|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
Last Updated: 9 August 2018
|
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
|
|
CRI-2017-419-000070
CRI-2016-019-002837 [2018] NZHC 1404
|
|
BETWEEN
|
ALVINA JEAN EDWARDS
Appellant
|
|
AND
|
MINISTRY OF SOCIAL DEVELOPMENT
Respondent
|
|
Hearing:
|
28 May 2018
|
|
Appearances:
|
L J R Wilkin for Appellant M L Dillon for Respondent
|
|
Judgment:
|
13 June 2018
|
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 13 June 2018 at 4:00 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Hamilton
EDWARDS v MINISTRY OF SOCIAL DEVELOPMENT [2018] NZHC 1404 [13 June 2018]
Introduction
[1] Ms Alvina Edwards was found guilty of two charges of obtaining by deception on 29 June 2017 following a Judge-alone trial in the Hamilton District Court.1 She sought a discharge without conviction, but Judge Wilson QC refused her application on 25 September 20172 and sentenced her to 12 months’ intensive supervision and 120 hours’ community work.3
[2] Ms Edwards now appeals against the Judge’s refusal to grant a discharge without conviction.
The offending
[3] The offending relates to overpayment of a student allowance, and rent reductions totalling $38,757.14,4 during a period of two years and seven months.5 At Ms Edwards’ trial a statement of agreed facts which set out the factual background was produced pursuant to s 9 of the Evidence Act 2006. I also draw upon the facts as found by the Judge in his decision in which he found Ms Edwards guilty of both charges.
[4] Ms Edwards commenced doctoral studies at the University of Waikato in 2013, after having obtained a Master of Laws with first class honours. She applied for and received a student allowance from the Ministry of Social Development under the Education Act 1989 between 1 July 2013 and 6 December 2015.6 During that period she also received the benefit of income-related reduced rent under the Housing Restructuring and Tenancy Matters Act 1992. In November 2015 Ms Edwards advised the Ministry that she had worked for the University of Waikato from March 2015 to November 2015 as a mentor and tutor in law. This led to further inquiries by the Ministry from which it was later established that she had failed to correctly disclose
2 Ministry of Social Development v Edwards [2017] NZDC 21593.
3 Ministry of Social Development v Edwards [2017] NZDC 21595.
5 Ministry of Social Development v Edwards [2017] NZDC 21593 at [1].
her income for her work at the university between July 2013 to February 2016. The inquiries also established that as well as income from her work at the university, she had also failed to notify the Ministry that between 1 July 2013 and 31 December 2015 she had also been receiving periodic doctoral scholarship payments totalling approximately $55,000.
[5] Although Ms Edwards was required to inform both the Ministry of Social Development and Housing New Zealand of her income and any change to her financial situation, at no stage did she disclose to either that she was receiving doctoral scholarship payments or income from university tutoring. Had she made proper declarations, she would not have received the level of income-related rent benefit that she had been receiving, and her student allowance would also have been reduced. Judge Wilson was satisfied beyond reasonable doubt that she failed to make full declarations by deception, meaning that she knew at the time of making her representations that they were false in a material particular,7 and that the false representations were made with intention to deceive.8
[6] In reaching these conclusions, the Judge referred to the evidence that Ms Edwards had marked “no” in answer to the questions in her applications for financial assistance where she was asked whether she received any income and whether she lived in social housing. He also noted that multiple letters sent to Ms Edwards referred to the obligation to advise of any change of circumstances, including notifying the Ministry of any changes in income. The Judge concluded that Ms Edwards, knowing what her obligations were, had made a deliberate decision not to disclose her true income.9 He acknowledged that Ms Edwards was “under some budget stress” and that this had likely affected her decision making.10
Ms Edwards’ personal circumstances
[7] Ms Edwards is a 56-year-old Māori woman with no previous convictions. She describes her iwi affiliations as “Ngai Tahu, (Ngati Irakehu) Horomaka and Ngāti
7 Ministry of Social Development v Edwards [2017] NZDC 14308 at [38].
8 At [39].
9 At [35].
10 At [35].
Kahungunu, (Ngati Pahauwera), Mohaka”. She has cared for her four children as a sole parent for their whole lives. Her youngest children are now at university.
