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High Court of New Zealand Decisions |
Last Updated: 26 June 2018
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
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CRI-2018-404-000088
[2018] NZHC 1062 |
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IN THE MATTER OF
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an appeal against the refusal to grant a discharge without conviction
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BETWEEN
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PRUNELLA PRENNA SINGH
Appellant
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AND
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MINISTRY OF SOCIAL DEVELOPMENT
Respondent
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Hearing:
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14 May 2018
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Counsel:
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G D Packer on Instructions for N C Wintour for the Appellant K V Mills for
the Respondent
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Judgment:
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16 May 2018
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JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 16 May 2018 at 10.00 am, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Counsel: G D Packer, Auckland
Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland
SINGH v MINISTRY OF SOCIAL DEVELOPMENT [2018] NZHC 1062 [16 May 2018]
[1] Ms Singh pleaded guilty to four representative charges of dishonestly using a document. She was sentenced to 12 months’ intensive supervision and ordered to pay reparation in the sum of $15,000.1 Her application for a discharge without conviction was declined by the District Court Judge.2 She appeals that decision.
The offending
[2] Ms Singh received an accommodation supplement to a benefit from May 2013 onwards. She was required to inform the Ministry of Social Development as soon as there was any change in circumstances that may have affected her entitlement to receive that benefit.
[3] On 15 different occasions between 31 May 2013 and 5 September 2016, Ms Singh submitted forms in which she falsely claimed that she was paying rent. In fact, Ms Singh’s former husband, the father of her child, was paying the rent on her behalf. Ms Singh’s offending resulted in her receiving a total of $42,196.22 to which she was not entitled.
[4] In an affidavit sworn in support of the application for a discharge, Ms Singh explains that she separated from her husband in May 2013 after a turbulent marriage. She had no access to their joint finances which were controlled by her husband. Following separation, her husband would pay her rent, but he would demand that it be repaid.
[5] Following separation and with the support of her parents, Ms Singh subsequently retrained as a nurse. She completed her course at the end of 2017 and she graduated in March 2018. She is currently employed by Counties Manukau District Health Board and has been offered a job as a theatre nurse once she is registered.
(b) do any assessment, treatment, counselling or programme directed by Community Probation.
2 At [14].
[6] Ms Singh disclosed the fact of the conviction and the offending to both her employer and the Nursing Council. The Registrant Quality Committee of the Nursing Council has scheduled a hearing on Tuesday, 29 May 2018 for Ms Singh to explain the circumstances surrounding the conviction, and to enable the Committee to determine Ms Singh’s fitness for registration.
District Court judgment
[7] The Judge adopted the three-step approach to an application under s 106 of the Sentencing Act 2002 as set out by the Court of Appeal in Z (CA447/12) v R. That is, to assess: (a) the gravity of the offence; (b) the direct and indirect consequences of a conviction; and (c) whether those consequences are out of all proportion to the gravity of the offence.3
[8] The Judge assessed Ms Singh’s offending as being at the lower end of moderate.4 In doing so he had regard to the maximum penalty of seven years’ imprisonment imposed for offending of this type, the lengthy period over which the offending was carried out and its repetitive nature. The Judge considered that Ms Singh had taken positive steps to be dishonest and in doing so had deprived the taxpayer of a significant sum of money.5
[9] In terms of mitigating factors, the Judge acknowledged that Ms Singh had pleaded guilty and had no prior convictions. He also considered that she was genuinely remorseful and that she had worked hard to retrain and gain employment. He took into account that she was prepared to make a voluntary payment of $15,000 on the day of sentencing.6 These mitigating factors reduced the overall gravity of the offending from moderate to the lower end of moderate.7
[10] The Judge was not satisfied that the consequences of conviction would be as extensive as Ms Singh submitted. In particular, he rejected her claims about the impact of the conviction on her potential registration and ongoing employment as a nurse. He
3 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8].
4 Ministry of Social Development v Singh [2018] NZDC 3898 at [7].
5 At [3].
6 At [6].
7 At [7].
found that there was no evidence that a conviction would result in Ms Singh not being registered. He referred to the Nursing Council’s role to determine questions of fitness to practise, and the Court’s reluctance to intervene in that role.8 Finally, he considered that the fact that the Nursing Council was already aware of the offending meant that, even with a discharge, the Nursing Council would still have to consider whether the offending impacted on fitness to practise.9
[11] Ms Singh’s submission regarding her ability to travel was responded to with similar reasoning. The Judge relied on the Court of Appeal’s judgment in Edwards v R, noting that the evidential threshold for establishing an adverse consequence on travel possibilities is “very high”.10 Ms Singh had offered no evidence to substantiate the adverse consequences for travel beyond those which flow in the ordinary course.
