Pillay v Police
[2012] NZHC 3197
•4 December 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-404-459 [2012] NZHC 3197
BETWEEN KRIOSHIN PILLAY Appellant
ANDTHE POLICE Respondent
Hearing: 20 November 2012
Appearances: A A Rasheed for appellant
J Wall for respondent
Judgment: 4 December 2012
JUDGMENT OF ALLAN J
In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of pm on Tuesday 4 December 2012
Solicitors:
Auckland Defence Chambers [email protected]
Crown Solicitor Auckland [email protected]
PILLAY V POLICE HC AK CRI-2011-404-459 [4 December 2012]
Introduction
[1] On 14 June 2010, the appellant was charged with wilfully committing an indecent act in a place to which the public have access, namely the Farmers store at Manukau.
[2] On 30 November 2011, after a trial before a Judge alone, the appellant was found guilty by Judge McElrea and was immediately sentenced to 200 hours community work, and directed to pay Court costs. He has served that sentence.[1]
[1] Police v Pillay HC Manukau CRI-2010-092-6765, 30 November 2011
[3] The appellant initially appealed against his conviction on the ground that the Judge had misinterpreted the evidence, and that he had wrongfully refused an adjournment to enable the appellant’s doctor to give evidence on his behalf. Those grounds have been abandoned, but the appellant maintains his appeal against conviction and sentence in order to support an argument that he ought to be discharged without conviction, pursuant to s 106 of the Sentencing Act 2002, a contention that was not raised in the District Court.
Factual background – the offence
[4] Mr Pillay was in the Farmers store at Manukau, near displays of men’s and women’s clothing. He was seen by security officers, who were monitoring CCTV displays, to reach inside his shirt and to engage in what appeared to be masturbation by rubbing himself in the region of his genitals. It was not claimed that the appellant had indecently exposed himself.
[5] The security officers called the police who apprehended the appellant. The police officer who gave evidence before the learned District Court Judge said she asked him what he had been doing. The appellant said he had received a dirty text message from a friend and had become aroused to the point at which he had engaged
in masturbation inside his clothing.
[6] At trial, Mr Pillay claimed he had not been masturbating at all, but instead had been scratching himself, as he had an eczema condition which became very itchy. The Judge rejected that explanation and indeed anything else said by the appellant that was not consistent with the police case. The Judge thought the appellant to be an untruthful witness.
Further evidence on appeal
[7] On behalf of the appellant at the hearing of the appeal, Mr Rasheed applied for an order directing that the evidence of Dr Sean Sullivan be received. Dr Sullivan was in attendance in order to give oral evidence if an order was made. He is an experienced registered psychologist. He had interviewed the appellant in July and August of this year, that is more than 18 months after the offending. It was intended that he give evidence about some aspects of the appellant’s mental health.
[8] Mr Wall opposed the application to adduce Dr Sullivan’s evidence. He
argued that the proposed evidence was neither fresh nor cogent.[2]
[2] See the discussion of the relevant principles in Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [25], and in R v Bain [2004] 1 NZLR 638, (2003) 20 CRNZ 637 (CA) at [18] to [27].
[9] The requirement for cogency and freshness is more strictly applied where there is a challenge to a finding of guilt. Where, as here, the challenge is to the decision to enter a conviction, rather than to the finding itself, the Court has a wider discretion to receive relevant materials, according them such weight as may be appropriate. I concluded that I should hear Dr Sullivan’s evidence. Accordingly, he gave sworn evidence confirming the contents of his two reports and undergoing cross-examination by Mr Wall.
[10] In brief, his evidence was to the effect that the appellant had for some time displayed schizophrenic symptoms and that he was under management and on medication for that condition. He was, naturally enough, tentative about the extent to which the appellant may have been suffering from schizophrenic symptoms at the
time of the offending. In his first interview, he thought that the appellant’s mental
condition may have had little impact on his behaviour on the day in question. At a second interview, he obtained information from the appellant that led him to conclude that the appellant’s mental problems may have played some part in what occurred on the day of the offence.
Discharge principles
[11] The jurisdiction of the Court to discharge without conviction is conferred by ss 106 and 107 of the Sentencing Act 2002, which respectively provide:
[106] Discharge without conviction
(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2) A discharge under this section is deemed to be an acquittal. (3) A court discharging an offender under this section may—
(a) make an order for payment of costs or the restitution of any property; or
(b) make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—
(i) loss of, or damage to, property; or
(ii) emotional harm; or
(iii) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:
(c) make any order that the court is required to make on conviction. [(3A) Sections 32 to 38A apply, with any necessary modifications, to an
order under subsection (3)(b) as they apply to a sentence of reparation.]
[107] Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[12] Section 106 confers upon the Court a discretion to discharge an offender without conviction for an offence for which the Court is not required to impose a minimum sentence. But it may not do so unless it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.[3]
[3] Sentencing Act 2002, s 107.
[13] As was said in R v Hughes:[4]
… Section 107 thus provides a gateway through which any discharge without conviction must pass. It stipulates a pre-condition to exercise of the discretion under s 106.
[4] R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].
[14] A decision as to whether the test under s 107 has been met is not a matter of discretion. Rather, it is a matter of fact requiring judicial assessment and so is subject to appeal on normal appellate principles.[5]
[5] R v Rajamani [2007] NZSC 68, [2008] 1 NZLR 723 at [5].
[15] In Hughes the Court of Appeal said that the disproportionality test under s
107 requires consideration of all relevant circumstances of the offence, the offending and the offender, and the wider interests of the community, including the factors required by the Sentencing Act to be taken into account under ss 7, 8, 9 and 10.[6]
[6] Hughes at [41].
