Moyes v Police

[2018] NZHC 582

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000449 [2018] NZHC 582

BETWEEN

NICHOLAS MOYES

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

19 March 2018

Appearances:

P Dacre QC for the Appellant

R McCoubrey for the Respondent

Judgment:

29 March 2018

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 29 March 2018 at 11:30 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

P Dacre QC, Barrister, Auckland

Meredith Connell (Office of the Crown Solicitor), Auckland

MOYES v NEW ZEALAND POLICE [2018] NZHC 582 [29 March 2018]

Introduction

[1]    On 23 March 2017, Nicholas Elliot Moyes pleaded guilty to one charge of intentionally and without claim of right damaging his partner’s clothing by fire intending to cause loss to her under s 267(2)(b) of the Crimes Act 1961.

[2]    On 1 December 2017, Judge Burns refused an application for a discharge without conviction and instead convicted and discharged Mr Moyes. Mr Moyes now appeals on the basis that the Judge was wrong to refuse his application for a discharge without conviction.

Factual background

[3]    Mr Moyes separated from his wife in December 2016. In the early hours of 26 December 2016, he went to the former family home in Titirangi, Auckland. His wife and three children were not at home, but staying with her parents in Wellington.

[4]    While at the property, Mr Moyes took all his wife’s clothes, including socks, nightwear, swimsuits, shorts, underwear, jackets, designer dresses and her wedding dress from her wardrobe and drawers. Mr Moyes then set fire to his wife’s clothes on the driveway, causing them to be destroyed.

[5]    The next morning Mr Moyes was ashamed about what he had done. He took the ashes to an organic compost area on the property, then hosed and swept the driveway. Mr Moyes’ wife and children were, however, badly affected by what had happened. Mr Moyes paid $15,000 reparation to his wife. He also paid for counselling for his children. He now has joint custody of his children with his wife, although Family Court proceedings are still underway.

District Court decision

[6]    At the outset, Judge Burns noted that Mr Moyes had originally been charged under the Summary Offences Act 1981, but that the charge had subsequently been upgraded to one which carried a maximum penalty of seven years imprisonment. The Judge then noted the impact of the offending on Mr Moyes’ wife and children before turning to Mr Moyes’ application for a discharge without conviction. The Judge

recorded that he was required to undertake a three-stage inquiry. First, he had to determine the severity of the charge, then he had to identify the consequences, which had to be real and appreciable. Third, he had to then decide whether to exercise the discretion vested in the Court under ss 106 and 107 of the Sentencing Act 2002 as to whether the consequences of a conviction would be out of all proportion to the gravity of the offence.

[7]    The Judge then said that because the charge was a serious charge, the consequences of a conviction had to be significant to be out of all proportion. He noted that fire is something which can have unintended consequences, being very difficult to control and noted that people who engage in fire lighting often have things happen far beyond what was anticipated.

[8]    As to the consequences of a conviction, the Judge referred to concerns regarding visas and security clearances because of the nature of Mr Moyes’ occupation as an architect specialising in aviation infrastructure. The Judge noted that he had received evidence in the past in many cases setting out the impact of convictions on travel. The Judge acknowledged that there would be hurdles, but the consequences as set out by Mr Moyes in his affidavit were very general and were, with the greatest of respect, somewhat vague.

[9]    Having said that, the Judge acknowledged an affidavit from Ms Karen Price, the Chair of Mr Moyes’ firm, in which she said that a conviction for Mr Moyes would preclude him from retaining his Civil Aviation Authority (CAA) security clearance and effectively meant that he could no longer service Auckland International Airport Limited as its principal architect.

[10]   The Judge accepted that there would be consequences for Mr Moyes if a conviction was entered, but commented that at the end of the day that was the whole purpose of a conviction. In the end, the Judge accepted the summary of the consequences set out in the submissions of counsel for Mr Moyes, that there was a real and appreciable risk of consequences in terms of his travel, employment and other consequences to his employment prospects.

[11]   The Judge then considered the third question – whether the consequences as identified were out of all proportion to the gravity of the offence. This was an exercise of discretion and an exercise of judgment. The Judge noted there could be different views and had the charge been a less serious one, he could have seen a good argument that the consequences would have been out of all proportion, but the charge faced by Mr Moyes was one carrying a maximum of seven years imprisonment.

[12]   The Judge, therefore, did not accept that disproportionality had been established. The Judge concluded:1

This is a very human situation. It does not justify in any way what has happened, but I consider that the defendant has taken steps to address the harm that this offence caused as much as he could do. He has faced up and paid for reparation. The consequences that he will experience will put him to a lot of work and hassle in trying to get permission to travel and to have issues with respect to the company that he is involved in and a member of. I think the consequences of a conviction in this case are sufficient and I do not think that any further penalty other than the reparation which has been paid needs to be applied.

