S v Police HC Auckland Cri-2009-404-158
[2009] NZHC 1216
•9 September 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2009-404-000158
S
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 8 September 2009
Appearances: A G V Rogers for Appellant
S Herdson for Crown
Judgment: 9 September 2009 at 4.00 p.m.
JUDGMENT OF VENNING J
This judgment was delivered by me on 9 September 2009 at 4.00 pm, pursuant to Rule 11.5 of the
High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Solicitor, Auckland
Copy to: S Herdson, Auckland
S V NEW ZEALAND POLICE HC AK CRI-2009-404-000158 9 September 2009
[1] The appellant pleaded guilty to one charge of theft in the District Court at Auckland. Judge Harvey convicted him and fined him $1,000. The appellant appeals the conviction. He seeks a discharge without conviction.
Background
[2] The appellant was employed by the Auckland Central branch of JB Hi-Fi on
1 June 2007. On several occasions he took packaged printers from the retail area placing the box out of sight in the staff only area. He removed the printers and placed them in the repair area of the shop. He then went to a secure staff area, and there took high ticketed items and placed them on the cafeteria table as if he was going to get them for a customer. He would then wait until no-one was around and put them in the printer box and reseal it. The resealed box would be placed in the repair section which contained other empty boxes. Sometimes the appellant concealed items in his clothing. At other times he put them in his backpack which he used for university. When a box was to be removed he would call an associate who would come to the store. The associate would purport to look at printers with the help of the appellant. The appellant would then select the printer box with the stolen items in it. He would sell the printer to the associate for the recommended retail price. The appellant and his associate would then meet up at a later date and split the items for sale. The value of items retained by the appellant was $12,073. The appellant and his co-offender sold the items for a fraction of the value. The police were called to the work address by store management on 7 September 2008. When spoken to by the police the appellant admitted the facts. His explanation was he needed the money. He was 22 years old at the time he was arrested. He is now
23.
[3] The appellant entered an early guilty plea on 29 October 2008. He was ordered to pay reparation in the sum of $12,073 and remanded for sentence. Reparation was paid forthwith by the appellant’s family. The appellant has since been repaying his family.
[4] Defence counsel arranged for the appellant to be interviewed by a psychologist, Michael Marris and to undertake voluntary community work with The unTAG Trust before sentencing. The co-offender, Mr Al-Abid was sentenced on 6
April 2009 and was convicted and sentenced to 100 hours community work. He was ordered to pay reparation of $1,409.
[5] The appellant was then subsequently sentenced, co-incidentally by the same
Judge, on 5 June 2009.
Preliminary matters
[6] Mr Rogers sought leave to amend the appeal to an appeal against conviction and to have a recent affidavit filed by the appellant’s father read in support of the appeal. There was no opposition to either of those applications by the Crown. Leave was granted accordingly. In the updating affidavit the appellant’s father confirms that as at 1 September he had received $8,762 by way of repayment from the appellant.
Submissions
[7] For the appellant Mr Rogers submitted:
• Judge Harvey failed to take into account or gave minimal weight to a relevant consideration, namely the assistance the appellant had given to the police;
• this Court should look at the matter afresh in light of that error; and
• a discharge without conviction was appropriate having regard to the circumstances of this case and the offender in light of ss 106 and 107 of the Sentencing Act.
[8] The appellant was charged with the offence on 11 September 2008. The caption sheet referred to an associate. On the appellant’s instructions counsel advised the officer-in-charge that the associate referred to in the caption sheet was the co-offender Mr Al-Abid. Mr Al-Abid’s name, address and contact phone numbers were provided to the police on 13 September 2008.
[9] At sentencing, counsel argued that the Court should take that factor into account. Judge Harvey dealt with the matter as follows:
[9] ... Mr Rogers makes much of the fact that you were prepared to name and identify the other party who was involved in this, the receiver of the property. He and I may disagree upon whether or not that is a fundamental element of good citizenship in any way or whether or not you should be given credit for that over and above what I would consider to be normal behaviour. Because the decision is mine, I consider that it is the mark of a good citizen in any event to report crime that they know of and having been apprehended, I would have expected no more of you than to have disclosed that information so I do not really think you can rely too heavily upon that.
[10] As a matter of principle it is well established that in the public interest and to further the administration of justice the Court should give due recognition of assistance to the police: R v Crime Appeal CA462/91 19 May 1992; R v Accused (1993) 10 CRNZ 397. In each case it will be necessary to weigh the assistance given with the type and seriousness of the offending, the sentence that otherwise would be appropriate, the nature and value of the assistance, the situations in which it is given and the consequences: R v Cameron CA319/99 25 November 1999.
[11] Ms Herdson submitted that the Judge had taken account of the assistance provided by the appellant but was not minded to elevate it. While the Judge did refer to the assistance, on my reading of his comments, it does not appear that he was prepared to give any real credit for it. Undoubtedly the provision of the co- offender’s name, address and contact at the least saved the police time in their inquiries. However, that does not address the fundamental issue in this appeal which is whether the Judge was wrong to decline the application for a discharge without conviction in imposing the sentence he did: R v Hughes [2008] NZCA 546 and R v
Rajamani [2008] 1 NZLR 723 at para [5]. Further, as Mr Rogers acknowledged in his submissions the authorities make it clear that co-operation does not mitigate the offender’s culpability in relation to the offence itself.
