M v Police HC Napier Cri-2010-441-34

[2010] NZHC 1496

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2010-441-000034

M

Appellant

v

POLICE

Respondent

Hearing:         25 August 2010

Appearances: G W Calver for Appellant

G Thornton for Respondent

Judgment:      25 August 2010

ORAL JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]    This is an appeal against sentence.

[2]    Following a defended hearing the appellant, Mr M  , was convicted in the District Court of two charges, namely theft and threatening to do grievous bodily harm.   He was sentenced to 150 concurrent hours of community work on each

charge and ordered to pay reparation of $20,586.80.

M V POLICE HC NAP CRI-2010-441-000034  25 August 2010

[3]    The appeal was against both sentence and conviction, but at Mr M  ’s request the conviction appeal was heard separately.  It was heard in April and in a reserved decision I dismissed that aspect of the appeal.

Facts of the offending

[4]    The facts of the offending are as follows.

[5]    Mr M   was employed by the complainant, Mr Hudson, working on the latter’s farm.  In late-2008 Mr Hudson advanced Mr M   a sum of money to obtain a lease of some land which Mr M   wanted to farm on his own account. The  two  men  verbally  agreed  that  Mr  M    would  repay  the  advance  by allowing Mr Hudson to put some of his lambs on the leased property for fattening. The basis of the deal was that for every kilogram of weight the lambs gained after coming onto the leased property, Mr M   would be entitled to a credit of $2 against the advance.   Once the amount of the advance had been extinguished, Mr M   was to be entitled to a cash credit of $2 per kilogram of added weight for any remaining lambs still to be processed.

[6]    Mr Hudson had a contract to process a certain number of his lambs through a firm called Rissington Breeding, and accordingly it was a further term of the agreement that when it came time for the Hudson lambs on Mr M  ’s leased property to be killed, they would be processed through Rissington.   That way the proceeds would be direct credited to Mr Hudson’s farm account.

[7]    Mr Hudson’s lambs were duly moved onto the leasehold property and in due course two batches of lambs were drafted and dispatched through Rissington, as had been agreed.  However, while Mr Hudson was away overseas Mr M   sold the remaining lambs, 214 in total, to another firm and at a time when the lambs had not reached the agreed target weight.  He did so knowing full well that this was contrary to the agreement, and with the deliberate intention of ensuring that the proceeds would go into his bank account instead of that of Mr Hudson.  His explanation was that he wanted control of the proceeds so as to put himself in a better bargaining

position  as  regards  payment  of  wages  and  money  due  to  him  under  the  lamb fattening agreement.

[8]    I pause here to interpolate that the District Court Judge held, and I agreed, that Mr M  ’s conduct in selling the lambs contrary to the term of his authority amounted to theft under s 219(1)(b) of the Crimes Act 1961.  I held that while Mr M   may have believed he had a legal entitlement to payment of money from Mr Hudson, that did not afford him a claim of right.   The claim of right had to pertain to the act of selling the lambs.  The evidence established beyond reasonable doubt  that  he  knew  the  sale  was  contrary  to  the  terms  of  his  authority  but nevertheless went ahead not because he thought the sale was legally justifiable, but so as to secure a commercial advantage for himself.

[9]    Returning  to  the  narrative,  on  Mr  Hudson’s  return  from  overseas  he endeavoured  to  find  out  what  had  happened  to  his  lambs.    Mr  M    was evasive, and when Mr Hudson insisted on coming over, Mr M   said “If you come up the driveway I will shoot you”.

[10]  Although Mr M   claims his intentions were to issue an invoice, deduct the monies owing and pay Mr Hudson the balance, he did not do this.  Instead he spent all the money and only tendered a cheque after criminal charges were laid.  Mr Hudson did not accept the cheque because in his view the amount tendered did not adequately compensate him for the loss he had suffered as a result of his lambs being sold at below the agreed target weight.  His estimate was $20,586.80.

The sentencing in the District Court

[11]  The information before the sentencing Judge included a pre-sentence report and a victim impact report.

[12]  In the victim impact report, Mr Hudson said he felt devastated and betrayed by Mr M  ’s actions.  He also said that the threat to shoot him had frightened both him and his family to the point where the children were having difficulty sleeping at night.

