Pieneman v The Queen - [2019] NZCA 613

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA752/2018
[2019] NZCA 613

BETWEEN	ANNIKE RENEE PIENEMAN Appellant
AND	THE QUEEN Respondent

Hearing:	21 November 2019
Court:	Gilbert, Dobson and Whata JJ
Counsel:	S Brickell for Appellant E J Hoskin for Respondent
Judgment:	4 December 2019 at 10 am

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

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REASONS OF THE COURT

(Given by Dobson J)

On 14 November 2018, the appellant (Ms Pieneman) was convicted in the District Court at Auckland on one charge of theft. She was sentenced to six months’ supervision, 80 hours’ community work and ordered to pay reparation in the sum of $1,360, which was the amount established as having been taken from her employer.[1]
[1]Police v Pieneman [2018] NZDC 25889.
Ms Pieneman had sought a discharge without conviction and has appealed against her conviction on the basis that the sentencing Judge erred in not granting her a discharge without conviction. In the alternative, if the conviction remains, then she seeks to argue that the sentence was manifestly excessive because entry of the conviction alone carries sufficient adverse consequences to be the appropriate outcome. While there is no complaint about the orders for reparation and supervision, it is submitted that there should not have been any order requiring Ms Pieneman to undertake community work.

The offending

Ms Pieneman was employed by a charitable trust that provided drug and alcohol counselling services for clients. On some occasions, clients paid for the trust’s services in cash. On seven separate occasions between July 2015 and July 2017, Ms Pieneman applied sums totalling $1,360 for her own benefit that were diverted from amounts she should have receipted for the trust.
In support of her application for a discharge without conviction, Ms Pieneman completed an affidavit in which she deposed that a conviction would threaten her on‑going employment prospects, adversely affect her involvement as a parent with her daughter’s school activities, likely impede any aspirations for international travel and generally leave her with a black mark disproportionate to the circumstances in which she had offended. She deposed that a conviction would, for unspecified reasons, threaten her marriage and relationships with friends and family who are otherwise supportive of her.
She deposed to having her own difficulties with anxiety and depression, and to being emotionally vulnerable to the adverse consequences of having to live with a conviction.
By the time of her sentencing, she had pleaded guilty, demonstrated remorse for her offending and had participated in a restorative justice process.

The statutory framework

Applications for discharge without conviction are to be dealt with in terms of ss 106 and 107 of the Sentencing Act 2002. Under s 107, the Court must not discharge an offender without conviction unless satisfied that the direct and indirect consequences of the conviction would be out of all proportion to the gravity of the offence.
A sentencing Judge’s task involves three steps:[2]
(a)first, identifying the gravity…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pieneman v The Queen

Details

AGLC: Pieneman v The Queen [2019] NZCA 613
Case: [2019] NZCA 613
Decision Date: 4 December 2019 at 10 am

CaseChat Overview and Summary

In the case of Pieneman v The Queen, the appellant, Ms. Pieneman, appealed against her conviction and sentence imposed by the District Court at Auckland. Ms. Pieneman was convicted of theft and sentenced to six months' supervision, 80 hours of community work, and ordered to pay reparation in the sum of $1,360. The appellant sought a discharge without conviction and argued that the sentence was manifestly excessive. The Court of Appeal had to decide whether the sentencing Judge erred in not granting her a discharge without conviction and whether the sentence was manifestly excessive.

The Court of Appeal held that the offending was accurately ranked as moderately serious, and the requisite disproportionality of the adverse consequences raised by Ms. Pieneman could not be made out. The Court held that the general approach is that employers and potential employers ought to be able to learn of dishonesty offending and make their own assessments of the impact it has on the abilities of the employee or potential employee. The Court should not lend its assistance to employees seeking to withhold from their employers important information they are contractually obliged to disclose. The disclosure obligation in this case exists irrespective of whether a conviction is entered. As to the other consequences of a conviction raised by Ms. Pieneman, the Court considered her claims that she will lose her marriage, family, and friends somewhat implausible. The high hurdle in s 107 is not met. As to the sentence appeal, the Court held that the Judge did not err or impose a sentence that was manifestly excessive. Theft by employees in a position of trust needs to be denounced, and some appropriate measure of deterrence should be signaled in the sentences imposed. The imposition of 80 hours' community work was unremarkable and well within the range of the sentencing Judge's discretion.

The appeals against conviction and sentence are dismissed.

Orders