Stephen v Police
[2025] NZHC 1294
•22 May 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-280 [2025] NZHC 1294
BETWEEN ALEXIS JOSEPHINE STEPHEN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 1 May 2025 Appearances:
O K Jarvis and H L Beaven for Appellant K N Stitely for Respondent
Judgment:
22 May 2025
JUDGMENT OF MANDER J
This judgment was delivered by me on 22 May 2024 at 4 pm pursuant to Rule 11.5 of the High Court Rules 2016
Registrar/Deputy Registrar Date: .
STEPHEN v POLICE [2025] NZHC 1294 [22 May 2025]
[1] After pleading guilty in the Christchurch District Court to charges of theft of a dwelling for an amount over $1,000,1 and of using a document for pecuniary advantage,2 Alexis Stephen applied to be discharged without conviction.3 Judge Orchard declined that application, and sentenced Ms Stephen to 200 hours’ community work on the theft charge, and imposed reparation in the sum of $375 on the charge of using a document for pecuniary advantage.4
[2] Ms Stephen appeals the refusal to discharge her without conviction. She alleges the Judge erred in assessing the gravity of her offending and its consequences. As a result, it is submitted the Court erroneously found those consequences were not out of all proportion to the gravity of the offending.5
Facts
[3] Ms Stephen was granted access by her mother, Jacqueline Just, to her house for the purpose of tending her garden and caring for some pet guinea pigs while Ms Just was away for a week’s camping.
[4] During this period, Ms Stephen accessed her mother’s jewellery box. She stole three diamond rings and a gold chain worth some $17,000. Ms Stephen also allowed a male and female associate to enter Ms Just’s home. They stole a further 12 items of jewellery worth $21,042. Additionally, the male stole an electric bike worth $1,800. In total, property worth $39,946 was stolen.
[5] During the same period, Ms Stephen went to a pawn shop where she signed two pawn loan agreements. By signing those documents, Ms Stephen represented she was the owner of two of the stolen jewellery items that she exchanged for $375. Those items have since been recovered. However, the other jewellery and electric bike have not.
1 Crimes Act 1961, ss 219 and 223(b)—maximum penalty: seven years’ imprisonment.
2 Crimes Act, s 228(1)(b)—maximum penalty: seven years’ imprisonment.
3 Sentencing Act 2002, s 106.
4 Police v Stephen [2024] NZDC 27535.
5 Sentencing Act, s 107.
[6] Ms Just was compensated for her loss by her insurance company. She did not seek reparation in relation to her payment of the excess.
[7] It was an accepted fact that Ms Stephen, at the time of her offending, was suffering from an addiction.
District Court decision
[8] The Judge categorised the gravity of the offending as being moderately serious due to the gross breach of trust, both in terms of Ms Stephen having stolen family jewels from her mother at a time when she had entrusted her daughter to look after her house, and by permitting her friends to also steal valuable property. The near $40,000 value of the stolen property was also noted as being indicative of the moderately serious gravity of the offending.
[9] The Judge concluded that Ms Stephen had taken no or few steps towards attempting to recover the outstanding property (valued at some $30,000), and had failed to provide any information as to those items whereabouts, or cooperate with the police to identify the other persons involved. Because of these aggravating factors, including Ms Stephen’s failure to reimburse the pawn shop, the Judge considered a starting point of 18 months’ imprisonment was appropriate.
[10] Turning to personal mitigating factors, the Judge observed that Ms Stephen was over 40 years of age and was appearing before the Court for her first time. She had undertaken 30 days of rehabilitation at a facility in Warkworth, followed by a six- month stay with an organisation called “Living Sober”, and engaged with Narcotics Anonymous and Alcoholics Anonymous.
[11] It was acknowledged that Ms Just had provided written material to the Court confirming that her daughter had turned a corner and remained sober since undertaking rehabilitation, which counted in her favour. The Judge considered these personal mitigating factors “might well” take the overall gravity of the offending down to moderate.
[12] In terms of the consequences for Ms Stephen from entering convictions, the Judge acknowledged her mother had employed her in the family finance company for more than 20 years, but that, as a result of her offending, she would not be able to retain her position as a credit control manager. Ms Just was of the view that the finance company would be obliged to disclose Ms Stephen’s offending to clients, and this made her continued engagement in the business untenable. The Judge acknowledged that Ms Stephen’s convictions, in all likelihood, would put an end to her being able to work in the finance industry.
