Modise v Police

[2018] NZHC 2737

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000241

[2018] NZHC 2737

BETWEEN

MOSES PRETE THABANG MODISE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	15 October 2018
Counsel:	HJ Croucher and AJ Ewing for Appellant LM Deane for Respondent
Judgment:	23 October 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 23 October 2018 at 3 pm.

Registrar/Deputy Registrar

Solicitors:

Public Defence Service, Auckland. Crown Solicitor, Auckland.

MODISE v POLICE [2018] NZHC 2737 [23 October 2018]

The appeal

[1]    Mr Moses Modise is a reintegration officer with Serco New Zealand Ltd.1 On 16 July 2017, he committed an offence contrary to the Telecommunications Act 2001.2 Mr Modise repeatedly rang his partner, and verbally abused her. Judge A M Manuel’s sentencing remarks succinctly capture what happened:3

You ... called the victim’s friend a “motherfucker” and a “bitch”. You continued to call her, using obscene language, before she arrived home. She decided to report the abuse to the Manukau Police Station. While she was in an interview room at the station with a police officer, you made more than 40 calls and left 15 messages on her phone using language such as “fucker”, “motherfucker” or “fuck you, motherfucker” in relation to the victim.

In a victim impact statement made in July 2017, the victim said she was scared of you and tired of the way you treated her. She wanted you to go to some kind of anger management course to try to help yourself. She said she had tried to end your relationship but she was scared and needed help herself.

[2]    The Judge dismissed Mr Modise’s application for a discharge without conviction. Mr Modise appeals. He contends the Judge erred.

Law

[3]    The relevant provisions are ss 106 and 107 of the Sentencing Act 2002. These provide:

106 Discharge without conviction

(1)   If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

(2)   A discharge under this section is deemed to be an acquittal.

(3)   A court discharging an offender under this section may—

(a)make an order for payment of costs or the restitution of any property; or

(b)make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—

1      More easily, Serco.

2      Offensive or disturbing use of a telephone, s 112(1).

3      Police v Modise [2018] NZDC 14907 at [2]–[3].

(i)loss of, or damage to, property; or

(ii)emotional harm; or

(iii)loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:

(c)   make any order that the court is required to make on conviction. (3A) Sections 32 to 38A apply, with any necessary modifications, to an order

under subsection (3)(b) as they apply to a sentence of reparation.

(4)   Repealed.

(5)   Despite subsection (3)(b), the court must not order the payment of compensation in respect of any consequential loss or damage described in subsection (3)(b)(iii) for which compensation has been, or is to be, paid under the Accident Compensation Act 2001.

(6)   Repealed.

(7)   Repealed.

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.

[4]Applicable principle is well known.4 A Court must:

(a)Identify the gravity of the offence.

(b)Identify the direct and indirect consequences of a conviction.

(c)Determine whether the direct and indirect consequences of the conviction would be out of all proportion to the gravity of the offence.

[5]    In this setting, the appeal Court’s view is determinative. So, the appeal should be allowed if the Court concludes the consequences described above would be out of all proportion to the gravity of the offence.5

4      See, for example R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.

5      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

Analysis

[6]    Ms Croucher contends the Judge erred in assessing the gravity of the offence as “moderate”. She notes the offence is punishable by maximum penalty of three months’ imprisonment, and no violence was involved. Ms Croucher also contends the Judge gave undue weight to the fact Mr Modise and the victim were in a relationship.

[7]    The mere fact an offence provision has a modest maximum penalty does not assist in determining whether a conviction is appropriate. Rather—and as always— facts matter.

[8]    As to these, the nature of the relationship between Mr Modise and the victim did aggravate the seriousness of the offending. Conduct that may be offensive but relatively less serious in relation to a stranger can, in a domestic setting, assume a different complexion—and hence be more serious. Intimate relationships are based on trust. They can be both complex and fragile. Sometimes, one party is vulnerable to abuse by the other. Sadly, in this country, that other is typically female.

[9]    The Judge noted “power and control issues” were at play. Plainly that was so. So too the Judge’s observation this was “no way to treat someone who should have been able to look to [Mr Modise] for love and protection”.6 For the same reasons, absence of related physical violence is not determinative.

[10] Ms Croucher also contends the Judge gave excessive weight to victim impact and inadequate weight to remorse. The Judge’s remarks do not support this submission. The Judge noted Mr Modise had pleaded guilty “at the earliest opportunity” and “expressed remorse”.7 The only reference to victim impact is that reproduced at [1].

