Small v Statistics New Zealand

[2020] NZHC 1209

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-35

[2020] NZHC 1209

BETWEEN

RICHARD ALLISTER SMALL

Appellant

AND

STATISTICS NEW ZEALAND

Respondent

Hearing:

28 May 2020

Appearances:

C G Nolan for Appellant

S J Mallett and V Diefenbach for Respondent

Judgment:

3 June 2020

JUDGMENT OF MANDER J

This judgment was delivered by me on 3 June 2020 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

SMALL v STATISTICS NEW ZEALAND [2020] NZHC 1209 [3 June 2020]

[1]    The appellant, Mr Richard Small, was charged with neglecting or refusing to fill in and supply an individual census form for the 2018 Census of Population and Dwellings. After a defended hearing he was found guilty by Judge Bouchier. He applied to be discharged without conviction, but that was declined by Judge Couch. He appeals both Judges’ decisions.

Background

[2]    It is the duty of every occupant or person in charge of a dwelling to ensure that the particulars required to be entered and recorded for statistical purposes, for the purpose of a census, are furnished in respect of every person residing at the dwelling on census day.1 It is an offence to neglect or refuse to fill in and supply the particulars required to be completed in the census form.2

[3]    In 2016, the Governor-General proclaimed that 6 March 2018 would be the date of the next census.3 Around 20 February 2018, a letter containing a census access code was sent to Mr Small’s address to enable him to complete the online electronic census forms. The code provided Mr Small with electronic access to the individual and dwelling census forms for the 2018 Census of Population and Dwellings. However, by the day of the Census, Statistics New Zealand (Statistics) had not received any census forms that corresponded with Mr Small’s address.

[4]    On 7 and 11 March 2018, Statistics sent reminder letters to Mr Small’s address requiring him to complete the enclosed paper census forms and return them in the FreePost envelope provided. Statistics received no forms from Mr Small.

[5]    On 23 March, a fieldworker for Statistics visited Mr Small at his address.   Mr Small was spoken to about having failed to furnish census forms for the dwelling and its occupants. At the conclusion of their discussion he told the Statistics representative that he “did not do them” before closing the door. Some more census forms were, however, left at his address.

1      Statistics Act 1975, s 23.

2      Section 43(1).

3      Sections 26 and 31.

[6]    Further correspondence was sent by Statistics to Mr Small regarding his census forms and related obligations. On 9 April, another Statistics representative visited Mr Small at his home. On that occasion, Mr Small advised the Statistics officer that he still had the forms and would complete them as soon as possible. The opportunity was taken to provide Mr Small with additional forms.

[7]    On 16 April, Statistics sent Mr Small a further letter advising that the census forms were overdue and warned of prosecution as a consequence. No completed forms were forthcoming.

[8]    On 16 July, the Government Statistician sent Mr Small notice of his liability to be prosecuted, together with additional census forms. A month later, on 17 August, a dwelling form and three individual forms (of the five persons present at the dwelling on census day) were received by Statistics. However, Mr Small’s individual form was not included.

[9]    A subsequent audit by Statistics of its records showed that as at 22 February 2019, no individual form for Mr Small had been received from his address.

District Court decisions

Conviction decision

[10]   Judge Bouchier, after having heard the witnesses called on behalf of Statistics and evidence from Mr Small, accepted that he had received access codes to complete the census forms because by his own admission he had attempted on two occasions to fill out the online forms. It was also clear from Mr Small’s own evidence that he had received paper forms but had not filled them out and returned them to Statistics. Therefore, the Judge found the charge of neglecting or refusing to fill in and furnish the particulars required of him to have been proved.

Sentence decision

[11]   In addressing Mr Small’s application to be discharged without conviction, Judge Couch acknowledged that the offence itself was not grave in terms of its maximum penalty ($500). However, he observed that the offence constituted a breach

of the fundamental obligation that underpins the Statistics Act 1975. He noted that it was essential that all members of the public meet their obligations under that Act to ensure the accuracy of the data collected for New Zealand’s good government.

