Ramsay v Police

[2013] NZHC 1667

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-404-141 [2013] NZHC 1667

BETWEEN  BRENDON THOMAS RAMSAY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   2 July 2013

Counsel:                  J W Griffiths for Appellant

J Pridgeon for Respondent

Judgment:                2 July 2013

JUDGMENT OF RONALD YOUNG J (Appeal against sentence)

Introduction

[1]      Mr Ramsay has bipolar disease.   He had pleaded guilty to four charges of dishonestly using a document.  It seems to be common ground that at the time of the offending   Mr Ramsay   was   probably   in   a   manic   state.      In   May 2011   and October 2011,  Mr Ramsay  went  on  a  spending  spree  writing  cheques  from  an account described as the B T Ramsay Family Trust Account.  He knew the account had no money.  He wrote out cheques totalling $4,111.42.

[2]      When the matter came before the District Court the Judge suggested that it might assist Mr Ramsay’s application for a discharge without conviction under s 106 of the Sentencing Act 2002 if he paid back some of the money he owed.  That would

be a show of good faith.  Counsel insisted the s 106 application proceed that day.

RAMSAY v POLICE [2013] NZHC 1667 [2 July 2013]

[3]      Mr Ramsay had been offered diversion by the Police for this offending.  That had been on the basis that he paid back the money he had taken.  But Mr Ramsay was unable or unwilling to do so.

[4]      Mr Ramsay says the Judge in the District Court made a number of errors when she refused to grant him a discharge.  He, therefore, appeals his conviction.

Background facts

[5]      In May 2011 Mr Ramsay hired a van and trailer from a car rental firm in Pukekohe for nine days.  He wrote out a cheque for $1,135 on an account which he knew had no money.  A few days later he went to another firm and bought various items totalling $1,800 and again wrote out a cheque on the same account.  That same day he purchased a guitar, a tuner and various other items for the guitar for $750. Again, he wrote out a cheque for that amount which was dishonoured.  About five months later he wrote out of cheque on the same account for $414 buying three sheep.

[6]      The District Court Judge identified the correct approach when considering a discharge without conviction, first, the Judge should assess gravity of the offending; secondly, the consequences of a conviction for a defendant and thirdly, whether those consequences are out of all proportion with the gravity of the offending.

[7]      There was medical evidence before the Judge that the appellant had bipolar disease as well as attention deficit disorder.  The doctor mentioned that the appellant had a record of previous uncontrolled spending and that he was vulnerable to misjudgement and impulsive behaviour.  The Judge accepted that this evidence was relevant to an assessment of the criminality of the appellant’s actions.

[8]      The Judge also took into account that it was 23 months from the offending to the sentencing and the appellant had not paid any reparation whatsoever.  The Judge assessed the gravity of the offending as low to medium in view of the appellant’s mental state.

[9]      As to the consequences, beyond the consequence of a conviction itself, the Judge did not consider there was anything specific that related to Mr Ramsay.  The Judge did not think that a conviction would be out of all proportion to the offending and refused a discharge without conviction.

[10]     The grounds of appeal are as follows:

(a)       the Judge erred by not taking into account Mr Ramsay’s mental illness

when assessing the gravity of the offending;

(b)the Judge erred in considering Mr Ramsay’s risk of reoffending when assessing the gravity of the offending and placing too much weight on this factor;

(c)       the Judge erred by placing undue weight on Mr Ramsay’s inability to

pay reparation during diversion;

(d)the Judge erred by finding that the consequences of a conviction were not out of all proportion to the gravity of the offending; and

(e)      the Judge mistakenly thought that one of the offences was committed over a year after the other convictions.

Culpability

[11]     It is clear from the Judge’s sentencing notes that she did take into account the appellant’s bipolar disorder in assessing the seriousness of the offending.  Although the evidence was thin, she was prepared to accept that the appellant could have been in a manic phase at the time the offending occurred.  This made him vulnerable to impulsive overspending without thought for the consequences.   That  conclusion reduced to some degree his criminal culpability. The Judge assessed the offending as low to moderate.  This assessment clearly took into account the reduced culpability of the appellant.

[12]     The Judge was entitled to take into account the risk of reoffending.   In the absence of a clear treatment programme for Mr Ramsay, it seemed likely there could be reoffending.   This risk is relevant.   The Judge did not stress this factor in her ultimate decision.

[13]     The submission that the Judge erred in law by considering the non payment of reparation is an aggravating factor is not justified by reference to the Judge’s sentencing notes.

