Thong v Police [2012] NZHC 3244 (27 November 2012)

Last Updated: 11 December 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-485-90 [2012] NZHC 3244

SEN VOLEAK THONG

Appellant

v

NZ POLICE

Respondent

Hearing: 27 November 2012

Counsel: J Murdoch and S Pettett for the Appellant

I Murray for the Respondent

Judgment: 27 November 2012

Reasons: 3 December 2012

_{JUDGMENT OF MALLON J}

Contents

Introduction ....................................................................................................................................... [1] The facts ............................................................................................................................................. [3]

The offending .................................................................................................................................. [3] Restorative justice conference ........................................................................................................ [5] Circumstances of offender .............................................................................................................. [6]

Statutory test...................................................................................................................................... [8] Applying statutory test to this case ................................................................................................ [18]

Step 1: gravity of the offending .................................................................................................... [18] Step 2: consequences ................................................................................................................... [19] Step 3: proportionality................................................................................................................. [20] Discretion ..................................................................................................................................... [21]

_{Result ................................................................................................................................................ [22]}

THONG V NZ POLICE HC WN CRI 2012-485-90 [27 November 2012]

Introduction

[1] Mr Thong appeals from a District Court decision declining to grant him a discharge without conviction. The conviction was on a charge of burglary.1

Mr Thong contends that the sentencing Judge overstated the gravity of the offending and gave inappropriate weight to mitigating factors. Mr Thong also seeks leave to adduce further evidence on the appeal concerning the consequences of a conviction for him. The respondent opposes the appeal against the refusal to grant a discharge without conviction but does not oppose the application to adduce further evidence.

[2] After hearing from counsel I ruled that the appeal was dismissed and that the detail of my reasons would follow. I now set out those reasons.

The facts

The offending

[3] On 12 June 2012 Mr Thong entered the premises of a company, Rubber Monkey, which sells cameras and related products. He walked past the reception desk and into the company’s warehouse. Mr Thong had no right to be in the warehouse. Mr Thong uplifted two digital cameras, three camera lenses and other camera items with a total value of $19,790.90. These items were all the property of Rubber Monkey and Mr Thong had no right to take the items. Mr Thong left the premises through a back door.

[4] Mr Thong was identified as the perpetrator through video footage at the premises. A search warrant was subsequently executed at Mr Thong’s address. The police recovered one of the digital cameras and two camera cards. None of the other products were recovered because Mr Thong had already sold them. The recovered items had a total value of $5,957.90 when taken from Rubber Monkey. The

_{respondent informs me that the photographs of the recovered items indicate that the}

1 Crimes Act 1961, s 231.

recovered items were not damaged. Rubber Monkey’s loss was covered by its

insurance, but subject to an insurance excess.

Restorative justice conference

[5] Mr Thong attended a restorative justice conference where he apologised to the Rubber Monkey representative who attended the conference. He also wrote a letter of apology to the other Rubber Monkey representative who had not attended the conference. Mr Thong agreed to pay $2,500 to compensate Rubber Monkey for the excess payable under its insurance. He also agreed to pay a further $2,000 (in part financed by a loan from his parents) to cover other costs incurred by Rubber Monkey in connection with the theft and for emotional harm. At the conference Mr Thong said that he had been in a place of financial desperation as a solo parent with no employment and that he made a stupid decision.

Circumstances of offender

[6] Mr Thong is 31 years old. He has no previous convictions. He is the sole caregiver to his two children who are aged three and 18 months. He is currently in receipt of the Domestic Purposes Benefit. Prior to becoming his children’s sole caregiver, Mr Thong was employed in a number of jobs, including a period as a youth advisor with the Ministry of Youth Development. He has been active in youth volunteer work and has a passion for youth “hip hop” culture. He sees this culture as providing a voice for young people. A letter provided by the New Zealand National Commission for the United Nations Educational, Scientific and Cultural Organisation attests to his voluntary work over a number of years, as does a letter from a Wellington school for which he has been a volunteer presenter at its annual “Launching Leaders” conference.

