Tuisila v Police [2012] NZHC 3416 (14 December 2012)

Last Updated: 9 January 2013

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-92 [2012] NZHC 3416

MARY ULALEI TUISILA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 11 December 2012

Counsel: N P Bourke for Appellant

M J Ferrier for Respondent

Judgment: 14 December 2012

In accordance with r 11.5 I direct that the delivery time of this judgment is 1.30pm on the 14th day of December 2012.

_{RESERVED JUDGMENT OF MACKENZIE J}

[1] Ms Tuisila pleaded guilty to one charge of theft by a person in a special relationship and one charge of using a document to obtain a pecuniary advantage. She was sentenced by Judge Mill in the District Court at Lower Hutt on

4 October 2012. He discharged her without conviction on the charge of theft but ordered compensation of $1,206. On the charge of using a document he convicted her and ordered her to pay reparation of $767. Ms Tuisila appeals against conviction

_{and sentence on that charge. The essence of the submission on appeal, as it had been}

TUISILA V NEW ZEALAND POLICE HC WN CRI-2012-485-92 [14 December 2012]

before the sentencing Judge, was that she should have been discharged without conviction on that charge also.

[2] The facts were that the appellant was employed as an administration support officer for Child, Youth and Family in the National Office, which is part of the Ministry of Social Development. In July 2011, she was given a Ministry work cell phone to hold by her manager after it had been returned to the Ministry by a staff member who had resigned. She took the cell phone without her manager’s approval and between 11 September and 2 December 2011 made over 8,000 unauthorised calls and texts totalling over $900.00. She then lost the phone valued at over

$250.00.

[3] As part of her role the appellant had access to taxi vouchers which were available for use by staff members for work related matters. During the investigation into the cell phone matter, the Ministry became aware that between September and November 2011 the appellant had misused 36 taxi vouchers, mainly to commute to and from work, to a total of $767.10.

[4] In his sentencing remarks, the Judge described the test to be applied to the application for discharge without conviction in these terms:1

I can discharge without conviction if I am satisfied under s 107, but only if I am satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. I must determine how serious this offending was, I must determine the direct and indirect consequences of the conviction and be satisfied that they are out of all proportion to the gravity of the offending.

In determining the seriousness of the offence I can take into account mitigating and aggravating factors relating to the offence itself, but personal mitigating circumstances are relevant only if I find the test is met, and are deciding whether to discharge without conviction. So, the seriousness of the offending is the first thing.

[5] Mr Bourke for the appellant submits the Judge erred in law by determining that personal mitigating factors were not relevant to the gravity of the offending.

_{Mr Ferrier for the respondent submits that this ground turns on the correct}

1 New Zealand Police v Tuisila DC Lower Hutt CRI-2012-032-1640, 4 October 2012 at [6]–[7].

interpretation of the Court of Appeal decision in R v Blythe.2 He submits that, when properly construed, that case precludes the consideration of personal mitigating factors as part of the assessment of the gravity of the offending.

[6] Sections 106(1) and 107 of the Sentencing Act 2002 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.

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.

[7] In Blythe, the Court discussed the test for a discharge without conviction at [7] to [14]. It noted that a three-step approach to s 107 had been adopted by the Court of Appeal in Fisheries Inspector v Turner3 and subsequently referred to in R v Hughes.4 The Court said:5

[9] We agree with Hughes that:

... The test is the test. Simply, under s 107 the court must be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence, before it may consider the exercise of the discretion conferred by s 106 to discharge without conviction.

[10] Later in the judgment in Hughes, the Court said:

... 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 ...

