X v Police HC Auckland CRI 2009-404-327
[2009] NZHC 2277
•10 December 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2009-404-327
X
Appellant
v
POLICE
Respondent
Hearing: 23 Novermber 2009
Appearances: S Tait for appellant
F J Cuncannon for respondent
Judgment: 10 December 2009
JUDGMENT OF ALLAN J
In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 11 am on Thursday 10 December 2009
Solicitors/counsel :
S Tait, PO Box 76 538 Manukau City
Crown Solicitor Auckland
X V POLICE HC AK CRI 2009-404-327 10 December 2009
[1] On 8 September 2009, the appellant, who had pleaded guilty to a single charge of theft, appeared for sentence before Judge Gittos in the Auckland District Court. She was convicted and fined $250 and ordered to pay Court costs of $130. The Judge declined to discharge her pursuant to s 106 of the Sentencing Act 2002. She now appeals from that refusal.
Background
[2] On 15 May 2009, the appellant visited the Farmers store in Queen Street Auckland. She was there for about an hour and a half. During that time she selected some 36 items, including cosmetic and beauty products and clothing, and placed them in her bag. She then attempted to leave the store without paying but was apprehended as she did so. The retail value of the property concerned was $846.76. All of it was recovered intact. The police were called and the appellant was eventually charged with theft.
[3] She pleaded guilty to that charge at the first available opportunity. An offer to participate in the Police Diversion Scheme was initially made but later withdrawn by the senior police officer having charge of the Scheme. A request for review of that decision was unsuccessful. No information has been placed before the Court as to why the appellant was thought to be unsuitable or ineligible for diversion. She is a first offender and at the time of the offending was just 17 years of age. She is now
18.
[4] The police did not oppose a s 106 discharge in the District Court. The appellant had, before the District Court hearing, made a charitable donation of $300 at the suggestion of the police. She also paid to Farmers the sum of $295, being the amount of the costs incurred by that organisation in apprehending and processing her.
[5] In the District Court it was argued on the appellant’s behalf that a discharge without conviction was appropriate. Emphasis was placed upon the appellant’s
youth, the absence of any previous convictions, the somewhat naïve character of the offending, and the likely impact of a conviction on her ability to travel overseas and to gain employment.
The District Court judgment
[6] Judge Gittos had the advantage of comprehensive submissions from counsel. He delivered a carefully reasoned judgment in which he referred to the leading authority: R v Hughes (2008) 24 CRNZ 179, and correctly directed himself as to the application of ss 106 and 107 of the Sentencing Act. He found that the offence was not trivial, in that it was not a fleeting or opportunistic act of dishonesty, but rather the result of a deliberate and planned expedition involving the appropriation of “ … not one, but a large number of quite high value items”. He considered also that the offending:
…could easily carry with it an inference that this was being done for some sort of commercial gain rather than on the basis of the explanation that this defendant gives, that she was seeking to impress her peers and to provide a present for her friend.
[7] It seems that the Judge considered that an offence involving dishonesty provided an unpromising basis for a discharge without conviction. He said:
Interventions of this kind are not uncommon when young people raise the prospect of an impediment to their on-going education or entry to some profession or other, when some act of foolishness has been committed by them, but they are generally related to disorderly behaviour, drunken conduct, that sort of spontaneous mischief rather than to deliberate acts of dishonesty.
[8] The Judge then turned to the appellant’s claim to be disadvantaged, particularly in respect of her desire to further her education overseas. He considered that it was up to overseas educational institutions, and indeed employers, to make their own assessment of the gravity of the offending which the appellant sought to excuse. It really was their right, he thought, to consider whether “ …this is the sort of thing which makes a person unsuitable for admission to a particular course or class, or professional grouping”.
[9] In expressing himself in that way the Judge was no doubt relying on the gate- keeper principle discussed by Chambers J in Steventon v Police HC AK A108/01 2
November 2001, where at [22] His Honour said:
[T]he Courts of this country should be slow to effectively mislead foreign immigration authorities as to a person’s criminal offending. It is generally better for the offending to be noted by way of a conviction. It is then up to the offender to explain to those authorities why in the particular circumstances the conviction should be looked on with a benevolent eye.
