Morgan v Police

[2022] NZHC 2999

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2022-483-20

[2022] NZHC 2999

BETWEEN

BRITTANY NATALIE ROSLYN MORGAN
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	2 November 2022
Appearances:	E Copeland for Appellant J C H Liu for Respondent
Judgment:	16 November 2022

JUDGMENT OF McQUEEN J

[1]                 The appellant pleaded guilty to one charge of failing to carry out obligations in relation to a computer system search.1 She applied for a discharge without conviction. This was declined by the sentencing Judge and the appellant was instead convicted and discharged without further penalty.2 This decision is now appealed against.

Background

Offending

[2]                 On 15 June 2022 a search warrant was executed at the appellant’s residential address. This authorised the Police to search for and seize evidential material, including mobile cellular devices. The appellant’s mobile phone was seized as an exhibit. The appellant was asked to provide her PIN number, which she refused to

1      Search and Surveillance Act 2012, s 178; maximum penalty three months’ imprisonment.

2      Police v Morgan [2022] NZDC 17991.

MORGAN v NEW ZEALAND POLICE [2022] NZHC 2999 [16 November 2022]

provide as she said it was a “huge invasion of [her] privacy”. During the search, two iPads belonging to the appellant’s children were also seized, to which she did provide the PIN numbers.

Application for a discharge without conviction

[3]                 The appellant pleaded guilty to the charge on 28 June 2022 and applied to be discharged without conviction. The appellant filed an affidavit in support of her application. She explained that she works as a Business Development Manager for a real estate company.3 As a result of this role, she has private information belonging to her clients on her phone and she has been trained to protect that information on behalf of her clients. She said that when she refused to give the Police the PIN number to her mobile phone she was not aware that this was a criminal offence. She says she is now embarrassed to be appearing before the Court.

[4]                 The appellant reported her concerns as to the harm the conviction may have to her career and her life options. She attached a letter provided from her manager at the company that indicated she is a valued member of the team and a person of good standing but that a conviction may affect her position.

[5]                 The appellant noted that she would like to attend school camps and be involved in charitable organisations, school boards and committees as well as to travel in the future. She said a conviction may impede her ability to do these things.

Legal principles — discharge without conviction

[6]                 If a person pleads guilty to an offence, the Court may, instead of imposing a sentence, direct that the offender be discharged.4 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…