[14]     The  Judge  said  that  she  was  prepared  to  adjourn  the  application  for  a discharge to give Mr Ramsay an opportunity of making some reparation payments which would show some form of good faith.  That was so because Mr Ramsay had had 23 months within which to make some form of payment of reparation.  He had paid none.

[15]     Even when a Judge is satisfied that the consequences of a conviction would be out of all proportion to the offending, a residual discretion remains.  It is rare to refuse to grant a discharge without conviction in those circumstances but it could be an effective refusal to pay reparation might be a situation where a discharge could be refused which was otherwise justified.

[16]     In her decision the Judge said:1

There  is  also  reference  to  Mr Ramsay’s  wish  to  repay  the  loss  and

Mr Griffiths  says  I should  take  that  into  account.    Mr Ramsay  had  had

23 months  since  the  May  offending  and  a  number  of  months  since  the October offending to show any disposition to repay.   He has not done so. The fact that he was not prepared to go away and bring back a cheque of some sort, or show any willingness today to repay anything indicates to me that repayment is not going to be made until I order it and even then, it may not happen.  Mr Griffiths submits that I could simply order reparation at the same time as granting Mr Ramsay a s 106 discharge.

[17]     No criticism can be made of the Judge’s approach.  Counsel for Mr Ramsay wanted his offer of reparation to be taken into account in assessing the seriousness of the offending.  This presumably would have reduced the seriousness.  But the Judge

refused to take this into account.   She was correct not to do so.   As she said,

1 At [20].

Mr Ramsay had had plenty of opportunity to make some contribution towards the loss that had been suffered.  He had made none.  An offer of reparation (by future periodic payments) at this late stage was, therefore, somewhat hollow and it could not be relied upon.

Consequences

[18]     The appellant submitted that the Judge erred in principle by not considering the likely effect of the convictions on Mr Ramsay’s mental health.   The difficulty with that submission is that there was  no evidence as to what, if any affect, a conviction would have on Mr Ramsay’s mental health.

[19]     The appellant submitted that the Judge wrongly concentrated on the fact that the appellant’s employment was not in jeopardy as a result of the conviction.  The appellant says the issue is whether convictions for dishonest offending would affect Mr Ramsay’s ability to find work generally.

[20]     There is no evidence in particular as to what affect convictions for dishonesty might  have  on  Mr Ramsay’s  employment  prospects.     Mr Ramsay  is  currently employed.  There was no evidence before the Judge as to how respective employers might react to Mr Ramsay’s convictions should he wish to apply for other jobs. Further, while the Judge accepted the general stigma of a conviction, this could not possibly be said to be out of all proportion to the offending.

[21]     The  Judge  thought  the  final  offence  was  in  October 2012  when  it  was October 2011.  Counsel for the appellant says the Judge also erred when she said that the appellant had had 23 months within which to pay reparation when the period was only 20 months.

[22]     The offending occurred in late May 2011.  The appellant was sentenced on

16 April 2011 about a week short of 23 months since the offending.   Clearly the Judge was correct that Mr Ramsay had 23 months within which to make payment of reparation.  The error by the Judge as to the timing of the October offence seems to have had no affect on the Judge’s conclusions.  She did not rely upon the fact the fourth offence was as she mistakenly thought 17 months after the first offending.  It

was a neutral factor.  The error was of no consequence (save that Mr Ramsay had even more time with respect to that offence within which to pay reparation).

[23]     Significant efforts were made by the Police and by the Courts to avoid a conviction for Mr Ramsay.  He was his own worst enemy.  Understandably the Court wanted some assurance that Mr Ramsay would pay back the money he had taken from the four businesses.  Mr Ramsay made no real effort to repay the money or to convince the Court he was committed to doing so.

[24]     This  was  not  trivial  offending.     Mr Ramsay’s  bipolar  disease  properly reduced his culpability and, therefore, the seriousness of the offending.  Even so I do not consider it could be described as low level seriousness.

[25]     As to consequences, none could be identified which particularly would affect Mr Ramsay.  But it is proper to acknowledge with his lack of skills and his mental health issues, employment cannot be easy for him.  On the other hand, he is a hard reliable worker.  There is nothing to suggest convictions will have a particular effect on his employment or on other aspects of his life.   It certainly cannot be said a conviction(s) would be out of all proportion to the gravity of his offending.

[26]     For the reasons given, the appeal will be dismissed.

Ronald Young J

Solicitors:

Meredith Connell, Barristers & Solicitors, Auckland
Public Defence Service, Auckland