[12]   Judge Couch noted the trial Judge’s finding that Mr Small had been well aware of his obligations and that his failure to comply occurred in full knowledge that he would be committing an offence as a result. The Judge considered the gravity of the offending was “significant” in this particular case.

[13]   Turning to the consequences of conviction raised by Mr Small. The Judge found that his business of providing abseiling services to high-rise buildings in Auckland would not be affected because no reasonable business owner would discriminate against his company on the basis of a conviction for this type of offence. Nor did he consider that Mr Small’s business insurance would be affected, and that an insurer would appreciate that Mr Small’s risk would be unaffected by his non- completion of a census form.

[14]   In relation to the issue of travel that was offered as a potential adverse consequence of his conviction, Judge Couch did not accept that an offence of this sort, which involved no harm to people or property and was not drugs-related, would substantially affect Mr Small’s ability to travel. Insofar as Mr Small may have to explain the offence to immigration officials, that was no more than a natural and reasonable consequence of committing such an offence.

[15]   Judge Couch found the consequences of a conviction would not be out of all proportion to the gravity of the offending and therefore declined Mr Small’s application to be discharged without conviction. The Judge entered a conviction, imposed a fine of $200, and ordered Mr Small to pay court costs of $130.

Principles on appeal

[16]   An appeal against conviction entered following a Judge-alone trial will only be successful if the appeal court finds that the trial court erred in its assessment of the evidence to such an extent that a miscarriage of justice has occurred, or that “a

miscarriage of justice has occurred for any reason”.4 A miscarriage of justice means any error, irregularity, or occurrence in relation to the trial that has created a real risk that the outcome of the trial was affected, or which resulted in an unfair trial.5

[17]   It is for the appeal court to form its own view of the facts and determine the appeal accordingly. If an appeal court comes to a different view from that of the trial judge on the evidence, it follows that the lower court has erred and that there has been a miscarriage of justice which requires the appeal to be allowed.6

[18]   In respect of an appeal from the refusal to grant a discharge without conviction, the appeal court is required to approach the matter by way of rehearing and make its own assessment as to whether the proportionality test of whether the consequences of a conviction would be out of all proportion to the gravity of the offending has been made out.7 If a discharge without conviction should have been granted, then it follows there will have been a material error made by the sentencing judge and that a miscarriage of justice must have occurred which would not permit the conviction to stand.8

The conviction appeal

[19]   Mr Small maintained there was insufficient evidence upon which Judge Bouchier could have found that he had “neglected or refused to fill in and supply particulars”. In the absence of being able to prove this element of the offence, he contended that he should have been acquitted of the charge. In support of Mr Small’s argument his counsel, Mr Nolan, referred to the following passage of Mr Small’s evidence:

Q        What do you recall about trying to complete the census online?

AI tried twice, two good honest attempts. The first time I got distracted. It was more difficult and it was going to take longer than what I had anticipated, anticipating or what I was promised or stuff I was promised and as Sue mentioned you know we had quite a bit going on

4      Criminal Procedure Act 2011, s 232(2)(b).

5      Section 232(4).

6      Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [25] and [38].

7      H (CA680/2011) v R [2012] NZCA 198 at [35]-[36].

8      Criminal Procedure Act, s 232(2)(b) and (c); and Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12].

at home so I could have been distracted by that. I recognise that I had to back there later and do it again so I tried again, still kept the code and that information and tried again and I just couldn’t really make sense of it. Just pretty tough unfortunately. It wasn’t as easy because I filled out all the other census forms in the past and I’m not known for my strong computer skills but yeah it was just too confusing or too hard. Something like that.

Q How far through the forms did you get?

A      For the forms I didn’t fill out the paper forms at all. Q Online how far through did you get?

AFirst time not very far at all and the second time I can’t remember a   bit further but I didn’t really know how far, you know this is not like paper forms. You can’t really look at a book and see how far you are through it and on the computer I find the forms different you know.