[11] That appears partly to misstate the requirements of the s 107 disproportionality test. The aggravating and mitigating factors set out in s 9 of the Sentencing Act, and those listed in s 9A which deals with cases of violence against and neglect of children under 14 years, are obviously relevant to “the gravity of the offence”. But the content of ss 7, 8 and 9 is not. For two reasons, we wonder whether the passage we have set out at [10]

2 _{Blythe v R [2011] NZCA 190; [2011] 2 NZLR 620.}

3 _{Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA).}

4 _{R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.}

5 Blythe v R, above n 2, at [9]–[12].

is an inadvertent misstatement. First, it cannot be reconciled with the correct statement of the position in the excerpt we cite at [9]. Secondly, it does not reflect the Court’s approach in reviewing the way in which Gendall J applied the s 107 disproportionality test.

[12] As was pointed out in Hughes, the Court must first consider whether the disproportionality test in s 107 has been met. Only if it has been may the Court proceed to consider exercising its discretion to discharge without conviction under s 106. It is at that stage – when exercising the residual discretion under s 106(1) and in deciding whether further orders are required under s 106(3) – 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 is because all those sections apply, not only in sentencing, but also in “otherwise dealing” with an offender. In that respect, we agree with Hughes.

(footnotes omitted)

[8] In Blythe at [11] the Court says that the aggravating and mitigating factors set out in s 9 of the Sentencing Act are relevant to the gravity of the offending in applying the s 107 disproportionality test.6 Section 9 does not make a distinction between aggravating and mitigating factors relating to the offending and those relating to the offender. In R v Taueki, the Court of Appeal, in describing the usual approach to sentencing, did make that distinction.7 The approach described involves the setting of a starting point which has regard to the aggravating and mitigating factors of the offending. Once a starting point has been determined in that way, the aggravating and mitigating factors personal to the offender are to be taken into account.

[9] The aggravating factor in s 9(1)(j) and some of the mitigating factors in s 9(2), particularly those in paragraphs (a), (b), (e), (f) and (g), are factors relating to the offender, not the offending. The reference in Blythe at [11] to the aggravating and mitigating factors set out in s 9 being obviously relevant to the gravity of the offence, suggests that the Court of Appeal may have had in mind only those s 9 factors which would, in a Taueki analysis, be taken into account as relevant to the

_{fixing of a starting point.}

6 I interpret the reference in s 9 in the sentence “but the content of ss 7, 8 and 9 is not” to be an

_{error and that the intended reference is to ss 7, 8 and 10.}

7 R v Taueki [2005] 3 NZLR 372 (CA).

[10] That interpretation of the Court’s comments is reinforced by the Court’s observations in its discussion of step 1 of the three step approach to s 107. There is a very firm statement that two of the mitigating factors set out in s 9(2), namely guilty plea and remorse, are not relevant to the step of assessing the gravity of the offending. The Court said:8

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 in so far as they provide support. However, the Judge’s error is peripheral to this appeal. (footnote omitted)

[11] The Court of Appeal’s comments in Blythe at [12] are open to the interpretation that the point at which mitigating factors other than those which go to the gravity of the offending are to be taken into account is the consideration of the exercise of the discretion to discharge without conviction under s 106, after the disproportionality test in s 107 has been found to be satisfied.

[12] That interpretation is difficult to reconcile with the Court’s comments about

step 3. It said:9

This is the crux of the s 107 “gateway” test. It is correctly step 3 because the assessment it requires cannot be made until the Judge has worked through steps 1 and 2. Judge Inglis began by collecting together those aspects of the offending she had already mentioned. The passage we have set out at [27] was part of this. The Judge also mentioned Mr Blythe’s guilty plea, the way he had made amends to the victim, the victim’s forgiving attitude, the personal and professional stress Mr Blythe was under at the time, and the possibility that he will lose his job and suffer some reputational effects. She reiterated her assessment that “the likelihood or otherwise of those potential outcomes is very uncertain”.

The Court does not suggest that the Judge was wrong to have mentioned the guilty plea in the context of step 3. If the guilty plea is to be considered only after the s 107 gateway is passed, it was wrong to refer to the guilty plea at step 3.

