Kozlova v Police HC Wanganui CRI 2010-483-33

[2010] NZHC 1159

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2010-483-000033

EKATERINA ANDREEVNA KOZLOVA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 July 2010

Counsel:         P J Young for appellant

J M Woodcock for respondent

Judgment:      9 July 2010

RESERVED JUDGMENT OF DOBSON J

Introduction

[1]      This is an appeal from the entry of a conviction and sentencing by Judge Radford in the District Court at Marton on 21 May 2010.   Because the Police acknowledge concerns at potential inadequacies in the process leading to the sentencing on that day, the appeal is not opposed.   The Police consider that the process needs to be conducted again with all relevant matters placed before the Court.  I agree.  For the reasons that follow, entry of the conviction is reversed and

the  sentence  imposed  is  set  aside.     The  resolution  of  the  charges  to  which

Ms Kozlova has pleaded guilty is to be remitted back to the District Court in order for referral to restorative justice to occur and the sentencing decision to be started afresh.

Background facts

[2]      Ms Kozlova pleaded guilty to four offences. Three of these were committed while on bail, awaiting trial for the first.

[3]      The first arose out of a burglary in which she was involved on 27 December

2009.     Ms Kozlova’s  co-offender  was  her  then  partner,  Mr Snowden.     Their relationship  involved  a  serious  level  of  violence,  intimidation  and  abuse  by Mr Snowden towards Ms Kozlova.  In May 2009, Mr Snowden had been prosecuted for offences (male assaults female, threatening to kill and threatening behaviour) in relation to a sustained assault on Ms Kozlova.  Following this incident, Ms Kozlova obtained a Protection Order against Mr Snowden in May 2009.   Ms Kozlova has been to the Women’s Refuge on a number of occasions to escape Mr Snowden. Injuries he has inflicted on her apparently extend to breaking her nose.

[4]      On 27 December 2009, Ms Kozlova was driving her car in Marton with Mr Snowden in the passenger seat.  Mr Snowden was highly intoxicated at the time. At Mr Snowden’s request, Ms Kozlova stopped the car outside The Appliance Spot, an  electrical  store  in  Marton.     Mr Snowden  got  out  of  the  vehicle,  leaving Ms Kozlova in the vehicle with the engine running.  Mr Snowden took a wheel brace and gained entry to The Appliance Spot by breaking the shop’s front window.  At that time, Ms Kozlova drove away.  However, she only drove a short distance before Mr Snowden yelled at her and demanded that she return.   She did.   Mr Snowden removed  a  large  number  of  items  and  loaded  these  into  the  car.    The  pair subsequently drove away.

[5]      Initially,  Ms Kozlova  entered  a  not  guilty  plea  to  a  charge  of  burglary. Whilst on bail, Ms Kozlova committed three shoplifting offences.   On 3 February

2010, Ms Kozlova was discovered attempting to remove two DVD players and a dressing gown from a Warehouse store in Auckland.  Then, on a separate occasion,

Ms Kozlova entered a Warehouse store in Wanganui and removed items from the shelves including hair colouring, lingerie, socks and a clock.  Her explanation was that she had very little money and intended to sell the clock.

[6]      Ms Kozlova has no previous convictions.

[7]      Prior to the hearing before Judge Radford, Police and Ms Kozlova agreed upon a summary of facts.  The Police also agreed to amend the most serious charge to being a party to burglary if Ms Kozlova were to plead guilty.  The Police then also agreed to support an adjournment of sentencing for a restorative justice process to occur.     The  Police  apparently  also  indicated  informally  that  if  Ms Kozlova completed that process satisfactorily, they would be likely to support an application for a discharge without conviction on the burglary charge.

[8]      At the hearing, Ms Kozlova vacated her not guilty plea and entered a plea of guilty to the amended charge.  Counsel outlined to the Judge the agreed course as described in the previous paragraph.   However, Judge Radford declined counsel’s request for an adjournment, and proceeded with sentencing on all charges.

District Court decision

[9]      A transcript has been provided of the numerous exchanges between the Judge and Mr Young before the sentencing occurred.   Explicit reference was made to a remand for restorative justice processes to occur, on the basis that if that was satisfactorily completed, the Police would support a discharge without conviction. Then an adjournment was sought to enable Mr Young to prepare full submissions in support of a discharge under s 106 of the Sentencing Act 2002 (the Act).   Judge Radford considered that such an application was “misconceived”.   Judge Radford

reasoned in his notes on sentencing:[1]

[1] At [8].

In my view, the application is misconceived.  You would then, not having any previous convictions, even if discharged on the burglary, have three convictions on separate occasions.  So it is not as if you would be coming before  any  licensing  authority  or  other  body  as  a  person  without  a

conviction.   Secondly, you have indulged, one way or another, in a set of offending which is dishonest.  In my view, although it can be said that your part in this burglary was at the most modest end of the scale, nonetheless, you were actively part of what was for the victim, according to the victim impact statement, a highly annoying and expensive crime.

[10]     In any event, Judge Radford considered that he could not see:[2]

[2] At [9].

…that one can slice up a set of offending into little parts and then regard one as separate from the others, particularly when the person involved is before the Court on the same occasion … I think, in principle, I have to look at the whole of the offending and the whole of the circumstances and make a determination on that basis.