[7] Mr Thong wishes to re-enter the work force now that his children are older. The further evidence before me is that, after Mr Thong’s conviction, the Children’s Commissioner withdrew an offer for part-time, casual employment as a youth worker because of his conviction. Mr Thong has also been invited to attend a “Universal Zulu Nation Anniversary” music conference in New York in November

next year to “speak on your works and how we as a people of Peace and Unity can gain some better insight into working better within our communities sharing and building together.” He is concerned that his conviction will prevent him from travelling to New York to attend this conference.

Statutory test

[8] Section 106 of the Sentencing Act confers on the Court a discretion to discharge an offender without conviction. Section 107 provides guidance for the exercise of that discretion as follows:

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.

[9] The test in s 107 is the threshold test.2 A helpful approach to that test is seen as being to first assess the gravity of the offending, secondly to assess the direct and indirect consequences of the conviction, and thirdly to determine whether the consequences are out of proportion with the gravity of the offending.3 If that threshold test is met, there is then a residual discretion under s 106.4 It is settled on the Court of Appeal authorities that on an appeal, the court is to come to its own view on whether the s 107 test is met.5 If the court’s discretion under s 106 is challenged on the appeal, the appeal court will only interfere with the exercise of that discretion if the lower court acted on a wrong principle, took into account irrelevant considerations or failed to take into account relevant considerations, or was plainly wrong.6

[10] There are, however, two conflicting Court of Appeal decisions as to what may be considered under s 107. In R v Hughes, the Court of Appeal was of the view that “all relevant circumstances of the offence, the offending and the offender, and

_{the wider interests of the community, including the factors required by the}

2. R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [10]; Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.

3 _{Blythe v R at [14].}

4 _{At [12].}

5 _{R v Hughes at [11].}

6 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32]; Hudson v New Zealand Police

[2012] NZHC 2769 at [19]- [21].

Sentencing Act to be taken into account under ss 7, 8 and 9” were to be considered.7

On this approach, the court’s assessment of whether the offender was likely to reoffend (for example), was, at least in some cases, viewed as relevant to “overall culpability” and therefore said to be within the “gravity of the offence” step of the s 107 test.8

[11] In the later decision of Blythe v R, the Court of Appeal said that the aggravating and mitigating factors in s 9 of the Sentencing Act were relevant to the s 107 test because they were relevant to “the gravity of the offence” but “the content of ss 7, 8 and 9 is not.”9 It went on to say that it is when exercising the residual discretion under s 106(1) and in deciding what further orders are required under s 106(3): 10

... that the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act, the aggravating and mitigating factors listed in ss 9 and 9A (as we have pointed out these were relevant to the s 107 disproportionality test) and the matters dealt with in ss 10 and 10B must all be taken into account.

That was said to be because “all those sections apply, not only in sentencing, but also in otherwise dealing with an offender.”11

[12] The Court of Appeal in Blythe did not identify what is meant by “the content” of s 9 which is not relevant to the s 107 test. Further it is said that “the aggravating and mitigating factors in s 9” are relevant to the s 107 test, but it is also said that it at the s 106 stage that aggravating and mitigating factors in s 9 will also be taken into account. Section 9 sets out aggravating and mitigating factors that on any view of it are concerned with the gravity of the offence (e.g. whether a weapon was used which is aggravating, and whether there was limited involvement in the offence on the offender’s part which is mitigating) but it also refers to factors that are personal aggravating factors (e.g. whether an offence was committed while the offender was

_{on bail) or mitigating factors (e.g. a guilty plea and remorse). It is not clear whether}

7 _{R v Hughes, above n 2, at [41].}

8 For example, Delaney v New Zealand Police HC Wellington CRI-2005-485-22, 22 April 2005 at

_{[29] which is referred to in R v Hughes, above n 2, at [28].}

9 _{Blythe v R, above n 2, at [11].}

10 _{At [12].}

11 At [12].

the Court of Appeal in Blythe intended that personal aggravating and mitigating factors were part of the assessment of “the gravity of the offence” under s 107 or whether these are only relevant to the exercise of the residual discretion under s 106.

