Ludher-Grewal v Police HC Auckland CRI-2010-404-502
[2011] NZHC 2055
•29 June 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-404-502
BETWEEN JADISH LUDHER-GREWAL Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 27 June 2011
Appearances: C Thornton for the Appellant
B Finn for the Respondent
Judgment: 29 June 2011
JUDGMENT OF ELLIS J
This judgment was delivered by me on 29 June 2011 at 4 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Crown Solicitors, PO Box 2213, Auckland 1140
Public Defence Service, PO Box 90 243, Auckland 1142
LUDHER-GREWAL V POLICE HC AK CRI-2010-404-502 29 June 2011
[1] On 19 November 2010, Jagdish Ludher-Grewal (Ms Ludher) was convicted and discharged by Judge Davis on a charge of theft, Judge Everitt having found that charge proven on 30 August 2010. The conviction relates to a charge of stealing jewellery to the value of $118 from Farmers in Newmarket on 22 May 2009.
[2] Ms Ludher appeals her conviction by Judge Everitt on the basis that there was an insufficient basis for his credibility findings against her. She also appeals the refusal by Judge Davis to grant her a discharge without conviction.
Facts
[3] Ms Ludher is 65 years old. In 2005 she was given police diversion for shoplifting. On that occasion she had placed five pieces of lingerie in her bag and attempted to leave without paying while shopping at Farmers in St Lukes.
[4] On 22 May 2009 she visited various parts of the Newmarket Farmers store putting different items in her basket, including some jewellery. When she came to the counter, she presented some of the items for purchase but had placed other items she had not paid for into a Farmers bag, in which there was a raincoat she had previously purchased and said she was going to exchange.
[5] Ms Ludher was stopped as she attempted to leave by a security officer, who explained that she had seen the episode on surveillance footage. When confronted she said she had paid for the jewellery. The police were called and Ms Ludher said that she had made a mistake and that she knew that taking things without paying was wrong.
Judge Everitt’s decision[1]
[1] Police v Jagdish Ludher Grewal DC Auckland CRI-2009-004-013629, 30 August 2010.
[6] Before Judge Everitt Ms Ludher gave evidence in her own defence. She said that she had gone to Farmers to see what she could exchange the raincoat for. She
said that she did not know why she picked the jewellery because she does not wear
that sort of jewellery. She said she supposed it might be useful as a gift. She also said that she then received a call from a builder, that she needed to withdraw money as a result and that that is why she left the store. She had not mentioned this previously to the security guard or to the Police. Before Judge Everitt she said that the builder‟s phone call caused her some anxiety. Her doctor gave evidence about her history of anxiety.
[7] The Judge was not satisfied with Ms Ludher‟s explanation for the offending, describing it as “a mishmash of explanations which she has come up with in desperation.”[2] He said he preferred the evidence of the security officer and the Constable who attended the scene.
Appellant’s submissions
[2] At [25].
[8] On behalf of Ms Ludher Miss Thornton submitted that Judge Everitt failed to provide sufficient reasons for the adverse credibility findings he made. As her argument was developed it appeared that she was in fact submitting that the reasons given by the learned District Court Judge for those findings were not borne out by the evidence. More particularly she submitted that he was, on the evidence, wrong to find that:
(a) Ms Ludher-Grewal was confused about the call from the builder and that her evidence was consistent on this point;
(b)she had given conflicting evidence about whether she was confused, anxious or forgetful on the day in question;[3] and
[3] See [25] of the decision
(c) her evidence in Court was inconsistent with the statement she made to the Constable at the scene because in that statement she did not in fact admit any wrongdoing.
Discussion
[9] As will be evident from my summary of Ms Ludher‟s position above it is principally Judge Everitt‟s credibility findings that form the basis of this aspect of her present appeal. That in itself imposes an additional burden upon her. Although credibility findings are not immune appellate courts are rightly slow to interfere when the first instance judge has had the opportunity to see and hear the evidence.
[10] In the present case I have read the transcript of Ms Ludher‟s trial. What it discloses is that Ms Ludher‟s evidence was not particularly coherent and this no doubt informed, in a general sense, Judge Everitt‟s view of the matter.
[11] It is also evident that:
(a) The builder‟s call was not raised at the time of Ms Ludher‟s apprehension and that the Judge‟s assessment of it as a new invention or „red herring‟ is therefore justifiable;
(b)Ms Ludher repeatedly said that she was anxious or confused because of her medication but when cross examined claimed to have a good memory of the incident and not have been confused at the time she was in the store. In my view, Judge Everitt‟s assessment that her evidence was generally muddled in this respect had foundation.
[12] I accept that the statement made by Ms Ludher to the Police is ambiguous and is not necessarily to be interpreted as an admission. However I consider that Judge Everitt was entitled to take into account the change of stance that the statement undoubtedly represented as further evidence of her general unreliability (or lack of credibility). More particularly the statement appears to me to be a fairly clear acknowledgement that she had taken the jewellery without paying for it, when she had previously denied that to the Security Guard.
[13] Notwithstanding Ms Thornton‟s valiant submissions on Ms Ludher‟s behalf, I consider that the Judge was entitled to make the credibility findings he did and that the reasons given by him were borne out in the evidence.