[8] Before discussing Ms Edwards’ personal circumstances in more depth, it is relevant to note that Mr Wilkins for Ms Edwards applied for leave to present new evidence for the purposes of the appeal. The proposed new evidence was comprised of two affidavits by Ms Edwards and two affidavits by Associate Professor Rumbles, the Dean of Law at the University of Waikato.
[9] Mr Dillon for the respondent submitted that this new evidence should not be admitted on appeal because it is not sufficiently fresh, in that nothing is provided that could not have been supplied in the District Court at first instance. He said it accordingly does not meet the test for admissibility of new evidence on appeal set out in R v Bain.11 Mr Dillon also submitted that statements contained in the affidavits are vague and unclear. He therefore required both Ms Edwards and Associate Professor Rumbles to be present at the hearing of the appeal for cross-examination on the contents of their affidavits.
[10] The overarching test for the admission of new evidence on appeal is the interests of justice.12 Evidence may be admitted even if it is not sufficiently fresh if the interests of justice require it.13 Having reviewed the affidavits which set out the new evidence sought to be presented, I allowed the application, granted leave to Ms Edwards and admitted the affidavits of herself and Associate Professor Rumbles. The fresh evidence is primarily directed at the issue of the gravity of the offending and the consequences of conviction for Ms Edwards, which are relevant to her application for discharge under s 106. I considered that it was in the interests of justice that the evidence be admitted and considered. It was relevant to my decision to admit the affidavit evidence that there was to be cross-examination of both Ms Edwards and Professor Rumbles, and that Mr Dillon for the respondent did not suggest that his
12 Criminal Procedure Act 2011, s 335(2).
13 R v Bain [2003] NZCA 294; [2004] 1 NZLR 638 (CA) at [22]; Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at
[119].
client would be prejudiced as a result of the admission of the affidavits as fresh evidence.
Academic background and intended career
[11] Ms Edwards already has a distinguished academic career. She completed a Bachelor of Laws and Bachelor of Arts in History and Tikanga Māori in 2011, and her legal professionals course in 2012. She then obtained a Master of Laws with first class honours in 2012, and was accepted into the University of Waikato’s doctoral programme. Her affidavit records that she intended to submit her PhD thesis at the end of September 2017, but has sought an extension due to the stress and personal disruption she has experienced as a result of her convictions. She now intends to complete her thesis in July this year. It deals with themes of indigenous identity in the United States of America (USA), Canada and New Zealand, particularly the use of biological testing and blood quantum to determine indigenous identity. She has attended numerous conferences worldwide, including the USA and Canada, and presented her research. In August 2018 she hopes to attend an academic exchange to the University of Saskatchewan in Canada, but notes that whether or not she can go depends on the outcome of her appeal.
[12] In her affidavit affirmed on 15 January 2018, Ms Edwards explains that it has been her intention, once she has completed her PhD qualification, to obtain employment as an academic and to make a contribution to indigenous communities in New Zealand, the USA and Canada by promoting indigenous perspectives in all three countries. She says that her ability to travel in order to present her research and papers to academic audiences from other indigenous contexts, and her ability to earn an income after years of training, would effectively cease because of her inability to travel freely due to her convictions. Should she be unable to travel and have the opportunity to make valuable comparisons between people in three countries, she considers the impact of her work and ability to improve the lives of indigenous people will be reduced. Ms Edwards considers that the most significant consequence of the convictions for her is that they will severely detract from her ability to be a role model for Māori.
[13] In her most recent affidavit, Ms Edwards says that although she has previously been employed at the University of Waikato by the Faculty of Māori and Indigenous Studies (FMIS) as a Māori mentor, after the university human resources office learned of her convictions she was advised by senior staff at FMIS that she could not be employed because of the convictions. She explains that she has nevertheless been given temporary research work with limited hours pending the outcome of her present appeal. She says that the effect of the convictions will be that upon completion of her academic qualifications, she cannot realistically expect to be employed in an academic teaching role at Waikato University or at any other university.
[14] Under cross-examination by Mr Dillon, Ms Edwards was asked whether she had considered seeking employment other than an academic position at a New Zealand university, and whether she had considered applying for a position in a public policy role. She said that she has applied for a position at Te Wānanga O Aotearoa, but was declined, and explained that she has been reluctant to apply for other positions as she feels too ashamed.
