S v Police HC Wellington CRI-2009-485-126

[2009] NZHC 2067

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-485-126

S

v

NEW ZEALAND POLICE

Hearing:         27 October 2009

Appearances: Mr Lillico and Ms Boyd for Mr S 

Ms Grau for New Zealand Police

Judgment:      5 November 2009         at 4.15 pm

JUDGMENT OF MALLON J

Introduction

[1]      Mr S   opened a Telecom account using a false name and incurred a debt of $1,584.71.  He was charged with incurring a debt by deception and without claim of right (ss 240(1)(b) and 241(a) of the Crimes Act 1961).  Mr S   pleaded guilty and on 28 November 2007 he was convicted and sentenced to 40 hours’ community work and ordered to pay $2,083.71 reparation.  The reparation was for the debt on the Telecom account plus an unpaid debt on another account which was the subject

of another charge until that charge was withdrawn at the time of his guilty plea.

S V NEW ZEALAND POLICE HC WN CRI-2009-485-126  5 November 2009

[2]      Mr S   now appeals out of time against that sentence1  contending that it was manifestly excessive and that he ought to have been discharged without conviction.   Ms Boyd, Mr S  ’s counsel, accepts that the sentence which was imposed on Mr S   would have been unobjectionable but for Mr S  ’s particular circumstances.   Mr S   is a Somalian refugee who had been working as a taxi driver.   She submits that the consequences of the conviction on Mr S  ’s employment and on his application to obtain New Zealand citizenship are out of all proportion to his offending.

[3]      No  application  for  a  discharge  for  conviction  was  made  at  the  time  of Mr S  ’s  sentencing.    Relying  on  R  v  Hughes  [2008]  NZCA  546  at  [47], Mr S  ’s counsel submits that the Court nevertheless needed to consider whether a discharge without conviction was the least restrictive appropriate sentence.   She acknowledges that material about the consequences of his conviction was not put before the Court even though some of those consequences were foreseeable at the time.     She  seeks  leave  to  adduce  evidence  of  those  consequences  –  both consequences that were foreseeable at the time and unanticipated consequences.

[4]      Leave is also sought to extend the time for bringing the appeal on the basis that Mr S   says he only realised the consequences of his conviction in the last few months and that there were then problems with arranging his legal representation.

Evidence of consequences

[5]      The respondent does not oppose the granting of leave to adduce the evidence Mr S   relies on and has filed evidence in response.   I proceed by considering whether the new evidence would have made any difference to the sentence that Mr S   received.   If it would not, then it does not matter whether the evidence ought to be admitted in the interests of justice under s 119 or s 121(3)(b) of the

1  There is conflicting authority as to whether an appeal on the basis that the offender ought to have been discharged without conviction is an appeal against sentence or an appeal against conviction and sentence: see R v Lee HC AK CRI-2005-404-28 27 July 2005 and R v Accused [1991] NZLR 79 (CA). The Crown does not oppose an amendment to the appeal if that is considered necessary. I am content to deal with the appeal as an appeal against sentence (as in R v Wang HC AK HC 2008-404-

316 23 March 2009 and Nash v New Zealand Police HC WN CRI-2009-485-7 22 May 2009) without requiring any amendment to the papers.

Summary Proceedings Act 1957 (applying the approach in Lee v Police HC AK CRI

2005-404-028 27 July 2005 at [16] and [17]).

[6]      I turn first to consider the evidence about Mr S  ’s employment. Mr S   has filed an affidavit in which he says that from 2005 he worked as a taxi driver, that his taxi licence expired on 2 March 2009 and that the  New  Zealand  Transport Agency (the Agency) has given notice that they wish to disqualify him from driving a vehicle for use in a passenger service for 10 years.  Mr S   also says that about two months ago he applied for a job doing security work.  He says that when they saw he had a conviction he was told he was not suitable.  He also refers to applying in January for work as a courier with Courier Post.  He says that once Courier Post checked his record they declined his application.

[7]      The  respondent  has  filed  an  affidavit  setting  out  further  details  about Mr S  ’s ability to work as a taxi driver. Mr S  ’s passenger endorsement on his licence (which is needed to operate a taxi) was revoked with effect from 17 August

2007 (that is, before his conviction).  He was prohibited from applying for such an endorsement for two years from that date.   The grounds for that revocation, as described in the District Court’s decision which considered an appeal from that revocation, were a number of traffic convictions and infringements as well as non- compliance with requirements as to  maintaining a vehicle in  a safe and  proper standard and the maintenance of logbooks recording driving hours.

[8]      The District Court’s decision on his appeal was delivered on 30 November

2007 (that is, two days after his conviction and sentence on the deception charge). Mr S   was successful in that appeal but was given a warning that any further offending, particularly of a type which carried any risk to public safety such as speeding or failing to obey traffic signs, was likely to result in swift revocation of his passenger endorsement.

