Enache (aka Butcher) v Police [2015] NZHC 2586 (20 October 2015)

Last Updated: 4 November 2015

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2015-441-000029 [2015] NZHC 2586

IN THE MATTER	of an appeal against conviction and sentence
BETWEEN	SHEREE ESTELLA ENACHE (AKA BUTCHER) Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	20 October 2015
Appearances:	M J Phelps for the Appellant MJM Mitchell for the Respondent
Judgment:	20 October 2015

_{ORAL JUDGMENT OF MUIR J}

Counsel:

M J Phelps, Barrister, Hastings

Solicitors:

MJM Crown, Napier

ENACHE (AKA BUTCHER) v NEW ZEALAND POLICE [2015] NZHC 2586 [20 October 2015]

Summary

[1] The appellant, Ms Enache (aka Ms Butcher), was sentenced to 80 hours’ community work for one charge of using a forged document¹ and one charge of altering a document with intent to obtain by deception.² She appeals against the decision of the District Court declining to discharge her without conviction.³

Factual background

[2] Ms Enache and the victim were trusted friends. They seem subsequently to have fallen out on account of the matters relevant to this prosecution and for other reasons.

[3] When the victim went overseas to Algeria for nine months, presumably on a second passport held by her, she left what I assume to be her New Zealand passport and other personal effects with Ms Enache for safe keeping. Ms Enache altered the victim’s passport by placing her own photograph in that document. On 4 May 2012, she applied for an apartment to rent using the victim’s identity. She sent a copy of the passport along with an application of tenancy to the rental agency. The application was successful and she obtained a tenancy agreement for the apartment under the victim’s name. She took possession of the apartment on 16 June 2012. Why she did any of this is not specifically explained. A likely reason seems to me to have been the inadequacy of her own credit record having regard to the many financial problems, some not of her own making, which are deposed to in her lengthy affidavit in support of her application for a discharge without conviction which was filed with the District Court. Those problems included a former husband with a gambling addiction and relationship property issues that arose on termination of that marriage.

[4] Ultimately the tenancy fell into arrears. In Ms Enache’s affidavit she gives more background to the offending and says that it was the victim who failed to pay the rent when she was staying at the apartment while Ms Enache was in Australia.

_{Such details were not in the summary of facts.}

¹ _{Crimes Act 1961, s 257(1)(a).}

² _{Section 258(1)(a).}

³ Police v Enache [2015] NZDC 15973.

[5] In any event, the victim returned to New Zealand and according to her victim impact statement, was, on application for a power connection to her own home, presented with an adverse credit rating, ostensibly related to a failure to pay accounts in her name with Vodafone in a timely manner. There is no adequate information before this Court as to whether Ms Enache, having obtained a tenancy in the name of the victim, in turn obtained a Vodafone account in that name. In any event the victim claims that she had an otherwise good credit rating which was compromised by some activity on the part of Ms Enache.

District Court decision

[6] Judge Adeane canvassed the background facts and noted that the arrears under the lease had been made good. He identified the offending as a case of identity theft that had the potential for consequential fraudulent behaviour. While Ms Enache had not engaged in any such consequential behaviour he nevertheless regarded the offending as serious.

[7] Judge Adeane recorded the grounds upon which Ms Enache applied for a discharge without conviction. She had worked previously in the financial services industry and is subject to the scrutiny of the relevant financial services regulatory authorities. In her affidavit she noted the implications in terms of her employment within that industry arising out of a conviction. She also identified her desire to travel to the United States which would be precluded by the conviction.

[8] The Judge did not adopt a structured approach to the sentencing in terms of the relevant authorities but he clearly did take into account the submission that after more than 20 years in the finance industry Ms Enache’s position in that industry was now very much at risk. He commented that such submission overlooked the fact that Ms Enache had established that position within the industry notwithstanding her previous conviction for dishonesty in the mid-1990s. That conviction arose as a consequence of dishonesty in an employment setting.

