O v Police HC Christchurch CRI 2008 409 173

[2008] NZHC 1989

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008 409 173

O 

Appellant

v

POLICE

Respondent

Hearing:         11 December 2008

Appearances: P J Doody for Appellant

M Zintl for Respondent

Judgment:      11 December 2008

ORAL JUDGMENT OF CHISHOLM J

[1]      On 26 August 2008 the appellant pleaded guilty to a charge of theft and was fined $450.  Although the decision records that there was also an order for reparation of $844 in fact no such order was made.  The appellant’s application for discharge without conviction under s106 of the Sentencing Act 2002 failed and this is an appeal against that decision.

[2]      The circumstances relating to the offending were these.  When the appellant and two associates booked into a backpackers' hostel in Hamner Springs they were assigned a dormitory room to be shared with two German tourists.  While the tourists

were absent the appellant and his two associates returned to the dormitory and the

O V POLICE HC CHCH CRI 2008 409 173  11 December 2008

associates looked through the tourists backpacks and stole some of their property which was then placed in the appellant’s vehicle.  He then drove the vehicle back to Christchurch where his associates left the vehicle, taking the property with them. Although  the  police  summary  indicates  that  the  stolen  property  was  valued  at

$2,530, there were issues about this and ultimately there was to be  a defended hearing about reparation.  However, for one reason or other that did not eventuate.

[3]      According to the appellant he did not take an active part in the stealing of the goods.   He did not interfere with what they were doing and took them back to Christchurch because he was unable to stand up to them.  It is not disputed that he was a secondary party.  Indeed, he was charged as a party.

[4]      At  the  age  of  22  he  has  no  previous  convictions.    In  response  to  the application  for  discharge  the  Judge  commented  that  the  appellant  had  actively assisted his associates by driving them home in his car.  He condensed Mr Doody’s submissions down to the proposition that the appellant wanted to be discharged without conviction because he was a first offender, a conviction might reduce his prospects of employment, that he was prepared to pay reparation, and he was remorseful.   The Judge reminded himself that he must not discharge without conviction unless satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.  He observed that thefts of this nature not only affected the persons affected by the criminal behaviour, but also the reputation of the country “as a safe place to visit”.  He did not think that the “conjectural prospect” of lack of employment resulting from the conviction came anywhere near the criteria of being out of all proportion to the gravity of the offence. In his view this was a serious offence.  The application for discharge was rejected accordingly.

[5]      For the appellant Mr Doody has advanced extremely comprehensive and well considered submissions.  His arguments can be summarised:  undue emphasis was placed by the Judge on the effect of the theft rather than the appellant’s culpability; insufficient weight was given to the appellant’s health problems and to the impact of a conviction on his employment prospects;  insufficient weight had also been given to his willingness to give evidence (Mr Doody noted that there was no express

reference to this matter);  the sympathetic attitude of the prosecuting officer to the possibility of diversion had not received sufficient weight;  in this regard Harvey and Allen v Police (High Court, Christchurch Registry, CRI 2007-409-000235 and CRI

2007-409-000236, 13 February 2008) was relevant;  finally, as a result of subsequent events the conviction of the appellant was unfair.  In this regard Mr Doody explained that the charge against one of the co-accused had been ultimately withdrawn by the police and the other co-accused had pleaded guilty to receiving and had received a sentence of 80 hours community work and reparation despite the fact that, unlike the appellant, he had a previous history.

[6]      As  Mr  Zintl  emphasised,  a  discharge  without  conviction  is  to  be  used sparingly and something exceptional is required:   Delaney v Police (High Court, Wellington Registry, CRI 2005-485-22, 22 April 2005).

[7]      The issue is whether the Judge erred in the exercise of his discretion by declining  to  discharge  the  appellant.    The  Judge’s  view  that  this  was  serious offending was unexceptional for the reasons that he gave.   Although Mr Doody argued  that  the  Judge  had  given  insufficient  weight  to  the  culpability  of  the appellant, it is clear from the Judge’s sentencing remarks that he was well aware of the secondary role played by the appellant.

[8]      While there is no reference to the diversion process in the Judge’s sentencing remarks, it needs to be kept in mind that diversion was not available on this occasion because of the police perception of the seriousness of the offending.   Under those circumstances the “second chance” philosophy referred to by Fogarty J in Harvey and Allen v Police will not necessarily arise.

[9]      It is true, of course, that the appellant has had an unfortunate health history and that this will impact on his employment opportunities.   But the issue of employment prospects was clearly considered by the Judge and he took the view that inability to obtain employment was conjectural.  On the information before the Judge that view was open to him.

[10]     So on the information before the Judge I do not think that it could be said that the Judge materially erred in the exercise of his discretion.

[11]     The remaining issue is whether the dropping of charges against one of the appellant’s co-offenders is capable of altering the situation.   Despite Mr Doody’s efforts to persuade me to the contrary, I am afraid that I cannot accept that this was so.  The appellant had pleaded guilty to the offence and while it is not difficult to understand the appellant’s distress that a person who seems to have been primarily culpable  has  escaped  punishment,  that  cannot  alter  the  fact  that  the  offending occurred and the appellant admitted his part.

[12]     The appeal is dismissed.

Solicitors:         P J Doody, Christchurch

Crown Solicitor, Christchurch