Solomon v Police
[2017] NZHC 640
•4 April 2017
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 Solomon also said:
The police summary says that I started taking money after asking for a pay rise. I had started before then and thought I could stop if I was getting a little extra pay. I accept not getting a pay rise was no excuse to keep taking the money.
District Court decision
[10] Judge Johnston noted that the Police did not oppose the discharge application and that in adopting that stance the Police had “considered the issue of the breach of trust and payment of reparation” (at the hearing Ms Solomon had offered to repay the money stolen over time).
[11] In assessing the seriousness of the offending, the Judge noted the following aggravating factors:
(a)the abuse of trust involved;
(b)a degree of premeditation (because of the connection with the refused pay rise); and
(c)the number of separate incidents involved.
[12] The Judge also referred to the inference arising from Ms Solomon’s evidence (that she had sought a pay rise in order to help her stop offending) that there may have been more thefts than disclosed in the summary of facts. He also noted that Ms Solomon had made no earlier attempt to repay the money taken, and now sought to do so over time.
[13]As to mitigation, the Judge considered:
(a)the guilty plea and co-operation with Police;
(b)the absence of previous convictions;
(c)Ms Solomon’s expression of shame; and
(d)her support in the community.
[14]Judge Johnston then said that:
Taking all those factors into account I assess the gravity of the offending was in the moderate to serious category for offending of this type.
[15] In terms of the consequences of a conviction, the Judge said that he had considered the submissions made on behalf of Ms Solomon and her affidavit although he did not refer to the contents of her affidavit specifically. He said that:
I certainly accept that there will be consequences on future employment in the event of a conviction.
[16]But, he said:
I … must also balance the fact that you committed repeated dishonesty and an abuse of trust of that long-standing employer over a period of time. I also note that any future employer, if you were to be convicted, would be put on notice about you and could make an informed decision.
[17] The Judge was not satisfied that the s 107 test was met. Ms Solomon was convicted and sentenced to pay reparation of $209.40.
Approach to discharge without conviction
[18] Section 107 is a threshold which must be met before discretion can be exercised under s 106. It requires the Court to be “satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence”. While s 106 requires an exercise of discretion, this discretion will generally be exercised in favour of the offender if the s 107 threshold is met.
[19]DC v R set out the approach to s 107 is as follows:2
(a)first, when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender;
(b)second, the court should identify the direct and indirect consequence of conviction for the offender;
(c)third, it must assess whether those consequences are out of all proportion to the gravity of the offence.
[20] In Z v R the Court of Appeal noted that the assessment of gravity required by s 107 must focus on the seriousness of the particular offence itself, not by comparison with other offending involving the same charge.3
2 DC (CA47/13) v R [2013] NZCA 255
3 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [31].
[21] Because s 107 is a question of fact requiring judicial assessment, an appeal against a finding that s 107 is not an appeal against the exercise of discretion.4 Ordinary appellate principles apply. As noted above, discretion under s 106 is only engaged once the s 107 threshold is met.
Discussion
[22] On Ms Solomon’s behalf Ms Bonifant advanced a number of ways in which the Judge allegedly erred. More particularly she said:
(a)he improperly took account of an inference drawn from her affidavit that there had been more offending, when such offending was not referred to in the summary of facts;
(b)he wrongly drew an adverse inference about her not attempting to repay the money prior to her offer of reparation. She says Ms Solomon had the right to silence during the employment and Police investigations which any repayment would have undermined;
(c)he wrongly failed to take account of the stress of Ms Solomon’s financial situation, of her relationship and the steps she has subsequently taken to address her financial issues; and
(d)he wrongly failed to take account of the offer to pay reparation under s 10(a) of the Sentencing Act 2002.
[23] Notwithstanding the fact that the Police had not opposed a discharge without conviction in the District Court, Ms Orpin-Dowell submitted that there was no error in the Judge’s reasoning and sought to have the conviction upheld.
4 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [63]-[66]; Maraj v Police [2016] NZCA
279 at [11].
[24] I do not propose to deal with Ms Bonifant’s submissions one by one. On general appellate principles I may consider the matter afresh, even absent any clear error. But for the record I do have some reservations about aspects of the Judge’s reasoning.
[25] First, there is the Judge’s statement I have quoted at [14] above. That statement appears to be contrary to what the Court of Appeal said in Z v R. Moreover, I would struggle to place the theft of $209 in “the moderate to serious category for offending of this type”, notwithstanding that it involved five discrete instances.
[26] And secondly, although it is indisputable that there was a breach of trust involved in what Ms Solomon did, it seems to me that that is inherent in the charge itself, which is predicated on the existence of a “special relationship”. It arguably seems wrong in principle to treat the existence of such a relationship as a separate aggravating factor.5
[27] In any event, I have formed the view that the s 107 threshold is met here. The bottom line is that Ms Solomon is a 31 year old woman with a previously unblemished record who admitted to stealing approximately $200 from her employer, at a time when (it is not disputed) she was under severe financial stress. While I accept that a conviction will almost inevitably have an effect on employment prospects and that (for that reason) it is not always regarded as a strong factor favouring a discharge, in Ms Solomon’s case it should carry more weight. As I have said, she was the sole breadwinner for her family in the context of what is clearly a fraught domestic situation. The additional assistance she was able to receive from WINZ following her resignation was expressly predicated on her ability to reduce her outgoings or to increase her income. If a conviction is entered she realistically has no prospect of doing either.
[28] Similarly, in light of Ms Solomon’s straitened financial circumstances I would place little significance on her failure to offer to repay the money taken earlier; her
5 Section 220 of the Crimes Act makes it clear that a special relationship exists where either there are circumstances whereby the defendant had a duty to account to another person or to deal with property in accordance with “the requirements of any other person”. In other words, where there is a relationship of trust.
means were and are very limited. The point is that she has offered to make reparation now. The fact that she is able only to offer to pay such a relatively small amount of money back over time further emphasises the parlousness of her financial state.
[29] So for all of the above reasons I am satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of Ms Solomon’s offending. The appeal is allowed accordingly and Ms Solomon’s conviction is quashed. In light of the reparation offer and the order made it is, however, appropriate to direct that she pay compensation under s 106(3)(b) of the Act in the same amount and on the same terms as ordered by the Judge.
Rebecca Ellis J
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