[13] That interpretation of the comments is also difficult to reconcile with the description of the discretion under s 106(1) as residual and that it will be a rare case where an offender has passed through the s 107 gateway, but is then not discharged under s 106(1). That suggests that there will not usually be significant factors, not already assessed under the s 107 test, to be considered.

[14] That interpretation would also mean that, where the s 107 gateway is not passed, those mitigating factors will not be taken into account at all.

[15] Accordingly, when the decision in Blythe is read as a whole, I take it as authority for the proposition that the aggravating and mitigating factors in s 9 which are personal to the offender are to be taken into account in the application of the s 107 disproportionality test. I further take it as authority for the proposition that the appropriate place to take those factors into account is step 3, not step 1.

[16] Mr Bourke referred to two recent decisions of the Court of Appeal, A v R10 and Brown v R.11 Both of those cases are consistent with the first proposition which I have taken from Blythe, namely that the personal mitigating factors such as a guilty plea are to be taken into account in the s 107 disproportionality test. They are not

both consistent with the second proposition, namely that the appropriate place is step

3. In A v R, the guilty plea, and other mitigating factors related to the offenders, were taken into account at step 1. In Brown, personal mitigating factors were taken into account at step 3.

[17] Although the Judge in this case did not expressly refer to Blythe, it is clear that, to the extent that he applied Blythe, he must have adopted the interpretation to which I have referred at [11], namely that personal mitigating factors are to be taken into account at the s 106 stage, not in the application of the s 107 disproportionality test. The Judge is not alone in taking that view. There are several decisions of this

Court where the same view was taken.12 However, there are other decisions of this

Court where the relevant factors have been taken into account at the s 107 stage.13

[18] For the reasons I have given, I consider that the Judge’s approach was, in this respect, in error. The relevant Court of Appeal authority establishes that such personal mitigating factors are to be taken into account in determining whether the s 107 disproportionality test is satisfied. The Judge did refer to the guilty plea in his reasons. However, in the light of the clear statement of his approach, it is not safe to assume that this error of approach made no difference.

[19] As the Judge has, on my interpretation of Blythe, adopted an incorrect approach, I consider that it is necessary to deal with this appeal on a de novo basis. I must make my own assessment of whether or not, taking into account all relevant factors, the s 107 gateway has been passed.

[20] Step 1 is to assess the gravity of the offending. The Judge described the gravity of the offending in these terms:14

However I look at this, of course, Ms Tuisila this was a serious breach of trust. The amount of property was not extensive, but it was not insignificant. It was not one isolated act that was involved, you must have thought about what you were going to do, so to that extent it was premeditated and it happened over a period of time, so each time that you did something you were aware that it was wrong, and that you were incurring a loss, or a potential loss to your employer so it was not spontaneous, or a slip, or opportunistic.

As Mr Bourke points out however it may not have been directly obvious to you the extent of your offending. Incurring modest sums, for example by text and telephone calls it may not have been readily apparent to you that you were incurring such a large bill, but you did carry on and do it and you must have known that there could have been consequences. So, on the one hand it is not the most serious offending of its type, but there is this breach of trust in a position that you held, so moderately serious perhaps at the lower end of that category of offending.

[21] One factor relevant to the gravity of the offending, not mentioned by the

_{Judge, to which Mr Bourke drew attention, is that most of the misuse of the taxi}

12 Tahitahi v Police [2012] NZHC 663; Hudson v New Zealand Police [2012] NZHC 2769;

_{Swami v New Zealand Police [2012] NZFLR 962 (HC).}

13. My reliance on the Court of Appeal decisions in A v R and R v Brown on this point makes citation of those High Court decisions unnecessary.

14 New Zealand Police v Tuisila, above n 1, at [8]–[9].

vouchers related to travel to and from work. That was unauthorised, so that it is clear that the offence has been committed. However, the fact that most of the use was to that extent work-related is relevant to the criminality of the appellant’s conduct. I consider that this may properly be seen as somewhat less serious than if the taxis had been used for purely personal reasons. With that one additional comment, I agree with the Judge’s description of the offending as “moderately serious perhaps at the lower end of that category of offending”.