[10] The Judge in the present case considered that the offending was moderately serious and the consequences were not such as to call for the Court’s intervention. The application for a discharge was therefore declined.
The correct approach to s 106
[11] The jurisdiction of the Court to discharge without conviction is conferred by ss 106 and 107 of the Sentencing Act 2002 which relevantly provide:
106 Discharge without conviction
(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2) A discharge under this section is deemed to be an acquittal. (3) A court discharging an offender under this section may—
(a)make an order for payment of costs or the restitution of any property; or
(b)make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—
(i) loss of, or damage to, property; or
(ii) emotional harm; or
(iii) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:
(c)make any order that the court is required to make on conviction.
107 Guidance for discharge without conviction
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.
[12] The application of these sections was recently discussed by the Court of Appeal in R v Hughes. There, the Court noted that, despite the heading to s 107, “Guidance for discharge without conviction”, the provisions of the section are mandatory. In consequence, no Court may exercise its discretion under s 106 to discharge without conviction unless it is satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence. As was said in Hughes (at [8]):
Section 107 thus provides a gateway through which any discharge without conviction must pass. It stipulates a pre-condition to exercise of the discretion under s 106.
[13] In Hughes, the Court of Appeal confirmed that the criminal law disproportionality test discussed in such cases as Fisheries Inspector v Turner [1978]
2 NZLR 233 (CA) and Police v Roberts [1991] 1 NZLR 205 (CA) had not been departed from in s 107. The Court said in Hughes (at [41]):
In summary, the parameters within which the disproportionality principle operates have not been changed by s 107. Application of the disproportionality test under s 107 requires consideration of all relevant circumstances of the offence, the offending and the offender, and the wider interests of the community, including the factors required by the Sentencing Act to be taken into account under ss 7, 8, 9 and 10. Having taken account of those factors, the Judge must determine whether the s 107 test is met and whether it is appropriate that he or she makes an order under s 106 to deal with the offender.
[14] The appellant does not carry an onus to establish that the disproportionality test has been met. Rather, in terms of s 107, the Court may discharge without conviction if “satisfied” that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. As explained in R v Leitch [1998] 1 NZLR 420 at 428, the need to be “satisfied” simply involves the exercise of judgment by the Court; it is inapt to import notions of burden and standard of proof.
[15] In Hughes, the Court of Appeal confirmed the continuing applicability of the three-step approach suggested in Turner and Roberts:
a) Identification of the gravity of the offending by reference to the facts of the particular case;
b) Identification of the direct and indirect consequences of a conviction;
c) Determination of whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending.
The appellate role
[16] In Hughes at [11] the Court of Appeal characterised the nature of a decision under s 107 of the Act as a matter of fact requiring judicial assessment. It is common ground that a decision in this Court as to whether the test has been met is subject to the normal appellate principles outlined by the Supreme Court in Austin Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141. There at [16] the Court said:
[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
[17] Accordingly I must assess for myself whether the test under s 107 has been met. If it has, then a favourable exercise in discretion is likely to follow given that “the factors informing both stages will overlap to a large degree”: Hughes at [12].
The appellant
[18] At the time of the offending the appellant was 17 years old and in her last year as a student at Auckland Girls Grammar School. In an affidavit filed in the District Court she says that she proposes to continue her studies at tertiary level, and that she is currently preparing applications for several universities in the USA, including three tertiary design/arts institutions in New York. She says she plans to complete her tertiary education in the USA before completing masters studies at a university in China. She has wanted to study abroad for many years. Her ambitions are shared and supported by her parents.
[19] The affidavit annexes a great deal of material from her school records. The documents tend to support her evidence that she is a diligent and successful student.
[20] With respect to the offending itself, she said:
I have great regret for the theft that I committed.
