Walker v Police

[2016] NZHC 1450

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2016-425-13 [2016] NZHC 1450

BETWEEN

ASTINA JANE WALKER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	28 June 2016
Appearances:	J Mooney for Appellant M-J Thomas for Respondent
Judgment:	29 June 2016

JUDGMENT OF MANDER J

[1]      The appellant, Ms Astina Walker, has appealed the District Court’s refusal to discharge her without conviction following the entry of her guilty plea to a charge of theft by a person in a special relationship.

[2]      Ms Walker alleges the District Court Judge misdirected himself as to the legal standard required to determine whether the consequences of conviction outweigh the gravity of the offending.   Further, that the Judge did not take into account the significance of her youth in assessing the consequences of entering a conviction.

Facts

[3]      Ms Walker was employed as a forecourt attendant at a local service station. Over the course of a month she stole amounts of cash from the till, tobacco and confectionery to a total value of some $1,600.

WALKER v NEW ZEALAND POLICE [2016] NZHC 1450 [29 June 2016]

[4]      After pleading guilty to a charge of theft as a servant she sought a discharge without  conviction.    This  was  declined  by  Judge  Somerville.1      Ms Walker  was sentenced to 100 hours community work and ordered to pay reparation.

The District Court ruling

[5]      In refusing to discharge Ms Walker without conviction, Judge Somerville firstly assessed the gravity of the offending. The Court recognised the breach of trust inherent in the offending, the effect on the employer, and the repetitive nature of the offending, albeit within a relatively short space of time.  Judge Somerville described the offending as serious, and no issue is taken with that assessment.

[6]      In  examining  the  consequences  for  Ms  Walker  of  a  conviction,  Judge Somerville noted the absence of any specific identified consequences particular to Ms Walker.  The Judge acknowledged the impact a conviction may have, making it difficult for Ms Walker to obtain a job, but that this was the ordinary consequence of being convicted for dishonesty offending.

[7]      In  the  exercise  of  his  discretion,  The  Judge  considered  that  one  of  the purposes of entering a conviction was to inform the community.  Employers when making an assessment of people are entitled to be able to make informed decisions about whether a prospective employee can be trusted.  Judge Somerville concluded that the consequences for Ms Walker did not go beyond the gravity of the offending but, in his words, were “perfectly in line with it”.

The applicable principles

[8]      A  sentencing  Judge  has  a  discretion  to  discharge  a  defendant  without conviction who has pleaded or been found guilty of an offence.2    That discretion cannot be exercised unless the Judge is satisfied that the direct and indirect consequences of the conviction would be out of all proportion to the gravity of the

offence.3

1      Police v Walker [2016] NZDC 9238.

2      Sentencing Act 2002, s 106(1).

3      Section 107.

[9]      There are two stages to the inquiry.   Firstly, it is necessary to consider the gravity of the offence, the direct and indirect consequences of a conviction for the defendant, and whether those consequences are out of all proportion to the gravity of the offence.  Only if this is found to be the case will the Court have jurisdiction to proceed  to  the  second  stage  of  the  exercise  and  consider  the  exercise  of  its

discretion.4

[10]     The sentencing Court does not have to be satisfied that the direct and indirect consequences will inevitably or probably occur, only that there is a real and appreciable risk of such consequences.5

Alleged misdirection

[11]     Ms Walker submitted that Judge Somerville misdirected himself as to the legal standard required when determining whether the consequences of a conviction outweighed the gravity of the offending.   She focussed on the following passage from the Judge’s ruling: 6

Through your counsel you have asked for a discharge without a conviction. To do that you have to prove that the consequences for you of having a conviction far outweigh the gravity of the offending.  I need to look at the gravity of the offending, work out what the consequences for you are and then weigh them to see whether one is out of balance with the other.

[Emphasis added]

[12]     Section 107 of the Sentencing Act 2002 (the Act), which provides guidance to the court about whether to discharge a defendant without conviction provides:

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[Emphasis added]

4      DC (CA47/2013) v R [2013] NZCA 255 at [30]-[31], citing R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [10]-[11]; Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].

