R v Barbara [2012] NZHC 3302 (7 December 2012)

Last Updated: 4 February 2013

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-485-91 [2012] NZHC 3302

THE QUEEN

v

LISA JANE BARBARA

Hearing: 4 December 2012

Counsel: A J Ewing for Crown

S J Gill for Appellant

Judgment: 7 December 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 2.15 pm on the 7th December 2012.

_{JUDGMENT OF WILLIAMS J}

R v BARBARA HC WN CRI 2012-485-91 [7 December 2012]

[1] Lisa Barbara was convicted in the District Court on three counts of shoplifting. At sentencing the court refused Ms Barbara a discharge without conviction choosing instead to convict and fine her $200 on each of the three counts, plus court costs and $127.47 in reparation.

[2] Ms Barbara appeals against conviction and sentence – insofar as the sentence appeal is concerned, the appeal is against the fines (on the basis that her co-accused was not fined at all); and the conviction appeal is against the Judge’s refusal to discharge her without conviction. In that respect Ms Barbara argues that the effect of a conviction would be out of all proportion to the gravity of her offending.

[3] All of the offending occurred on one day at the Westfield Queensgate Mall. Ms Barbara was at the mall with her friend and co-offender, Emma Curtis. The women entered Forever NZ Clothing Ltd. They concealed three dresses valued at

$340 under a pushchair and left the store without paying. They then went to Amazon Clothing Ltd taking two pairs of jeans, two bikinis, six children’s hoodies and three pairs of trackpants valued at $1,065.75, again leaving without paying. Finally they entered Bras n Things and took several items of underwear and swimwear valued at

$944.77. The total value of all items was $2,350.62. The women were arrested by police before they could leave the store.

[4] In the District Court, the learned Judge characterised the offending as moderately serious. He accentuated the fact that it was pre-meditated with the appellant using a tag remover to avoid detection. The offending generally, he said, was “not an aberration or mistake” but was “targeted offending done more than once, and was blatant”. No attempt was made to allocate the stolen items to each co- offender so as to establish relative values for each.

[5] The Court held further that the direct and indirect consequences of conviction were somewhat uncertain. There was talk of Ms Barbara being unable to enrol in a teacher training course at the Open Polytechnic because she would not be able to achieve registration as a teacher given the convictions eventually entered.

[6] Overall, the Judge found that the seriousness of the offending was too great to warrant a discharge without conviction.

[7] As I have said, the Court then imposed modest fines, and ordered court costs and reparations.

Submissions

[8] For the appellant, Mr Gill argued that the learned Judge overstated the seriousness of the offending and failed to properly understand the consequences of conviction. Ms Barbara filed an affidavit in support of the appeal attached to which was a letter from the Open Polytechnic. The most important part of that letter read:

The Teacher Registration guidelines show that due to the nature of the your convictions as shown on your Police Vetting report you would be unlikely to be accepted for teacher registration. While we acknowledge that you are not asking for teacher registration, we enrol all students under this criterion in our Early Childhood Education courses. Your application for entry into our Bachelor of Teaching (ECE) has been declined.

[9] In the alternative, Mr Gill submitted that Ms Barbara should at least have been treated in like manner to her co-offender, Ms Curtis and should not have been fined. He submitted there was no material difference in the culpability of the respective offenders and the appellant is entitled to parity.

[10] For the Crown, Ms Ewing argued that the learned Judge was correct to identify the offending as moderately serious, while the consequences of conviction were not as significant as the appellant suggested. It was not clear whether convictions of this kind represented a permanent bar to registration as a teacher. It may be possible, the Crown said, to successfully enrol following a suitable stand- down period.

[11] Secondly, the Crown argued the consequences are lower as compared to the circumstances of an offender who has completed professional training, spent the money and time to get through the course, and is now precluded from reaping the benefit. In this case, the appellant was merely deciding whether to pursue education in this field.

[12] In terms of broader issues of discretion, it was submitted that it is important for professional bodies such as the Teachers’ Council to know of these convictions because they reflect on good character and honesty. It is better left for the Council to decide what to do about the offences, than for the courts to act pre-emptively.

[13] On the parity question, the Crown argued that this appellant’s culpability was indeed different. The majority of clothing items were concealed in her pram and she was wearing five stolen items of underwear. More importantly, it was appellant who brought the security tag remover to the scene. It was possible therefore for the Judge to conclude that the appellant was the instigator and treat her more harshly.

Discussion

[14] An appeal against a refusal to grant a discharge without conviction is to be treated as a general appeal where (as here) the initial discharge was refused by the Judge’s application of the disproportionality test under s 107 of the Sentencing Act.[1]

The law

[15] The discretion to discharge an offender without conviction is found in s 106

Sentencing Act 2002, which provides:

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.