[16] However, the Court has more recently reviewed that approach. In R v Blythe, the Court noted that while the Hughes approach was generally sound, the provisions of s 7, 8 and 9 were not to be taken into account in the course of determining disproportionality. Rather, they were relevant at the point at which the residual discretion under s 106 arose; that is, after the issue of disproportionality had been determined in the offender’s favour.[7]
[7] R v Blythe [2011] NZCA 190, [2011] 2 NZLR 620 at [11] and [12].
[17] In this case, the District Court Judge was not asked to consider a discharge without conviction, and so this Court is, in effect, exercising a first instance jurisdiction. Mr Wall accepts that the failure of the appellant to seek a discharge in
the District Court is not a bar to this Court’s jurisdiction. That is because there is no
onus on the appellant to establish that the disproportionality test in s 107 has been met. Rather, the requirement is merely that the Court be “satisfied”, a test that does not import notions of burden and standard of proof.[8]
[8] R v Leitch [1998] 1 NZLR 420 at 428, and Hughes at [49].
Discussion
[18] The first step in the necessary analysis is to consider the gravity of the relevant offending. I accept Mr Rasheed’s submission that, judged against the spectrum of criminal offending overall, this case fell towards the less serious end of the spectrum. The appellant did not expose himself in the store. His culpable conduct was limited to rubbing himself under his clothing in the area of his genitals. Moreover, it is common ground that no member of the public saw him doing it. He was apprehended only because security staff detected his behaviour while monitoring the CCTV screens.
[19] On the other hand, the fact that the appellant was not seen by any member of the public may simply have been a matter of luck. Rather than choosing a secluded location for his activities, the appellant offended while surrounded by racks of clothing and near public walk-ways within the store. It is a logical inference that there was a significant risk that he may have been surprised by a member of the public.
[20] So, although the gravity of the offending was not particularly high, neither was it so minor as to have a tendency, of itself, to tip the scales in favour of a discharge.
[21] I turn to consider the consequences of the conviction. The appellant is 23 years old. He emigrated from South Africa in 2002 with his parents. He was then aged 12. His parents separated in 2005. His father returned to South Africa and the appellant went with him for about three years. He returned to New Zealand in 2008, and enrolled in an automotive course at MIT. He is nearing the end of his course of
study and expects to graduate soon.
[22] The appellant’s father is terminally ill in South Africa. The appellant wishes to visit him there. It is not argued that the present conviction will impede his ability to travel. As is discussed below, Mr Pillay has several other convictions. Mr Rasheed expressly eschews any reliance on international travel difficulties in support of his argument for a s 106 discharge.
[23] Rather, the application is based in its entirety upon the proposition that the appellant’s employment prospects have been significantly diminished by the present conviction. The appellant hopes to gain employment in the automotive industry as a mechanic in a workshop, or similar workplace. Mr Rasheed argues that this present conviction will affect his prospects of obtaining such a position to a materially adverse degree. Although he accepts that employers in the automotive repair industry may take a fairly robust view of job applicants with a criminal history, this particular offence is unusual and unpleasant. He argues that as a matter of commonsense, many employers will consider that an employee with a conviction like this might behave irresponsibly or unpredictably in the presence of other staff, and in particular female employees.
[24] Mr Rasheed asks the Court to conclude that the risk to the appellant’s employment prospects is so high that the consequences of the conviction will be out of all proportion to the relatively limited gravity of the offence.
[25] That submission would carry more weight had the appellant been able to rely upon a hitherto blameless record. But he cannot do that. In June and August 2010 he was convicted of common assault and a driving offence. In August 2011, while awaiting trial in the District Court for the present offence, he was convicted of possessing cannabis and methamphetamine. Most importantly in my view, he was this year convicted of a burglary which seems to have been committed so as to enable him to obtain funds with which to service his drug habit. That was after the hearing in the District Court in November 2011. He seems to have learned nothing from his trial and conviction on the present charge.
[26] I accept at once that, by reason of his overall criminal record, the appellant may face challenges in his endeavours to obtain employment in his chosen field of
work. But in order to exercise the Court’s residual discretion to grant a discharge without conviction, I must be satisfied that the consequences of this particular conviction would be out of all proportion to the gravity of the offending. That means I must be satisfied that the disclosure of this conviction would have a materially adverse effect on the appellant’s employment prospects, when measured against those prospects seen in the light of his list of other offences.
[27] I am not satisfied that this conviction does give rise to consequences that would be out of all proportion to the gravity of the offending. The range of the appellant’s existing convictions is likely to reduce his employment prospects. This particular conviction may reduce them a little further, but not to a qualifying degree.
[28] I accept that there is an embarrassment factor, which may well cause the appellant some discomfort in the course of searching for employment. But that is not of any real relevance. In my view, a prospective employer who is prepared to look beyond the appellant’s list of convictions, may want to know something about the detail of the present offence. That would provide an opportunity for him to offer such an employer a degree of reassurance about the circumstances in which the offence occurred.
[29] Mr Rasheed also referred to the appellant’s mental health problems, to the fact that he is under management, which includes psychological care and out-patient treatment. That is no doubt part of the overall picture, but as Mr Wall submits and as I discuss at [16] above, such considerations arise at the discretion stage, which is
reached only when the Court is satisfied that the s 107 test has been met.[9] I do not
[9] See generallyBlythe
consider the test has been met here.
Result
[30] I am not satisfied that the consequences of the appellant’s conviction will be
out of all proportion to the gravity of the offending. Accordingly, the requirements for a discharge without conviction have not been met, and the appeal is dismissed.
C J Allan J
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