King v Police
[2021] NZHC 1652
•6 July 2021
ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSONS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-000251
[2021] NZHC 1652
BETWEEN SOPHIE KING
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 5 July 2021 Appearances:
A Wei for Appellant
A Mackenzie for Respondent
Judgment:
6 July 2021
JUDGMENT OF VENNING J
Appeal against conviction
This judgment was delivered by me on 6 July 2021 at 11.30 am, Registrar/Deputy Registrar
Date……………
Solicitors: Meredith Connell, Auckland Counsel: A Wei, Auckland
KING v NEW ZEALAND POLICE [2021] NZHC 1652 [6 July 2021]
[1] Sophie King pleaded guilty to two charges of accessing a computer system for dishonest purposes.
[2] Judge S J Maude declined her application for a discharge without conviction and imposed a sentence of 18 months’ intensive supervision.1 In addition the Judge directed a notional harm repayment of $500 to each of the two victims of her offending.
[3] Ms King appeals against the Judge’s refusal to discharge her without conviction.
[4] At the time of the offending Ms King was a teacher at an Intermediate School in the North Island. By deception she presented herself as a male on a social media platform to two fellow female teachers. Through the fictitious profile Ms King engaged with the victims and built online romantic relationships. Ms King lured the first victim B into sending her a number of online photos of herself naked and semi naked. B also sent photos of her semi naked niece to Ms King. The offending in relation to B involved contact over a period of 15 months. Ms King’s involvement with the second victim was of a similar nature but shorter lived. It was for three months.
[5] During the contact with B Ms King sent photographs of a male with his chest and penis exposed (but not showing any photos of the face). The photos were cropped versions of an Australia rugby league player. Ms King told both victims that she knew the fictitious person and effectively vouched for him.
[6] Until she discovered the truth, Ms B believed she was in a relationship with the online character created by Ms King. Both victims have suffered panic attacks and ongoing anxiety. They regarded Ms King as a friend. The offending only ceased when Ms B’s family became involved. Ultimately B reported it to Netsafe and the school at which they all worked.
1 NZ Police v King [2021] NZDC 8425.
Judgment
[7] In declining the application for discharge without conviction, the Judge considered that, in light of the breaches of trust and the foreseeable impact on the victims, the starting level for the gravity of the offence was upper moderate. The Judge reduced that down to moderate after taking account of the psychological profile which noted the abuse Ms King had herself suffered, her dissociative identity disorder, and the steps she was taking to address her issues.
[8] In relation to the consequences of conviction the Judge noted that a conviction would likely impact Ms King’s employability as a teacher. The Judge also considered the impact on her ability to travel to Australia in the future. Having regard to Ms King’s personal circumstances the Judge regarded the impact of a conviction for her was moderate. On that basis the Judge did not consider the consequences of conviction would be out of all proportion to the gravity of the offending.
[9] If he was wrong in that assessment the Judge observed that he would have struggled to exercise any discretion in favour of a discharge without conviction given the offending had been generated from a school, had involved fellow teachers and had elicited partly naked pictures of one of Ms B’s nieces.
[10]For those reasons the Judge declined the application and convicted Ms King.
Appeal points
[11] In support of the appeal against conviction counsel submits the District Court Judge erred in assessing the overall gravity of the offending, particularly by placing insufficient weight on the mitigating factors in assessing that gravity. Counsel acknowledged the offences were moderately serious offences given the number of aggravating features of the offending. However, counsel submitted the Judge failed to give adequate weight to the fact the appellant’s offending was connected and related to her mental illness (the dissociative identity disorder). Given that disorder counsel submitted the Judge was wrong to observe that the foreseeable impact on the victims was an aggravating feature of the offending.
[12] Counsel referred to the decisions of Nelson v R; Shailer v R; and Orchard v R where the Court of Appeal had recognised that mental disorder may mitigate moral fault and accordingly criminal liability.2
[13] In relation to personal mitigating factors counsel emphasised that Ms King had no previous convictions and has taken steps to address the underlying causes. In particular she has referred herself to a registered psychotherapist and continued other rehabilitative work. She has, on his calculation, attended over 60 counselling sessions.
[14] Counsel noted the consequences to Ms King involved losing well paid and full time employment as a teacher. She has agreed with the Teaching Council that she would not teach and has relocated from where the offending occurred to Auckland, which was a major disconnection for her.
[15] Counsel also noted Ms King’s youth at the time. She was only 23 to 24 at the time of the offending.
[16] Finally, despite the fact she has limited income she has paid all reparation for emotional harm.
[17] For all those reasons and particularly having regard to the causative effect of Ms King’s dissociative identity disorder at the time of the offending counsel submitted the gravity of the offending should be assessed as low to moderate.