[22] Step 2 is to assess the consequences of a conviction. The appellant’s affidavit, before the Judge at sentencing, said that she was currently unemployed but in the process of enrolling to study a Bachelor of Counselling at the Wellington Institute of Technology (WIT). She had been working with a student mentor at WIT for some months. That mentor had provided a letter of support which said that she was in the process of enrolling to study counselling and that a conviction may affect her chance of study. I consider that this was sufficient evidence of a commitment to this proposed course of study, and to the career which it would facilitate, to make the possible consequences for that course of study and future career relevant to the disproportionality test. The appellant’s evidence was that as part of the entry requirements she would be required to undergo a police check. The course requirements for WIT, which were produced, said “Students will have to undergo a police check for this programme. In the event of an adverse police report, entry into the programme will be at the discretion of the head of school”. I consider that this is evidence of potential adverse consequences of a conviction which must be weighed in the scales in the s 107 disproportionality test.

[23] The Judge said:15

Well, as I have probably said before in similar cases there are always effects from offending, there are always consequences. In your case, as is often the case with younger people, it is hard to identify what the effects will be because you are yet to embark on your career. I must take into account, of course, that at each step of that procedure there is an authority or a body that will make those decisions as to whether you are a fit and proper person to study, or to become a counsellor, or to engage in any sorts of work as a result. It has often been said that it is that body that should decide and not the Court [decide] whether you are a fit and proper person. From what I have been supplied I believe that you are a fit and proper person in all

15 At [15].

probability to do counselling. There may be effects on your future employment. Of course, even you at your young age would have known that there would have been effects if you were found out, and of course there is the breach of trust.

[24] The Judge there makes the point that a prospective employer or a professional body ought to have the information so as to be in a position to make the decision, and that information should not be withheld by the granting of a discharge without conviction. That is a proper consideration, but two related points need to be considered. The first is that the degree of likelihood that a discharge without conviction may deprive such persons of the information is also relevant. Where, as here, a police check will be required, the fact of the prosecution might well be revealed. There are orders for reparation which such a check might disclose. If that were so, the granting of a discharge without conviction is unlikely to deprive WIT of the opportunity to obtain information about the circumstances. The second related point is that the need for employers and others to have the information must be weighed against the possibility that employers and others might not look beyond the fact of the conviction to ascertain the offender’s culpability. That is a point alluded

to in Brown v R.16 The risk that persons might be deprived of the opportunity to be

aware of the circumstances so as to make an assessment, must be weighed against the risk that they might not look beyond the conviction in considering the circumstances.

[25] Step 3 is the proportionality limb of the test. The passage from the Judge’s sentencing notes which I have cited at [23] is also relevant to this step. The Judge stated that from what he had been supplied he believed that the appellant was a fit and proper person in all probability to do counselling. The Judge must have taken the view that the offending was not sufficiently serious that it should have the consequence of depriving the appellant of the opportunity to pursue that vocation. I consider that is a factor which weighs quite heavily in favour of the proposition that the consequences of the conviction would outweigh the gravity of the offending.

[26] It is at step 3, too, that the appellant’s guilty plea and expressions of remorse are relevant. Her acceptance of responsibility for her actions is a factor which

16 Brown v R, above n 11, at [32].

weighs in favour of the proposition that the consequences would outweigh the gravity of the offending.

[27] For these reasons, forming my own view, I am satisfied that the s 107 gateway test is passed. Further, there is no reason not to invoke the jurisdiction in s 106.

[28] The appeal is allowed. The conviction on the charge of using a document is quashed, and the appellant is discharged without conviction. In all other respects the orders made are confirmed.

“A D MacKenzie J”

Solicitors: Ministry of Justice – Public Defence Service Wellington, for Appellant.

Crown Solicitor’s office, Wellington, for Respondent.