[9] Before His Honour Ms Enache’s counsel had pointed to the long period of

time without offending. However, the Judge said that is “subject to the cynical

riposte that it goes to show that the dishonesty which manifested itself 20 years ago,

is intractable and has come to the fore again”.⁴

[10] The Judge did not consider this case to be an appropriate one for a discharge without conviction. He stated that where convictions will attract the attention of a statutory regulatory authority, the court should be slow to conceal the offending. Further he said:⁵

Ms [Enache] must take the consequences of what was inherently a serious dishonest piece of behaviour. Even though the financial consequences of it may not have been great, there are all sorts of reasons why identity theft should be made publicly known and this case just demonstrates one of them; the interference with travel documents.

[11] The Judge was not persuaded that the consequences of a conviction would be out of all proportion to the offending. The consequences were seen by him to be unexceptional. To the contrary, His Honour considered there were strong public policy reasons why a conviction should be entered.

[12] He accordingly sentenced Ms Enache to 80 hours’ community work.

Discharge without conviction

[13] The relevant sections of the Sentencing Act 2002 are ss 106 and 107. Section

107 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.

[14] The principles for discharges without conviction are well established and encapsulated in the decision of R v Hughes where it was said:⁶

[10] ... the court must first consider whether the disproportionality test in s 107 has been met. If (and only if) the court is satisfied the s 107 threshold has been met, may the court proceed to consider exercise of the discretion to discharge without conviction under s 106.

⁴ _{At [6].}

⁵ _{At [7].}

⁶ R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.

[11] The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles: Rajamani, at para 5. The discretionary power of the Court to discharge without conviction under s 106 arises and exists only if the Court is satisfied that the s 107 threshold has been met.

[15] The Court of Appeal in A (CA747/10) v R set out a three step-approach to s 107 assessments which has now become the orthodoxy in considering such applications. It said:⁷

[22] Section 107 codifies the common law criteria for a discharge without conviction and requires a three-step process:

(a) Identify the gravity of the offending by reference to the particular facts of the case;

(b) Identify the direct and indirect consequences of a conviction; and

(c) Determine whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of offending.

Appellant submissions

[16] Mr Phelps criticises the approach of the District Court Judge as not following this codification. He says that Judge Adeane failed properly to assess the gravity of the offending by only taking into account a very potted version of the facts and does not appear to have taken into account personal mitigating factors. He submits that the following considerations disclose a relatively modest offence of its kind:

(a) The offending must be assessed against the backdrop of Ms Enache’s difficult personal circumstances at the time of the offending, including the breakup of her marriage, her mother’s sickness, the need to care for her son, who has special needs, and the fact that she was suffering from depression at the time.

(b) The offending was not premeditated nor was sophisticated fraud involved. The offending resulted in personal benefit to Ms Enache but there was no direct financial benefit and no intention to receive a financial benefit. It did not cause any loss to the victim or the rental

company. It was not a classic case of identity theft in that sense. There was no ongoing use of the passport and no ongoing use of the victim’s identity.

[17] Turning to the personal mitigating factors in assessing the gravity of the offending, Mr Phelps emphasises that:

(a) Ms Enache pleaded guilty and is very remorseful for her actions. She has made an offer to make amends by way of emotional harm reparation. He says there is a low risk of re-offending.

(b) She has been in employment for the best part of her life and is a contributing member of society. She was not able to be dealt with under the police diversion scheme. She has been diagnosed with anxiety and depression which rendered her decision making less robust than usual. But he says there has been recognition of that by Ms Enache who is now receiving medication and that may be taken into account in terms of any concerns arising out of the registration process under the Financial Services Providers (Registration and Dispute Resolution) Act 2008 (“the Act”).

[18] Mr Phelps submits that when all these matters are considered in the round, the overall gravity of the offending is reduced considerably.