[12] Overall, the Judge considered the employment and travel difficulties which Ms Singh might suffer were ordinary consequences of conviction and were not “out of all proportion” to the gravity of Ms Singh’s offending.11
[13] Taking into account mitigating factors, the Judge sentenced Ms Singh to 12 months’ intensive supervision and ordered reparation in the sum of $15,000 to be made.12
Approach to appeal
[14] An appeal against a refusal to grant a discharge without conviction is an appeal against conviction. In the event an appeal against a refusal to grant a discharge without conviction is unsuccessful, the appellant can pursue a secondary or contingent appeal against sentence alone.13
8 At [9].
9 At [10].
10 At [11]. See Edwards v R [2016] NZCA 583 at [24]–[26].
11 At [13].
12 At [17]–[19].
[15] In this case, there is no challenge to the sentence imposed. The appeal is solely concerned with the entry of a conviction. Accordingly, Ms Singh must establish:14
(a) that a miscarriage of justice has occurred by virtue of a material error by the Judge in entering a conviction; or
(b) that the Judge has erred in applying the principles for discharging an offender without conviction found in s 107 of the Sentencing Act.
[16] The proportionality test in s 107 is a matter requiring judicial assessment rather than the exercise of a judicial discretion. Accordingly, the appeal proceeds by way of general appeal and normal appellate principles apply.15
Grounds of appeal
[17] Ms Packer, on Ms Singh’s behalf, raises four points on appeal:
(a) The Judge incorrectly concluded that there was no real and appreciable risk to Ms Singh’s employment in New Zealand and overseas.
(b) The Judge incorrectly considered that the sum of money dishonestly obtained ($42,000) precluded a discharge without conviction.
(c) The Judge wrongly relied on concerns about concealing information from the Nursing Council.
(d) The Judge did not have proper regard to the offer of reparation made by Ms Singh and her family.
[18] Each of these grounds is considered below.
14 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12].
15 H (CA680/11) v R [2012] NZCA 198 at [30]; citing R v Hughes [2008] NZCA 546, [2009] 3 NZLR
222 at [11].
A real and appreciable risk to employment?
[19] Ms Packer submits that a conviction will mean that Ms Singh will not be able to work as a nurse either in New Zealand or overseas, or that there is a real and appreciable risk of such a consequence. She submits that this will affect Ms Singh’s life, and that of her family.
[20] Ms Singh produced a letter from the Nursing Council which sets out the consequences of conviction for registration. That letter states than an applicant for registration must provide a certificate of good standing, and that those with a conviction require “additional assurance”. An applicant who has been convicted of an offence punishable by imprisonment for a term of three months or longer must satisfy the Nursing Council that the offence does not reflect adversely on his or her fitness to practise. Further, depending on the seriousness of the conviction, an applicant may also be required to provide character references from people of good standing who are aware of the conviction. The letter also states that an applicant will be offered the opportunity to provide written submissions in support of any application and to meet with the Registration Committee of the Council.
[21] It is evident from this letter that Ms Singh’s conviction means she will have to overcome some additional hurdles for her to obtain registration. That in turn will make it harder for her to obtain employment as a nurse whether in New Zealand or overseas. But the hurdles are not insurmountable. The conviction does not operate as a complete prohibition on registration. Rather, this letter suggests that there will be an evaluation of the circumstances leading to the conviction, and how that offending reflects on Ms Singh’s fitness to practise as a nurse. In short, any adverse consequences for registration will flow from the nature of the offending, rather than the conviction itself.
[22] Ms Packer referred me to the decision in Tupu v Police.16 At issue in that case was the impact of a conviction on the appellant’s employment with the Royal New Zealand Air Force. Dunningham J allowed the appeal against the District Court Judge’s refusal to grant a discharge without conviction, finding that the Judge had understated the consequences of a conviction. Those consequences
16 Tupu v Police [2014] NZHC 743.
included an automatic deferral of the appellant’s acceptance to the Air Force programme. There was evidence that the appellant would be unlikely to get a security clearance, and that it was also unlikely that she would receive an overseas posting.17 Dunningham J found that those consequences were out of all proportion to the gravity of the offending and allowed the appeal accordingly.
[23] The consequences of a conviction for Ms Singh are much less severe than for the appellant in Tupu. The conviction does not operate to defer or suspend an application for registration. Ms Singh is still able to apply. And, whilst the fact of conviction means the burden on Ms Singh to satisfy the Council that she is a fit and proper person is higher, there is no evidence that the conviction, as opposed to the offending, will lead to a loss of future employment opportunities.
