W v Police HC Auckland CRI 2008-404-316 [2009] NZHC 1574 (23 March 2009)

Last Updated: 30 November 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2008-404-316}

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 23 March 2009

Appearances: Mr Wiles for appellant

Ms Dowgray for respondent

Judgment: 23 March 2009

_{JUDGMENT OF WINKELMANN J}

Meredith Connell, Auckland

_{J Wiles, Barrister, Auckland}

W V NEW ZEALAND POLICE HC AK CRI 2008-404-316 23 March 2009

[1] Mr W appeals against the sentence imposed upon him of 250 hours community work in respect of convictions on four charges of receiving property pursuant to ss 246 & 247 of the Crimes Act 1961. On 26 September 2008 following a defended hearing District Court Judge Paul sentenced Mr W to 250 hours community work, notwithstanding application having been made by counsel appearing for Mr W for a discharge without conviction.

[2] The appeal is brought on the basis that the District Court Judge made a number of errors in the course of sentencing Mr W . First, he overstated the seriousness of some of the offences in respect of which Mr W was convicted. In particular, he characterised three of the charges as carrying a maximum penalty of seven years imprisonment whereas, as conceded by the respondent on this appeal, only one of the convictions had a maximum penalty of seven years imprisonment.

[3] The second respect in which it is argued that the Judge erred is that he failed to address himself adequately to the matters he was required to take into account under ss 106 & 107 of the Sentencing Act. It is submitted that the Judge failed to address the aspect of the direct and indirect consequences of a conviction being out of all proportion to the gravity of the offending.

[4] Mr Wiles for Mr W submits that I should therefore address the issue afresh and in doing so give weight to the fact that Mr W was a first offender. I should also take into account material which was not before the District Court Judge, namely an affidavit sworn by Mr W in which he deposes that because of the conviction he has now been unable to renew his immigration status as a student. Mr W was part way through a Bachelor of Business studies and now has only 8 papers left to graduate with the degree, and would have been able to complete those papers this year. Because of his conviction he says his student visa has been rejected by immigration and Massey University cannot allow him to continue to study without a visa.

[5] A further ground on which it is said that the penalty imposed was out of proportion to the gravity of the offending is that Mr W has plans to marry. The

person he proposes to marry is applying for permanent residence in New Zealand. A conviction will mean that it is unlikely that he would be successful in an application for permanent residence, which would be necessary of course if he were to be able to remain to live in New Zealand with his future bride.

[6] The final ground advanced as relevant to the disproportionality assessment envisaged in s 107 is that if Mr W were to return to China with a conviction he would have, on his account, great difficulty in obtaining any form of worthwhile employment. He says that companies in China check on applicants backgrounds and the conviction would represent for him a disaster and ruin his life.

[7] The detail of the offending is set out in the summary of facts and in the transcript of the hearing before District Court Judge Paul. The four convictions relate to four separate items of property in respect of which there are four separate complainants. The property is Fisher and Paykel signage valued at $6,400, a black Targus satchel, a Qantas frequent flyer bag and a Sony Ericsson Aircard. All of the latter three items have a value of less than $500. In convicting Mr W , the District Court Judge found that he had the requisite mens rea for the offence, but found that on the basis of a reckless intent.

[8] In sentencing Mr W the District Court Judge noted his counsel’s application for a discharge without conviction on the grounds that Mr W was a student, had a bright future, had worked hard and that the effect of the convictions that he would have to disclose would have a disproportionate effect on him. Counsel characterised the offending as one-off offending. The District Court Judge said he could not accept that submission because the various items of property were stolen from various owners and addresses and would have come to Mr W ’s hands as a result of that. He therefore said it could not be characterised as a discrete, one-off incident revealing an error of judgment or a bad mistake.

[9] In terms of assessing the application for a discharge without conviction, the Judge directed himself that he had to determine the gravity of the offending. He assessed the offending as serious, noting that the maximum penalty on three of the charges was seven years imprisonment. As I have already recorded, the Crown

concedes that that was an error. The District Court Judge said of the maximum penalty:

It is there to remind you that, without receivers, there would be no burglars in this community to steal property because they would have nowhere to take their goods.

[10] The Judge noted that Mr W could not rely on guilty pleas, or even expressions of remorse to reduce the gravity of the offending. He concluded that this was serious offending and that it would be entirely inappropriate to consider a discharge without conviction. He therefore sentenced Mr W to community work.