[15] Members of Ms Edward’s whānau have written letters of support in which they describe her as a caring, supportive and passionate advocate for those who are marginalised or disadvantaged. She has a strong desire to use her education to help others, and has advocated for and been involved with numerous community organisations. These include the Māori Women’s Welfare League, the Working Party for Violence Intervention Project, Mana Wahine, and Habitat for Humanity Hamilton, among a long list of others. She is a founding member of the Hamilton Homeless Trust and has been co-president of the University of Waikato Māori Law Students’ Association.
[16] Ms Edwards also has the support of numerous members of the legal profession and academic staff at the University of Waikato. They describe her as having a strong work ethic and being an invaluable part of the Faculty of Law in terms of both her academic research into an important area, and her compassion and commitment to mentoring other students.
[17] Associate Professor Leonie Pihama, in her letter of support dated 9 September 2017, states:
Alvina has much to offer and a conviction would seriously impact on her ability to do that. In her current career pathway a conviction would reduce significantly her job opportunities and her ability to travel and share her work internationally as is expected as a part of the role of an academic and researcher. Over the past year we have been dealing with another student who was declined visa entry into the USA due to a conviction received 20 years prior.
With a tightening of entry criteria into countries such as the USA and Canada it is evident that a conviction would hinder Alvina’s entry in to these countries. Alvina has invested everything into this pathway to provide new opportunities for herself and her children and a conviction would severely impede that coming to fruition.
[18] Associate Professor Rumbles, Dean of the Faculty of Law at the University of Waikato, has filed two affidavits in support of the appeal.14 He says that he has known Ms Edwards for ten years in his capacity of teaching her at the undergraduate level, as a Masters student, and as her supervisor during her PhD study. He says that Ms Edwards has also worked for him as a research assistant. From his discussions with Ms Edwards he was aware of her plans to apply for an academic teaching role at either the University of Waikato or Canterbury University, with Waikato being her clear preference. He considers it would be very unlikely if not impossible for Ms Edwards to secure an academic position in any law faculty in New Zealand or overseas should her convictions remain.
[19] The Associate Professor further explains in his affidavit that an essential part of the life of a legal academic in Ms Edwards’ field is attendance at conferences, study leave and research collaborations across jurisdictions. He says that this is particularly important for New Zealand academics to ensure that currency and global perspectives are reflected in their teaching and research. He says that academics both attend and present papers at conferences. While academic conferences typically call for the submission of abstract proposals, notification of acceptance of a conference paper may in some cases occur only two or three months prior to the conference date, leaving very limited time to arrange travel and visas.
14 Sworn 15 January 2018 and 16 May 2018.
[20] Under cross-examination by Mr Dillon, Professor Rumbles confirmed that he was aware of the convictions entered against Ms Edwards and was aware of the nature and extent of her offending. He referred to Ms Edwards’ position as a tutor at Waikato University, noting that her contract had been terminated following her convictions. He said that was a clear indication that were her convictions to remain, it would be unlikely that she would be employed by the university in the future. He accepted however that there are examples of cases where people with convictions have been appointed to tertiary teaching positions.
[21] Associate Professor Rumbles said that while there is no current vacant academic position available at the University of Waikato law school for Ms Edwards to apply for, there will be one next year, and that Ms Edwards would be a likely appointment to the position if she did not have the present convictions. He noted that the University of Waikato law school was interested in appointing Māori academics. He explained that were Ms Edwards to receive a discharge of her convictions, he and the university would of course know about the offending, which would be relevant to and taken into account in any employment decisions, but would not in his view prevent her from being employed. Associate Professor Rumbles said that from his perspective of working closely with Ms Edwards he had a high level of respect for her integrity which was previously unquestioned.
Personal circumstances at the time of the offending
[22] Various letters in support of Ms Edwards also confirm that she faced strained financial circumstances and a considerable degree of stress as a single parent while studying, and the authors express the view that her achievements are particularly admirable in light of her personal circumstances.
[23] Ms Edwards records in her affidavit that her brother died in May 2013 following a long illness that was diagnosed in 2009. Then in August 2013 her father, who had also been suffering from illness since 2009, also died. In addition, Ms Edwards’ 86-year-old mother suffers from poor health and has been dependent on her for support. Ms Edwards says that as well as the family issues and pressures relating
to her father, mother and brother, one of her children developed mental illness during 2009 which is ongoing.