[13]The Judge further observed:6
I am of the very clear view that any institution which deals with money is entitled to know the background of any person that they are looking at employing, and that includes knowing whether they have committed a serious dishonesty offence… I do not regard you as having to disclose [your offending] to a prospective employer, even though that is likely to lead to you not being employed in that area of work, as being disproportionate to the gravity of the offending. Dishonesty offending by people who wish to work in the finance area is such that any sensible person would appreciate the risk that they are running by stealing, and I am afraid you have chosen to run that risk and you must bear the consequences.
[14] The Judge concluded that Ms Stephen had not established that the likely consequences of her convictions outweighed the gravity of the offending and her application to be discharged without conviction was declined.
Statutory framework
[15] A court may only grant a discharge without conviction under s 106 of the Sentencing Act 2002 if it is satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.7 That statutory test involves a judicial assessment of fact, and appeals from such decisions proceed by way of rehearing. The appellate court is required to make its own assessment of whether the criteria has been established.8 If it is determined a discharge without conviction should have been granted, then there will have been a material
6 At [20].
7 Sentencing Act, s 137.
8 H v R [2012] NZCA 198 at [35]–[36].
error by the sentencing Judge, or a miscarriage of justice will have occurred such that the appeal against conviction must be allowed.9
The appeal
[16] On behalf of Ms Stephen, Ms Jarvis submitted the sentencing Court, when assessing the gravity of the offending, had failed to take into account a number of relevant considerations. These included the appellant’s remorse, her commitment to rehabilitation, the restorative efforts she had made, her guilty plea and prior good character, which, it was argued, should have resulted in the gravity of the offending being categorised as “low to moderate”, rather than moderate.
[17] It was further submitted that Ms Stephen’s reduced culpability, as a result of the nexus between her addiction and her offending, had not been adequately taken into account. Nor, it was submitted, had the Judge paid sufficient regard to the reconciliation that had been achieved between Ms Stephen and her mother, all of which should have tempered the Court’s assessment of the gravity of the charges.
[18] Ms Jarvis described the consequences of the convictions for Ms Stephen as being high or severe. It was argued that, while the District Court had accepted that “in all likelihood” the entry of convictions would end Ms Stephen’s career in the finance industry, it had not taken into account the wider repercussions for her employment prospects, including her ability to financially sustain herself and her family, nor the more general consequences for her.10 Drawing on the approach taken by the Court of Appeal in Meijler v R, it was argued the entry of convictions in the circumstances of this case were out of all proportion to the gravity of Ms Stephen’s offending.11
[19] The respondent opposes the appeal. Ms Stitely, on behalf of the Police, submitted the District Court was correct not to discharge Ms Stephen without conviction. It was submitted that, having regard to the circumstances of Ms Stephen’s
9 Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].
10 Alsgami v Police HC Auckland CRI-2007-404-62, 15 June 2007; Harvey v Police HC Christchurch CRI-2007-409-235, 13 February 2008; and Tavili v Police [2012] NZHC 2323.
11 Meijler v R [2021] NZCA 472.
offending, the predictable common consequences of convicting her were not out of all proportion to its gravity.
Application to admit evidence
[20] The appellant seeks to adduce evidence on her appeal in the form of affidavits from herself, her mother, and a recruitment specialist. The evidence is not fresh as this information was largely available at the time Ms Stephen was sentenced and predominantly reflects material, albeit perhaps in greater detail, that was before the District Court. However, no issue arises as to the credibility of the evidence, and I accept the information better assists the Court to understand Ms Stephen’s personal circumstances, both then and now, and the wider family situation. To some extent, some of the matters canvassed may qualify as updating information, although the material also traverses the offending and Ms Stephen’s situation at that time. Insofar as the affidavit from the recruitment consultant is concerned, its utility is largely confined to confirming the generic difficulties a person with dishonesty convictions will have when seeking employment.
[21] On balance, I consider the overarching consideration of the interests of justice favour the admission of the affidavits. The information may potentially assist the appellate Court to better assess factors relevant to the merits of Ms Stephen’s application, and provide greater context in relation to her offending, her personal position, the circumstances pertaining to her family and her employment prospects. In that regard, the affidavits may potentially affect the approach that ought to be taken to the disposition of her charges.12
The gravity of the offending
[22] There is no real challenge to the accuracy of the District Court’s identification of the aggravating features of Ms Stephen’s offending, which largely centre on there having been a gross breach of trust, the value of the property taken (including that not recovered), and Ms Stephen’s failure to assist in the identification of her associates and the recovery of the property. However, while the Judge accepted there were
12 Mark v R [2019] NZCA 121 at [16].
mitigating factors reducing the gravity of the offending, Ms Jarvis argued these personal factors were not adequately taken into account.
