C v Police HC Auckland CRI-2009-404-321 [2009] NZHC 2202 (8 December 2009)

Last Updated: 12 February 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2009-404-321}

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 7 and 8 December 2009

Appearances: Ms K Harding for Appellant

Ms S Duncan for Respondent

Judgment: 8 December 2009

(ORAL) JUDGMENT OF LANG J

_{[on appeal against conviction and sentence]}

Solicitors:

Crown Solicitor, Auckland

Counsel:

_{Ms K Harding, Auckland}

C V NEW ZEALAND POLICE HC AK CRI-2009-404-321 8 December 2009

[1] Ms C pleaded guilty in the District Court to five charges of using a document, namely a credit card, dishonestly in order to obtain property. On

28 August 2009 His Honour Judge Andree Wiltens rejected a submission by Ms C ’s counsel that he should discharge Ms C without conviction. Instead he convicted her and sentenced her to 175 hours of community work.

[2] Ms C appeals to this Court against both conviction and sentence. She contends that the Judge ought to have discharged her without conviction.

[3] In order to understand the issues that the appeal raises, it is necessary to briefly outline the facts that gave rise to the charges to which Ms C pleaded guilty.

The facts

[4] In July 2009 Ms C was involved in a relationship with a person by the name of Mr Dhamija. As a result of that relationship she was living with Mr Dhamija and his family.

[5] Mr Dhamija’s cousin was working at that time at a fast food outlet at the Auckland International Airport. Whilst working there he came into possession of a credit card that had been left behind by a customer who purchased food at the outlet before leaving New Zealand. Mr Dhamija’s cousin provided the card to Mr Dhamija and Ms C . Ms C , Mr Dhamija and Mr Dhamija’s cousin then used that card between 11 and 14 July 2009 to purchase a variety of goods having a total value of

$6,620.

The Judge’s decision

[6] By the time Ms C came to be sentenced she and her (by that time former) partner had repaid the full amount of $6,620. They had done that by obtaining a loan from Mr Dhamija’s mother that they will both now be responsible for repaying.

[7] In addition, Ms C had written to the owner of the card apologising profusely for her actions. She had also received a letter back from the owner of the card accepting her apology.

[8] Ms C ’s counsel also presented the Judge with numerous references attesting to Ms C ’s integrity and aptitude as a student. The Judge took these matters into account and also acknowledged that Ms C ’s offending would not have taken place had Mr Dhamija’s cousin not provided her and her partner with the card in the first place. These factors did not, however, persuade him that Ms C should be discharged without conviction. In rejecting that submission the Judge said:

[6] The seriousness of the offending I think can be indicated by the fact that the maximum penalty for each individual charge is seven years imprisonment. The amount of money for the goods that was obtained,

$6620.00, is a significant amount. So far as I can see, even though neither of you have any previous convictions, these are serious charges to which you

have pleaded.

[7] In terms of the direct and indirect consequences of a conviction, what is prevailed upon me is that Mr Dhamija will not be able to pursue his dancing career overseas, especially in the UK and the United States, which has been a life long dream, and Ms C would not be able to return to her property consultants career because of these convictions, if I enter them, for dishonesty. These are submissions made by counsel. There is no evidence before me as to what is the position in terms of Mr Dhamija seeking a visa to go to the United Kingdom, or to go to the United States to pursue his career, nor any evidence that Ms C will be deprived of the opportunity to return to her proper field of endeavour, if I can describe it in that way. So all I have is submissions, and on the basis of those submissions I am invited to decide that the direct ad indirect consequences would be out of proportion to the gravity of the offending.

[8] I have to bear in mind that others in a similar position who plead guilty to charges of this sort, what they would make of this application, and I am bound to say what they would make of this is that they would say this was a stretch. I well remember when I was a law student I was erroneously advised that any criminal conviction at all, including drinking under age in a public establishment, would disqualify me from practising as a lawyer. I waited until I was over 20 before I indulged, because I knew the consequences of the action. Each of you must have known that it was dishonest. It seems to me that the consequences of your conviction do not outweigh the gravity of the offending, this is serious offending, and it has to be treated as such. The application for 106 discharged must fail.