I have admitted my guilt and feel deep shame for what I have done. I have caused shame to my family through my offending and sincerely regret what I have done.
I can only explain my theft as being a shortsighted attempt to try and appear cool to my friends. I have never stolen anything before and this behaviour is completely out of character for me.
I admitted the theft as soon as I was approached by the Farmers’ security guard and returned all of the items that I had taken.
As a result of this incident I have been trespassed from Farmers Queen Street for a two year period and have paid a $295.00 fee for the cost of the security guard.
I am very sorry for my offending and will never again do anything like this. After my initial Court appearance I was offered the chance to participate in
the diversion scheme. This provided me some relief as I was mindful of the
impact of a criminal conviction upon my future plans. Subsequently the offer of diversion was cancelled and my lawyer has been unable to have this
decision overturned.
I have always been a hard worker with strong hopes and plans for my future and for my family.
I have pleaded guilty and I plead earnestly that the Court will take into account the circumstances of my offending and accept that it was out of
character for me. I have learnt my lesson and hope that this incident will not follow me for the rest of my life.
Discussion
[21] Three aspects of the learned District Court Judge’s decision require particular consideration. First, he characterised this offence as “moderately serious” and as not “trivial”. As he pointed out, this was not a fleeting or opportunistic act of dishonesty. There must have been a degree of premeditation.
[22] But his reference to there being an inference of commercial gain about the offending is not in my view supported by the evidence. At the hearing of the appeal, a list of the items concerned and their respective values was handed up. It disclosed that the property taken included a number of items of clothing as well as cosmetics and beauty products. In no case was more than one of any item selected. Many of the items were of low value. The selection pattern suggests that items were chosen for the offender’s own use (albeit perhaps in one or two cases to be gifted to others) and not for resale or for other commercial gain. Ms Cuncannon responsibly accepts on behalf of the respondent that the appeal can proceed on that basis.
[23] Section 107 refers to the gravity of the “offence”, but it is well established that the expression “offence” encompasses the position of the offender as well: Delaney v Police HC WN CRI 2005-485-22 22 April 2005, Kohere v Housing NZ HC AK CRI 2007-404-2 26 April 2007 at [20].
[24] The offence of theft under s 223 of the Crimes Act 1961 can range from trivial to very grave offending. By reason of the amount involved here, the appellant was liable to a maximum penalty of 12 months imprisonment. She was in fact fined
$250.
[25] While the offending must have been premeditated to some degree, it was also naïve in the extreme. An offender who spends 1½ hours in a store like Farmers, surreptitiously placing items in a personal bag, is very likely to attract the attention of security personnel. That is self-evident. In my opinion this offending was
towards the lower level of gravity for offending of this type. I would not characterise it as “moderately serious” as the Judge did.
[26] The second consideration concerns the Judge’s reference to the gate-keeper principle. There is of course a sound basis on the authorities for an approach that takes into account the desirability of permitting educational institutions, employers and overseas organisations to make their own assessment of the gravity of offending in the light of all available information, including the fact of a conviction. But the Judge seems to have regarded that consideration as amounting to a “right” of a third party to know of a conviction and therefore of the offending, and to make for itself a decision about whether it is nevertheless willing to entertain an application from the offender.
[27] In my view such bodies do not have an absolute right to be informed of the offending (by reason of disclosure of the existence of a conviction). Rather, the desirability in an individual case of such persons and bodies knowing of the offending is a factor to be weighed in the balance, along with all other relevant factors. Were it not so, then s 106 discharges would never be available to an offender where future overseas travel or employment was in contemplation.
[28] The third noteworthy aspect of Judge Gittos’s decision concerns his observation that qualification for consideration under s 106 will generally arise in the case of a young offender, where the offence is of the nature of disorderly behaviour, drunken conduct or other spontaneous mischief. The Judge suggested that deliberate acts of dishonesty were to be distinguished from such disorder offences.
[29] While the Judge is undoubtedly right to point out that much youth offending that qualifies for a discharge often falls into the category of disorderly conduct of some sort, it must not be thought that deliberate acts of dishonesty do not qualify at all, or are in some respects subject to a different test.