So, he will be convicted and discharged.

Discussion

[13]   Mr Moyes is a member of the Board of Directors of a national architecture firm. One of his key roles for the past four years has been to lead the design and development of key pieces of infrastructure for Auckland International Airport Limited, including areas subject to security clearance, such as the expansion of the retail shopping precinct in the departures area.

[14]   Mr Moyes requires access to all restricted parts of the airport as part of his role in its development. He currently has an airport security clearance in the form of an identity card issued by the Aviation Security Service (AVSEC), the authorised delegate of the Director of Civil Aviation. The terms under which Mr Moyes has been issued with an identity card require him to report any convictions. He has done so, but has advised AVSEC that an appeal has been lodged against conviction. No action has therefore been taken by AVSEC to withdraw the security clearance.

1      New Zealand Police v Moyes [2017] NZDC 28346 at [16]-[17].

[15]   Mr Moyes is fearful, however, that he will lose his identity card and access to restricted areas of the airport if the conviction was upheld. Mr Moyes says he requires similar security clearance to access other international airports, which he must visit as part of his role. These clearances are subject to IATA regulations which, he says, are increasingly restrictive as a result of international terrorism concerns.

[16]   The affidavit of Ms Price attaches a letter from the SkyGate Security Manager at Auckland Airport, which states that should there be an arson conviction, Auckland Airport would immediately withdraw any security access rights and the ability to work at the airport. Further, the reissue of a security pass would be highly unlikely. I note, however, that a conviction was entered against Mr Moyes on 1 December 2017, but his security access rights were not immediately withdrawn.

[17]   Ms Price also says that a conviction would thwart Mr Moyes’ ability to travel as part of the Auckland International Airport Limited delegation to the Passenger Terminal Conference and Expo held each year. These trips involve visiting multiple terminals. The delegation is issued with temporary local terminal passes on the basis of their AVSEC security clearances. She says that the reality for the architectural firm is that Mr Moyes cannot easily be substituted by another of their principals as he holds their most significant aviation knowledge and experience, as well as deep client relationships. Accordingly, she considers that any conviction risks losing this key client for the firm.

[18]   An updating affidavit from Mr Marko Den Breems, the Managing Principal of the architectural firm, records that Mr Moyes has not been able to attend the Passenger Terminal Conference and Expo in Copenhagen in March this year “due to Nicholas’ conviction and pending appeal”. He states that the firm is currently unwilling to send Mr Moyes on any work related travel because “the requirements and timing for pre- clearance is simply too onerous to make it practicable for us”.

[19]   Mr Den Breems also says that Mr Moyes’ position at the firm is under review. The firm has a code of conduct applicable to all staff and Mr Moyes’ declared conduct and conviction means that formal disciplinary procedures have been initiated, which have been deferred pending the outcome of the appeal. He also says that Mr Moyes’

conviction may also impact on the firm’s ability to tender for new work. From time to time, the firm is required to provide declarations within competitive bidding processes that require the firm to detail criminal convictions of key staff and directors. Mr De Breems says the firm is concerned that this will adversely affect their ability to win work.

[20]   With respect, I am of the view that the effect of a conviction on Mr Moyes’ ability to travel overseas is overstated. It seems to me the key concern for Mr Moyes is to retain his security clearance with AVSEC. AVSEC should not take the view that a conviction would automatically lead to revocation of Mr Moyes’ security clearance. A reasonable decision maker would consider all the circumstances, including reviewing the summary of facts, the Judge’s sentencing notes and any psychological reports provided. It is significant, in my view, that no penalty was imposed other than the conviction.

[21]   Furthermore, if AVSEC  proposes to make a decision adverse to Mr Moyes,   s 77G of the Civil Aviation Act 1990 sets out a procedure which must be followed, which gives Mr Moyes the opportunity to be heard.

[22]   The affidavit of Ms Price notes that Mr Moyes is frequently expected to undertake international research trips and cites recent examples of travelling with commercial clients to Sydney, Melbourne and Adelaide, as well as Fiji. She says that often these trips do not occur with sufficient timeframes to allow application for waivers to be obtained for travelling with a conviction.

[23]   Publicly available information discloses, however, that New Zealand citizens are eligible for a special category visa, which is granted on arrival in Australia. To obtain this visa on arrival in Australia you must:

(a)Be a New Zealand citizen.

(b)Present a New Zealand passport that is in force.