[13] Counsel for Mr Thong submits that decisions of the High Court vary in what is meant by the gravity of the offence subsequent to Blythe.12 She submits that there is a need for guidance from the Court as to the correct interpretation of Blythe. She submits that the proper approach is that mitigating factors, such as reparation, a guilty plea and tangible expressions of remorse, are relevant to “the gravity of the offence” component of the s 107 test. The respondent submits that the effect of Blythe is that “the gravity of offence” component of that test should be given its usual meaning in the context of the Sentencing Act, and that this involves

considerations that go to the culpability of the offending (i.e. the factors that go “to the starting point” in sentencing) but not personal aggravating and mitigating factors. The respondent submits that factors such as youth and previous good character potentially could still be taken into account under s 107 if they are relevant to the consequences of the conviction for the offender and whether those consequences were out of proportion to the gravity of the offending.

[14] The respondent’s submission as to the Blythe view of the considerations relevant to “the gravity of the offence” does seem to be supported by the Court of Appeal’s assessment in Blythe of “step 1” of s 107 on the appeal. As to this, it said:13

Judge Inglis began by observing that this step required her to assess Mr Blythe’s overall culpability, including “such matters as a guilty plea, expressions of remorse, the Court’s assessment of how likely it is that the offender will re-offend and the victim’s perspective”. She cited two judgments of the High Court in support. For the reasons we have explained, the Judge erred in her description of the scope of step 1, and the two High Court judgments are wrong insofar as they provide support.

12. See, for example, Tahitahi v Police [2012] NZHC 663; Johns v New Zealand Police HC Auckland CRI-2011-404-90, 16 December 2011; Amstad v Police HC Auckland CRI-2011-404-

161, 27 October 2011; Hudson v New Zealand Police [2012] NZHC 2769; Swami v New

Zealand Police [2012] NZHC 2725; Brunton v New Zealand Police [2012] NZHC 1197; Collier v New Zealand Police [2012] NZHC 646; T v New Zealand Police [2012] NZHC 1426; Brown v R [2012] NZCA 197; Vaipo v New Zealand Police HC Auckland CRI-2011-404-141, 29 July

2011; Fowlie v Ministry of Social Development HC Auckland CRI-2011-404-64, 27 July

2011; Aye v Housing New Zealand Corporation HC Auckland CRI-2011-404-231, 19 October

2011; Han v New Zealand Police [2012] NZHC 791; Duncan v New Zealand Police HC Napier

_{CRI-2011-441-32, 28 October 2011.}

13 Blythe v R, above n 2, at [15].

[15] It appears that the Court of Appeal was saying that all of the quoted considerations (and not just “how likely it is that the offender will re-offend”) were not part of the step 1 assessment.14 If personal factors relating to the offender are not part of the “gravity of the offence” assessment it is not clear how easily they can be included in step 2 or 3 although this may be what is envisaged.15 Also, reparation is probably a personal mitigating factor and therefore not a matter that goes to “the gravity of the offence” on this approach.16

[16] If personal mitigating factors are only to be considered at the s 106 step, then the s 107 test will be more difficult to meet, because remorse and reparation have sometimes tipped the balance for the court in deciding that the s 107 threshold test is met.17 As the Court of Appeal says, it will be a rare case where an offender meets

the s 107 threshold, but then is not discharged under s 106.18 However, if factors

such as remorse and reparation are not included as part of the s 107 test (whether at step 1 or step 2/3), the offender will not get to the discretion stage – he or she will have failed to meet the s 107 threshold. This would be so even if, for example, the offender immediately regretted the offending and returned all the stolen equipment within a few hours of the offence and on his or her own initiative.19

[17] The Court of Appeal is the place to provide further direction on the s 107 test. As I said at the hearing when giving my decision on the appeal, I am satisfied that even if personal mitigating factors are taken into account under s 107, this is not an appropriate case for a discharge without conviction for the reasons which I now turn

_to.