5      DC (CA 47/2013) v R, above n 3, at [43]; Glenn v New Zealand Police [2016] NZHC 928; Iosefa v  Police  HC  Christchurch  CIV-2005-409-64, 21 April  2005  at  [34];  Currie  v  Police  HC Auckland CRI-2008-404-307, 27 May 2009, at [49].

6      Police v Walker, above n 1, at [3].

[13]     Ms Walker submitted the District  Court  overstated the burden  on  her  to demonstrate the effect of the consequences of a conviction in comparison to the seriousness of the offending.

[14]     I do not consider Ms Walker’s critique to be persuasive.  Arguably, the use of the term “far outweigh” is the equivalent of the statutory requirement of a conviction being “out of all proportion” to the gravity of the offence.  If there is any inaccuracy in the Judge’s summary of the principles to be applied it lies in the second part of the passage quoted which favours Ms Walker, referring only to the Court having to determine whether the consequences for her were “out of balance” in comparison to the seriousness of the charge.

[15]     I do not consider Judge Somerville misdirected himself as to the appropriate threshold to be applied in determining whether there was jurisdiction for him to exercise his discretion.

[16]     In any event, in the context of an appeal from the refusal to discharge which seeks to challenge the sentencing Court’s assessment of the consequences of a conviction, any inaccuracy in describing the test to be applied is largely immaterial. The appeal Court is required to apply normal appellate principles and consider afresh whether the District Court’s evaluation of the jurisdictional s 107 threshold has been met.7

Whether  the  consequences  of  conviction  were  out  of  all  proportion  to  the gravity of the offence

[17]     Ms Walker’s  complaint  is  that  the  sentencing  Judge did  not  address  her primary submission that a conviction for dishonesty would significantly damage her opportunity to obtain a job, and that for a young person of 20 years of age, she would effectively be deprived an opportunity to obtain “a foothold in a career”.  This, she submitted, was a real and appreciable risk which arose as a consequence of a conviction.     Reference  was  made  to  the  difficulties  Ms  Walker  has  already

experienced in attempting to arrange voluntary community work as a result of being

7      Glenn v Police, above n 5; R v Hughes, above n 4, at [11]; Lawrence v Police [2016] NZHC 148;

Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

charged with theft.   She submitted those obstacles would be even greater with a conviction against her name.

[18]     While  it  was  acknowledged  the  gravity  of  the  offending  was  relatively serious, Ms Walker submitted that because of her relative  youth the effect of a conviction on her employment prospects would be far more serious given her stage of life.   It was noted she would not be eligible to have her conviction expunged under the Criminal Records (Clean Slate) Act 2004 for some seven years.   It was submitted the damage arising from not being able to secure employment during that period would have a long term effect on her being able to develop any career.

[19]     The Crown acknowledged that Ms Walker’s youth was a relevant factor to be taken into account when evaluating the consequences for her of a conviction. However, it submitted the consequential detrimental impact on her employment prospects were common to all 20 year olds in her position.   It was the ordinary ramification resulting from a conviction for dishonesty offending.

[20]     The immaturity of a defendant is a relevant factor to be taken into account when undertaking the assessment required by s 107 of the Act.  In DC (CA47/2013) v R, the Court of Appeal clarified that all relevant aggravating and mitigating factors including those relating to the offender came into play when considering the gravity of the offence.8    Ms Walker’s submission regarding her youth was focussed on the consequences of a conviction for her as a young person, and I accept that is a factor which  can  also  properly  be  taken  into  account  in  assessing  that  aspect  of  the exercise.  It is to be noted, however, that even at this first stage when assessing the

gravity of the offence, factors relevant to the offender, including age, are required to be taken into account.

