It reflects upon his overall culpability. Under normal sentencing principles, it could have warranted a cumulative sentence.
[50] It was argued that the appellant may have difficulty in obtaining finance for future film productions. Whilst that is a possibility, it is purely speculative. Just as the Immigration Service can be appraised of the circumstances which gave rise to the two convictions (the breach of bail conviction I would regard as inconsequential) so, too, others from whom finance is sought could be given those explanations. The outcome of “convicted and discharged” may speak volumes.
[51] I do not consider that Immigration officers would automatically decline the character waiver without careful assessment of all the circumstances, simply because being convicted of two offences may trigger the character assessment that is required. The facts of the offending remain for impartial assessment. It does not follow that requiring a character waiver is a consequence out of all proportion to the gravity of the offending. It will all depend on a multiplicity of considerations.
[52] I have reached the clear view that it would be wrong for the Court to exercise its discretion in this case and discharge the appellant without conviction in respect of the two substantive offences. Any possible future consequences in my assessment may be adverse and unwanted but cannot “be out of all proportion” to the gravity of the offending.
[53] The expiry of the appellant’s work visa occurred in any event. It was most unwise for him to refuse diversion. Whilst counsel submits that because it was offered, then this is a reason why there should be a discharge without conviction, I do not accept that argument. The appellant was quite entitled to defend the theft charge. But a person cannot expect to be given credit for remorse and an acknowledgement of guilt if he elects not to express that guilt and take his chances in obtaining an acquittal. His refusal to accept diversion simply signified a lack of insight, contrition or remorse for which he could not be given a “discount” in a
sentencing exercise. Such exercise would not have taken place if diversion had occurred. It is not irrelevant that 10 days later (after declining diversion), he offended on the second occasion.
[54] In undertaking the balancing exercise and accepting that, obviously, there may be some adverse consequences to the appellant, I am not persuaded that they would be out of all proportion to the gravity of the two offences so as to justify the discharge without conviction in respect of both. Whilst the breach of bail offence was minor in the context of all the circumstances, the Court cannot grant a discharge without conviction on that charge. Simply put, there will be no consequences of such conviction alone that are out of all proportion to the gravity of the offence.
[55] The appellant achieved a lenient outcome. There is no justification for him to be discharged without conviction in respect of the offences, two of which involved dishonesty, and one of which was committed whilst on bail. It follows the appeal is
dismissed.
J W Gendall
Solicitors:
John Miller Law, Wellington
Luke, Cunningham & Clere
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