14 This is the view expressed in Bruce Robertson (ed) Adams on Criminal Law – Sentencing

_{(looseleaf ed, Brookers) at [SA107.05].}

15. The Court of Appeal has approached good character in this way: Brown v R, above n 12, at [29]- [31].

16 Section 9(1)(a) of the Sentencing Act refers to the extent of the loss resulting from the offence,

_{but reparation is not normally part of “the starting point” factors.}

17. For example, Lee v New Zealand Police HC Auckland CRI-2005-404-28, 27 July 2005; Montgomery v New Zealand Police HC Palmerston North CRI-2005-454-70, 11 April 2006; Newton v New Zealand Police HC Nelson CRI-2007-042-4709, 6 August 2008.

18 _{R v Hughes, above n 2, at [12]; Blythe v R, above n 2, at [13].}

19. As was the case in Lee v New Zealand Police, above n 17, where a discharge without conviction was granted.

Applying statutory test to this case

Step 1: gravity of the offending

[18] The aggravating factors of the offending are the amount of property taken and that the motive was to on-sell the property to fund Mr Thong’s expenses. On the other hand, it did not involve forced entry, and did not disturb (for example) sleeping residents in a private home. Overall, in my view the offending was moderately serious. The offending is more serious than MacGregor v Police20 and Manning v

Police,21 for example. If reparation, the guilty plea, remorse and previous good

character are taken into account at this stage the “overall” assessment of gravity is reduced. This is shown by the relatively light sentence imposed on Mr Thong by the District Court of 175 hours of community work and payment of the agreed reparation. But there is not the same degree of immediate remorse and full reparation as in Lee v New Zealand Police, and there are not the same level of

mitigating considerations as in Martens v New Zealand Police22 and Jordan v New

Zealand Police.23

Step 2: consequences

[19] I accept that there will be consequences for Mr Thong as a result of the conviction. The withdrawal of the employment offer is an example of the effect of the conviction on employment prospects. I accept that it is likely to be more difficult for Mr Thong to obtain a government position. I also accept that the conviction may prevent Mr Thong from travelling to the United States and that therefore he will not be able to take up the invitation to attend the conference in New York.24 That said, the conviction is unlikely to prevent Mr Thong from gaining any employment at all.

_{Nor is it likely to affect his involvement in youth events (such as organising youth}

20 _{MacGregor v Police HC Dunedin, CRI-2010-412-45, 9 February 2011.}

21 _{Manning v New Zealand Police HC Christchurch CRI-2006-409-202, 29 November 2006.}

22 _{Martens v New Zealand Police HC Palmerston North CRI-2010-454-14, 2 July 2010.}

23 _{Jordan v New Zealand Police HC Auckland CRI-2009-404-207, 2 October 2009.}

24. Counsel for Mr Thong sets out that s 212(a)(II)(A(i)(l) of the United States Immigration and Nationality Act 1952 prevents an individual from entering the United States of America if he or she has been convicted of a “crime involving moral turpitude”. Volume 9 of the United States Department of State’s Foreign Affairs Manual provides guidance as to the meaning of “crime involving moral turpitude” and burglary is one of the qualifying crimes.

“hip hop” concerts and forums) within New Zealand or in other countries that may

not have the same eligibility criteria for visas for admission.

Step 3: proportionality

[20] The offending, while not the worst of its kind, was moderately serious. Mr Thong has shown remorse through his apologies and the reparation. Given these matters, and his previous good character, his reoffending risk is low. Nevertheless in my assessment, the consequences for Mr Thong are not disproportionate to the overall consideration of the offending (including the steps taken by Mr Thong afterwards when his offending came to light). Rather, the effect on employment and travel prospects are ordinary consequences for that offending.

Discretion

[21] The s 107 test is not met. It is therefore unnecessary to consider the discretion under s 106.

Result

[22] The appeal against the refusal to grant a discharge without conviction is dismissed.

Mallon J