[24] Ms Edwards further says that she herself developed her own health problems in 2013 which are also ongoing, and which were becoming increasingly burdensome during the period of her offending. She describes herself as currently suffering from: obesity, hypertensive disease, atopic dermatitis/eczema, and non-alcoholic fatty liver disease (which is now chronic) as well as other conditions. These are confirmed by a medical report from her doctor. Ms Edwards says she was required to undergo three surgeries during her first three years of study.
[25] Ms Edwards says that the combination of her family’s health issues and her own deteriorating health affected her ability to attend to her own affairs properly in many aspects of her life, including the requirements to disclose her financial details to the Ministry of Social Development and Housing New Zealand. She says that she has continued to be distressed by the effects of her offending and prosecution. She says that despite the pressures and stress she was experiencing, she nevertheless takes full responsibility for her failure to disclose her income and financial position and for her offending.
[26] The pre-sentence report records that Ms Edwards displays genuine remorse for her actions, and was visibly upset and tearful during the interview. In her initial affidavit filed in the District Court, Ms Edwards said:
This has damaged my integrity, pride and mana ... I am so sorry for my naivety, mistakes and confusion over the legislation. I never set out or intended to commit a crime. With a fuller understanding of the situation, I accept I have made a mistake, a massive mistake, a serious mistake.
[27] Ms Edwards further states that she has suffered from depression and anxiety since her convictions. She is concerned about the impact of her convictions on herself and her career, and on her children and grandchildren.
[28] In her most recent affidavit filed in this Court, Ms Edwards confirms that she accepts the Judge’s decision which found her guilty of the two charges.
Evidence as to travel restrictions
[29] An excerpt from a Canadian government website is attached to Ms Edwards’ affidavit. It explains that those who have been convicted of crimes, whether minor or serious, may be denied entry into Canada. A person is entitled to apply for “rehabilitation” once five years has passed since the end of the criminal sentence imposed. However, it is possible to seek a temporary resident permit where less than five years have passed, in which case an immigration officer will decide on the individual merits of the case.
[30] An excerpt supplied from the website of the United States Embassy and Consulate in New Zealand states that persons with criminal convictions are required to apply for a visa to enter the USA. At the visa interview, a consular officer will determine whether the individual is eligible for a visa, and if ineligible, whether to submit a request for a waiver of ineligibility. Approval of such a waiver can take six to eight months. The website states:
The only way to know for sure if your criminal record makes you ineligible is to apply for a visa. Only a consular officer can determine your visa ineligibility.
[31] Ms Edwards also produced excerpts from the United States Department of Foreign Affairs Manual and Handbook as exhibits. These excerpts appear to set out guidance for consular officers in determining visa ineligibility. An applicant will be ineligible if he or she has a conviction for a criminal offence involving “moral turpitude”, which the guidelines define as including fraud. Ineligible persons are entitled to apply for a waiver, and the following factors are said to be relevant to the consular officer’s decision whether to recommend a waiver:
(a) the recency and seriousness of the activity or condition causing the applicant’s inadmissibility;
(b) the reasons for the proposed travel to the United States; and
(c) the positive or negative effect, if any, of the planned travel on United States public interests.
District Court decision under appeal
[32] Judge Wilson commented that this was a “sad case”.15 However, he noted that the offending had taken place over a period of two years and seven months and caused a total loss to the community of $38,757.14, meaning it was “moderately serious in the benefit fraud area”.16 He also noted that mitigating features present in other cases where discharges have been granted, such as early guilty pleas, “real remorse” and full repayment of the sum obtained, are not present here.17
[33] The Judge explained that the reason he did not accept that Ms Edwards was showing remorse was because although she had admitted making mistakes, elements of her affidavit and the letters of support showed a widespread view amongst Ms Edwards and her supporters that she should never have been convicted, the conviction was unfair, and that she was not in fact guilty.18 The Judge considered the expression of those opinions improper, but placed them in perspective by referring to the “tremendous amount” of material indicating the remarkable contributions and selfless work being done by Ms Edwards for the benefit of the community.19 However, he also noted the prosecution’s submission that “there is an element here of giving with one hand and taking with the other.”20 The Judge also commented that he did not wish “to minimise in the least the serious financial constraints” Ms Edwards was under during the period of her offending.21
[34] Regarding the consequences of conviction, the Judge accepted that there was a real and appreciable risk that declining to discharge Ms Edwards would “adversely impact on [her] future as an international academic and a lawyer and a teacher at the law school.”22 He further recognised that because Ms Edwards’ studies were in the field of comparative law in the jurisdictions of New Zealand, Canada, and the USA, she had a “perhaps unique interest in travelling to those countries”, and that she had
16 Ministry of Social Development v Edwards [2017] NZDC 21593 at [3].
17 At [3].
18 At [3]
19 At [3].
20 At [3].
21 At [4].
22 At [2].
previously attended academic conferences in both Canada and the USA.23 However, he noted that there is a residual discretion for entry into both the USA and Canada for people with criminal convictions.