[11] Although the appellant is correct that there is a factual error in the District Court Judge’s assessment of the seriousness of the offending in that only one of the charges has a maximum penalty of seven years imprisonment, I consider the District Court Judge was still correct to categorise the offending as serious offending by reason of the combination of the one more serious offence, together with the other three incidents of less serious offending. These were four separate incidences of offending by Mr W . Whilst not sitting at the most serious end of the spectrum by any means, the District Court Judge was correct in his assessment that the offending could not be characterised as a discrete, one-off incident, an error of judgment or a bad mistake.

[12] There is however more in the appellant’s point that the Judge did not squarely address himself to the second part of the inquiry, which is to consider the consequences of the conviction. The District Court Judge did not have before him any factual material, but he did have the submission in relation to the impact – that the fact a conviction alone would have an impact on a student who otherwise would have a bright future. To the extent that the Judge did fail to address this issue, it is perhaps understandable given the absence of any evidential material to support the submission. Nevertheless, the court was required to satisfy itself of the matters in s

107. I therefore propose to consider Mr Wiles’ submission on behalf of Mr W as to that point.

[13] As to the appropriate test, both counsel were in agreement that the recent decision in R v Hughes [2008] NZCA 546 is on point. The Court said at [41]:

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] In this case it is plainly material that there were multiple offences by Mr W . It is also material that one of those was of a more serious category of offence, although I accept towards the least serious end of the spectrum for that category of offending. Nevertheless, there are significant considerations under the Sentencing Act of general deterrence. As the District Court Judge correctly observed, there would be no burglars in this community to steal property without receivers.

[15] Also material in the exercise envisaged by s 107 is the absence of any sign of remorse on the part of Mr W . There is no guilty plea that the court can take into account, nor were there any apparent expressions of remorse before the District Court Judge. I note in this regard that even in his affidavit filed in this court Mr W did not express any remorse in relation to the offending. Against all of this is to be weighed the fact that Mr W is a first time offender.

[16] The other side of the “disproportionality” assessment is the consequences of conviction. Mr W raises the potential impact of a conviction on his ability to gain employment in China. Every conviction for criminal offending carries with it potential impact on the offender’s future employment prospects. That is an inevitable consequence of criminal offending. There is no specific concern raised by Mr W , other than the general concern that would be present in the case of any offender. Of course, there is no requirement that he places himself outside the ordinary category of case, but the concerns raised are so non-specific and general as to have little weight.

[17] The next issue raised is the impact upon Mr W ’s immigration status. I queried with Mr Wiles whether there was an absolute bar to student visas being granted to applicants with criminal convictions. Mr Wiles said that he could not

make that submission. In the absence of this operating as an automatic and complete bar to the issue of a student visa I consider that the matter of a proportionate response to the offending is best left for the Immigration Department. Mr W can make submissions to the Immigration Department as to the seriousness of his offending. It is for the Department to assess what impact the conviction should have on Mr W ’s immigration status, considering that issue in the context of all of the material the Department has that bears on Mr W ’s immigration status.

[18] The final point raised is in relation to Mr W ’s possible future application for permanent residence. Mr W does not squarely state that he has made or intends to make an application for permanent residence, but I infer that from his general concern regarding the prospects in relation to his marriage. I make the same point in relation to this issue. Again, in the circumstances of this case the impact of Mr W ’s offending is something that should be assessed by the Immigration Department. Mr W can properly raise any mitigating factors in relation to the offending in support of his application for permanent residence. To the extent the convictions have a detrimental impact on his application, that may well be for valid reasons.

[19] It follows that I am satisfied that the direct and indirect consequences of a conviction are not out of all proportion to the gravity of the offence. Accordingly the appeal against sentence is dismissed.

[20] I then deal with an application by the Crown to amend the informations. Mr Wiles does not oppose the application for the amendments to the informations since they are technical in nature. I therefore direct that the following amendments be made:

(a) Information 07004020753. The charge code is presently 4417 and is amended to 4413. This is the relevant charge code for receiving property that does not exceed $500.

(b) Information 07004020750. The relevant subsection of s 247 of the

Crimes Act is currently not specified, and is s 247(1).

(c) Information 07004020751. The relevant subsection of s 247 of the

Crimes Act is currently not specified, and is s 247(c).

(d) Information 07004020752. The charge code is and must be amended to 4413.

Winkelmann J