O'Connor v Police
[2015] NZHC 111
•10 February 2015
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2014-425-44 [2015] NZHC 111
BETWEEN SHANNON SANDRA O'CONNOR
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 3 February 2015 Appearances:
K Barker for Appellant
J N P Young for RespondentJudgment:
10 February 2015
JUDGMENT OF CLIFFORD J
Introduction
[1] In December 2013 the appellant, Sandra O’Connor, was charged with theft by a person in a special relationship.1 She pleaded guilty, and applied for a discharge without conviction under s 106 of the Sentencing Act 2002. This application was denied by Judge Turner in the Invercargill District Court on 22 October 2014.2
Ms O’Connor now appeals that decision.
Facts
[2] In6 January 2013 Ms O’Connor was employed by the Tuatara Backpackers and Café (Tuatara) in Invercargill as a duty manager. Two of her responsibilities were to balance the till and secure the cash at the end of each day. In December
2013 Tuatara’s management became suspicious of both the low daily takings
(considering they were in peak season) and of Ms O’Connor’s unusual behaviour
1 Section 220, Crimes Act 1961, carrying a maximum sentence of seven years’ imprisonment as
per s 223(a), Crimes Act 1961.
2 Police v O’Connor DC Invercargill CRI-2014-025-000590, 22 October 2014.
O'CONNOR v POLICE [2015] NZHC 111 [10 February 2015]
around handling cash. On 22 December 2013 Tuatara’s management installed a covert camera near the office, an area not usually under surveillance. Later that day, Ms O’Connor was recorded by this camera taking an unknown quantity of cash from the daily takings before placing the rest with the money to be banked. Ms O’Connor was spoken to and her employment with Tuatara terminated. That evening, Ms O’Connor went to the police station to admit her offending. She acknowledged stealing cash on seven occasions over a period of two months.
[3] Ms O’Connor stated to the police she had taken around $300. The victim, Ms Crimp of Tuatara, estimated she had lost around $900 in the two weeks leading up to the camera installation. However, only $300 was sought in reparation (as outlined in the agreed summary of facts).
[4] Ms O’Connor, who has a Bachelor of Arts degree in psychology, was employed in early 2014 by Intervention Services for Autism and Development Delay (ISADD), a Melbourne-based organisation which accredits persons to provide services to people suffering from autism and developmental delay. Ms O’Connor was employed as a therapist for a two-year-old autistic child. Around the same time, Ms O’Connor also obtained part-time work at the Paddington Arms, an Invercargill gastro pub operated by a family for whom Ms O’Connor had worked in another hospitality business some five years previously.
[5] Ms O’Connor applied for a discharge without conviction on the basis that:
(a) whilst acknowledging that theft as a servant was an inherently serious charge, her offending was at the lower end of the scale for that particular offence;
(b)discharges without conviction had been granted for this type of offending in the past: Ms O’Connor referred to the decision of MacKenzie J in Tuisila v Police;3
(c) she had acknowledged her offending, entered an early guilty plea and was clearly remorseful;
(d) she was otherwise of good character; and
(e) a conviction would have the result in her losing her employment as a therapist with ISADD, and would preclude her from obtaining other employment as a counsellor or therapist in the future.
[6] Ms O’Connor submitted that those consequences were out of all proportion to the gravity of her offending. At the same time she accepted that another consequence, namely that she would lose her hospitality industry General Manager’s Certificate – and with that, her ability to work as a Duty Manager of licensed premises – was an appropriate consequence.
The challenged decision
[7] The Judge considered Ms O’Connor’s application for a discharge without conviction on the basis of the three-stage analysis approved by the Court of Appeal in Z v R.4
[8] First, in terms of the gravity of Ms O’Connor’s offending, the Judge noted that the charge itself was serious, and carried a maximum sentence of seven years’ imprisonment. Ms O’Connor had been a trusted employee. Moreover, her offending was premeditated and calculated, and had occurred on seven occasions over a period of two months.
[9] In terms of mitigating factors, Ms O’Connor was 24 and had no previous
convictions.
[10] The Judge concluded that while theft by a person in a special relationship is always serious, this offending was not the most serious of its kind.
[11] In terms of the consequences of conviction, Ms O’Connor had submitted she would lose her contract with ISADD if she were convicted. Two representatives of ISADD provided affidavits in which they said that the consequence of a conviction for theft would be the automatic termination of Ms O’Connor’s contract. The Judge found ISADD’s evidence to be contradictory as to whether that consequence did follow automatically. Nonetheless, he proceeded on the basis that Ms O’Connor would have problems with her contractual relationship with ISADD, and potential future difficulty registering as a psychologist, if convicted.
[12] The Judge then considered whether the consequences were out of all proportion to the gravity of the offending. First, he emphasised that the offending was not an isolated incident. Second, he was not impressed by Ms O’Connor having explained her offending on the basis that she intended to put money back into the takings. He said she had had an opportunity to do so for some time but had not. The Judge did acknowledge, however, that Ms O’Connor had $300 available to pay reparation. The Judge was also unimpressed by what he described to be Ms O’Connor’s lack of frankness in disclosing the circumstances of her offending when seeking support from her then-employers for her discharge application. She had simply not told the owners of the Paddington Arms the truth, and it was not clear she had been full and frank with ISADD either. She had minimised her offending and the amount stolen, and tried to shift responsibility toTuatara for asking her to work late at night.
[13] The Judge placed particular importance on the need for potential future employers and clients to know about Ms O’Connor’s offending, in order to make an informed decision as to whether to work with her. With regard to her future as a psychologist, the Judge stated that it should be for the Psychologists Board to regulate its own membership and decide whether Ms O’Connor is a proper person for registration.