[35] The Judge then referred to Ms Edwards’ potential career options in the law, commenting it was not an “acceptable proposition” to discharge her without conviction and leave it to her to disclose her offending if she felt it was appropriate.24 He concluded:25
In my view, having regard to the aggravating features of the offending which I have mentioned, there do not seem to me to be any mitigating factors of those. I have identified the direct and indirect consequences of conviction for you and I consider that those consequences cannot be said to be out of all proportion to the gravity of your offending.
[36] The Judge accordingly refused to grant a discharge without conviction.
Submissions on appeal
[37] Ms Edwards appeals on the basis that the District Court Judge erred in applying the test in s 107 of the Sentencing Act 2002. Mr Wilkins submits the Judge erred in the following respects:
(a) by incorrectly assessing the gravity of the offending;
(b) by accepting the proposition that Ms Edwards has a unique interest in overseas travel but nevertheless dismissing that concern by reference to the residual discretion of foreign authorities to allow entry;
(c) by failing to consider the mitigating features of the case, including remorse; and
23 At [2].
24 At [5].
25 At [5].
(d) by not giving appropriate weight to the particular circumstances of the offender and the offending.
[38] While Mr Wilkins accepts the Judge’s description of the offending as being “moderately serious”, he submits that the Judge placed excessive reliance on there being no similar cases of comparable seriousness in which a discharge had been granted. Mr Wilkins says that this is an improper consideration, as s 107 requires a close and detailed analysis of the gravity of the offending and the consequences of conviction in each particular case.
[39] In relation to the consequences of conviction, Mr Wilkins submits that it is so well known as to be accepted by judicial notice that entry to both Canada and the USA is very difficult for persons with criminal convictions. The visa application process to the USA could take anywhere between three months to one year for those with criminal convictions, and success in obtaining a visa appears to be somewhat random. Mr Wilkins submits that the Judge was wrong to rely on foreign authorities’ “residual discretion” in this regard. He submits that travel overseas would be “functionally shut off” to Ms Edwards, which in turn would prevent her from engaging in what is a very important aspect of her career. He further submits, by reference to Associate Professor Rumbles’ evidence, that Ms Edwards will not be able to find employment as an academic in New Zealand or overseas with a conviction.
[40] Mr Wilkins further submits that Ms Edwards’ personal circumstances were not taken into account by the Judge in any meaningful way. He refers particularly to her previous good character, and the personal crises she was dealing with during the period of her offending. He says that Ms Edwards’ remorse was assessed as genuine in the pre-sentence report, and should have been given more weight by the Judge.
[41] As for the final proportionality analysis, Mr Wilkins relies on R v Malu,26 in which the offender was discharged without conviction on charges of tax evasion.
26 R v Malu [2017] NZCA 546.
[42] Mr Dillon for the respondent submits that the Court cannot be satisfied on the evidence that, if convicted, Ms Edwards would be unable to travel to the USA or to Canada. He criticises the documentary evidence on this point tendered by the appellant, submitting that it consists of vague guides and internet materials. None of these provide a complete picture of the visa laws of either jurisdiction, and he raises the concern that the material may not meet the requirements of s 144 of the Evidence Act 2006 which governs how evidence of foreign law may be put before the Court. Mr Dillon also refers to Edwards v R,27 in which the Court of Appeal found the evidence of travel restrictions to the USA and Canada to be unsatisfactory.
[43] Mr Dillon submits that the evidence is also insufficient to establish that Ms Edwards would not be able to secure a teaching position at a university within New Zealand with the present convictions. Nevertheless, given the District Court Judge’s conclusion that there was such a risk, he proceeds on the basis that she would not be able to find employment in an academic role if the convictions remain.
