M v Police HC Wellington CRI 2009-485-87

[2009] NZHC 1018

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2009-485-87

BETWEEN  M

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         11 August 2009

Counsel:         R Gould for the Appellant

J Webber for the Respondent

Judgment:      13 August 2009

JUDGMENT OF MILLER J

[1]      Mr M   appeals against refusal of a discharge without conviction on one count of theft.

[2]      He attended a party at a Kelburn address on 11 May 2008, and became extremely intoxicated.  An alcohol and drug assessment indicated that he reported having drunk about 16 bottles of beer before the party, where he drank a further 20 cups of punch.  He says that he was unaware how much alcohol was in the punch, and did not intend to become completely “wasted”.

[3]      During the evening Mr M   went into a bedroom, took a cellphone, a digital camera, and various items of jewellery, and concealed them upon his person. He  left  the  address  but  remained  in  the  area.    A  short  time  later  the  victim’s cellphone rang in his pocket, and he threw it into a bush.  He was approached by a

male from the party who saw the camera cord hanging from his back pocket and

M V NEW ZEALAND POLICE HC WN CRI 2009-485-87 13 August 2009

recovered the digital camera.  He was arrested a short time later, and found with the jewellery in his possession.

[4]      Mr  M    paid  reparation,  and  paid  a  $200  donation  to  charity.    In  an affidavit filed in support of his application for discharge, he explained that he was drinking punch at the party and did not realise how much alcohol was in it, that he has since undertaken alcohol counselling and drastically reduced the amount he drinks, and that he has the support of his employer, for whom he works as a glazier. His employer supplied a reference in which he explained that Mr M   is halfway through his apprenticeship but the employer would have to think hard about whether to retain him should he have a conviction for theft.  He nonetheless thinks highly of Mr M  .  There were also a number of references.

[5]      Mr M   has prior convictions for disorderly behaviour and driving with excess breath alcohol.   These are not dishonesty offences, but they are consistent with misuse of alcohol.

[6]      The Judge outlined the facts and Mr M  ’s circumstances before analysing the matter under s 107.  He concluded that Mr M   had failed to show that the consequences  of  the  conviction  outweighed  the  gravity  of  the  offending.    The alcohol was not an excuse, the offending was blatant, and it was not sufficiently clear that Mr M   might lose his employment because of the conviction.   It was not enough that he had paid reparation and a donation to a charity.

[7]      The Judge accordingly refused a discharge, but held that a conviction without any further penalty was sufficient.   The fact that no other penalty was imposed would also be an indication to anyone interested that the offence was at the lower end of the scale.

[8]      On  appeal,  Ms  Gould  argues  that  although  alcohol  is  not  an  excuse, Mr M   had not intended to become grossly intoxicated and the drink did in fact explain the offending.  The Judge failed to turn his mind to the explanation that he did not realise the strength of the punch, which was not challenged by the police. Accordingly,  the  Judge  overlooked  a  relevant  consideration.     If  the  affidavit

evidence were accepted, the gravity of the offending is much reduced.  Further, he has no history of dishonesty and is described as an honest employee and regular churchgoer.  He has taken all the steps he can to try to undo or mitigate the harm he has caused.   She invites this Court to substitute its own decision and discharge Mr M   without conviction, or to remit the matter back to the District Court so the affidavit evidence may be considered.

[9]      I do not accept these submissions.   The starting point is that the voluntary consumption  of  alcohol  is  not  a  mitigating  factor:     s  9(3)  Sentencing  Act. Mr M  ’s consumption was undoubtedly voluntary, even if he did not know how much alcohol was in the punch, and he must have been extremely intoxicated when he  arrived  at  the  party.    His  intoxication  notwithstanding,  the  offending  was deliberate and, as the Judge said, blatant.   He plainly knew what he had done, because he threw the cellphone away when it rang.

[10]     On  the  other  side  of  the  ledger,  Mr M  ’s  employer did  not  say that employment would be terminated if he were to be convicted, and I am advised that he is still in employment.  Accordingly, it cannot be said that the consequences of conviction outweigh the seriousness of the offence.

[11]     The appeal is dismissed.

Miller J

Solicitors:

R Gould, PO Box 12549, Wellington for the Appellant

Crown Solicitor’s Office, Wellington for the Respondent