[21]     Ms Walker sought to rely upon the approach taken in Amstad v Police.9   That case concerned an appeal brought by a 19 year old whose plans to join the army were jeopardised as a result of pleading guilty to charges of unlawfully taking a

motor vehicle and driving with excess breath  alcohol.   Referring to  the United

8      DC (CA47/2013) v R, above n 3, at [35]. There having been previous conflicting dicta; see Z (CA447/2012) v R, above n 4, at [26]-[27]; Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.

9      Amstad v Police HC Auckland CRI-2011-404-000161, 6 September 2011.

Nations Convention on the Rights of the Child, Whata J observed that in sentencing a young person a Judge was required, consistent with the requirements of the Act, to act in accordance with the Convention, and in particular to treat the young person’s “best interests” as a “primary consideration”.10

[22]     The  assessment  of  the  consequences  and  proportionality  required  when applying the guidance contained in s 107 must include an offender’s youth.   In particular, the potentially greater consequences of a conviction for a young offender who does not have a “foothold in a career” need to be recognised and the risk that a conviction may be permanently damaging.

[23]     The difficulty for Ms Walker is that, apart from identifying the entry of a conviction as an obstacle to gaining future employment, no specific consequences individual to her circumstances have been identified in support of the application for a discharge.  That is not to say the entry of a criminal conviction standing alone and which of itself constitutes a black mark, particularly for a person with no previous history, cannot be taken into account in assessing the issue of proportionality in comparison to the seriousness of an offence.  Sadly, however, the risk to employment prospects is a generic, if not inevitable, consequence of a conviction, particularly one for dishonesty.  It is usually necessary in making application for a discharge to be able to point to some acute repercussion personal to the offender which may result in a consequence wholly disproportionate to the seriousness of the offence.

[24]     There will likely be adverse consequences for Ms Walker as a result of the entry of a conviction.   She will likely have to disclose that fact to prospective employers, but, as was observed by Judge Somerville, it is a fact which ordinarily an employer is entitled to know.  There would need to be persuasive reasons relating to an individual as to why the Court would consider itself justified to suppress such

potentially relevant information from prospective employers.11    Youth alone would

not by itself be sufficient when weighed against the circumstances and seriousness of the present charge.

10     At 20, citing Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [82].

11     Lawrence v Police, above n 6.

[25]     I do not underestimate the significant difficulties that Ms Walker may have in obtaining employment as a 20 year old with a conviction for dishonesty but her argument is limited to the risk of losing future work opportunities.  Unlike in most cases, Ms Walker has not identified any particular career choice upon which she has embarked, nor a specific vocational pathway she has set upon which may effectively

be ended by a conviction.12

[26]     Judge  Somerville  was  clearly  aware  of  Ms  Walker’s  age.    His  remarks address the issue of the potential vocational consequences for Ms Walker arising from the entry of a conviction.  It is apparent he considered a balancing factor to her youth was that her offending was of a type which ought not be hidden from people who may be asked to employ her in the future.  While there could have been greater focus on Ms Walker’s relative immaturity and on the relevance of that factor in assessing the resulting consequences of a conviction, absent the identification of specific consequences either in relation to some particular job opportunity or career choice, the conclusion that the jurisdictional threshold has not been met is unsurprising.

[27]     There may have been greater scope to entertain a discharge notwithstanding the absence of particular consequences exclusive to Ms Walker if her dishonesty offending had been less serious, resulting perhaps from a single opportunistic or impulsive act.  However, the offending against the employer does not fall into that category.  It occurred frequently over the course of a month and, while encapsulated in a single charge, could have resulted in a score of charges being laid.

[28]     It follows from the foregoing that I am not satisfied Judge Somerville erred, either  in  his  application  of  the  guidance  provided  by s  107  of  the Act,  or  his assessment of whether the appreciable risks of the consequences of a conviction for Ms Walker were out of all proportion to the gravity of her offending.  Accordingly,

the appeal is dismissed.

12     Amstad v Police, above n 8; DC (CA47/2013) v R, above n 3.

Solicitors:

J Mooney Barrister and Solicitor, Queenstown

Preston Russell Law, Invercargill