Morgan v Police
[2022] NZHC 2999
•16 November 2022
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
AppellantAND
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 proportion to the gravity of the offence.5
3 She explains that in this role she is required to grow the business in the property management and rental market sector. The job involves marketing, vetting tenants and on occasion going to the Tenancy Tribunal.
4 Sentencing Act 2002, s 106(1).
5 Section 107.
[7] In Z (CA447/2012) v R, the Court of Appeal set out a three-stage test to be applied by the courts when considering applications for a discharge without conviction:6
That is: when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).
(Footnote omitted)
District Court decision
[8] In assessing the appellant’s application, the District Court Judge first assessed the gravity of the offending. He observed that:7
[19] [The appellant] submits that as a result of this background information, the gravity of the offending should be assessed properly at a low- level. I consider that the maintenance of law, the compliance with lawful directions, particularly directives that have been audited by an independent process is important and refusal to comply is relatively significant. However, here there has been partial compliance because of course the police do have her cellphone and that in my view lessens the gravity and the gravity is lessened by her personal circumstances.
[9] The Judge was not satisfied that there was any evidence of adverse consequences for the appellant. The Judge referred to an email provided from the appellant’s manager, attached to the appellant’s affidavit, as indicating that her job may be compromised by the conviction. The letter reads:
I have had the pleasure of working closely with [the appellant] over the last few years. She is a valued member of our Property Management team, in her role as Business Development Manager, and an integral part of our team.
Due to the nature of the job, we do conduct police checks on our staff, and a conviction may affect her position within our team.
6 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27], citing A (CA747/2010) v R
[2011] NZCA 328; and Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.
7 Police v Morgan, above n 2.
It is my sincere hope that the court takes this letter into consideration. Despite the current case, I still believe [the appellant] to be an honorable [sic] individual, a valuable member of my team, and a person of good standing.
[10] The Judge considered this letter was “nebulous and at the best equivocal”.8 The Judge noted that on one hand the manager identifies that the conviction could affect the appellant’s employment but then goes on to praise the appellant as honourable, valued and of good standing. He observed that “[t]hese are not the words of someone identifying that a position is in jeopardy”.9 He further noted that the courts have consistently identified that it is not for the court to interfere in an appropriate employment process.10 Regarding the other consequences advanced by the appellant, the Judge went on to say that:
(a)the charge does not engage any issues of child safety and there was no evidence that a conviction would result in an inability to engage in any school or extracurricular activity;11 and
(b)no evidence was put before the Court as to the impact of the conviction on her international travel.12
[11]The Judge concluded:13
I am not satisfied that there is really any material that positively identifies the consequence that will result in any of the events claimed occurring. What is identified is possibility and nothing more. What is clear is that there is embarrassment but embarrassment is not sufficient to get over the threshold.
[12] Ultimately the Judge considered he was not satisfied that “any consequence of substance is established that leads to a finding that such consequence is out of all proportion to the gravity of the offending”.14
8 At [22].
9 At [22].
10 At [22].
11 At [23].
12 At [24].
13 At [25].
14 At [26].
Approach on appeal
[13] An appeal against a refusal to grant a discharge without conviction is an appeal against both conviction and sentence. The Court of Appeal has confirmed that the threshold test in s 107 is not a matter of discretion, but rather a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles.15 Accordingly the appeal is conducted by way of rehearing, with the appellate court making its own assessment as to whether the s 107 threshold has been met. In Jackson v R, the Court of Appeal observed that:16
… the principled basis for determining an appeal against a discharge without conviction is to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing judge in entering a conviction. That is because a trial includes a proceeding in which the appellant has pleaded guilty. Alternatively, it can be said that a miscarriage of justice has occurred “for any reason” if the Judge has erred in applying the principles for discharging an offender without conviction found in s 107 of the Sentencing Act.
Submissions
[14] The appellant submits that the offending was of the “lowest level”. She accepts that there is a need to maintain the rule of law but submits her actions did not amount to perverting justice.
[15] The appellant then submits that the consequences of the conviction are high, out of all proportion to the gravity of the offending. She refers to:
(a)the immediate and future impact on her employment if a conviction was recorded;
(b)the potential impact of a conviction on her ability to engage in community and charitable organisations;
(c)the potential impact on her ability to attend school camps with her children due to police vetting requirements; and
15 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].
16 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]–[9].
(d)the risk of certain countries preventing her entry due to border security requirements.
[16] Counsel for the appellant, Mr Copeland, submits that to lose her clean record and good character is a serious outcome that is causing the appellant considerable anxiety. He submits that the conviction will have both immediate direct impacts and indirect impacts in the future that are necessarily more speculative.
[17] The Police emphasise the importance of complying with the obligations under the Search and Surveillance Act 2012. The Police say that failing to comply with those obligations disturb the process of administration of justice, potentially disrupting time crucial police investigations, and must be deplored. The Police consider the gravity of the offending to be of a low to moderate nature and not to be discounted as the appellant submits.
