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Walker v Police

Walker v Police

Case [2016] NZHC 1450 29 June 2016

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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…

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 Walker v Police

Details

AGLC: Walker v Police [2016] NZHC 1450
Case: [2016] NZHC 1450
Decision Date: 29 June 2016

CaseChat Overview and Summary

Ms Astina Jane Walker has appealed against the District Court’s refusal to discharge her without conviction following her guilty plea to a charge of theft by a person in a special relationship. Ms Walker claimed the District Court Judge misdirected himself regarding the legal standard required to determine whether the consequences of conviction outweighed the gravity of the offending. She further argued that the Judge did not sufficiently consider the significance of her youth in assessing the consequences of a conviction. The court had to decide whether the District Court Judge misdirected himself on the legal standard required to determine whether the consequences of a conviction outweighed the gravity of the offending and whether the Judge adequately considered the significance of the appellant's youth in assessing the consequences of a conviction.

The court found that the District Court Judge did not misdirect himself on the legal standard required to determine whether the consequences of a conviction outweighed the gravity of the offending. The court noted that the use of the term "far outweigh" could be equivalent to the statutory requirement of a conviction being "out of all proportion" to the gravity of the offence. However, the court acknowledged that there may have been greater focus on Ms Walker’s relative immaturity and the relevance of that factor in assessing the resulting consequences of a conviction. The court held that, 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 was unsurprising. The court was not satisfied that Judge Somerville erred 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.

The appeal is dismissed.

Orders