(3A) Sections 32 to 38A apply, with any necessary modifications, to an order under subsection (3)(b) as they apply to a sentence of reparation.

[16] Section 106(1) states the court “may” grant a discharge (conferring a discretion), unless an enactment prescribes a minimum sentence. In granting a discharge, the court may nonetheless make any of the orders set out in s 106(3).

[17] Before the discretion in s 106 is engaged, the offender must pass through the

statutory ‘gateway’ in s 107. That section provides:

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.

[18] The leading Court of Appeal authorities on the application of ss 106 and 107 are Blythe v R[2] and R v Hughes.[3] Blythe is the more recent and corrects some aspects of Hughes.

[19] Both cases make clear that the correct approach is to consider s 107 first. That section provides the threshold test, which has three steps:

(a) first, the court must consider the gravity of offending;

(b) second, the court must consider the direct and indirect consequences of conviction; and

(c) third, the court must consider whether the consequences are “all out of proportion” to the gravity of offending.[4]

[20] There is an ongoing controversy over what personal factors of the offender may now be taken into account under the ‘gravity’ arm of s 107, but that need not detain us here, as the result in this case is unaffected by that debate. I will address each of the three factors in turn.

Gravity

[21] I agree with the Judge that this offending was of reasonable seriousness. The value of the items taken was at the higher end for shoplifting at over $2,000. And three stores (rather than one) were affected. On the other hand the offending all occurred on one day. This was no large scale shoplifting spree of the kind that sometimes comes before the Courts. And it was relatively unsophisticated, although I note that the appellant managed to obtain and use a tag remover. The offending could certainly not be considered to be “minor”, nor, on the other hand, could it be said to be very serious offending of its type.

[22] Mr Gill focussed on the learned Judge’s change in language from a finding at [10] of his Honour’s sentencing notes that the offending was “reasonably serious”, to a finding that the offending was of “significance” at [18]. I do not see anything in this point. The term employed here was clearly intended to be a reference back to the level of seriousness discussed earlier.

Consequences

[23] The most significant consequence here is the loss of the appellant’s ability to train as an early childhood teacher. Her application to enter a degree course at the Open Polytechnic has been refused because of these convictions. For a woman with two young children, and newly separated from their father, this is a very significant consequence indeed – the loss of an opportunity through retraining to a modest

_{professional income, a sense of self-worth and so forth. The alternative for her is}

probably an extended period on a benefit, or (if she is lucky) unskilled employment on the minimum wage.

[24] Seen in this light, I consider that although the offending was at the reasonably serious level, the consequences in the case of the appellant are very serious indeed. There is in my view sufficient disproportionality to take the analysis to the next stage.

Proportionality

[25] I move now to the broader discretion contained in s 106. While the Court of Appeal has suggested that this step will usually follow in the applicant’s favour if the applicant is successful at the s 107 step,[5] this will not always be the case. There are factors both ways. On the positive side, it is relevant that the appellant had recently separated from her partner and father of her two young children. It is also relevant that she had recently lost a grandparent. There were clearly stresses in the appellant’s life at the time. On the negative side, this was not the first time the appellant had been ‘nabbed’ for shoplifting. She had been caught nine months

earlier, together with the same co-accused, stealing make-up from Farmers Porirua. She was let off by the police with a warning.

[26] This last factor is, in the end, decisive. The appellant had been given a chance by police and had failed to take it. It is one thing to discharge an offender engaging in genuinely aberrant behaviour (even where, as here, the offending is moderately serious). It is another thing entirely to do so when there is a pattern emerging. In my view, it is best, in those circumstances, to leave the admission decision to the Teachers’ Council and the Open Polytechnic. If the appellant decides to do so, she can apply again after a reasonable stand down time during which she demonstrates she no longer engages in this kind of offending. And, unlike the situation where the offending is truly a one-off thing, it is in my view best in this case that the professional regulatory body be made aware, by means of this

_{conviction, of the appellant’s dishonest past.}

[27] I would dismiss this aspect of the appeal accordingly.

Parity

[28] On the parity aspect of the appeal, I take a different view. It seems clear from the record that the learned Judge was unaware of the fact that Ms Curtis had already been sentenced without a fine being imposed. While there are arguments available to the Crown that may support greater culpability on the part of the appellant, none of these were considered or traversed by the learned Judge in this case. We do not know whether this appellant really was the instigator of this offending. The issue simply did not arise at first instance. In light of this, it seems to me appropriate for the appellant to receive the benefit of the doubt.

[29] I would allow this aspect of the appeal accordingly.

Disposition

[30] The fines totalling $600 are rescinded accordingly. The appeal is otherwise dismissed.

Williams J

---

[1] H (CA608-2010) v R [2012] NZCA 198 at [30] and [36].
[2] Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.
[3] R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.

[4] Blythe at [12], Hughes at [13].

[5] Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13].