[14] Balancing the relevant considerations, the Judge concluded that the consequences of Ms O’Connor’s conviction were not out of all proportion to the gravity of her offending, and accordingly declined to discharge her without conviction.
Appeal
[15] By consent, Ms O’Connor filed an affidavit to update matters as regards the
actual and possible consequences of her conviction.
[16] Ms O’Connor has not, in fact, lost her employment with ISADD. She continues to be employed by ISADD, and to work as a therapist with the child with whom she was working at the time of her sentencing. The parents of that child have been told about her offending, and they have supported her continuing to work with their daughter.
[17] Ms O’Connor remains concerned about the consequences of her conviction because a conviction could prevent her attending schools or kindergartens as an ISADD therapist, based on ISADD’s standard policy and the Ministry of Education’s requirement for police vetting for those who work in educational facilities. In her affidavit, Ms O’Connor confirmed that a consequence of her conviction was that her hospital industry General Manager’s certificate had lapsed and that she was therefore unable to work as Duty Manager at the Paddington Arms. Moreover, she explained she had not told the child’s family of her conviction prior to her appearance for sentencing because it was for ISADD, who had the client relationship with the family, to do so. As noted above, ISADD have now advised the family and, her conviction notwithstanding, they supported Ms O’Connor’s continued counselling of their child.
[18] Whilst acknowledging that the consequences of Ms O’Connor’s conviction had not been as serious as may have been submitted at the time of her sentencing, Ms Barker maintained the contention that the Judge had erred in his decision, and that Ms O’Connor should be discharged without conviction. She emphasised the similarities of Ms O’Connor’s position to that of the appellant in Tuisila, a case also involving a charge of theft as a servant where MacKenzie J on appeal granted a discharge without conviction. Ms Barker emphasised the difficulties Ms O’Connor could face in terms of the possible restrictions in working in schools and kindergartens. She said that the Judge had failed to take account of Ms O’Connor’s early guilty plea and prior good character, and would appear to have double-counted
the aggravating significance of the breach of trust inherent to the charge. She said that the Judge had been wrong to suggest that Ms O’Connor had not been upfront about her offending. Ms Baker emphasised, as MacKenzie J had observed in Tuisila, that if potential employees and clients were aware only of the fact of Ms O’Connor’s charge and conviction, they might not appreciate all the circumstances and in effect overreact to it.
[19] For the Crown, the submission was that the Judge had properly and carefully applied the relevant test. Ms O’Connor had generally minimised her offending. The consequences were not as serious as had been suggested at the time of her sentencing and in terms of possible future consequences, events to date showed that policies which addressed consequences of conviction could, in fact, be applied flexibly.
Analysis
[20] I accept the Judge’s categorisation of Ms O’Connor’s offending as not being of the most serious kind of theft by a servant. Nevertheless, and whilst the amount involved is relatively modest, the offending occurred over a period of two months on seven separate occasions. I do not think the Judge “double-counted” the element of breach of trust. What he acknowledged was that theft by a servant is serious because it involves a breach of trust and that, moreover, aware of Ms O’Connor’s financial circumstances, her employer had trusted her and endeavoured to help her.
[21] Like the Judge, I do not think Ms O’Connor was completely frank about her offending. Ms O’Connor obtained a letter of support, dated 10 April 2014, from the operators of the Paddington Arms. Following police investigation it subsequently became clear that, in seeking that letter of support, Ms O’Connor had not fully disclosed the facts relating to her offending. Rather, she had told those employers that she had only taken money out of the till on one occasion to get a taxi home, that she had left a note in the till, that she intended to pay it back the next day and that she thought it was alright to do so because other people had done it. That explanation was not correct. I regard this of some significance, given that the very reason Ms O’Connor spoke to her then-current employers was to obtain their support
for her in court. That, in those circumstances, she misled them, to put it mildly, is of some significance in terms of an assessment of the gravity of her offending.
[22] Further, it is not correct to say that the Judge did not acknowledge Ms O’Connor’s guilty plea, or the fact that she had no previous convictions. The Judge acknowledged the guilty plea in his opening remarks, and referred to Ms O’Connor’s lack of previous convictions when assessing the gravity of her offending.5 That the Judge did not refer to those matters again explicitly when he carried out the stage three balancing exercise does not, in my view, mean that he was not mindful of them.
[23] The consequences of Ms O’Connor’s conviction have not, in fact, been those she feared when sentenced. Moreover, the fact that, when matters have been explained to them, Ms O’Connor has retained the trust of the parents of her young patient, and the agreement of her employer to continue with her work, shows that in the future they need not be as she had originally feared. Nor is it inevitable that, in the future and if convicted, potential employers and clients would only know of the fact of Ms O’Connor’s conviction and not of all the relevant circumstances. It is within Ms O’Connor’s control, and that of ISADD her employer, to bring these matters to the attention of relevant people prior to a new counselling arrangement being entered into. Given the nature of the relationship Ms O’Connor is required to have with patients, I think that is the appropriate thing to happen. Like the Judge, I would be concerned if – as a result of Ms O’Connor being discharged without conviction – that information was not provided to potential employers and clients.
[24] Accordingly, I agree with the Judge’s assessment that the consequences of this conviction are not out of all proportion to the gravity of the offending involved. I decline Ms O’Connor’s appeal.
“Clifford J”
5 Police v O’Connor, above n 2, at [7].
Solicitors:
Eagles Eagles & Redpath, Invercargill for appellant.
Crown Solicitor, Invercargill for respondent.
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