[23] Ms Jarvis emphasised that Ms Stephen’s offending was linked to her addiction to alcohol, and that the Judge had omitted to explicitly turn her mind to this aspect of the offending. Care is required when assessing the extent to which an offender may have been under the influence of alcohol at the time of their offending and if this can be treated as a matter of mitigation.13 However, the abuse of alcohol was clearly part of Ms Stephen’s personal makeup at this time, and influenced her actions. It was at the root of her personal difficulties and causatively contributed to her offending. Ms Stephen has now taken considerable steps, with the assistance of her mother, to address her addiction. The 30-day residential rehabilitation programme undertaken in Auckland required Ms Stephen not to leave the grounds of the residence unaccompanied, and she was subject to random alcohol and drug testing. From there, she transitioned to the “Sober Living Programme”, which again involved her residing at the centre for six months.
[24] It was submitted the Judge’s reference to Ms Stephen having engaged in a “pretty brief period of rehabilitation” was an unfair description of her efforts to address her alcohol addiction. However, a closer examination of the Judge’s remarks reveals it was accepted that Ms Stephen had spent a further six months at a residential rehabilitation centre and engaged with other rehabilitative organisations. The Judge also observed that Ms Just believed her daughter had “turned a corner” and had remained sober, which was acknowledged as being something very much in Ms Stephen’s favour. It was that factor, together with the absence of prior offending, that prompted the Judge to lower her initial assessment of the seriousness of the offending to moderate.
[25] I accept the sentencing Judge did not explicitly acknowledge Ms Stephen’s remorse, but I do not consider this has given rise to any material error. The rehabilitative initiatives Ms Stephen has been motivated to undertake and the reconciliation she has achieved with her mother, all undoubted markers of remorse,
13 Sentencing Act, s 9(3).
were acknowledged by the Judge, as, indeed, was Ms Stephen’s guilty plea. As against those tangible indicators of remorse is Ms Stephen’s choice not to assist police with their inquiries. However, there are some features of the offending and aspects of Ms Stephen’s personal circumstances that were not canvassed by the District Court to which regard should have been given when assessing the nature and gravity of the offending.
[26] The first is that Ms Stephen was at a considerably low ebb at this time of her life. She was addicted to alcohol, and her functioning appears to have been impaired as a result. During this period, which extended over a number of years, relations between mother and daughter deteriorated. Ms Stephen had lost her job in the family firm and her downward spiral had necessitated Ms Just taking formal responsibility for the care of Ms Stephen’s daughter. Prior to the offending it had been thought matters had improved. Ms Stephen had previously undertaken residential treatment at the facility in Auckland and it was believed she could be entrusted to mind Ms Just’s house. With the benefit of hindsight, it is apparent Ms Stephen was not particularly motivated to address her addiction and her mother’s confidence in her was misplaced. Ms Stephen remained in the grip of her alcohol addiction when the offending occurred.
[27] The second aspect which was worthy of acknowledgement was that the offending was primarily committed against Ms Stephen’s mother and, to some degree, represented a further chapter in a difficult ongoing family situation which Ms Just had been attempting to manage. However, it needs to be borne in mind that a victim’s views cannot dictate a sentencing outcome.14 As emphasised by Ms Stitely, a crime represents a public wrong. In this regard, it should not be forgotten that the pawnshop proprietor was duped and remained out of pocket at the time of sentencing. Moreover, while Ms Just has been financially compensated by her insurance company, the offending resulted in considerable monetary loss. That said, Ms Just is understanding of her daughter’s personal circumstances at the time. She forgives her and seeks only to support her. Her desire for leniency can properly be taken into account by the Court.15
14 See R v Taueki [2005] 2 NZLR 372 (CA) at [33(b)], citing R v Clotworthy (1998) 15 CRNZ 651 (CA).
15 R v AM [2010] NZCA 114, [2010] NZLR 750 at [64].
[28] Finally, under this heading, it was submitted that Ms Stephen’s offending against a family member could be distinguished from a theft in a work or employment environment and should be viewed as less serious, and therefore less warranting of a conviction to mark such offending. While the context of the offending which occurred in a family setting is a relevant factor, I am not persuaded that the level of dishonesty required to steal from a family member is any less than may otherwise be needed to commit theft against an employer or a stranger. Arguably, theft from a family member who placed their trust in the offender involved a greater or, at least, comparable degree of culpability.
