Vujasin v Police - [2014] NZHC 2974

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2014-485-75 [2014] NZHC 2974

BETWEEN
BILJANA VUJASIN

Appellant

AND

POLICE Respondent

Hearing: 25 November 2014

Counsel:

Ms Vujasin in person
G Kelly for Respondent

Judgment:

26 November 2014

JUDGMENT OF THE HON JUSTICE KÓS

[1] On 6 April 2013 Ms Vujasin entered the DFS Galleria in Auckland City. She walked around the perfume display and picked up a 100 ml tester bottle valued at
$215. She placed the perfume bottle in one her bags and left the store. She was apprehended by security staff and returned to the store. The missing item was located in her bag. Ms Vujasin told the police that she did not steal the item because it was a tester. She said the police were picking on her. Her behaviour was uncooperative.

[2] Ms Vujasin pleaded guilty in the District Court to one charge of theft.1 She applied for a discharge without conviction. That was unsuccessful.

[3] She now appeals against her conviction and sentence on the basis that she should have been granted a discharge without conviction.

1 Crimes Act 1961, ss 219 and 223(d) (maximum sentence of three months imprisonment).

VUJASIN v POLICE [2014] NZHC 2974 [26 November 2014]

Application for adjournment

[4] At the commencement of this morning’s appeal Ms Vujasin applied for an

adjournment. A similar application was made in front of MacKenzie J on 28 October

2014. In each case the purpose of the adjournment was to obtain “further documents”. Ms Vujasin is, with respect, somewhat fixated on the concept of documents. The documents in question are papers concerning ACC, the Tenancy Tribunal, Work and Income New Zealand and the Ministry of Justice. I was left entirely unable to see how any of these could assist me on an appeal of narrow compass from the judgment before me.

[5] I declined the application for adjournment.

District Court decision

[6] Judge Morris considered the application for a discharge without conviction during the appellant’s sentencing hearing.2 The Judge noted that a discharge was the least restrictive option and that she had to discount it before turning to other available sentences.

[7] The Judge began by stating the test under ss 106 and 107 of the Sentencing Act 2002 that the direct or indirect consequences of conviction must be out of all proportion to the gravity of the offending. Even then, the Judge noted, there is a “residual discretion but that is more technical in nature”.3 Her Honour noted that the charge of theft is not trivial, although the value of the item being low, the theft in this case was not of the most serious type. The item in question was not an essential item, being perfume. Ms Vujasin had no previous convictions. She had pleaded guilty to the offence (albeit not at the first opportunity). The Judge also noted that
there was “more than a hint of mental health difficulties”. Although there was nothing substantive in the file on that matter, she…

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 Vujasin v Police

Details

AGLC: Vujasin v Police [2014] NZHC 2974
Case: [2014] NZHC 2974
Decision Date: 26 November 2014

CaseChat Overview and Summary

In the case of Vujasin v Police, Ms Vujasin appealed against her conviction and sentence in the District Court. Ms Vujasin had entered a department store, taken a tester bottle of perfume, and left the store without paying for it. She was apprehended by security staff and later pleaded guilty to theft in the District Court. Ms Vujasin applied for a discharge without conviction, which was denied. The legal issue before the court was whether the District Court judge was correct in refusing to grant Ms Vujasin a discharge without conviction under the Sentencing Act 2002.
The court considered the test under s 107 of the Sentencing Act 2002, which requires the court to determine whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending. The court found that the offending was at the lower end of the spectrum for theft, with only one item taken and the item being of low value. Ms Vujasin's lack of cooperation with the police and her eventual guilty plea were considered aggravating factors, but her mental health difficulties and lack of previous convictions were mitigating factors. The court found that the direct consequences of conviction, such as the impact on Ms Vujasin's employment prospects and potential registration as a teacher, were speculative and not supported by evidence. The court held that the direct and indirect consequences of conviction were not out of all proportion to the gravity of the offending. Therefore, the appeal was dismissed, and the conviction and sentence remained in place.

Orders