Police v S HC Auckland Cri-2010-004-11840

[2010] NZHC 2328

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-004-011840

NEW ZEALAND POLICE

Informant

v

S

Defendant

Hearing:         19 November 2010

Counsel:         B Thomson for the Informant

M Coxin for the Defendant

Judgment:      19 November 2010

NOTES OF JUDGE G DAVIS ON SENTENCING

[1]      I have before me S  .  Ms S   is charged that between 8 March 2010 and 1 April 2010 she stole four Armani men’s watches valued at $3158.50, the property of DFS Galleria.   The maximum penalty for an offence of this nature is seven years’ imprisonment.

[2]      Ms S   has applied to the Court for a discharge without conviction pursuant to s 106 of the Sentencing Act 2002.   The background to the offending is that between 8 March 2010 and 1 April 2010 Ms S   went to DFS Galleria.  She went to the watch display where she took an Armani watch from its box and swapped it for an old watch she was wearing and then exited the store.  This happened on four

separate occasions although only one charge has been laid by the police.

POLICE v S HC AK CRI-2010-004-011840 19 November 2010

[3]      The four watches have been recovered by DFS Galleria and have been sold. In addition to that Ms S   has of her own initiative made a donation of $500 to the Salvation Army and in addition to that has completed a considerable amount of community  work  notwithstanding  that  sentences  of  that  nature  have  not  been imposed by the Court.

[4]      A s 106 discharge has been sought by Ms S   primarily because she has completed her studies to be a chartered accountant and if she is convicted, she is concerned that she will not be admitted to the Society of Accountants.  Section 107 provides guidance to the Court as to when a discharge under s 106 should be granted. It provides:

The Court must not discharge an offender without conviction unless the Court is satisfied that the direct or indirect consequences of a conviction would be out of all proportion to the gravity of the offending.

[5]      I should add that Ms S   has again of her own initiative, although perhaps as a consequence of prompting by the Court, advised the Society of Accountants that she is presently before the Court and the Society wish to have a copy of the decision made available to them.

[6]      In the leading Court of Appeal decision Police v Roberts[1]it was said that a balancing exercise must occur when considering whether or not to exercise a discretion under s 106.  In P v Hughes, s 107 was described as a gateway through which all applications under s 106 must pass.   In Vincent v Police[2], Priestley J described a three step process to be undertaken.   The first step is to identify the gravity of the offending with reference to the particular facts.  This requires not only an enquiry into the nature of the offence charged but also into the circumstances of the commission of the offence.

[1] [1991] 1 NZLR 205(CA)

[2] [2007] DCR 277

[7]      I have outlined the facts briefly in the earlier part of this decision but in my view it is difficult to suggest that offending of this nature is simply a “one off” incident.  I am not sure how it can be described as a “one off” when there were four separate incidents of Ms S   visiting the DFS Galleria store.  Added to that the

decision to visit the store and to swap a new Armani watch for a second-hand watch or a used watch that Ms S   was wearing herself, would have required an element of preplanning and premeditation which leads me to think that this was not capable of being described as one off offending.  When one considers that if the incident had occurred once, there could perhaps be some weight to the fact that it was one off offending.    But  when  it  occurred  four times  with  the  same  modus  operandi  or method  of  operation,  it  is  difficult  to  see  how  it  could  be  considered  one  off offending.

[8]      Two reports from psychologists have been  handed to the Court,  each of which provides some explanation as to Ms S  ’s motivation for the offending that is presently before the Court.   The reports describe Ms S   as, having come to New Zealand in 2001.   She faced difficulties adjusting to the language and New Zealand culture.  As a consequence of that she felt alone and had difficulty living here without her parents’ level of devoted care.  Her self esteem suffered.  She had difficulty forming lasting relationships.  She was in one relationship which, to use my words,  it  appears  she  was  absolutely  besotted  with  the  gentleman  that  she became involved with.  That relationship fell apart and Ms S   may have entered into the offending as a means of trying to keep the relationship together by giving to her partner at the time watches that she thought he was particularly enamoured with.

[9]      In identifying the gravity of the offending it also requires not only an enquiry into the nature of the offence charged but also the circumstances of the commission of the offence.   In Delaney v Police, Miller J made the following comment:  That you must consider the gravity of the offence should be read as not only including the offence itself but anything that may affect the Court’s assessment of overall culpability, that includes guilty pleas, expressions of remorse and the Court’s assessment of how likely it is that the offender will reoffend.  That would include the victim’s perspective and the consequence already suffered by way of reparation, community work or probation.   In that regard Ms S   has, as I have indicated, undertaken community work, made a voluntary donation to the Salvation Army and is described by Dr McCormack as being a low prospect of reoffending.

[10]     Ms S   has also met with the manager of DFS Galleria and has made a personal  apology to  the  manager  which  I understand  has  been  accepted  by the manager.

[11]     The second step  is to identify the direct  and indirect consequences of a conviction and in this case the direct consequences of a conviction will be obviously the conviction itself.  The indirect consequences are, it is submitted, the likelihood that Ms S   will not be able to be admitted to the Society of Accountants because of the consequence of the conviction being entered against her.

[12]     The entering of a conviction may constitute a barrier to the commencement or continuation of a particular occupation.  That is a matter to be considered by the Court.  Where a conviction will result in an absolute bar, then that factor will carry extra weight.  However where an independent body is charged with determining the suitability of individuals for particular employment, the Court may be more ready to enter a conviction it being the view that it is in the public interest that the body is best able to make the decision with the benefit of full disclosure of all facts relating to the offending.  In other words the Court should not readily usurp the functions of the independent body, in this case the New  Zealand Society of Accountants, in determining whether Ms S   is suitable to be admitted to the Society or not.

[13]     The third step after the consideration of the first two steps is that the Court must determine whether it is satisfied the consequences of a conviction would be out of all proportion to the gravity of the offending.  This requires consequences out of the ordinary.  They must be out of all proportion to the gravity of the offending.  The Court must not grant a discharge unless it is satisfied that the direct and indirect consequences would be out of all proportion to the gravity of the offending.

[14]     In this case I am not satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offending.   There are two reasons that weigh on my mind in coming to that conclusion.   The first is that this was four separate incidents of offending by Ms S   which involved, as I have indicated, levels  of  preplanning  and  premeditation  which  simply  cannot  be  described  as “one  off.”    I accept  that  Ms  S   has  taken  steps  to  pay reparation,  complete

community work and to apologise to the owner of the DFS Galleria.  Much of that has come about as a consequence of numerous and prolonged hearings through the Court in my view.

[15]     The ultimate question as to whether Ms S   is suitable to be admitted to the Society of Accountants is a decision for the Society itself.  It should be apprised of all facts that go to considering Ms S  ’s character in determining whether she should be admitted to the Society particularly given the high levels of trust that would  be  involved  in  an  occupation  such  as  being  admitted  to  the  Society  of Accounts in becoming an accountant.

[16]     The fourth step is to decide after the balancing exercise whether the Court should exercise its discretion and for the reasons I have outlined above, I am not prepared to do so and a conviction will be entered.  It now turns on me to consider sentence.

[17]     Given the level of community work that has already been undertaken, the donation that she has made to the Salvation Army and the fact that this is Ms S  ’s first offence, it is appropriate in all the circumstances that Ms S   be convicted and discharged and I intend to do that now.

G Davis

District Court Judge