[29] Having factored all relevant matters into a reassessment of the seriousness of the offending, I am unable to conclude the Judge erred in her amended view of the offending being “perhaps… moderate”. Overall, notwithstanding aspects of Ms Stephen’s personal circumstances that were required to be taken into account as part of that assessment, I do not consider the District Court’s categorisation was inaccurate when regard is had to the nature of the offending and its particular features.
Consequences of convictions
[30] The prime submission made in support Ms Stephen’s argument that the District Court erred in its assessment of the consequences of a conviction, rested on the effect those convictions would have on her ability to seek employment, particularly in the area of finance in which she has some experience and expertise. While it is acknowledged the District Court concluded that “in all likelihood” a conviction would end Ms Stephen’s prospects of working in the finance industry, it was argued that the sentencing Judge failed to consider the potential repercussions of such an outcome, including on Ms Stephen’s ability to financially support herself and her family. Undoubtedly, there is a real and appreciable risk of such consequences, not only in respect of Ms Stephen’s past field of work, but in securing employment more generally. Her latest affidavit attests to some of the difficulties she is already experiencing. However, I do not consider the Judge’s approach led her into any material error.
[31] The District Court accepted that a conviction would, in all likelihood, prevent Ms Stephen from obtaining employment in finance work. The Judge articulated her reasoning as to why such a consequence was not to be unexpected in her sentencing decision, set out earlier at [13]. The Judge’s observations are accurate. They, in large measure, reflect why a position is unlikely to be available to Ms Stephen with the family finance company and why it is generally recognised a person with dishonesty convictions cannot work in that field. Ms Just, herself, acknowledged that she would not hire someone with a dishonesty conviction, although that view was expressed in support of the proposition that the simple fact of such a conviction would render Ms Stephen ineligible to any prospective employer without consideration of the circumstances sitting behind the convictions.
[32] In R v Taulapapa, the Court of Appeal observed that, notwithstanding the social stigma attaching to the recording and publishing of convictions which may affect a person’s career and employment, those consequences must normally yield to an employer’s right to know.16 This negative impact on an offender’s employment prospects is to be viewed as an expected or ordinary consequence of committing a dishonesty offence.17 However, such a consequence will be unfairly severe if the conviction does not properly reflect the offender’s culpability and unjustifiably conveys an unwarranted view of the person’s character when regard is had to the particular circumstances of the offending. In that situation the consequences will be disproportionate.18
[33] Disqualification from working in the finance industry is a predictable repercussion of dishonesty offending and any prospective employer would ordinarily be entitled to be aware of that relevant part of a candidate’s background. Insofar as it is submitted that the nature of Ms Stephen’s conduct would not be accurately reflected by a conviction of that type, I am unable to accept that argument. Ms Stephen acted dishonestly. Even after all relevant circumstances that bear on her actions are taken into account, that feature largely remains undiluted and is central to her offending. It
16 R v Taulapapa [2018] NZCA 414 at [42(a)].
17 JSJL v New Zealand Police [2017] NZHC 635 at [21].
18 R v Taulapapa, above n 16, at [42].
follows that the entry of a conviction would not result in the illegitimate outcome of her being unfairly disregarded by an employee without cause.
[34] It is argued there are also more general consequences that flow from the entry of convictions which should be taken into account. The evidence of the recruitment consultant is that a person with a dishonesty conviction is likely to face automatic rejection in the absence of having any ability to explain the background to their offending. The consequential effects of unemployment and financial hardships are attested to by Ms Stephen, who refers to being on a benefit and now lacks confidence to apply for positions in the knowledge it will likely involve a check for criminal convictions. These more general consequences of a conviction can be legitimately considered when assessing the effects on an individual defendant.19
[35] I accept that a conviction, of itself, is a serious consequence, particularly for a mature person who has no previous record of offending.20 It is to be acknowledged that, for Ms Stephen, not being able to obtain work would be a significant setback, as it would be for anyone convicted of such offending, particularly for the first time. Unfortunately, these are consequences that, in the main, attach to this kind of offending. It is inevitable that a person who has convictions for dishonesty will likely find them to be an impediment to securing work, particularly if the employment being sought involves a position of trust.21 These consequences of a conviction, which centre on Ms Stephen’s employment prospects, the related financial hardships and the consequent lack of economic security can ordinarily be anticipated as likely outcomes.
