Introduction ....................................................................................................................................... [1] The facts ............................................................................................................................................. [3]
The offending .................................................................................................................................. [3] Restorative justice conference ........................................................................................................ [5] Circumstances of offender .............................................................................................................. [6]
Statutory test...................................................................................................................................... [8] Applying statutory test to this case ................................................................................................ [18]
Step 1: gravity of the offending .................................................................................................... [18] Step 2: consequences ................................................................................................................... [19] Step 3: proportionality................................................................................................................. [20] Discretion ..................................................................................................................................... [21]
Result ................................................................................................................................................ [22]

THONG V NZ POLICE HC WN CRI 2012-485-90 [27 November 2012]

Introduction

[1] Mr Thong appeals from a District Court decision declining to grant him a discharge without conviction. The conviction was on a charge of burglary.1
Mr Thong contends that the sentencing Judge overstated the gravity of the offending and gave inappropriate weight to mitigating factors. Mr Thong also seeks leave to adduce further evidence on the appeal concerning the consequences of a conviction for him. The respondent opposes the appeal against the refusal to grant a discharge without conviction but does not oppose the application to adduce further evidence.

[2] After hearing from counsel I ruled that the appeal was dismissed and that the detail of my reasons would follow. I now set out those reasons.

The facts

The offending

[3] On 12 June 2012 Mr Thong entered the premises of a company, Rubber Monkey, which sells cameras and related products. He walked past the reception desk and into the company’s warehouse. Mr Thong had no right to be in the warehouse. Mr Thong uplifted two digital cameras, three camera lenses and other camera items with a total value of $19,790.90. These items were all the property of Rubber Monkey and Mr Thong had no right to take the items. Mr Thong left the premises through a back door.

[4] Mr Thong was identified as the perpetrator through video footage at the premises. A search warrant was subsequently executed at Mr Thong’s address. The police recovered one of the digital cameras and two camera cards. None of the other products were recovered because Mr Thong had already sold them. The recovered items had a total value of $5,957.90 when taken from Rubber Monkey. The
respondent informs me that the photographs of the recovered items indicate that the

1 Crimes Act 1961, s 231.

recovered items were not damaged. Rubber Monkey’s loss was covered by its

insurance, but subject to an insurance excess.

Restorative justice conference

[5] Mr Thong attended a restorative justice conference where he apologised to the Rubber Monkey representative who attended the conference. He also wrote a letter of apology to the other Rubber Monkey representative who had not attended the conference. Mr Thong agreed to pay $2,500 to compensate Rubber Monkey for the excess payable under its insurance. He also agreed to pay a further $2,000 (in…

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 Thong v Police

Details

AGLC: Thong v Police [2012] NZHC 3244
Case: [2012] NZHC 3244
Decision Date: 27 November 2012

CaseChat Overview and Summary

The case of Thong v Police involves Sen Voleak Thong, who appeals a decision by the District Court declining to grant him a discharge without conviction for a burglary charge. The High Court of New Zealand, Wellington Registry, heard the appeal on 27 November 2012, with counsel J Murdoch and S Pettett representing the appellant and I Murray representing the respondent. The court dismissed the appeal on 27 November 2012, with reasons provided on 3 December 2012. The primary issues in the case revolve around the interpretation and application of the statutory test for granting a discharge without conviction under Section 107 of the Sentencing Act. Mr Thong contends that the sentencing judge overemphasised the gravity of his offending and inadequately considered mitigating factors. The court must decide whether the consequences of a conviction would be disproportionate to the gravity of the offence, as per Section 107(1) of the Sentencing Act.

The court examined the nature of the offending, which involved Mr Thong stealing items worth $19,790.90 from a company, Rubber Monkey. Although he had no right to be in the warehouse, the theft did not involve forced entry or disturb any residents. The court assessed the gravity of the offending as moderately serious and noted that the consequences of the conviction, such as the withdrawal of an employment offer and potential travel restrictions, were not disproportionate to the offence. The court found that the threshold test under Section 107 of the Sentencing Act was not met, and therefore, the appeal against the refusal to grant a discharge without conviction was dismissed. The court also allowed Mr Thong to adduce further evidence on the appeal concerning the consequences of a conviction for him.

Orders