[9]      By notice  dated  1  October  2009,  and  with  effect  from  8  October  2009, Mr S  ’s passenger endorsement was revoked, he was disqualified from driving any vehicle being used in a passenger service for 10 years and was prohibited from applying for a passenger endorsement for 10 years.   The reasons for this included

continued traffic offending which was viewed as “persistent and serious” and which suggested “a general disregard for relevant transport law, and for the rights and safety of the public”.  Reference was also made to Mr S   having driver’s licences issued in three different names and to Mr S   giving various names to the immigration service.  It was said

Were you to apply for a new P [passenger] endorsement under existing law and policy, then you would not be eligible to be issued a P endorsement because the Agency could not be satisfied that you had not been convicted of a specified serious offence, pursuant to section 29A(a) or (b) or (c) [of the Land Transport Act 1998] and further, that the Agency is unable to establish, or prove, your real identity, and further is unable to verify any documents or information provided by you, in support of your claims of identity, or any claim that you might make that you had no criminal or traffic history prior to coming to New Zealand.

It would not be in the public interest to allow you to continue to hold a P

endorsement on your driver licence.

[10]     The conviction in respect of the Telecom account is not even referred to.  So although it was potentially relevant to the Agency’s assessment, it is apparent from the further information provided by the respondent that Mr S   is no longer able to work as a taxi driver for other reasons.  In any event, the Agency has the function to decide whether Mr S   is a suitable person to  operate  a taxi.    In  making its assessment the Agency referred to concerns about different names used by Mr S   in relation to his licences and in an Immigration interview.  The conviction on the Telecom account is potentially relevant to the Agency’s assessment, especially as it involved Mr S   using a false name.   The Court should not usurp the Agency’s function by granting a discharge without conviction on a matter which is potentially relevant  to the Agency’s assessment (R v Rollo CA 1/04 8 October 2004 at [36]; and R v Foox [2001] 1 NZLR 641 (CA) at [39]).

[11]     As   to   other   employment   opportunities,   the   offending   here   involved dishonesty.  It is predictable that a conviction for dishonesty offending may affect other employment opportunities.  I accept that Mr S   is unlikely to have found it easy coming to New Zealand as a refugee and this is relevant when assessing the gravity of the offending.   But nevertheless it is dishonesty offending and it seems that  this  is  not  the  only  occasion  that  Mr  S    has  been  using  false  names.

Employers of security officers or couriers are entitled to know of the conviction and to consider his suitability for employment in light of it.

[12]     As to the effects on his citizenship application, Mr S   deposes that he has been declined New Zealand citizenship because of his conviction.  He says that the effect of this is that he cannot travel to Somalia to see his daughter.  He says he tried to do so in July 2008 via Kenya but Kenya would not accept his New Zealand documents.

[13]     Mr S   has provided a letter from the Department of Internal Affairs dated

15 May 2008 which advises Mr S   that his application for citizenship is declined and that based on information on his file it is unlikely that any further application lodged before 28 November 2010 would be successful.  It is submitted on Mr S  ’s behalf that the letter shows that the conviction was the reason for his unsuccessful application.

[14]     Mr S  ’s conviction is certainly a reason for the decision.  The letter states:

The Minister was not satisfied that you meet the requirements of sections

9A(1)(c) or 9A(2) of the Citizenship Act 1977.  In assessing your application the Minister took into consideration that under:

Section 9A(1)(c)      you were convicted of ‘obtaining by deception’ within the three years before submitting your application

Section 9A(2)         you   have   not   sufficiently   demonstrated   that   the circumstances relating to your conviction were out of the ordinary, rare or abnormal.

[15]     However, earlier in the letter it is also said:

To authorise the grant of citizenship under the Citizenship Act 1977 the Minister must be satisfied, amongst other things, that you are of good character and that any conviction which falls within section 9A of the Act is taken into account.   In reaching his decision the Minister considered information   that   affected   your   ability   to   meet   the   good   character requirement.  This information related to the false documentation that was provided to the Department in support of the processing of your application.

[16]     The respondent has filed an affidavit from an investigations officer with the Department  of   Internal  Affairs  which  provides   further   evidence  relating  to Mr S  ’s citizenship application.  The officer confirms that the conviction meant it

was unlikely that Mr S  ’s application would be successful before 28 November

2010 and that this is because of s 9A of the Citizenship Act 1977.  Under that section the Minister is not to authorise the grant of citizenship to a person with a conviction in the preceding three years for an offence for which a sentence of imprisonment was not imposed unless the Minister is “satisfied that there are exceptional circumstances relating to the conviction”.

[17]     Regardless of a conviction a Minister may refuse a grant of citizenship if the Minister is not satisfied that the applicant is of good character (ss 8(2)(c) and 9A(3) of the Citizenship Act).  The officer deposes in respect of this requirement that when Mr S   last applied for citizenship he submitted a false medical letter stating that his mother suffered a heart attack as a result of a lion attack and also that she suffered burns.  The officer deposes that because of this false documentation “even if Mr S   had not received a criminal conviction in the preceding three years, he would have been unable to satisfy the good character requirement”.

[18]     This further information shows that the position with Mr S  ’s citizenship application is like his taxi driver status.  He would have had difficulties regardless of the conviction.  Furthermore the Court should not usurp the Minister’s function to assess whether Mr S   should be granted citizenship in light of the conviction.

Result

[19]     The new evidence does not establish that the conviction has or will have consequences for Mr S   which are out of all proportion to the gravity of the offending.  I am satisfied that on the new evidence a discharge without conviction would not be appropriate.  Accordingly the appeal has no prospects of success and I decline leave to appeal out of time.

Mallon J

Solicitors:

M Lillico, Ord Lillico, Wellington, email: [email protected]

K Grau, Luke Cunningham & Clere, Wellington, email: [email protected]