[9] The power to grant a discharge without conviction is conferred by s 106 of the Sentencing Act 2002 (“the Act”).

[10] Section 106 confers a discretion to discharge an offender without conviction unless any enactment applicable to the offence requires the imposition of a minimum sentence. A discharge under s 106 is deemed to be an acquittal.

[11] Guidance for the exercise of the power to discharge is provided by s 107 which provides as follows:

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 leading authority in relation to the exercise of the power to discharge without conviction is the decision of the Court of Appeal in R v Hughes [2009]

3 NZLR 222. In that case the Court said at [8]:

Although the heading in s 107 refers to “Guidance for discharge without conviction”, it is clear from the words of the section that the requirement in s 107 is mandatory. Before a court may exercise its discretion under s 106 to discharge without conviction, the court must be satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence. 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] The Court summarised the manner in which power is to be exercised as follows:

[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] In Hughes the Court of Appeal confirmed that there is no onus on an offender to establish that the disproportionality test has been met. The Court said at [49]:

... Rather, in terms of s 107 the requirement is that “the court ... is satisfied” it has been met. In R v Leitch [1998] 1 NZLR 420 at 428, this Court said the need to be “satisfied” calls for the exercise of judgment by the court, and that it is inapt to import notions of the burden and standard of proof.

[15] The fact that the sentencing court is required to exercise its judgment in determining whether the test has been met means that its decision is open to review on appeal in accordance with conventional appellate principles: R v Rajamani [2007] NZSC 68; [2008] 1 NZLR 723 (SC) (at [5]).

[16] For this reason the following passage from the decision of the Supreme Court in Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 (SC) at [16] applies to the present appeal.

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] It is therefore necessary for this Court to consider afresh whether the disproportionality test under s 107 is satisfied. If it is not, the appeal cannot succeed. If it is, the Court must go on consider whether or not to exercise its discretion to discharge Ms C without conviction.

[18] In considering whether the disproportionality test is met, the Court must first consider the gravity of the offending. Next it must have regard to the direct and indirect consequences of conviction. Finally, it must determine whether those consequences would be out of all proportion to the gravity of the offending.

[19] Judge Andree Wiltens was clearly influenced in his decision by the fact that he was being asked to determine the issue of disproportionality on the basis of statements made from the bar. This obviously affected the weight that the Judge felt able to give to counsels’ submissions regarding that issue. To that extent Ms C was clearly disadvantaged by the fact that her then counsel did not follow the usual course of filing a detailed affidavit outlining the factors that were relevant to the exercise of the power to discharge under ss 106 and 107.

[20] That defect has now been remedied. Ms C has filed a very detailed affidavit in which she describes both her personal circumstances and those that gave rise to the offending. Unlike the sentencing Judge, I am therefore able to determine the issue of disproportionality with the benefit of sworn evidence regarding important factual issues.

Gravity of the offending

[21] There can be no doubt that the charges to which Ms C pleaded guilty were serious. Each of them involved actual dishonesty and carried a maximum penalty of seven years imprisonment.

[22] Of itself, however, the maximum penalty does not determine the gravity of the offending. In assessing this issue the Court must also look at a wide range of other factors. These include the seriousness of the offending overall, and the part that the offender may have played in it. The circumstances of the particular offender may also be relevant, as will anything that may affect the assessment of overall culpability. In Delaney & Ors v Police HC WN CRI 2005-485-2228 22 April 2005, Miller J said at [29]:

... I consider that “the gravity of the offence” should be read as including not only the offence itself but also anything that may affect the Court’s subsequent assessment of overall culpability. That includes guilty pleas, expressions of remorse and the Court’s assessment of how likely it is that the offender will reoffend, the victim’s perspective and any consequences already suffered by way of reparation, community work, or publicity.