[18] Regarding the consequences of the conviction, the Police submit that there is no evidence to satisfy the Court that the appellant’s conviction will have any real and appreciable consequence that is out of all proportion to the gravity of the offence. While acknowledging there is no legal onus on the appellant to put forward information providing a factual basis on which the s 107 test is to be satisfied, the Police refer to the Court of Appeal guidance that it is ordinarily the case that such information is necessary.17 The Police refer to the appellant’s affidavit that she remains employed and is held in high regard by her employer. The Police also say that there is no evidence that the conviction will have any effect on her ability to undertake school activities with her children.
[19] The Police submit that without further evidence in this case, the Court could not be satisfied that the requirements and standard of proof in s 107 is met.
17 R v Taulapapa [2018] NZCA 414 at [23].
Discussion
Gravity of offending
[20] While not providing a specific conclusion in his judgment on the point, it appears to me that the District Court Judge accepted that the offending is at a low level, following his reflection on the aggravating and mitigating factors relating to the offending and the appellant. This is further reflected by his decision not to grant any further sentence regarding the offending, beyond the conviction.18 I accept, as does the appellant, the general importance of complying with the obligations under the Search and Surveillance Act, but note the submissions for the appellant that:
(a)her explanation for not providing the PIN number was that she has been trained in her role to protect private information of clients, which she keeps on her phone;
(b)although accepting it was not a defence to the charge, she did not know that the Police could demand the PIN number as a legal requirement of her:
(c)while the PIN number was not provided, her phone was seized as an exhibit; and
(d)the appellant provided the PIN numbers to the two iPads seized.
[21] In addition, the appellant has a clean criminal record, made an early guilty plea and has expressed remorse. The Police cast doubt on her remorse as she was shown and advised of the search warrant before being requested to provide the PIN number and continued to refuse to comply despite being charged. There was a suggestion from counsel for the Police at the hearing before me that the PIN number has still not been supplied and the phone not searched. Counsel for the appellant, however, submitted that the Police have the capability to access a phone without a PIN number being provided. I note that the District Court Judge was reluctant to consider the propriety of whether or not the PIN number had been provided at the time of his decision and preferred to leave the matter on the basis that a plea of guilty had been entered to the
18 As noted earlier, the maximum penalty for the offence is three months’ imprisonment.
charge as laid.19 I similarly take that view, in the absence of any evidence as to the position.
[22] I consider it likely that the refusal to provide the PIN number at the time of the search can be explained by the appellant’s concerns about protecting confidential client information. I note that in her affidavit the appellant apologises to the Police and the Court for wasting their time and confirms that “[she] will not appear before the Court again”. I am confident that the whole episode has been a salutary experience for her.
[23]I conclude then that the gravity of the offending is at a low level.
Consequences of conviction
[24] The real issue to my mind is whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending. Those consequences include all direct and indirect consequences where there is a “real and appreciable risk” they will occur.20
[25] It is not obvious to me that the offending to which the appellant has pleaded guilty is of the type that would prevent the appellant’s involvement with her children’s school or ability to engage in community activities, and there is no evidence to support the contrary view. Accordingly, I focus my assessment solely on the appellant’s employment situation and prospects.
[26] The Court of Appeal has confirmed that in the absence of evidence of specific consequences, a sentencing Judge is entitled to take into account the general consequences of conviction, including the general impacts that a conviction may have on employment.21 The Court of Appeal then goes on to cite a number of cases involving low level offending where the general consequences operating to the
19 Police v Morgan, above n 2, at [18].
20 DC (CA47/13) v R [2013] NZCA 255 at [43].
21 J v R [2021] NZCA 690 at [42].
appellant’s disadvantage have been found to be out of all proportion to the gravity of the offending. The Court cites Nash v Police, which notes:22
… there are general consequences that follow from a conviction. In a variety of ways (eg. employment, insurance, immigration) people are asked to disclose whether they have criminal convictions. For those that are remorseful there can be a loss of pride and self-esteem or at least embarrassment in having to answer that question honestly. It may also materially disadvantage [them]… it may count against [them] when …competing for a position against someone who does not have a conviction. …
[27] Another relevant case cited by the Court of Appeal is Taavili v Police.23 The appellant, 37, was a single mother of three and the breadwinner for her family. She was charged with common assault along with other family members, although this Court concluded her limited involvement meant the gravity of her offending was at the low end of the spectrum. She had been employed as an administrator and had been undertaking additional study to improve her future career prospects. The focus of the judgment was the impact of a conviction on future job prospects, given the appellant sought to apply for more senior administrative roles following the completion of her studies. However, the appellant also noted she was required to disclose any criminal convictions and undergo police checks in her current role. The High Court noted:24
A conviction of itself is a significant factor. Various Judges of this Court have previously held that the impact of convictions on job applications is a relevant factor even though such consequences may be “general consequences” likely to flow from a conviction rather than being related to an appellant’s particular circumstances.