[20]   Mr Nolan submitted that Mr Small’s evidence, which was not challenged in cross-examination, showed that Mr Small had completed the online census form. While he was candid that he did not know whether he had completed the whole form or how far through he had got, it was argued there was no evidence that Mr Small had not completed all the questions, nor, it was suggested, was it proven that he did not know that the answers had not been “retrieved” by Statistics.

[21]   Unfortunately, Mr Nolan’s argument is based on two false premises. First, that the obligation that underpins the offence is limited to neglecting or failing to complete the census form. Secondly, that the prosecution had to prove that Mr Small knew that the required particulars had not been received by Statistics, or that he knew that he had not answered every question in the census form.

[22]   The statutory obligation that Mr Small was required to fulfil was not only to complete the census form or, in the words of the statutory obligation, to “... fill in” the particulars, but also to supply or furnish those particulars.9 Similarly, the offence is one of neglecting or refusing to “fill in and supply” the required particulars.10 Compliance with the obligation is incomplete if all that is done is simply an attempt to complete the form, particularly an attempt that, in Mr Small’s words, resulted in

9      Statistics Act, s 32.

10     Section 43.

him not getting “very far at all” through the online form on his first attempt and only “a bit further” on his second effort.

[23]   Moreover, there was an abundance of evidence that Statistics had not received Mr Small’s individual census form. Mr Small’s evidence that he attempted to complete the form did not extend to any claim to having sent the limited particulars he had filled out. On any analysis, Mr Small failed to supply the requested particulars. His evidence fell well short of demonstrating compliance or disputing the prosecution’s evidence that Statistics had not received Mr Small’s census form.

[24]   The offence is one of  strict  liability.  To  the  extent  Mr  Nolan  relies  on Mr Small’s evidence to found an argument that his client held an honest belief that he had discharged his obligations, such a submission does not advance his cause. The prosecution was not required to establish intent or any particular state of mind held by Mr Small regarding his failure to furnish the required information. Given the series of events after the non-receipt of Mr Small’s census form by census day, there is no basis to suggest Mr Small had available to him a defence of total absence of fault,11 nor was it suggested otherwise.

[25]   Mr Small’s subsequent interactions with Statistics, that included two physical visits to his property and a series of letters, clearly demonstrated that he was aware that his census form had not been received and that the required particulars had not been furnished by him. The suggestion made on his appeal that there was no evidence to suggest that he had not completed all the questions or that he did not know that those parts of the online form that he had filled out had not been received by Statistics is unsustainable. Whatever difficulties Mr Small had with the online form, the fact remains that he was supplied with paper forms that he acknowledged receiving and admitted having not filled out, let alone having supplied the required particulars.

11 See A P Simester, W J Brookbanks and Neil Boister Criminal Law – A to Z of New Zealand Law (online ed, Thomson Reuter) at [20.5.1(2)]; and Canterbury Central Co-operative Dairy Co Ltd v McKenzie [1923] NZLR 426 (SC) at 428.

[26]   On the evidence adduced before her, Judge Bouchier’s conclusion that Mr Small had neglected or refused to fill in and supply the particulars required by the census form was inevitable, and he was properly convicted.

Sentence appeal

[27]   Mr Nolan argued that Judge Couch’s assessment of the gravity of the offence as being “significant” was wrong because it was at odds with the nature of the offence, as illustrated by its maximum penalty of only $500. He submitted the Judge failed to take into account relevant mitigating features of the offence. In that regard, he sought to rely upon what he submitted was a high level of non-compliance in relation to the 2018 Census. He noted over 700,000 people had failed to complete the required forms.

[28]   Mr Nolan argued the fact that Mr Small had made two attempts to complete the online form should have been taken into account in assessing Mr Small’s culpability and that the burden of a conviction when assessed against the consequences to Mr Small, as outlined before the District Court, would be out of proportion to the gravity of the offending. For these same reasons it was also submitted that the $200 fine was manifestly excessive.