[19] Regarding the consequences of a conviction, Mr Phelps says that the Judge failed properly to identify and assess the consequences of a conviction, in particular:

(a) whether, in the event of a conviction, a five year stand down period from registration under the Act would be a proportionate consequence for the offending;

(b) the implications of the convictions on the applicability of the Clean

Slate (Criminal Records) Act 2003 to previous convictions. The entry

of convictions would have the significant impact of unveiling convictions that had previously been masked;

(c) the impact of a dishonesty conviction on a woman approaching her fifties and looking for employment. Mr Phelps says Ms Enache is unlikely to secure employment in the finance industry if convicted as her registration would lapse; and

(d) the consequence of a conviction on travel. In particular, there is an intention on Ms Enache’s part to travel to America and Europe so that her son can spend time with his father’s family. Her ability to enter certain countries would be at the whim, says Mr Phelps, of an immigration officer and there would be real difficulties in explaining the current offending, particularly as it involves the use of a passport.

[20] Mr Phelps argues that the consequences are out of all proportion to the gravity of the offending. He points out that the existence of a regulatory body does not prevent the jurisdiction being exercised as the Act contemplates a situation where people with convictions can be registered, albeit after a five year stand down period.

Respondent submissions

[21] Ms Mitchell submits that the threshold of “out of all proportion” means that a discharge is not appropriate in situations where there is a fine balance between the seriousness of the offending and the consequences of a conviction or if the consequences outweigh the seriousness of the offending by a fine margin. The words “out of all proportion” point, in her submission, to an extreme situation.⁸

[22] Ms Mitchell accepts that a conviction would disqualify Ms Enache from registering as a financial services provider for five years but points out that the very purpose of the Act is to regulate members of the financial community in this way. She submits that it would be inappropriate to grant a discharge for the express purpose of defeating the clear parliamentary intention to exclude those who have

exhibited criminal dishonesty of any sort. She notes that it is unclear whether disqualification from registration would act as a total bar to Ms Enache being employed in the industry or whether she could in fact still work under someone who is registered.

[23] She submits that Ms Enache’s previous dishonesty conviction is relevant.

She cites Dacar v Police where Collins J remarked that:⁹

Those who have incurred a previous conviction for dishonesty are very rarely likely to be able to persuade a Court on a subsequent occasion that a second and arguably more serious incident of offending merits a discharge without conviction.

[24] That was a case in which the previous conviction occurred seven years earlier. In my view some care is required in terms of application of that principle, where, as here, 20 years has elapsed between the offending and I do not regard it as, using Mr Phelps’ words, “a gold standard against which these matters are measured”. Nevertheless I accept that it will be at least comparatively rare that the Court can be persuaded to grant a discharge without conviction in relation to a dishonesty offence where there has been previous dishonesty offending, however long ago that may have been.

[25] Ms Mitchell acknowledges that this is a reasonably finely balanced case where real consequences of a conviction must be balanced against the public’s interest in there being a record of serious offending. However, in her submission the high statutory test is not met.

Analysis

[26] I intend to approach the matter by reference to the orthodox three stage test. I

consider therefore, firstly, the gravity of the offending.

Gravity of the offending

[27] The approach to considering the gravity of the offending is set out by the

Court of Appeal in Z (CA447/12) v R:¹⁰

[27] For our part, we consider that there is much to be said for the approach adopted by the Divisional Court in A(CA747/2010). That is: when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender;

...

[28] Judge Adeane viewed the offending as inherently serious. I agree. It involved a gross breach of trust, the forgery of an important travel document and the use of that document for personal gain, albeit not of a direct financial nature. I can only assume, as I have previously indicated, that the appellant used the forged document in this way because of difficulties with her own credit record. There is no other logical explanation for what she did, particularly given the risks inherent in such an action and what must have been known to her as the grave consequences of offending in the context of her employment within the financial services industry.

[29] I accept that the offending was not particularly sophisticated. However, it was pre-meditated and does fit the plain and ordinary meaning of “identity theft”. There have been consequences in terms of that identity theft for the victim as recorded in her victim impact statement.