[44] As for the proportionality analysis, Mr Dillon accepts that the consequences of conviction are serious and even goes so far as to acknowledge that the consequences of the convictions for Ms Edwards may, on balance, outweigh the gravity of her offending. However, he emphasises that the test is whether the consequences are “out of all proportion” to the gravity of the offending. He submits that test is not met.
[45] In the alternative, Mr Dillon addresses the final residual discretion to grant a discharge if the Court considers that the s 107 threshold is met. He notes the community interest in holding Ms Edwards to account for her fraud, and submits that Ms Edwards committed the fraud in order to further her career. He says that it would be inequitable to discharge Ms Edwards without conviction without her having taken any steps to right the wrong she has done to the community. However, if the Court is minded to grant a discharge, Mr Dillon suggests the alternative solution of also requiring Ms Edwards to carry out voluntary community work and pay reparation, in reliance on R v Malu.
27 Edwards v R [2015] NZCA 583.
Discharge without conviction: the law and approach on appeal
[46] The discretion to discharge a person without conviction under s 106 of the Sentencing Act 2002 is subject to s 107 of that Act:
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.
[47] The three-step approach required by s 107 is as follows:28
(a) the Court must first assess the gravity of the offence;
(b) the Court must then identify the direct and indirect consequences of a conviction; and
(c) finally, the Court must determine whether those consequences are out of all proportion to the gravity of the offence.
[48] Unless the s 107 test is met, the discretion to discharge without conviction under s 106 cannot be invoked. When this Court considers an appeal against a refusal to grant a discharge without conviction, the s 107 test (namely whether or not the consequences of conviction are out of all proportion to the gravity of the offending) is a matter of fact requiring judicial assessment.29 This means it is subject to normal appellate principles, and this Court can come to its own view on the merits.30
[49] Even if the three-step test under s 107 is satisfied, the Court may nevertheless exercise its residual discretion not to grant a discharge without conviction. In practice, however, a favourable assessment under s 107 is likely to lead to the exercise of the discretion to grant a discharge under s 106.31
28 Rigg v Police [2016] NZHC 3135 at [4]; see also Z (CA447/12) v R [2012] NZCA 599, [2013]
NZAR 142 at [8].
29 See Maraj v Police [2016] NZCA 279 at [11]; H (CA680/11) v R [2012] NZCA 198 at [30];
Edwards v R [2015] NZCA 583 at [6].
30 See Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
31 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 (CA) at [12]; Z (CA447/12) v R [2012] NZCA
599, [2013] NZAR 142 at [27].
Analysis
[50] Mr Dillon submits that the personal mitigating circumstances of the offender are irrelevant to assessing the gravity of the offending. He acknowledges that this view conflicts with the recent decision of the Court of Appeal in Z (CA447/12) v R,32 but refers to other Court of Appeal cases in support of his approach and says that there is conflicting authority on this point. He submits that on an orthodox approach to sentencing, assessing the gravity of the offending entails an assessment of the aggravating and mitigating features of the offending alone.
[51] However, I do not consider that there is any lack of clarity in the law on this issue. In Maraj v Police33 the Court of Appeal set out the approach to an assessment of the gravity of the offence, citing the 2012 case of Z (CA447/12) v R, in which the Court said:34
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; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence ...
More recently in R v Malu, the Court of Appeal affirmed this approach, noting that the Judge properly took into account mitigating features such as previous good character and guilty pleas in assessing the gravity of the offending.35
[52] Having regard to these decisions, I consider the proper approach is to take into account all aggravating and mitigating features relating to the offending and offender in assessing the gravity of the offending.
[53] The overpayments that Ms Edwards received totalled almost $39,000. This is not an insignificant sum, and the offending occurred over a moderately long period,
32 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142.
33 Maraj v Police [2016] NZCA 279 at [9].
34 At [27].
35 R v Malu [2017] NZCA 546 at [13]–[14].
namely two years and seven months. However, I do not consider that Ms Edwards’ offending is at the upper end of seriousness for obtaining by deception offences, and I agree with the District Court Judge that the offending is appropriately described as moderately serious, when that assessment is made on the basis that such personal mitigating circumstances as do exist relating to the offender do not warrant being given any significant weight.