(c)Not be a “behaviour concern non-citizen”.

(d)Present a completed in-coming passenger card.

(e)Meet specific health and character requirements.

[24]   If a person is assessed as a “behaviour concern non-citizen” he or she is not entitled to a special category visa and might be refused entry into Australia. Circumstances where a person will be assessed as a “behaviour concern non-citizen” include, but are not limited to, where the person has been:

(a)Convicted of one or more crimes that have resulted in sentences of imprisonment that add up to at least one year.

(b)Previously removed from Australia.

(c)Previously removed or deported from another country.

[25]   Mr Moyes does not appear to meet the definition of a “behaviour concern non- citizen”. If he wanted to be certain of his status he could seek written confirmation from the Department of Immigration and Border Protection now in anticipation of further business trips to Australia in the future. Then waivers would not be required on a case by case basis. There are many New Zealanders who travel to Australia frequently with convictions of one sort or another.

[26]   As to formal disciplinary procedures initiated against Mr Moyes by his firm, Mr Den Breems refers to Mr Moyes’ declared conduct and conviction as being the trigger for the procedures. As with the investigation by AVSEC, the firm’s disciplinary procedures should consider the conviction as only one factor among many relevant factors. Because a conviction can arise from a multitude of different circumstances, it is important to focus on the facts of the case – the “declared conduct” of Mr Moyes. An important aspect of any investigation would  also be any remorse shown by     Mr Moyes and efforts made by him to make good.

[27]   Standing back, however, and looking at the matter overall, it seems to me, with respect, that the Judge fell into error when he focused on the nature of the particular

offence with which Mr Moyes had been charged, rather than what he actually did. The Judge stated:2

Had the charge been a less serious one, I could have seen a good argument that the consequences would have been out of all proportion…

[28]He repeated that focus when he stated:3

I may well have exercised that [discretion if] the charge remain[ed] under the Summary Offences Act 1981 or a lesser charge but it is in the serious category and therefore, the proportionality test cannot be established in this particular case.

[29]   Mr Moyes was originally charged with intentionally damaging property, being his wife’s clothing, under s 11(1)(a) of the Summary Offices Act. Subsection (3) provides that the fact that the person charged had an interest in the property at the material time does not prevent his act constituting an offence against the section if he did it with intent to cause loss to any other person. This was later upgraded to intentionally and without claim of right damaging by fire his wife’s clothing intending to cause her loss under s 267(2)(b) of the Crimes Act. It seems to me that Mr Moyes could have been convicted under either section. The gravity of the offence should have been assessed properly by what Mr Moyes actually did, rather than the section under which he was charged.

[30]   Here, Mr Moyes took his wife’s clothing from the family home and placed them in the middle of the concrete driveway, away from any vegetation. From the photographs it appears the fire was confined to an area of approximately two metres by two metres. There is no damage to the driveway, apart from soot marks, and the vegetation either side of the driveway is also undamaged. Mr Moyes lit the fire on his own property, while his wife and children were in Wellington. There was no, or minimal, danger to life or property. Mr Moyes cleared it up afterwards and washed and hosed down the driveway.   Those are the facts, regardless of which section     Mr Moyes was charged under. The Judge also referred to it as a very human situation. This was obviously a reference to the affidavit of Mr Moyes in which he says that he

2 At [14].

3 At [15].

had just discovered that his wife had been having an affair with the Legal Director of a large multi-national company based in France, despite her denials.

[31]   Although I am of the view that the effects of a conviction on Mr Moyes’ ability to travel overseas are overstated, I do accept that the consequences of a conviction for Mr Moyes  are  still  relatively  serious  and  wide-ranging.  These  all  stem  from  Mr Moyes’ position as an architect specialising in airport infrastructure. A conviction may result in Mr Moyes being unable to accompany clients overseas when visiting airports on business. A conviction may also effect the firm’s ability to tender for and win aviation infrastructure work abroad. While I accept the general proposition that criminal conduct should not be kept secret from relevant security or immigration authorities, AVSEC is well aware of Mr Moyes’ criminal conduct and will make a determination in due course on his continued security clearance in New Zealand. If he does retain his security clearance it would be unduly onerous to go through a similar process whenever he was involved in any work abroad. The gravity of Mr Moyes’ offending does not warrant that.

[32]   I am, therefore, of the view that the Judge was wrong not to grant Mr Moyes a discharge without conviction, primarily because of the section under which he was charged. The appeal is allowed. Mr Moyes’ conviction is quashed and he is discharged without conviction. I note that Mr Moyes has made good through the payment of reparation to his wife and counselling for his children.

Woolford J