[36] This is not to say these are not serious consequences, obviously they are. However, having regard to the nature and circumstances of Ms Stephen’s offending, it is not apparent that a prospective employer would be misled as to their gravity, or that the convictions would otherwise present an inaccurate picture of Ms Stephen’s involvement or culpability, at least not in terms of accurately conveying her past conduct and, depending on the nature of the job, her suitability for employment. The same considerations apply in respect of other repercussions of now having a criminal
19 Alsgami v Police, above n 10; Harvey v Police, above n 10; and Tavili v Police, above n 10.
20 Albert v Police [2017] NZHC 102 at [25].
21 Lado v R [2019] NZCA 646 at [42].
history, including eligibility for insurance and participation in activities which may require police checks.
Proportionality
[37] Ms Jarvis submitted that these identified consequences of having convictions would be out of all proportion to the gravity of the offending because those consequences must be classified as high or severe. It is argued that the personal mitigating circumstances that attach to Ms Stephen’s situation, including those that bear on the offending itself, would render such consequences disproportionate in comparison to that offending. In support of that submission, reliance was placed on a decision of the Court of Appeal, Meijler v R, where, on a second appeal, the appellant was discharged without conviction.22 Ms Meijler had pleaded guilty to a representative charge of using forged prescriptions for a drug prescribed to her to treat anxiety and insomnia to which she had become addicted. It involved her simply photocopying prescription scripts and presenting them to four different pharmacies to obtain more sleeping pills than she had been prescribed. I do not consider that case assists Ms Stephen.
[38] The appellant’s addiction to a prescribed drug, in Meijler, and Ms Stephen’s struggles with her addiction to alcohol were submitted to be analogous. However, the causal nexus between Ms Meijler’s addiction and her offending was considerably greater than Ms Stephen’s offending. There were also a number of other issues present in Meijler that were identified as having been erroneously considered by the lower Courts. These included a series of misunderstandings that led to a failure to properly take into account the appellant’s rehabilitation which vitiated an earlier indication that she would be discharged without conviction. As with the present case, there were also employment consequences for Ms Meijler, and a concern she would likely be excluded from even unskilled or semi-skilled work because of a conviction for dishonesty.
[39] Notably, the Court of Appeal considered the consequences of a conviction in that case would be particularly severe because, on its face, the conviction would convey a disqualifying trait that did not accurately reflect the appellant’s actual
22 Meijler v R, above n 11.
offending or her level of culpability. As I have already remarked, I do not consider Ms Stephen’s offending or level of culpability can be similarly characterised. The consequences of her convictions in terms of the effect on her employment prospects are not disproportionately severe upon an overall assessment of her involvement in the offending, notwithstanding her addiction to alcohol at that time.
[40] Unlike in Meijler, the underlying premise that Ms Stephen’s convictions for dishonesty impart a misleading impression of her criminal conduct is not borne out by her offending, notwithstanding its categorisation, in terms of its seriousness, as having been only “moderate”. For the reasons canvassed, I do not consider the circumstances of Ms Stephen’s offending leads to that situation or would result from the entry of convictions in her case. Notwithstanding the intra-familial nature of her offending and her addiction to alcohol at the time, the convictions still accurately convey her level of culpability and, moreover, the dishonesty inherent in her actions.
[41] Ms Stephen’s stole items of considerable value after having been placed in a position of trust. She did so from her own family. The difficulties of her personal situation at the time arising from her alcohol addiction must be acknowledged and taken into account. However, that circumstance does not entirely account for why this offending occurred. In particular, it does not explain her actions in allowing her associates to access the property and steal jewellery and other items that have not been recovered. It is notable that Ms Stephen has chosen not to assist inquiries in regard to this aspect of her offending, notwithstanding the value of the stolen property and the resulting loss.
Conclusion
[42] In order for a court to discharge a person without conviction, it is necessary to meet the threshold of the consequences of the conviction being out of all proportion to the gravity of the offending. In the absence of that test being met, the Court has no jurisdiction to exercise such a power. I am satisfied that this test is not met in the circumstances of this case. The consequences that flow from Ms Stephen’s offending are ones that can ordinarily be anticipated.
Result
[43]The appeal is dismissed.
Solicitors:
Crown Solicitor, Christchurch Copy to:
Olivia Jarvis Barrister, Christchurch
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