[18] As to the consequences, while accepting that it is not the function of the Court to pre-empt decisions by employers about the suitability of prospective employees, counsel submitted it was reasonably foreseeable that a conviction for assessing computer systems for dishonest purposes would be significantly prejudicial for Ms King’s goal of practising as a teacher. Job applications for teaching positions require disclosure of criminal convictions. Counsel submitted that other potential employers would also be very likely to exclude Ms King from consideration because of the convictions in this case. The reference to dishonest purposes made the convictions more serious than a drink driving conviction, for instance.
2 Nelson v R [2014] NZCA 121; Shailer v R [2017] NZCA 38; and Orchard v R [2019] NZCA 529.
[19] Next, counsel referred to the effect on Ms King’s ability to travel and noted that any criminal conviction must be declared. She may be considered a “behaviour concern non-citizen” by Australian Immigration authorities and in that case, the consequences could be severe. She may need to obtain a character waiver and if she could not, then her ability to visit her biological father in Australia will be prejudiced.
[20] Finally, in relation to the effect on her mental health, counsel referred to the conclusion by Ms Deane, Ms King’s supervising psychiatrist, that a conviction would be detrimental to Ms King’s mental health and impede her recovery.
[21] In summary Mr Wei submitted that the consequences of conviction far outweighed the seriousness of the offending. He submitted that standing back and looking at the matter overall the appellant has already faced major adverse consequences as a result of her actions. She has suffered from anxiety and low mood, financial hardship, and lost meaningful employment. Despite that, she has a positive well-structured lifestyle and a bright future. In all the circumstances counsel submitted the appeal should be allowed.
Principles
[22] An appeal against refusal to grant a discharge without conviction is a composite appeal against both conviction and sentence.3
[23] As an appeal against conviction the Court must be satisfied a miscarriage of justice has occurred.4 In the context of a discharge without conviction this means a material error or that the Judge erred in applying the principles for discharging an offender without conviction.5
The considerations under s 107 are:
(a)the gravity of the offending;
3 Jackson v R [2016] NZCA 627 at [7]–[8].
4 Criminal Procedure Act 2011, s 232(2) and (3).
5 Jackson v R, above n 3, at [12].
(b)the direct and indirect consequences of a conviction; and
(c)whether those consequences are out of all proportion to the gravity of the offending.
[25] In Z v R the Court of Appeal clarified the approach to be taken on an application (or appeal) for a discharge without conviction.6 When considering the gravity of the offence, the Court should consider all aggravating and mitigating factors relating to the offence and the offender. The Court should then consider the direct and indirect consequences of conviction and consider whether those consequences are out of all proportion to the gravity of the offence. If they are out of all proportion then the Court must consider the exercise of its discretion.
Gravity of the offending
[26] Offending under s 249 can vary significantly.7 The relevant factors in terms of the seriousness of the offending in this case are:
(a)the length of time of the offending against victim B in particular continued;
(b)the breach of trust – the victims were colleagues of Ms King who regarded themselves as her friends. She used her relationship with them to further her offending;
(c)the planning that was involved in the offending;
(d)the offending was against two victims; and
(e)the impact on the victims.
[27] Before taking account of the appellant’s personal circumstances that would have placed this type of offending to be more than moderate. But I accept it would
6 Z v R [2012] NZCA 599.
7 Dixson v R [2015] NZSC 147; and Watchorn v R [2014] NZCA 493.
not be regarded as high. On a scale of one to nine where one is low and nine is high it would be at about six to seven.
[28] I agree with the submissions for the Crown that the Judge then properly considered all relevant mitigating factors in terms of Ms King’s personal mitigating circumstances, and in particular her psychological profile.
[29] I also agree that, in this case there is no room for a separate consideration of the appellant’s age. She was 23 and 24 during the course of the offending. The offending was not a spontaneous one-off act with no thought as to its consequences because of youthful rashness. The offending continued over a lengthy period of time and involved a significant number of messages.
[30] Taking those personal mitigating factors into account I would assess the gravity of the offending at low to moderate but not in the range of mild offending as suggested by Mr Wei. On the above scale the appellant’s personal mitigating factors would reduce it to four to five.
Consequences
[31] The Court of Appeal have recently discussed the relevant principles in relation to consequences in Sok v R.8 The Court said:9
Real and appreciable risk that a consequence will happen
[41] There is no onus on the offender to establish that the disproportionality test has been met; the Court must be “satisfied”, meaning that it has made up its mind. But the offender must be prepared to identify consequences of conviction and point to evidence of a “real and appreciable risk” that the consequence will happen. That standard recognises that the Court is gauging the likelihood of a future event, something that will happen following conviction. A court may require evidence of matters of which it is not prepared to take judicial notice. Where a consequence rests on a matter of present fact, such as a requirement that a conviction be disclosed, proof of that fact may be required under s 24 of the Sentencing Act.
8 Sok v R [2021] NZCA 252.
9 (footnotes omitted).