Circumstances of the offender

[30] Looking then at the circumstances of the offender, as I am obliged to do in respect of this part of the analysis, I note that the offending was committed against a backdrop of very challenging circumstances in Ms Enache’s life. She had divorced her husband shortly before the offending; she was in financial hardship; her mother was ill; and she was suffering from depression and anxiety. She was no longer able to reside at her rental property and had to secure new accommodation for her son and herself. Whether that was as a result of her not meeting her rental commitments is unknown. Her son has special needs. In regards to the offending she says it was a stupid mistake “made under pressure because [she] had nowhere to live at the

time”.¹¹ To call it a mistake to my mind minimises the seriousness of the offending. It was at best a grave error of misjudgement on her part.

[31] While the circumstances undoubtedly contributed in some part to the offending, Ms Enache must have had other options available to her. That is the very purpose of the Welfare State in which we live. Her personal circumstances cannot, in my assessment, excuse the offending, although obviously I do take them into account.

[32] Another mitigating factor was her guilty plea. However, it cannot be said that the plea was entered at the earliest opportunity given that the charges were laid in June 2014 and she did not plead guilty until February 2015. Ms Enache has deposed that she is remorseful and is committed to avoiding a repeat of what has

happened.¹² However, genuine remorse, must go beyond the act of pleading guilty

and, of course, the authorities are live to the element of self pity which can often be involved in such expressions.¹³ I am not satisfied, on what I have read, that there was genuine remorse in this case.

[33] When considering all the circumstances in the round, I consider the gravity of the offence can be considered on the low side of moderate.

Consequences of a conviction

[34] In terms of the consequences of a conviction, Randerson J’s comments in

Iosefa v Police are often cited as relevant. His Honour said:¹⁴

[34] ... [I]t is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient if the Court is satisfied that there is a real and appreciable risk that such consequences would occur.

[35] However, the nature and seriousness of the consequences and the degree of likelihood of their occurring will be material to the Court's assessment of whether those consequences would be out of all proportion to the gravity of the offence. In other words, the higher the likelihood and the

¹¹ _{See affidavit filed in DC at [30].}

¹² _{See affidavit filed in DC at [35].}

¹³ _{See Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].}

¹⁴ Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005.

more serious the consequences, the more likely it is that the statutory test can be satisfied.

[35] The consequences of a conviction for Ms Enache would be that she would have to disclose the offending to future employers. She has a dishonesty conviction from 1997 but has not had to disclose that offending for some time due to the effect of the Criminal Records (Clean Slate) Act. She says that a conviction risks undermining what she has worked hard to achieve over the last 28 years in the finance insurance industry. At her age she says her employment prospects are reducing and would be further reduced by a conviction.

[36] Further, she says that if convicted on the current charges, they will disqualify her from renewing her registration as a financial service provider under the Act. She is not, however, currently employed as a financial services adviser. She has been in receipt of a Social Welfare benefit from some time shortly before her sentencing in the District Court. It is accepted, however, that if her conviction stands that she will be so disqualified for a period of five years.

[37] Where the offender is a member of a profession that has a regulatory body, the courts have been more inclined to enter a conviction. In Liang v Police, Hammond J stated:¹⁵

Whether a conviction will form an occupational barrier is a relevant consideration in determining whether to grant a discharge without conviction. Where the conviction will result in an absolute bar to the occupation that may carry extra weight with the Court. I do not think there is any such suggestion in this case. If there is an independent body charged with determining the suitability of individuals for particular employment, the Court may be more ready to enter a conviction, it being of the view that it is in the public interest that that body is able to make a decision with the benefit of full disclosure of the fact. The fact that the conviction may act as a barrier to gaining entrance to an occupation is not a determinative factor – it is merely a factor to be considered in the balancing exercise.

[38] It would, however, be wrong to fetter the discretion under s 106 by effectively setting guidelines as to the types of cases that could be the subject of a

_{discharge without conviction.}¹⁶

¹⁵ _{Liang v Police HC Wellington AP38/02, 16 April 2003 at [17].}

¹⁶ Franks v Police [2013] NZHC 3556 at [20].