[30] Against that background I turn to the present case. This was a young woman, still at school, and aged 17 years at the time of the offending. She had no previous offences. The evidence is that she was making very satisfactory progress at her
school, and that her tertiary education ambitions were by no means ill-founded. On the face of things she appears to have been an entirely suitable candidate for diversion. There is no satisfactory explanation of the circumstances in which diversion, having initially been indicated, did not proceed. The attitude of the complainant is not known, neither is an explanation given by the police as to why diversion was finally refused. However, the fact that there appears to have been a strong case for diversion is not irrelevant to the Court’s present task of considering whether the appellant has made out a case for discharge: see the discussion by Fogarty J in Harvey & Ellen v Police HC CHCH CRI 2007-409-235/236 13
February 2008.
[31] The appellant is plainly remorseful. Earlier I set out that portion of her affidavit which expresses her regret in no uncertain terms. Although for sentencing purposes remorse is generally taken to underpin a guilty plea and is not an additional mitigating factor, I consider it legitimate on this present appeal to take into account the appellant’s expressed remorse as an indication of the extent to which there can be confidence she will not reoffend.
[32] Her tertiary education plans are somewhat embryonic as yet. That is not surprising given her youth. It is not necessary for the Court to be satisfied that her educational plans would inevitably, or even probably, be impeded. It is sufficient if the Court is satisfied that there is a real and appreciable risk that such consequences could occur: Iosefa v Police HC CHCH CIV 2005-409-64 21 April 2005 at [35].
[33] Entry into the USA is not precluded by the existence of criminal convictions. But those with a criminal record are unable to take advantage of the visa waiver programme offered by the USA and must make a formal application for a visa. In so doing, they must disclose their criminal records. Thereafter of course, they are in the hands of the American Immigration Authorities. There is no doubt however, that a discharge under s 106 will enhance the appellant’s prospects of being able to travel to the USA. It is relevant to note that the non-immigrant visa application which has been provided to the Court by Mr Tait, requires the applicant to answer the following question:
Have you ever been arrested or convicted for any offense or crime, even though subject of a pardon, amnesty or other similar legal action?
[34] As has been noted in a number of other appeal decisions, convictions are not an absolute bar to travel to the USA. But there is no doubt that the appellant’s ambition to study in that country will be much more easily fulfilled if the present appeal succeeds, despite the apparent obligation to disclose a discharge without conviction.
Balancing
[35] I turn to the three stage analysis mandated in Hughes. The first issue is the gravity of the offending, which extends beyond the factors outlined in R v Taueki [2005] 3 NZLR 372 at [43]-[44], and embraces also aggravating and mitigating factors relating to the offender personally. Although the offending cannot be classed as trivial, I regard the appellant’s overall criminal culpability as relatively low, having regard to her youth, her unblemished prior record, the somewhat naïve character of the offending, her remorse and the high probability that she will not re- offend. It is not irrelevant either that she was originally considered to be a suitable candidate for diversion.
[36] The second issue relates to the consequences of a conviction. Mr Tait does not argue that the appellant is certain to be refused entry to the USA, nor does he say that her ambitions to study at a tertiary level in that country will necessarily be thwarted. There is no obligation on the appellant to prove that such consequences will follow before a discharge may be granted. But in my opinion there is a very considerable risk that a conviction will raise major difficulties for her.
[37] There is also the question of her more general employment prospects; they will inevitably suffer if the conviction is maintained, especially in the present difficult employment market.
[38] I turn to the final question; namely whether the consequences of a conviction will be disproportionate to the gravity of the offending. In my view it would be disproportionate to visit upon this young woman the identified consequences of a
conviction, where there are very significant mitigating factors, where it is not immediately obvious why diversion was declined, and where the risk of future re- offending is low. I consider that the appellant has made out a case for a discharge without conviction.
Result
[39] The appeal is accordingly allowed. The appellant is discharged without conviction.
C J Allan J
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