Discussion

[11]     It  was  argued  for  Ms Kozlova  that  Judge  Radford  was  mistaken  in  not allowing  an  adjournment.    This  was,  first,  because  Judge  Radford  should  have granted an adjournment for counsel to prepare full submissions with regard to the sentencing and obtain all necessary documentation.   Second, that an adjournment should have been granted in order to complete the restorative justice process.

[12]     Having  read  the  numerous  exchanges  before  sentencing,  Mr Young’s expectations as to process may, with respect, have been somewhat out of touch with the reality of a busy day in a relatively infrequently visited provincial Court. However, that was the first day the amended charge was called, its consequences were clearly important to Ms Kozlova, and an opportunity to more fully prepare after resolving the charge was not unreasonable.

[13]     The actions of Judge Radford in not granting an adjournment do not reach anywhere near the level of a breach of Ms Kozlova’s right to a fair hearing under s 25(a) of the New Zealand Bill of Rights Act 1990.[3]    Nonetheless, in light of the expectation on an offender to provide material as to the adverse consequences of a conviction, the denial of an adjournment to assemble this material, when its absence could be material to presence or absence of adverse consequences of a particular conviction, is unfair to Ms Kozlova.  Such material, the lack of which was referred to

[3] See Attorney General v Upton (1998) 5 HRNZ 54.

on several occasions by Judge Radford, clearly hampered the Judge’s ability to make a proper assessment of the balancing exercise required under s 107 of the Act.

[14]     The sequence of sentencing under s 11 of the Act requires the Court, before entering a conviction, to consider whether the offender would be more appropriately dealt with under the provisions of, inter alia, s 106.[4]      Given that the terms of the charge to which Ms Kozlova eventually pleaded guilty had only been settled that day, this is hardly a situation in which counsel could be criticised for unreasonably delaying the preparation of material appropriately placed before the Court in support of submissions for a discharge under s 106.   Affording an opportunity for that to occur is a valid reason to require that the process be undertaken again.

[4] R v Hughes [2008] NZCA 546 at [36].

[15]     With  regard  to  the  second  ground  of pre-empting any restorative  justice process, the Judge erred in dismissing the utility of a restorative justice conference as being relevant to the question of discharge without conviction under s 106 of the Act.

[16]     In R v Aiolupo, the Court of Appeal dismissed an appeal against sentence in circumstances where it was claimed on appeal that the sentencing Judge had declined an adjournment to allow a restorative justice conference to take place.[5]   In that case, however, the Court considered:[6]

[5] R v Aiolupo CA58/01, 21 June 2001.

[6] At [19].

…regardless  of  the  outcome  of  any  such  conference,  pursuant  to  s.5

Criminal Justice Act, a term of imprisonment was inevitable here and the term imposed by the sentencing Judge, in the circumstances of this case, was

certainly not manifestly excessive.

A denial of a discharge without conviction was certainly not inevitable in the present case.  Although the role of restorative justice initiatives is tolerably well settled as a matter of practice, their status is not entirely clear as a matter of statute.  Section 8(j) of the Sentencing Act 2002 requires a Court to take into account any outcomes of restorative justice processes that have occurred, or that the Court is satisfied are

likely to occur, in relation to the convictions on which sentence is being considered. That falls short of any obligation on the Court to defer the sentencing until such steps have   occurred.      There   are   likely   to   be   situations   in   which   a   Judge could entirely appropriately consider that such initiatives, however laudable, would not materially impact on the sentence to be imposed.   Generally, however, that course would not be prudent and leads to the prospect of sentencing on a materially inadequately informed basis.

[17]     Thus far, Ms Kozlova has enjoyed partial success on what are effectively process grounds, resulting in the matter being referred back to the District Court. Mr Young’s argument also traversed criticisms of the substance of the approach adopted by the Judge in rejecting the prospects of a discharge without conviction. He criticised the Judge’s treatment of her involvement in the burglary as being part of a pattern of offending that included the shoplifting offences.  Mr Young urged that they needed to be seen as entirely discrete in that Ms Kozlova accepted that she acted alone in the shoplifting, with that offending occurring in quite different circumstances, and that they were discrete in location and time from the burglary.  In accepting that the convictions for theft would stand, Mr Young sought to maintain the distinction so that the considerations for a discharge on the burglary conviction would be confined to the circumstances of that offending alone, ignoring the subsequent and purportedly discrete shoplifting.

[18]     It will be for Mr Young to make what he can of the distinction between the various instances of offending, when the matter is before the District Court again.  At the very least, the existence of those other convictions would appear to be relevant to a consideration of the adverse consequences claimed by Ms Kozlova as flowing from the existence of a conviction for burglary.  In the balancing exercise required under s 107, the onus will be upon her to demonstrate that such adverse consequences as are claimed would still arise, notwithstanding the fact that she accepts the existence of other convictions.  It is not tenable to argue for a discharge on the basis that she thereby avoids any criminal record for dishonesty.

Conclusion

[19]     The appeal is allowed and the matters are remitted back to the District Court on the terms specified in [1] above.

Dobson J

Solicitors:

Crown Solicitor, Wanganui for respondent

Counsel:

P J Young, Wellington for appellant