Vujasin v Police
[2014] NZHC 2974
•26 November 2014
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 RespondentJudgment:
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 proceeded on the basis that there were certainly difficulties of that type in question in the case at hand.
[8] The consequences of conviction would impact Ms Vujasin’s standing within the community, ability to apply for jobs, and travel. The Judge noted that Ms Vujasin was also concerned about the potential impact in on her potential future registration as a teacher. Ms Vujasin did not wish to go into teaching “in any formal sense.” But she wished to be involved in teaching English as a second language. Ms Vujasin maintained that a conviction would make it more difficult for her to do so, or it would prevent her outright from doing so. The Judge also noted that Ms Vujasin felt she had been treated unfairly by the authorities. A discharge would perhaps be of assistance in disestablishing that belief.
[9] The Judge took the view that no sentence itself was required, but that she was “not satisfied that the consequences of this conviction are out of all proportion to Ms Vujasin’s culpability”. She noted that there was no specific evidence of exclusion from registration. That would be a matter for the relevant admitting board to determine.
[10] The Judge convicted Ms Vujasin and ordered her to come up for sentence if called upon within one year. If she did not reoffend in that time, no sentence would be imposed.
Law
[11] An appeal against a refusal to discharge without conviction is conducted by way of rehearing.4 The approach was described by the Court of Appeal in R v Hughes, in these the terms:5
[11] The decision as to whether the test under s 107 [of the Sentencing Act 2002] has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles ... The discretionary power of the Court to discharge without conviction under s 106 arises and exists only if the Court is satisfied that the s 107 threshold has been met.
[9] The test under s 107 of the Sentencing Act 2002 stipulates that the Court must not discharge an offender without conviction unless it is satisfied that the direct
and indirect consequences of conviction would be out of all proportion to the gravity of the offence. Accordingly, the Court must engage in a three-step process:6
(1)identify the gravity of the offence, considering all the aggravating and mitigating factors relating to the offending and the offender;
(2) identify the direct and indirect consequences of the conviction; and
(3)determine whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.
Analysis
[12] This is offending at the lower end of the spectrum for theft. Theft is a serious dishonesty offence. But in this case, only one item was taken. It was worth very little. And it was swiftly recovered. Ms Vujasin was not cooperative with police, but she eventually entered a guilty plea to the offending. The offending is also mitigated by Ms Vujasin’s evident mental health difficulties. The District Court Judge referred to these. Taken overall, the offending was very much at the lower end of the spectrum of offending generally.
[13] Character damage is inherent in a dishonesty conviction. Ms Vujasin is particularly concerned about the effect this may have on her ability to register as a teacher of English as a second language. This consequence is, in the absence of cogent evidence, entirely speculative. And for several reasons. It is unclear whether Ms Vujasin wishes to seek employment as a teacher at all. It is something, as she put it to me, she is “thinking about”. Nor is clear that if she does, her chosen vocation will require formal registration under the Education Act 1989. It is possible to teach English as a second language within community organisations that do not require such registration. Further, Ms Vujasin has been in New Zealand since 1997, without working as a teacher at all. She has taken no recent steps towards seeking registration. The direct consequences of conviction remain hypothetical. Finally she
also has a drink driving conviction, and that would have to be disclosed. She is not a putative registrant of otherwise unblemished reputation.
[14] Would the direct and indirect consequences of a conviction be out of all proportion to the gravity of the offending? I cannot find that they are. The interests affected – employment prospects – are altogether theoretical. The adverse consequences of a conviction on those prospects are entirely speculative. Assertion of consequences without robust supporting evidence, or the existence of good reason
to infer those consequences without evidence, will not suffice.7 Furthermore,
discharge without conviction is not diversion by another name. The ordinary consequences of criminal conduct must take their course in this case.
Result
[15] Appeal dismissed.
Stephen Kós J
Solicitors:
Crown Solicitor, Wellington for Respondent
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