[24] Ms Singh deposes to an intention to travel overseas to Australia and other countries. She expresses a fear that convictions for fraud will undermine any plans she has to travel the world and obtain work. As the Court of Appeal said in Edwards v R, the evidential threshold for establishing consequences for travel are very high.18 Ms Singh’s evidence falls well short of that evidential threshold. And, as regards the difficulties Ms Singh may face in obtaining employment overseas, there is no evidence to suggest that the process for obtaining work as a nurse overseas will be any more difficult than in New Zealand.
[25] Overall, I do not consider that the Judge erred in the assessment of the consequences of conviction and I agree that the consequences of conviction are not out of all proportion to the offending. This ground of appeal is dismissed.
The amount of money dishonestly obtained
[26] Ms Packer submits that the amount of money dishonestly obtained does not prevent the Court from granting a discharge without conviction. She relies on the decision in R v Malu and suggests that Ms Singh’s application could be adjourned to allow her to complete community work, as was done in that case.19
17 At [27]–[28].
18 Edwards v R [2010] NZCA 583.
19 R v Malu [2017] NZCA 546.
[27] R v Malu concerned a conviction for evasion of tax in the sum of $178,000. The District Court Judge found that a conviction would inevitably have led to the appellant losing his employment and struggling with future career prospects. The Judge also took the “rare step” of indicating that he would discharge Mr Malu without conviction so long as he provided 220 hours’ voluntary community work and saved
$6,000 to make partial reparation. The order was deferred by six months to allow time for Mr Malu to complete the community work and save the initial reparation amount.
[28] What Ms Packer appears to be suggesting is that, because the offending in Malu concerned a greater amount of money, there is no reason not to allow Ms Singh the same opportunity as was afforded in Malu. However, the suggestion that the application be adjourned to allow community work to be completed by Ms Singh was not before the District Court Judge at the time the application for a discharge was considered. The Judge cannot have erred by failing to consider a proposition which was not put to him at the time the application was determined.
[29] But, in any event, I do not consider this is a case which warrants the “rare step” taken in Malu. The Court of Appeal confirmed in that case that the District Court decision was “generous”, “exceptional”, and that “[o]ur response may have been different if the Crown had a right of general appeal against the decision to grant the discharge”.20
[30] There are no exceptional circumstances which would warrant an adjournment of the application to allow community work to be undertaken in this case. This ground of appeal is also dismissed.
Nursing Council already knows about the conviction
[31] Ms Packer submits that the District Court Judge erred in expressing concern about interfering with the Nursing Council’s decision. She says the Council is already aware of the conviction and so a discharge would not be an interference.
20 At [31]–[32].
[32] The Judge’s remarks need to be understood in context. He was clearly aware that the Nursing Council knew of the offending as he specifically referred to that knowledge in his notes. In that context, his remarks must be understood as a general statement about the Court’s approach when statutory bodies are involved in assessing the impact of a conviction. His remarks do not evidence a specific concern about concealing relevant information from the Nursing Council or intervening in their decision-making.
[33] In any event, the fact that the Nursing Council already knows about the conviction and the offending does not assist Ms Singh’s appeal. As explained above, the Nursing Council will undertake an evaluation of all relevant circumstances in light of the fitness to practise requirements for registration. That is a process which will be undertaken whether or not a conviction is entered. It will make little difference to the Nursing Council’s overall evaluation whether the discharge is granted. That means that any adverse consequences for Ms Singh’s registration will flow from the offending, rather than the conviction. This ground of appeal is dismissed.
The offer of reparations
[34] Ms Packer submits that Ms Singh genuinely offered to amend the wrong committed by making a “significant” lump sum payment of $15,000.
[35] The fact that the sum offered was significant when considered in light of Ms Singh and her family’s means is not disputed. It constitutes approximately 35 per cent of the total sum improperly received. In addition, Ms Singh has pledged to continue to make payments once she is in employment as a registered nurse. This will be a significant financial burden for her.
[36] But the Judge did not overlook the significance of the offer. He clearly had regard to it in assessing the overall gravity of the offending.21 He also took it into account in determining the relevant sentence.22 The Judge’s approach to the offer of
21 At [6].
22 At [15].
reparation was correct, and the weight accorded to that offer was appropriate. This ground of appeal also fails.
Result
[37] The Judge did not err, and I agree with the approach taken. Accordingly, the appeal is dismissed.
Edwards J
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