[29]   Mr Mallett, on behalf of the Crown, acknowledged that Judge Couch’s assessment of the gravity of the offending as “significant” when compared with other categories of offence might be considered inappropriate, but it was serious offending of its kind. He pointed to the numerous failures by Mr Small to comply with his obligations despite the repeated efforts of Statistics to obtain the information from him and the multiple warnings that were provided to him about being prosecuted if he persisted in his failure to comply. Mr Mallett submitted that those matters aggravated the offending.

[30]   A court may grant a discharge without conviction only if it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.12 This is assessed by the three-step process of identifying the gravity of the offending, the consequences of a conviction for that person, and then

12     Sentencing Act 2002, ss 106 and 107.

determining whether they are out of all proportion to the gravity of the offending.13 Only if the statutory test is met is a sentencing court able to decide whether to exercise it discretion.

[31]   Failing to complete and provide a census form is a regulatory offence that will by its nature sit at the lower end of the spectrum of offending when compared to other classes of offence. Overall, when measured against the wider scheme of the criminal law, its gravity is not significant, attracting as it does only a maximum fine of $500. However, the seriousness of any breach has to be viewed in that context, with the consequences of a conviction likely to be correspondingly minor.

[32]   In the present case, I consider the offending could be regarded as flagrant.  Mr Small’s misconduct was repeated and deliberate. He refused to comply even after being physically visited on two occasions, sent reminder letters and provided numerous warnings of prosecution. As was submitted before the District Court, census information informs a wide range of policy decisions that depend on accurate official statistics. Refusal to provide the information is to the detriment of the wider interests of the community as a whole.

[33]   In mitigation, and as was noted by Judge Couch, Mr Small has no previous convictions. However, he did not present as remorseful. Reliance on wider non- compliance within the community of census obligations provides no excuse, nor is it a source of mitigation when set  against  the  consistent  and  deliberate  nature  of Mr Small’s failure to comply with his lawful obligations. Overall, therefore, I do not consider that Judge Couch made a material error in his assessment of the gravity of the offending.

[34]   In relation to the consequences for Mr Small, I consider the Judge was entitled to place little weight on what were speculative consequences regarding travel and the effect on Mr Small’s business. Because of the very low level nature of the offence, it is very unlikely to presumptively bar Mr Small’s entry into other countries or present any great  difficulty,  other than perhaps  requiring  him  to  engage with Immigration

13     R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]-[17]; Z (CA447/2012) v R [2012]

NZCA 599, [2013] NZAR 142 at [8]; and A (CA747/2010) v R [2011] NZCA 328 at [25].

officials. No evidence was put forward in support of this ground and it is not clear whether a fine-only regulatory offence would trigger any requirement for such a conviction to be declared.

[35]   The business and insurance consequences relied upon before the District Court are also speculative and, again, no objective supporting material was put forward in support of any material disadvantage that Mr Small might suffer in this regard. Any adverse consequences for him appear minimal and would likely amount to having to go to the trouble of disclosing the existence of the conviction in forms and other paperwork.

[36]   It follows that Mr Small falls well short of demonstrating that the consequences of a conviction would be out of proportion to the gravity of the offending. In the absence of the statutory threshold being met a sentencing court is not permitted to exercise its discretion to discharge without conviction. Mr Small’s application was inevitably and properly declined.

[37]   The $200 fine could not be described as manifestly excessive. It represents less than 50 per cent of the maximum fine available, and when regard is had both to the deliberateness of Mr Small’s omission and the cost and resource that had to be expended by the taxpayer in an endeavour to have Mr Small comply with his statutory obligation, the penalty imposed was relatively modest in comparison.

Result

[38]The appeal against conviction is dismissed.

[39]   The appeal against the refusal to discharge Mr Small without conviction is dismissed.

[40]The appeal against sentence is dismissed.

Solicitors:

Christopher Nolan Barrister, Christchurch Crown Solicitor, Christchurch