[39] As I have said, I accept that if Ms Enache’s convictions stands she would be disqualified from registration as a financial service provider for five years.¹⁷ After that time has elapsed the Financial Markets Authority may still decline an application for registration.¹⁸ One of the purposes of the Registration part of the Act is to, “prohibit certain people from being involved in the management or direction of registered financial service providers”.¹⁹ That definition gives weight to Ms Mitchell’s submission that the appellant’s employment within the industry, other than in a management or directorial role may still be permitted. However, I accept that there are serious consequences of her conviction standing.

[40] Another consequence in this case is the resurrection of a historic conviction. In Williams v Police Brewer J said:²⁰

The Criminal Records (Clean Slate) Act deals with the consequences of reoffending. One is that the previous record is revived. The appellant would have to spend a rehabilitation period of seven years before statutory concealment would apply again. That is what Parliament intended. Although loss of concealment of the earlier convictions can be seen as an indirect consequence, I think there is some merit in the respondent's submission that to give it weight could undermine Parliament's intention that there be consequences for further offending.

That is not to say that it could not be a factor in an offender's favour in a case of particular sensitivity. There could be cases where the entry of a conviction would reveal the existence of previous convictions with serious consequences for the offender. But that is not the case here.

[41] I endorse those comments. In the present case to revive the historic convictions has consequences linked to Ms Enache’s career concerns. However, I regard Brewer J’s comments as germane to the extent that it would subvert the intent of the Clean Slates Act if the Court were to give discharges so that applicants could maintain a clean slate that Parliament did not intend them to have on account of re- offending.

[42] Ms Enache also raises general consequences of a conviction on her ability to travel, in particular to America and Europe. I take that into account.

¹⁷ _{Financial Service Providers (Registration and Dispute Resolution) Act 2008, ss 13 and 14.}

¹⁸ _{Sections 15A and 15B.}

¹⁹ _{Section 9(b).}

²⁰ Williams v Police [2013] NZHC 394 at [29]- [30].

[43] The predictable consequences of a conviction, such as restrictions on travel²¹ and the effect on future job prospects,²² can result in a discharge without conviction in certain cases where the gravity of the offending is particularly low.²³ Such cases recognise that a conviction is itself a significant factor.²⁴

[44] In regards to travel, I note that New Zealand’s Clean Slate Act does not apply to American visa law. Therefore, this particular consequence is not new. Ms Enache already has a conviction for dishonesty offending which under American visa law she would, on my understanding, be obliged to disclose.

Proportionality

[45] The third stage in the analysis is to determine whether the direct and indirect consequences, which I have identified, would be out of all proportion to the gravity of the offending which I have likewise identified. This is really the nub of the matter in what I do regard as being a reasonably finely balanced case and one which has caused me to reflect somewhat anxiously on the appeal.

[46] I appreciate that there are real and significant consequences (both general and specific) of convictions being entered. However, weighed against that is the deceptive nature of the offending and the intent of the Act to disqualify a person from registration where a dishonesty offence is committed. In circumstances where Parliament has mandated certain minimum standards of probity among financial service providers and where the defendant has demonstrably fallen below those standards, the Court should, in my view, be very conscious of undermining that

_{legislative purpose by means of a discharge without conviction.}

²¹ See for example Thompson v Police [2013] NZHC 1369 where restrictions on travel were seen to be out of proportion to the gravity of the offending - paintballs was fired at a neighbouring house resulting in an Arms Act offence.

²² See Taavili v Police [2012] NZHC 2323 where general effects on future job prospects was seen to be out of proportion to the offending, a minor common assault.

²³ See Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009 where general consequences of a conviction outweighed the gravity of the common assault.

²⁴ Taavili v Police, above n 23, at [30].

[47] In the present case that conclusion is reinforced by the earlier, albeit historic, offending. As in Dacar v Police²⁵ these new offences are at least as serious, if not more so, than those for which Ms Enache was previously sentenced. All cases of identity theft have to be regarded as serious offending by this Court.

[48] I do not, against this background, consider that the consequences of the conviction are “out of all proportion” to the gravity of the offending and accordingly I must dismiss the appeal.

Result

_{[49] I dismiss the appeal.}

_{Muir J}

²⁵ Dacar v Police above n 10.