Causation
[42] The legislation does not confer a general power of dispensation. Under s 107 a court may not discharge an offender unless a given outcome is a consequence of conviction. The consequence may be “direct or indirect”. …
[43] The language of indirect causation signifies that the jurisdiction to discharge extends to cases where the happening of a given consequence may require some intervening event or action, such as the decision of a third party in which the conviction is relevant: by way of example, decisions of a prospective employer or a disciplinary or qualifications authority or an immigration officer.
[44] To state that causation may be indirect is to establish that the conviction need only be one of several conditions necessary to make the consequence happen. It does not follow that the legislation admits any connection between conviction and consequence, however weak or remote. Nor is a but-for connection necessarily sufficient, as this case and others demonstrate. Causation is a question of substance and degree, requiring judicial judgment. Like disproportionality, causation is an evaluative rather than a discretionary consideration.
[32]In Ms King’s case the consequences fall into three categories:
(a)first, the impact on her future employment as a teacher;
(b)second, her ability to travel, particularly to Australia to see her father; and
(c)third, the impact on her rehabilitation, particularly the impact on her mental health.
[33] In relation to Ms King’s ability to obtain employment as a teacher, Mr Wei confirmed that the Teaching Council is aware of her offending. Ms King has agreed with the Council to cease teaching until the determination of these proceedings. Actually her psychotherapist reports that Ms King hopes to return once she has regained her mental health. But any application for a teaching position in the future will require her to disclose the charges as Police vetting discloses not only criminal convictions but any interaction with Police, whether it resulted in a criminal conviction or not.10
10 Employment New Zealand, “Criminal record checks”,
accessed 29 June 2021. I agree with that.
[34] On that basis it is Ms King’s actions rather than any conviction that will be the issue for her in relation to further future applications to the Teaching Council for registration and for a teaching position at any future school.
[35] Further, it has to be said that this is the type of offending one would expect a principal and school should know about when deciding whether to employ Ms King. The offending occurred while she was employed as a teacher and was committed against colleagues at her school. Whether she has a conviction a major issue for any employer in the future will be whether she has taken sufficient steps to address her condition which she says led to the offending.
[36] Similar considerations arise as to the issue Mr Wei raised in relation to employment generally.
[37] In relation to travel counsel has referred to the Australian Immigration information. The information provided confirms that a criminal conviction may result in a person being deemed a “behaviour concern non-citizen” and accordingly denied a visa but the matter is discretionary. There is no direct evidence before the Court as to the likelihood of refusal in Ms King’s circumstances. As the Court of Appeal observed in Sok v R legislative policy decisions and statutory powers and process, be they of New Zealand Immigration or, in this case Australian Immigration, may not only establish consequences for an offender but also determine whether those circumstances are the product of a conviction and influence the proportionality assessment. The offending is a fact that has been admitted or proved and the Court’s view of its gravity will be a matter of record. In such cases courts usually find any outcome a consequence of the offending behaviour rather than the conviction.11
[38] A principal concern for the Court is whether a conviction might impact adversely on Ms King’s mental health. The Judge took comfort from the fact that Ms King’s medication was addressing the issue and that lessened the impact of the consequence of the conviction. Mr Wei criticised that assessment. However, Ms King’s own affidavit confirms that she has benefitted from her psychotherapy. Ms King has committed to receiving treatment for her mental health issues. She is
11 Sok v R, above n 8, at [47].
confident she has been equipped with sufficient skills and tools to manage herself. While her psychotherapist considers a conviction will be detrimental, that will be temporary and importantly Ms King has appropriate support to enable her to cope. Further, as Mr Mackenzie observed, Ms King has had time to adjust to the likelihood of a conviction.
[39] It is also relevant that in assessing the gravity of the offending itself the Court has already taken into account Ms King’s mental state to a degree in reducing her culpability for the offending. As the Court of Appeal in Z v R observed, that all the relevant factors are considered in the s 107 context, the precise point at which they are considered is unlikely to be material.12 However, they should not be double-counted.
[40] Taken overall the consequences of a conviction, as opposed to the consequences of the offending are properly assessed at somewhat less than moderate. On the scale of one to nine I would rate them at four to five also.
Summary
[41] Having regard to the gravity of the offending and the consequences of the offending, it cannot be said that, in the circumstances of this case the consequences of conviction are out of all proportion to the gravity of the offending. If not exactly even they are very closely balanced. It cannot be said that the consequences are out of all proportion to the gravity of the offending13 as the wording of s 107 requires.
Result
[42] The appellant fails to satisfy the Court that there was a material error in the Judge’s reasoning or conclusion that the consequences of conviction are not out of all proportion to the gravity of the offending in this case.
[43]There is no need to consider the issue of discretion in the circumstances.
12 Z v R, above n 6, at [28].
13 R v Smyth [2017] NZCA 530 at [12].
[44]The appeal is dismissed.
Venning J
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