The approach to discharge without conviction
[12] In Hughes the Court of Appeal considered whether s 107 of the Sentencing Act 2002 created a threshold for the exercise of the discretion to discharge without conviction different from the test expressed in the earlier cases of Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA) and Police v Roberts [1991] 1 NZLR 205 (CA). The Court concluded that it did not. A number of propositions can be drawn from Hughes:
• Before a court may exercise its discretion under s 106 to discharge without conviction, the court must be satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence. 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 (at para [8]).
• Application of 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 (at para [41]).
• Section 107 imports no onus of proof. The requirement is simply for the court to be satisfied that the disproportionality test has been met. But, it could be expected that an offender seeking a s 106 discharge would put before the court information, or draw the Judge’s attention to information in reports before the court which, if accepted, would provide a basis for the sentencing Judge to be satisfied that the s 107 test was met and that a decision in his or her favour under s 106 was appropriate (at para [53]).
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.
The application of ss 107 and 106 in this case
[14] Mr Rogers identified the direct and indirect consequences for the appellant of a conviction as:
• He is studying for the Degree of Bachelor of Business Studies at
Auckland University of Technology.
• He plans to have a career in business management.
• With the now widespread practice of employers requiring applicants for positions to authorise the employers to obtain details of convictions there is good reason to believe a conviction will be a substantial impediment to the appellant’s career prospects.
• This would in turn impact on his partner that he is in a long-term relationship with. She wishes to have a family in due course.
[15] With respect to those considerations there is no suggestion that a conviction prevents the appellant from studying for his chosen degree. There is nothing in the first point.
[16] The second two matters really fall to be considered together. As a general statement the Court can understand the submission that an employer in the business management field might well be concerned at a conviction for theft. Such a conviction may make it more difficult for the appellant to obtain employment in that field. However, to elevate the matter beyond that is essentially speculative. The appellant’s prospects of employment will depend on a number of factors, including
the nature of his degree and personality and how he presents at interview. As Judge
Harvey said:
One of the ways in which the conviction can be diluted as it were in terms of its effect is by demonstrations of future conduct. You are presently in a job so we cannot say that a conviction or a potential conviction is going to disqualify you entirely from employment. You do well at that job and you get a good reference and you will be able to go ahead so that a future employer will look at your record, acknowledge your conviction but give you credit for your subsequent conduct.
[17] It cannot be said that the conviction will prevent the appellant obtaining employment in his chosen field. All that can properly be said is that it will likely make it more difficult for him. Balanced against that there is an argument that an employer should be entitled to know that the appellant has engaged in conduct such as the present offending.
[18] The last matter referred to, while of concern to the appellant and his partner cannot be said to be a major consequence. At present it represents the possibility of some adverse effect on their lifestyle in the future.
[19] I turn to consider the other side of the balancing equation, namely the gravity of the offence. In Hughes the Court of Appeal accepted this aspect extends to consideration not only of the particular offending but also the purposes and principles of sentencing in ss 7 and 8, aggravating and mitigating factors under s 9, offers of amends under s 10, and particularly the culpability of the appellant.
[20] There are a number of positive features in relation to the appellant’s personal circumstances and his response to his apprehension in relation to this matter. They include:
• His relative youth, 22 at the time of the offending.
• His acceptance of responsibility for the offending by entering a guilty plea at the earliest opportunity.
• The fact the employer is no longer out of pocket. The appellant’s family paid reparation in full shortly after the entry of the guilty plea and since then the appellant has accepted responsibility for his obligations and has repaid his parents $8,762.
• He has no relevant previous convictions for criminal offending of this nature.
• The psychological assessment confirms, amongst other things, he has a genuine sense of remorse.
• In addition the appellant has shown he has positive attributes by committing himself to his study and the voluntary work he has carried out.
• Finally, there is the assistance he provided to the police.
[21] All of those factors are supportive of the appellant generally when the issue of the appropriate sentence in relation to culpability is taken into account. Against that, however, must be balanced the extent of his dishonesty. The offending the appellant engaged in was serious dishonesty offending. It was, as the District Court Judge observed, well thought out, well planned, and consistent criminal behaviour involving breach of trust, namely theft from his employer. The offending extended over a period of approximately nine months from late December 2007, early 2008. A significant number of items were stolen during that period and resold. The appellant involved another in his offending.
Balancing exercise
[22] Despite the matters that Mr Rogers raised for the appellant, like the District Court Judge I am not satisfied that the direct and indirect consequences of a conviction for theft in the circumstances of this case can be said to be out of all proportion to the gravity of the offence even considering the subsequent positive actions of the appellant and his personal circumstances.
Result
[23] The appeal must be dismissed.
Venning J
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