[11]   It  follows  the  Judge  did  nor  err  when  assessing  offence  seriousness.  Mr Modise telephoned the victim more than 40 times, and issued a tirade of abuse. The offending involved an element of harassment of an intimate partner, hence its moderate seriousness.

6      Police v Modise, above n 3, at [7].

7 At [5].

[12]   Which brings us to employment consequences. Ms Croucher submits the Judge erred when assessing consequences of conviction in relation to these. She contends there is an appreciable risk Mr Modise will lose his job at Wiri Prison, and even if he does not, conviction will impair Mr Modise’s career with Serco.

[13]   The Judge acknowledged Mr Modise has “a good job”,8 but was unpersuaded employment altered the calculus:9

I accept that a conviction may be a barrier to progression for you at your workplace. The question is whether you would lose your job if a conviction were entered. I have only your say-so that you could lose your job. When I explored the situation with counsel, I was not satisfied that there was a real or appreciable risk of job loss. Your employment contract provides that you must maintain a satisfactory criminal conviction check but that is different to stating that if you receive any criminal conviction you would lose your job. The police submit that employment consequences are part of everyday life for people who are convicted by the courts.

I have some concern that your job involves you in a position where you have a degree of power over those under your supervision. Had you not appraised your employer of the situation, I would nevertheless have thought it was proper that they were made aware of the details as well as the nature of your offending.

The issue is whether the consequence of a conviction would be out of all proportion to the offending. Given that I am not satisfied that there is a real and appreciable risk that you would lose your job, I cannot be satisfied that the consequences are out of all proportion to a conviction. I recognise how important your job is to you and that you have made significant progress in your life since this offending took place. But I am not persuaded that yours is an appropriate case to grant a discharge without conviction and I decline to do so.

[14]   Mr Modise’s employment is conditional on him “maintaining a satisfactory criminal conviction check”. Like the Judge, I consider this means Serco must consider “satisfactory” the result of any such check. The provision contemplates an evaluative assessment on Serco’s part if a conviction is disclosed; the mere fact of one is not a barrier to continued employment.

[15]   Mr Modise’s High Court affidavit supports this conclusion.10 Mr Modise says his supervisor “hoped” Judge Manuel would discharge him without conviction, but “if

8      Police v Modise, above n 3, at [8].

9      At [9]–[11].

10     Police opposed reception of this on well-known freshness grounds. I received the affidavit as it provided additional information, helpful to my task.

the conviction stays it will be up to the company what to do”. As will be apparent, Serco knows of Mr Modise’s offending. No recitation of authority is required for the proposition Courts are reluctant to usurp employment-related decisions in this context.

[16]   Beaver v Police is distinguishable.11 In that case, Venning J allowed a s 106 appeal on the basis conviction for a low-level (albeit domestic assault) risked consequences out of all proportion to the gravity of the offending. Mr Beaver wanted to join the Department of Corrections as a prison officer. Materially, the Judge found “conviction would be a bar” to that employment.12

[17]   Ironically, more on point is Modise v Police,13 a case cited by Venning J and involving Mr Modise—the instant appellant. In 2010, Mr Modise pleaded guilty to one charge of intimidation under s 21 of the Summary Offences Act 1981. Mr Modise threatened violence against his wife. It appears his instant victim is a later partner. Judge Lovell-Smith declined to discharge Mr Modise without conviction. Mr Modise then worked for the Department of Corrections as a prison officer. He appealed on this basis:

(d) Because of the privatisation of Mt Eden, Mr Modise has had to reapply for his job. A background check would be undertaken as part of that process. Mr Modise therefore submitted that there was a real and appreciable risk that he will miss out on a position within the new      Mt Eden structure if a conviction is entered against him.

[18]   Ellis J dismissed the appeal. The Judge considered it important the employment “code of conduct makes it clear that when such disclosure is made there remains a discretion as to what the consequences of a conviction will be”.14 The Judge was “confident” in exercising that “discretion (or any similar discretion that exists in terms of the new operators of Mt Eden) account will be taken” of the “minor nature of his offending and of the admirable steps taken by Mr Modise to address the causes of it”.

11     Beaver v Police [2014] NZHC 2746.

12 At [22].

13     Modise v Police HC Auckland CRI-2010-404-514, 21 March 2011.

14 At [20].

[19]   Her Honour’s confidence was not misplaced. In his affidavit, Mr Modise says he told Serco about the 2010 offending. Mr Modise says, “they appreciated my honesty”. Obviously, Mr Modise kept his job.