[23] The Court of Appeal endorsed this approach in Hughes at [38]. It said:

[38] Sections 8, 9 and 10 [of the Sentencing Act 2002] all use the term “must” as s 107 does. This appears to be a feature of the drafting style used in the Sentencing Act: even where provisions are mutually exclusive, they “must” be taken into account. It may be questionable whether the Legislature really meant that a large number of different factors which may or may not be relevant to a particular sentencing decision all “must” be taken into account or otherwise applied. Be that as it may, the approach taken by Miller J in Delaney and Montgomery is supported by the application of the factors in ss 8, 9 and 10 (which “must” be applied) to decisions to “otherwise deal with” an offender (including under s 106). His inclusion within the concept of “gravity of the offence” of matters affecting overall culpability is also supported by the similar wording in s 8(1) where “gravity of offending” is said to be inclusive of “the degree of culpability of the offender”.

[24] The seriousness of the offending in the present case flows from the fact that it involved the deliberate use of a credit card in circumstances where neither Ms C nor her co-offenders could possibly have had any grounds for the belief that they were entitled to use it. Ms C says in her affidavit that she viewed the use of the credit card in a similar vein as she would view the use of cash that was found lying in the street. I reject that explanation. It must have been obvious to Ms C that she and her co-offenders were using a credit card that belonged to another person and in circumstances where they had no right to use it.

[25] The offending also occurred on several different occasions spread over four days. On any view it amounted to a reasonably sustained period of criminal activity.

[26] The value of the goods that Ms C and her co-offenders obtained was also moderately large. It was not, however, at the top end of the scale in terms of value. The Court regularly encounters situations in which offenders dishonestly obtain very large amounts of goods or cash over a short period by dishonest means. In addition, Ms C was personally involved in the use of the card. She provided the signature on the card on the basis that she was the owner of it.

[27] The value of the goods that Ms C and her co-offenders obtained was also moderately large. It was not, however, at the top-end of the scale in terms of value. The Court regularly encounters situations in which offenders dishonestly obtained very large amounts of goods or cash over a short period by dishonest means.

[28] It is also clear that the primary offender was Mr Dhamija’s cousin. He was the person who initially acquired the credit card, and he was the person who made the decision to retain it rather than return it to the bank or to its rightful owner. He then provided the card to his cousin and Ms C . Like the Judge, I view Ms C ’s culpability as being less than that of her former partner’s cousin. She and her former partner were equally culpable, however, for the use of the card between

11 and 14 July 2009.

[29] My overall assessment in relation to Ms C ’s culpability is that she was not the instigator of the offending but she was a willing participant in several acts of dishonesty involving the acquisition of a moderately large amount of property.

[30] I now turn to consider Ms C ’s personal circumstances.

[31] Ms C is aged 23 years. In her affidavit she confirms that she has no previous convictions and that she has never been in trouble with the police before. She explains that the offending occurred when she was living with her partner and his family. She considers that she felt pressured by her partner into using the card and that she did not carefully evaluate the full consequences of what she was being asked to do. She also feared that she would be badly treated by her partner and his family if she did not do what her partner and his cousin wanted her to do. She has now ended her relationship with her former partner and has no current association with his cousin.

[32] Ms C deposes that she came to New Zealand in June 2002, shortly before her 16^th birthday. She initially attended an English Language School where she became proficient in English. She then attended a private girls’ high school in Auckland before transferring to the International College. There she excelled academically, topping her class in virtually every subject that she took. She also successfully sat the Cambridge Internal Examinations, Advanced and Full Advanced

Levels. Clearly she was a top student throughout her secondary education, and received significant awards to recognise that fact. This is no mean fete given the fact that in 2002 English was not her first language.

[33] In 2005 Ms C enrolled for the Bachelor of Property degree at the University of Auckland and she graduated with that degree in 2008. Her family paid approximately $40,000 towards the cost of the degree, whilst Ms C took out a student loan to meet her living expenses. This has left her with a debt of approximately $12,000 that she will need to repay in the future.

[34] After graduating from university Ms C obtained a position as a property investment adviser with a company known as the Ironfish Group. This company provides advice to clients in relation to all aspects of investment in property. Her role in the company was to provide clients with advice regarding the acquisition and management of property. This position provided Ms C with a starting salary of

$60,000 and excellent prospects for the future.

[35] It is clear from Ms C ’s affidavit that she was extremely passionate about her work. She had always wanted to be part of the property investment industry and her position with the Ironfish Group provided her with the means by which she could play a meaningful role within that industry.