Judge Davis’ decision[4]
[4] Police v Jagdish Ludher Grewal DC Auckland CRI-2009-004-013629, 19 November 2010.
[14] In considering the possibility of a discharge without conviction under ss 106 and 107 of the Sentencing Act Judge Davis referred to the gravity of the offending (noting that while shoplifting does not qualify as serious offending it is nonetheless of some consequence to the victims of it) and also other more general circumstances.
Based on the decision of Miller J in Delany v Police[5]he said that the St Lukes
offending in 2005, Ms Ludher‟s age, the absence of a guilty plea and a level of planning and premeditation to the offending were also relevant to his assessment.
[5] Delaney v Police HC Wellington CRI-2005-485-22, 22 April 2005.
[15] In a careful evaluation of the consequences of the offending the learned District Court Judge expressly turned his mind to the effect such a conviction may have if the appellant were to return to teaching, the effect it might have upon obtaining employment more generally and the effect it might have on travel to the United States.
[16] He observed that, in the case of a possible return to teaching, the conviction would be a matter for the Teachers‟ Council and that they should have all information before them when they consider re-registration. In relation to employment more generally the Judge noted that difficulties would predictably be encountered but that there would be no absolute bar to gaining employment.
[17] Finally, in relation to the travel issue, the Judge observed that “expressions of interest are easy to make and it is therefore important to examine how real is the expression of interest.” He concluded that this consequence was speculative.
[18] In weighing the gravity of the offending against the consequences of conviction, Judge Davis was not satisfied that there was any disproportion. It was
noted that while the offending could not be classified as particularly serious, nor were the consequences of a conviction.
Appellant’s submissions
[19] Ms Thornton submitted that the cases highlighted by counsel in the District Court[6] were not taken into account because Judge Davis did not refer to them in the decision. These were cases where people at a similar stage of life to the appellant have been granted discharges without conviction.
[6] Colman v Police HC Whangarei CRI-2009-488-09, 22 December 2009, Allan J; Steele v Police HC Rotorua CRI-2007-463-151, 11 February 2009, Rodney Hansen J.
[20] She further submitted that Ms Ludher‟s fears that a conviction would affect her ability to gain employment have since manifested themselves in that she has been turned down from three kindergarten jobs since her original conviction and that each of those applications had a question about criminal convictions in the application.
Discussion
[21] Section 11 of the Sentencing Act requires a Court to consider discharge without conviction before imposing a sentence. Judge Davis plainly did this.
[22] As I have said, the provisions in the Act governing discharge without conviction are ss 106 and 107. The leading authority on these sections is R v Hughes.[7] At [10], the Court held that the Court must first consider whether the s 107 test is met, before considering the discretion conferred by s 106. At [11], the Court held that the s 107 threshold is a “matter of fact requiring judicial assessment”, not an exercise of discretion. It follows that the ordinary principles governing general
appeals, as prescribed in Austin Nichols & Co Inc v Stichting Lodestar[8] apply.
[7] R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222.
[8] Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141
[23] Application of the s 107 test requires consideration of all relevant circumstances of the offence, the offending and the offender, and the wider interests of the community including ss 7, 8, 9 and 10 of the Sentencing Act.[9]
[9] Hughes at [41].
[24] At [12] of Hughes, the Court noted that in exercising the s 106 discretion, the Court would consider the same factors as under s 107, so “both stages will overlap to a large degree”, and a favourable outcome in the s 107 threshold will generally lead to a favourable outcome under the s 106 discretion.
[25] In terms of the s 107 analysis, the Court emphasised that in applying the provision it was necessary to focus on the wording of the Act rather than on earlier cases. However it accepted that in general terms the provision requires that the Court:
(a) identify the gravity of the offending with reference to the particular facts of the case;
(b) identify the direct and indirect consequences of a conviction; and
(c) determine whether those consequences would be out of all proportion to the gravity of the offending.
[26] In the present case I am of the view the appellant‟s arguments regarding s 107 are not sustainable. The fact that Ms Ludher has previously been the beneficiary of diversion for similar offending distinguished her case from the ones referred to by Ms Thornton. In that respect I record that I do not accept that the fact that Judge Davis did not refer to those cases meant that he did not take them into account. Cases under ss 106 and 107 turn on the weighing exercise conducted on the particular facts of the case and thus other decisions will inevitably be of limited helpfulness.
[27] As well, the consequences of a conviction pointed to by the appellant remain speculative, especially given that the appellant‟s failure to secure employment could
have been for any number of reasons. Although there was a copy of the generic application form on the Court file (which does contain a question about convictions) there was no evidence before the Court about the reasons that Ms Ludher had been turned down for the jobs. And as regards the potential impact of a conviction on future travel I agree with the comments of Judge Davis that I have recorded above.
[28] In the end, and as noted by Judge Davis, neither the gravity of the offending nor the consequences of a conviction can be said to be particularly great. That said, however, theft remains an imprisonable offence and it is a matter of public record that offending of this kind costs retailers a great deal every year. And conversely Ms Ludher has not provided evidence that the consequences of her conviction will be particularly adverse. Rather, it seems to me that the consequences will be in the nature of those which might be expected ordinarily to flow.
[29] Both the appeal against conviction and the appeal against sentence are therefore dismissed.
Rebecca Ellis J
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