[20]   Mr Modise says when the criminal background check was completed, the 2010 conviction did not appear, and he would not have been hired if one had. Ms Croucher observes risk of termination is heightened given the public’s recent focus on Serco’s performance.

[21]    The first answer to this submission is that above; the fact of conviction is not necessarily fatal to Mr Modise’s employment. The second is that Serco knows of this offending, and it would seem, that committed in 2010. So, this is a case in which an employer knows about an employee’s criminal conduct quite apart from the existence of a conviction. The third is that should the worst come to pass, this would not be out of all proportion to the gravity of the offence. Mr Modise’s offending was, as observed, moderately serious. This conclusion is buttressed by Mr Modise’s earlier (2010) offence, which tends to suggest that in 2017 is not wholly of character, at least when Mr Modise is in an intimate relationship.

[22]   This leaves career progression. Because of the offending, Mr Modise withdrew his application for a supervisory role within Serco. Mr Modise says his supervisor encouraged him to do so on the basis “you need to be a role model” in such a position. Ms Croucher contends the Judge did not address consequences of a conviction in this context.

[23]   No error arises here either. Absence of a conviction says little about whether Mr Modise should be promoted or considered  a  role  model;  the  point  remains  Mr Modise committed the underlying conduct. Ms Croucher’s argument reduces to the proposition Serco should approach matters differently if Mr Modise’s record discloses no conviction. But as observed, Serco knows what Mr Modise did in 2017— and in 2010. Given the nature of its services, it could hardly be wrong for Serco to consider Mr Modise’s offending as a factor bearing on his suitability for a supervisory role, irrespective of the state of his formal criminal record.

[24]   Mr Modise’s real concern may be that his 2010 conviction will become a matter of record unless this conviction is discharged, in turn compounding potential employment consequences. To elaborate, in his District Court affidavit, Mr Modise suggested the 2010 conviction did not appear on his record because of the Criminal Records (Clean Slate) Act 2004, but if the 2017 conviction stands, s 8 of the Act would make that conviction visible. The point was mentioned in argument only briefly.

[25]   While s 8 of Criminal Records (Clean Slate) Act has the effect identified by Mr Modise, that enactment is expressly exempted in relation to applications for employment as a “prison officer”, and this position is ultimately defined to include like officials (as employees) of a “contract prison”.15 The evidence does not disclose whether a reintegration officer is simply the name for a private contractor who, if employed by the Department of Corrections, would be a prison officer.

[26]   In any event, and as observed, Mr Modise’s employment contract calls for an evaluative assessment by Serco in relation to any conviction; the mere fact of one (or more) is not an insuperable barrier to continued employment. Equally, Serco may consider Mr Modise’s acceptance of responsibility and remorse mean he has the capacity to become a more effective reintegration officer, by, for example, drawing on his own experience of the criminal justice system when dealing with offenders. Again, if Mr Modise loses his job, this would not be out of all proportion to the gravity of the offence, particularly given his earlier infraction.

[27]   Finally, the Criminal Records (Clean Slate) Act contemplates later criminality as vitiating, at least temporarily, an individual’s otherwise clean slate. There are obvious reasons for this. Consequently, Courts must be careful not to cut across that Act when considering applications for a discharge without conviction. Put more directly, apparent patterns of criminal behaviour should not be concealed under the banner of gross disproportionality.

15 See Criminal Records (Clean Slate) Act 2004, s 19(3)(d)(iii). Under s 4 of the Criminal Records (Clean Slate) Act, “prison officer” means a person who is an officer as defined in s 3(1) of the Corrections Act 2004. Section 3(1) defines officer to include those appointed or engaged under  s 11 to provide custodial services in respect of a prison. Section 11(2) concerns employees of contract prisons.

Anonymisation of the judgment?

[28]   At the hearing, I asked counsel if the judgment should be anonymised because of the potential engagement of the Criminal Records (Clean Slate) Act. Ms Croucher ventured it should. On reflection, I consider not. If the Act does not apply, no issue arises. If it does, the enactment does not provide for suppression of name in this context,16 and because of s 8, the 2017 offending will render the 2010 conviction visible anyway. Ellis J’s judgment remains a matter of public record. And, there is a strong public interest in open reporting.

Result

[29]The appeal is dismissed.

……………………………..

Downs J

16     See s 13 of that Act.