Pieneman v The Queen
[2019] NZCA 613
•4 December 2019 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA752/2018 [2019] NZCA 613 |
| BETWEEN | ANNIKE RENEE PIENEMAN |
| AND | THE QUEEN |
| Hearing: | 21 November 2019 |
Court: | Gilbert, Dobson and Whata JJ |
Counsel: | S Brickell for Appellant |
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 of the offending by analysis of the particular facts;
(b)second, identifying the direct and indirect consequences of a conviction for the offender; and
(c)third, considering whether the consequences that are established would be out of all proportion to the gravity of the offending.
[2]Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].
The disproportionality test is to be applied in terms of s 107, so that materially more is required than a simple finding that the adverse consequences weigh more heavily than the gravity of the particular offending.[3]
The sentencing
[3]R v Smyth [2017] NZCA 530 at [12].
Judge Orchard assessed the behaviour as pre-meditated, occurring over a long period of time and involving a serious breach of trust.[4] The very small staff of the charitable trust depended on Ms Pieneman to do the banking and bookkeeping for that part of its work involving payments from clients. The Judge accepted the submission made on behalf of Ms Pieneman on sentencing that the offending was moderately serious.[5]
[4]Police v Pieneman, above n 1, at [7].
[5]At [11].
By the time of sentencing, Ms Pieneman had been employed at a new job for approximately one year. In breach of the terms of her employment contract, she had not advised her new employer of the existence of the charge or anything of the circumstances involved in it. The Judge was not persuaded that it was the fact of conviction which would prejudice continuation of that employment, rather than the offending itself.[6]
[6]At [14].
As for the other adverse consequences as described in Ms Pieneman’s affidavit, the Judge characterised them as usual consequences which could not be recognised as affecting her position out of all proportion to the moderately serious offending.[7]
[7]At [16]–[17].
For those reasons, the Judge considered the necessary threshold under s 107 was not reached.
Submissions
Mr Brickell’s initial premise was that, whilst the offending reflected a breach of trust occurring on a number of occasions over two years, Ms Pieneman was a relatively young person who took the money to help herself survive when she was in pressured circumstances, taking the amounts from others with addiction issues when she also had mental health pressures herself. He submitted that the offending ought to have been treated as at a low level.
Mr Brickell submitted there were very serious consequences from a conviction, particularly because the terms of her current employment contract will make her vulnerable to dismissal if she is required to disclose this conviction. Whilst acknowledging the employer’s right to know (disclosure being required as a term of the employment contract), Mr Brickell argued that Ms Pieneman would face the risk that her current employer would not look beyond the fact of conviction. If the employer had regard to the terms of the Judge’s sentencing remarks, Mr Brickell submitted that they were harsher than appropriate and would make Ms Pieneman’s task in attempting to keep her current job more difficult.
For the respondent, Ms Hoskin submitted that the necessary disproportionality between the relative seriousness of the offending and the adverse consequences claimed for Ms Pieneman could not be made out and that the Judge’s analysis on this issue was correct.
Ms Hoskin contended it was not a case in which the Court should contemplate assisting Ms Pieneman’s non-disclosure of the offending by granting a discharge without conviction in reliance on the perceived severity of the risk that Ms Pieneman would lose her current employment. She submitted that indeed Ms Pieneman had an advantage over many people convicted of dishonesty offences who then had to seek new employment on terms including disclosure of such a conviction. In Ms Pieneman’s case, she has now been employed for two years by her current employer. She therefore has the advantage of being able to urge the employer to assess her character, not as a newcomer having to assure the employer she is trustworthy but being able to rely on the employer’s experience of her over the two-year period.
As to the adverse consequences in terms of possible travel restrictions and limitations on her involvement as a parent in her daughter’s school activities, Ms Hoskin submitted that these consequences were not out of the ordinary.
Ms Hoskin acknowledged that Ms Pieneman’s participation in a restorative justice process and her guilty plea should have been taken into account in the sentencing analysis as mitigating factors. The terms of the sentencing notes demonstrate that the Judge was cognisant of these matters, but there was no explicit acknowledgement that they were taken into account in evaluating the overall seriousness of the offending. However, the Judge’s failure to acknowledge those factors did not lead to error. The Judge was right to accept the classification of the offending offered by Ms Pieneman’s counsel on sentencing as moderately serious, and the Judge was clearly correct to find that the requisite disproportionality of the adverse consequences raised by Ms Pieneman could not be made out.
On the sentence appeal, Ms Hoskin submitted that the components of the sentence were perfectly orthodox. The offending had been protracted over a period of time and the theft had been from a charitable trust, making it appropriate for there to be a punitive element, so the combined elements of the sentence were plainly not manifestly excessive.
Analysis
We are not persuaded by Mr Brickell that the offending was less than moderately serious. The charitable trust employing Ms Pieneman structured its affairs on terms requiring it to place substantial trust in her and she betrayed that trust over a period of time. The offending is accurately ranked as being moderately serious.
The fact that Ms Pieneman wishes to avoid a conviction in order to continue to withhold disclosure from her employer of the circumstances in which she was charged cannot carry weight in making out disproportionately serious adverse consequences, relative to the seriousness of her offending. 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. The entry of a conviction was therefore properly disregarded as being relatively inconsequential in terms of her present employment situation.
As to the other consequences of a conviction raised by Ms Pieneman, we consider 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, we are not persuaded that the Judge erred or imposed a sentence that was manifestly excessive. Treating a conviction alone as sufficient on account of the adverse consequences would not meet the purposes of sentencing. Theft by employees in a position of trust needs to be denounced and some appropriate measure of deterrence signalled in the sentences imposed. The imposition of 80 hours’ community work was unremarkable and well within the range of the sentencing Judge’s discretion.
Result
The appeals against conviction and sentence are both dismissed.
Solicitors:
Crown Law Office, Wellington for the Respondent
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