[13]  The pre-sentence report told the Judge that Mr M   is 38 years of age and working in farm-related jobs.   It also told the Judge that he has previous convictions relating to driving and alcohol offending, but nothing for dishonesty. According to the report writer, Mr M   did not express any remorse for his actions because he did not believe he had done anything wrong in selling the lambs and because he denied making any threats.   Despite this lack of remorse, he was assessed at low risk of reoffending.

[14]  It is clear from the sentencing notes that the Judge was unimpressed by Mr

M  ’s attitude that he had done nothing wrong, stating:

[5]       … If his present attitude to obligations as a bailee of other people’s stock remains as it is then, in my view, almost inevitably, he will again become embroiled in this kind of dispute as a result of taking measures to which he is not entitled under the doctrine of claim of right.  The defendant claims some sort of accounting qualifications.  In my view, he would be well advised now to give some further thought to what his obligations are arising out of contractual arrangements of the kind in hand.  He went beyond what the contract permitted.  He went beyond what the criminal law permitted and he acted without claim of right.

[15]  The  Judge  did  not  consider,  however,  that  a  custodial  or  electronically monitored sentence was the least restrictive outcome appropriate given Mr M  ’s position, his age and his lack of previous convictions.  He accordingly sentenced him to community work and ordered payment of reparation in the sum of

$20,586.80.

[16]  The order for reparation states that the $14,800, which Mr M   proposed to be due and available for repayment, is to be paid within seven days, the balance by monthly instalments of $1000.

[17]  As for the threatening to kill charge, the Judge accepted that alcohol issues may have contributed and he imposed the same sentence to run concurrently.

Grounds of appeal

[18]  On appeal, counsel Mr Calver acknowledges that the sentence imposed is not manifestly excessive.

[19]  However, Mr M   is asking that he be discharged without conviction on the grounds of change of circumstance since the sentencing.

[20]  Previously Mr Calver understood that Mr M   intended to continue his farming career.   The position, however, is that Mr M   is studying for his accountancy diploma extramurally from Massey University.   He has also almost completed a degree in business studies from Canterbury University.   Once he has finished the diploma and degree he will be eligible to seek admission as a provisional member of the New Zealand Institute of Chartered Accountants.  The concern is that the existence of these convictions, particularly the conviction for theft, is likely to prevent him from being accepted as a member of the Institute.

[21]  In support of the application for a discharge without conviction, Mr Calver has provided me with a letter from a senior and experienced local accountant.  The letter states that the Institute membership application form requires applicants to disclose previous convictions.   The matter is then left to the discretion of the Institute’s membership committee.   The letter concludes by stating that on the basis of the writer’s experience, any conviction, particularly for theft, would normally preclude an applicant from becoming a member of the Institute.

[22]  In those circumstances, Mr Calver submits that depriving Mr M   of making a fresh start in life and following a completely different career path would outweigh the seriousness of this offending, particularly given, in his submission, the civil overtones of the theft charge and the fact that the threat was uttered in the course of a heated and emotionally charged exchange between the two men.

Discussion

[23]  Section 107 of the Sentencing Act 2002 states:

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.

[24]  It is common ground that in applying s 107 the Court is required to engage in a three-step process:

i)        What is the gravity of the offending?

ii)What would the direct or indirect consequences of a conviction be?

iii)Would  those  consequences  be  out  of  all  proportion  to  the gravity of the offending?

Gravity of the offending

[25]  In my view while there were some mitigating aspects of the offending, the offences were nevertheless serious.

[26]  As I said in my earlier decision, the evidence did not reflect well on Mr M  .   He is a middle-aged man, and should have known better.   He acted unethically, as well as illegally.  Of concern is his continuing failure to acknowledge his wrongdoing, his lack of remorse, and in particular his failure to pay any part of the reparation.

Consequences of a conviction

[27]  As Mr Thornton points out, there are a number of uncertainties: uncertainty surrounding the completion of the degree and diploma; uncertainty surrounding the application for admission; as well as the fact that a previous conviction is not automatically an absolute bar to entry.

[28]  I also accept that in any event there is an important public interest factor at play here in ensuring the Institute is aware of convictions for theft, given the responsibility of its members in dealing with other people’s money.

[29]  Having regard then to all the relevant material, I have come to a very clear view that in the circumstances of this case the direct and indirect consequences of

conviction are not out of all proportion to the offending.   It follows that I am not prepared to grant the application for discharge.   The appeal against sentence is accordingly dismissed.

Solicitors:

G W Calver, Hastings

Carlile Dowling, Napier