…
I have no difficulty accepting that the appellant’s ability to secure more senior administrative positions is likely to be compromised by having a criminal conviction. There is a real and appreciable risk that [the appellant’s] future employment prospects could be negatively affected by her conviction. All other things being equal, persons without convictions are likely to be preferred over those who have a criminal record.
[28] The current appellant is a 29-year-old mother of two young children who works to support her family. While the appellant’s manager at work has expressed support for the appellant as a person of good standing and valuable member of the team, the
22 Nash v Police HC Wellington CRI-2009-485-000007, 22 May 2009 at [19].
23 Taavili v Police [2012] NZHC 2323.
24 At [30] and [32] (footnote omitted).
manager also observes that due to the nature of their work, police checks are conducted on staff and a conviction may affect the appellant’s position.
[29] As I have mentioned above, the Judge did not consider that the letter from her current manager identified that the appellant’s position was in jeopardy, given her manager had also indicated she was an upstanding individual. I consider that these two things can exist at once. The appellant is in the real estate industry. As she has explained, her role is one is public facing: it requires her to engage in the marketing of rental properties, vet tenants and grow the business of her real estate agency. Accordingly, public image may be important and there is a risk that if the community were privy to her conviction it may impact her ability to do her job. Accordingly, it is possible that despite being respected by her colleagues, she may be in jeopardy of losing that job. I consider the Judge was incorrect to disregard the statement by the appellant’s manager that the appellant’s job may be at risk.
[30] Further, I note the appellant is still relatively young. In her affidavit she expresses her desire to continue unhindered in her career. The appellant has explained that her current role and earlier roles have been ones that require handling private information and as a result have required police vetting. I consider that there is a real and appreciable risk that her future employment prospects could be negatively affected by her conviction. All other things being equal, persons without convictions may well be preferred over those who have a criminal record.
[31] The potential impact of a conviction on both her current job security and future job prospects reflects no more than the general consequences of a conviction and an employer’s right to know. However, I consider this to be a case similar to those cited by the Court of Appeal where these general consequences of a conviction are out of all proportion with the offending.
[32] I accept that the fact the appellant is held in high regard by her employer is relevant to the assessment of her current job prospects. In Basnyat v Police, a similar issue arose as in the current case.25 The appellant was a “capable young engineer
25 Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344.
working for a reputable infrastructure company” for which he was well regarded.26 The Court of Appeal declined to grant leave for a second appeal against the lower Courts’ decision to dismiss the appellant’s application for a discharge without conviction. The Court of Appeal considered that the appellant’s current job was not at risk. While observing that the risk of having a conviction was greater if and when the appellant sought employment elsewhere, the Court noted:27
All other things being equal, similar candidates without convictions are likely to be preferred to those with convictions. But that is a relatively narrow set of circumstances. We do not know how common it is for candidates to be separable only by their criminal record. On the other hand, if [the appellant] is as valued by his current employer as his supervisor suggests, any such handicap could well be overcome by the sort of work or character references one would expect in that circumstance. Thus the potential impact can only be speculation at this point, or at least insufficiently real and appreciable to justify a conclusion that the impact of a conviction would indeed be out of all proportion.
[33] There are two differences between this case and the current case that I consider material, and in my view, lead to a different outcome. First, there was no indication in Basnyat that the appellant’s current job was at risk in any way. The affidavit provided by his supervisor in support of his application indicated that it was “highly probable” that a conviction would impact his chances of a promotion to the “highest levels within the Company”, but it was not suggested he may lose his job.28 As I have explained above, the appellant losing her job is a live risk in the current appeal.
[34] Second, the offending in Basnyat was held to be at the “low end of moderately serious”.29 This is different than the gravity of offending involved in the current appeal which I have held can be correctly described as low. While the general consequences of a conviction may not have been out of all proportion in that case, the differential gravity assessment means that is not the case in the current appeal.
[35] Given my conclusions as to the severity of the offending, I consider this case to be one where the consequences of a conviction are out of all proportion with the
26 At [24].
27 At [27].
28 At [26]. The affidavit provided for Mr Basnyat is discussed in greater detail in the High Court decision: see Basnyat v Police [2018] NZHC 51.
29 At [22].
offending. I consider that there may be consequences for the appellant’s current and future employment as well as her future in a more general sense as contemplated in Nash v Police.30
Conclusion
[36] Overall, I conclude that the conviction is out of all proportion to the gravity of the offence and the District Court Judge erred in applying the principles of discharging an offender without conviction under s 107.
[37]The appellant is therefore discharged without conviction.
Result
[38] The Court allows the appeal and orders that the appellant be discharged without conviction.
McQueen J
Solicitors:
Crown Solicitor, Whanganui for Respondent
30 Nash v Police, above n 22.
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