Solomon v Police - [2017] NZHC 640

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CRI 2017-485-9

[2017] NZHC 640

BETWEEN
LUCINDA SOLOMON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 April 2017

Counsel:

J C Bonifant for Appellant

K Orpin-Dowell for Respondent

Judgment:

4 April 2017

JUDGMENT OF ELLIS J

[1] Ms Solomon pleaded guilty to one representative charge of theft by a person in a special relationship. She admitted to taking a total $209.40, in five increments, from her employer.

[2] Ms Solomon sought a discharge without conviction pursuant to ss 106 and 107 of the Sentencing Act 2002 (the Act). Although the application was not opposed by the Police it was declined by Judge JAR Johnston on 27 January 2017.1

[3]Ms Solomon now appeals that decision.

Facts

[4] Ms Solomon was a bartender at the Mana Cruising Club in Porirua, where she had worked for five years “without any problems” as a duty manager. On 4 May 2016, she asked for a pay rise, but she was turned down.

1 Police v Solomon [2017] NZDC 1608.

SOLOMON v NZ POLICE [2017] NZHC 640 [4 April 2017]

[5] In the following two months she reversed sales in the following amounts, taking the money for herself:

(a)$20 on 4 June;

(b)$105 on 8 July;

(c)$29.40 on 9 July;

(d)$35 on 15 July; and

(e)$20 on 23 July.

[6] The thefts were detected. On 18 August 2016, there was a meeting between Ms Solomon, her lawyer and the Club to discuss the incidents. Ms Solomon did not offer an explanation or make any comment. On Monday 22 August, she resigned from her job.

[7] The charge was laid on 24 October 2016 and Ms Solomon pleaded guilty on 6 December 2016.

Ms Solomon’s affidavit

[8] On 24 January 2017 Ms Solomon swore an affidavit in support of her discharge application. In short:

(a)she was the sole provider for her husband and two children;

(b)at the time of the offending, she was under financial pressure as she was in debt and the family was only just making ends meet;

(c)she and her husband argued because she was not bringing in enough money;

(d)she was and is frightened of her husband, to the extent that she has still not told him about the charge or her conviction;

(e)financial information annexed to her affidavit supported her evidence that she was under financial pressure;

(f)in November last year she took steps to address her debts, including arranging with ASB to consolidate her debts, which now total $16,500;

(g)she also sought assistance from WINZ. On 15 November WINZ advised that she qualified for “Temporary Additional Support” of
$109.87 per week “to help with certain costs while you take reasonable steps to reduce these or increase your income where possible”. WINZ said that this Temporary Additional Support payment would cease on 13 February 2017; and

(h)Ms Solomon acknowledged her poor decision to take money from her employers and speaks of the shame she feels for letting them down.

[9]In her affidavit Ms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Solomon v Police

Details

AGLC: Solomon v Police [2017] NZHC 640
Case: [2017] NZHC 640
Decision Date: 4 April 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Lucinda Solomon appealed against a decision by the District Court to deny her a discharge without conviction for theft. Ms Solomon, a former bartender at the Mana Cruising Club, had admitted to stealing a total of $209.40 from her employer over several instances. The primary legal issue before the Court was whether the consequences of a conviction for Ms Solomon would be out of all proportion to the gravity of her offence, as required by section 107 of the Sentencing Act 2002. Ms Solomon argued that her financial hardship and the offer to repay the stolen money warranted a discharge without conviction.

The Court considered Ms Solomon’s circumstances, including her role as the sole provider for her family, her financial stress, and her efforts to address her debts. The Court noted that a conviction could severely impact her employment prospects and ability to support her family. The Court found that the direct and indirect consequences of a conviction would indeed be disproportionate to the gravity of her offence. The appeal was allowed, and Ms Solomon’s conviction was quashed. However, she was ordered to pay compensation under section 106(3)(b) of the Act in the same amount and on the same terms as previously ordered.

Orders