[36] Ms C lost her job after she told her employer that she had been convicted of these offences. She has provided the Court with a letter from the company confirming that it regarded her very highly and was impressed with her honesty and frankness in disclosing what she had done. The company formed the view, however, that it would be inappropriate for any person with a criminal record to be employed as a property investment consultant. Ms C deposes, and I accept, that other companies in the property investment industry are likely to view her convictions in the same way as the Ironfish Group did.

[37] Ms C now works five days a week as a waitress at a bowling alley, for which she receives $11.50 per hour. She also works one day a week as a bartender, for which she receives $15.00 per hour. These are the only forms of employment that she has been able to obtain following her conviction on these charges. This has reduced her income from $60,000 per annum to, on my calculations, approximately

$30,000 per annum.

[38] It is clear that Ms C is deeply remorseful for her actions. She describes the trauma of her arrest and being involved in the Court process. She has also suffered the mortification of losing her job and being forced to take unskilled jobs that provide her with a greatly reduced income.

[39] Also relevant to the issue of culpability is the fact that Ms C has apologised to the victim of the offending and has, together with her former partner, repaid the victim in full. She has also completed her sentence of community work and received glowing references in relation to that. It is difficult to see what more Ms C could have done to make amends for her offending.

[40] I am also satisfied that the offending occurred principally as a result of her relationship with Mr Dhamija. There is nothing about her past to indicate that she had ever been inclined towards dishonest conduct before. The material before me suggests that her sole focus in the past has been the achievement of excellence in her studies and work

[41] Further, I accept that Ms C may have felt a degree of pressure from Mr Dhamija and his cousin to become involved in this offending. Having said that, and as Ms C frankly acknowledges, she should have known better than to allow herself to become involved in such activity.

[42] I therefore view the offending as a blemish, albeit a significant one, on an otherwise impeccable and impressive record. I consider that it is highly unlikely that Ms C will ever be before the courts again for offending of any type.

Direct and indirect consequences of conviction

[43] I have already referred to the direct consequences of Ms C ’s conviction. This has been the loss of her well-paid job as a property investment adviser. I also accept that she is unlikely in the future to be able to obtain a similar position if the conviction stands. As a result, the years of hard work that Ms C has put in at high school and university are likely to have been for nothing, because it appears that she will not be able to work in the future in the field for which she is qualified.

[44] In addition, Ms C deposes, and I accept, that even non-corporate roles such as working in a shop may not be open to her in the future because her convictions will rule her out of any job that involves the handling of cash. Finally, she points out that criminal convictions carry a social stigma for a Chinese woman within the Chinese culture. She believes that the convictions will have a flow-on effect in many ways in the future as she deals with people within the Chinese community.

Are the direct and indirect consequences of a conviction out of all proportion to the gravity of the offence

[45] I have already determined that, although the offending was serious, nevertheless Ms C ’s overall culpability taking all relevant matters into account is less grave.

[46] On the other hand, I have no doubt that the consequences of the convictions are extremely serious. They have already resulted in the loss of Ms C ’s job as a property investment adviser and they are likely to prevent her from working in her chosen field in the future. They also mean that she will be forced to obtain largely unskilled employment. Even then, she may be precluded from jobs that involve the handling of cash. They will also result in other intangible consequences for her within the Chinese community.

[47] In short, the entry of convictions will mean that Ms C has effectively lost the benefit of all that she has worked for in the past and most of what she could look forward to in terms of employment in the future. Having regard to my assessment of her culpability, I have concluded that those consequences are out of all proportion to the gravity of the offence.

The exercise of the discretion under s 106

[48] The factors that underpin the Court’s conclusion in relation to the disproportionality test will generally also inform the manner in which the discretion under s 106 is to be exercised. That is certainly the position in the present case.

[49] For the same reasons that satisfy me that the disproportionality test is met I have also concluded that the Court’s discretion should be exercised to discharge Ms C without conviction.

Result

[50] The appeal is accordingly allowed. The convictions and sentences imposed in the District Court are quashed. Ms C is discharged without conviction on all charges pursuant to s 106 of the Sentencing Act 2002.

Lang J