Roberts-Bristow v Police

[2016] NZHC 1365

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2016-485-36 [2016] NZHC 1365

BETWEEN

MAX ROBERTS-BRISTOW

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	21 June 2016
Counsel:	J Griffiths for Appellant R H De Silva for Respondent
Judgment:	22 June 2016

JUDGMENT OF SIMON FRANCE J

Introduction

[1]      Mr Roberts-Bristow pleaded guilty to a charge of obtaining by deception.  He was treasurer of a small society and over a period of time took $9,823.23 for his own purposes.   He appeals against the refusal of the District Court to discharge him without conviction, and if unsuccessful in that, against the fine of $1,000.1

Facts

[2]      Mr Roberts-Bristow transferred funds of the Society to his own account by internet  banking  transactions.    There  were  52  transactions  in  all,  spanning  10 months.  Before he was apprehended Mr Roberts-Bristow had repaid $1,560.  He has

subsequently taken out a loan and repaid the balance.

1      New Zealand Police v Roberts-Bristow [2016] NZDC 7148.

ROBERTS-BRISTOW v NZ POLICE [2016] NZHC 1365 [22 June 2016]

[3]      Mr Roberts-Bristow was a university student at the time.  The Society was affiliated to the University.  At the same time Mr Roberts-Bristow managed a café operated by a chaplaincy based in the University.   It seems the café had financial difficulties and Mr Roberts-Bristow took the money from the Society to assist the café.

[4]      Mr Roberts-Bristow has subsequently withdrawn from university.  His course of studies was aimed at him ultimately becoming an accountant, and he still harbours that ambition.  He is concerned about the impact of a conviction on his prospects of doing that.  He is presently a bar manager and is also concerned that a conviction will affect his holding the necessary licence.

Appeal

[5]      These applications involve a balancing of the gravity of the offences against the consequences of a conviction.  Gravity of the offence is a concept that includes the offender’s personal circumstances and mitigating factors.  It is convenient to use phrases such as “moderately serious”, or “low to moderate”, but they are only labels. The  statutory  tipping  point  is  “out  of  all  proportion”  –  only  then  can  the consequences lead to a discharge without conviction.

[6]      The District Court did not err in its assessment of the gravity.  Credit is due to Mr Roberts-Bristow for his efforts to reimburse the Society but it is only a factor to be considered.  I do not accept that his motivation of assisting another business is a matter that reduces the gravity; at most it is the absence of an aggravating feature.  I certainly    reject    the    proffered    label    of    “semi-altruistic”.        Concerning Mr Roberts-Bristow’s intention to repay, that is relevant but not to be overstated.  It is not uncommon that people in these situations believe that the answer lies around the corner, and something will happen to enable the money to be repaid without harm.  It is good that Mr Roberts-Bristow took out a loan to reimburse; there is no evidence as to why he had not done this earlier before being discovered.

[7]      In terms of gravity a dominant factor here is the length of time over which this offending occurred, and the number of occasions on which it occurred.  These factors are a brake on diminishing the gravity assessment.  Further, a sum of $10,000

does not assist Mr Roberts-Bristow in this regard.  While not such as to elevate the offending beyond the lower scale, the case is far from those which involve a one-off taking of a relatively minor amount.

[8]      In  terms  of  consequences,  the  only factor  identified  (beyond  the  always present matters such as stigma) is the impact on job prospects.  I accept that at least in the short to medium term, the conviction will impact on Mr Roberts-Bristow being able to become an accountant.  However, it is fair to observe he has not as yet completed his qualifications (although is some distance down the path towards that). There is therefore an element of speculation in this proposed consequence.  It is not clear whether it will affect his bar manager status.

[9]      These  consequences  are  expected  consequences  of  this  offending.    The offending raises concerns about whether Mr Roberts-Bristow can be trusted in times of pressure with control of other people’s money.  He hopefully will demonstrate it to have been an out-of-character lapse but at this point one could not possibly say these consequences are out of all proportion to the gravity of his offending.   The conviction appeal is accordingly dismissed.

[10]     As for the sentence appeal, it is submitted conviction is penalty enough. However, as at this point, there are no demonstrated consequences at all of the conviction, so it is not obvious what penalty there has been.  That aside, bearing in mind the relevant test of manifestly excessive, it is difficult to see how a fine of

$1,000 for sustained misappropriation of money – in breach of trust – could ever be

manifestly excessive. The sentence appeal is dismissed.

Simon France J