[54] Mr Wilkins submits that Ms Edwards’ culpability is reduced by the fact that she appears to have been labouring under a degree of mistaken belief as to her obligations, and that her offending appeared to be of a type so naïve as to be certain to be discovered. I do not accept this submission, as to do so would conflict with the basis of Judge Wilson’s decision in finding Ms Edwards guilty of both charges. Judge Wilson found that:36
... Ms Edwards was not mistaken about the facts, that she actually knew what her obligation was and decided not to meet it.
[55] Accordingly, I must proceed on the basis that Ms Edwards’ offending involved her in making a series of deliberate deceptions.
[56] However, I take a different view from that of Judge Wilson regarding the presence of mitigating circumstances relating to Ms Edwards and which are relevant to an assessment of the gravity of the offending. I consider that the personal and financial stress that Ms Edwards was under during the time of her offending is a significant mitigating feature of the offending. In her affidavit evidence she explains that she was caring for her children as a solo parent, as well as caring for several of her close family members. Her brother was seriously unwell and died in May 2013, and her father was also seriously unwell for an extended time prior to his death only months later in August 2013. Ms Edwards’ mother, who was in her 80s, also required her support. During this time Ms Edwards’ own health was poor and she was obviously under considerable stress. She was supporting and caring for her children and other seriously unwell family members in circumstances where she was also under considerable financial pressure, while also maintaining the study and research required to meet the academic deadlines for her doctorate.
36 Ministry of Social Development v Edwards [2017] NZDC 14308 at [39].
[57] In her affidavit Ms Edwards says that these circumstances affected her ability to attend to her personal affairs. In my view the combination of these events and circumstances should not be understated. Individually they are matters that would be of major and preoccupying significance in any person’s life. In combination, these circumstances would inevitably have placed Ms Edwards under enormous strain and affected her ability to focus her attention on her own affairs as well as affecting her decision-making regarding her claiming of the student benefit and rental concession for housing. I consider that taken in combination, these personal circumstances significantly reduce her culpability and the gravity of her offending.
[58] Judge Wilson found that Ms Edwards did not show any real remorse. He said that although Ms Edwards had admitted to having made mistakes, aspects of her affidavit and the supporting material showed that there was a widespread view amongst Ms Edwards and her supporters that the conviction was unfair and that she should not have been found guilty. The Judge was obviously referring to the statement in Ms Edwards’ affidavit in which she said she was distraught at being found guilty, and that the convictions had damaged her integrity, pride and mana. She apologised for her naivety, mistakes and confusion over the legislation, and said that she had never set out or intended to commit a crime.
[59] As the Judge correctly observed those statements do not demonstrate full and unqualified remorse, but there was other material before the Judge that did directly address the question of remorse. When Ms Edwards was interviewed on 7 August 2017 for the purpose of the pre-sentence report, the Department of Corrections officer noted that she acknowledged her offending and showed remorse for her actions. The report records:
Ms Edwards acknowledged her offending and showed remorse for her actions. She was visibly upset and cried through the interview, and verbally expressed her remorse by saying she was sorry on several occasions.
...
Taking into account that Ms Edwards has no previous criminal history, the level of remorse shown by Ms Edwards, and her willingness to pay reparation, a rehabilitative approach is an available option.
...
Ms Edwards presented as remorseful for her actions. She said that she had misinterpreted the information regarding her scholarship and had received the incorrect information from a friend. She said it was never her intention to offend. Ms Edwards expressed a willingness to honour her debt and make amends.
[60] Ms Edwards gave evidence before me and was cross-examined at the hearing of her appeal. In the course of her evidence it was clear that she is deeply and genuinely remorseful for her offending.
[61] Accordingly I take a different view from the Judge regarding the issue of remorse. I consider that Ms Edwards has shown real remorse as was clearly evident from her pre-sentence report interview. The Judge appears to have overlooked the contents of the pre-sentence report and focussed his attention on Ms Edwards’ affidavit and the supporting materials attached to it, which included expressions of opinion by some of her supporters that she should not have been found guilty. Such statements and opinions are in many cases ill-informed and did not reflect Ms Edwards’ own attitude to being found guilty, which was one of remorse for her offending as she clearly expressed to the author of the pre-sentence report.
[62] I also consider Ms Edwards’ previous good character to be a significant personal mitigating feature. It demonstrates that her offending was out of character, and that combined with her very real remorse is a clear indication that she has very good prospects of rehabilitation.
[63] At the age of 56 Ms Edwards has no previous convictions. It is evident from her affidavits and the numerous letters of support that she is dedicated to community service and commits much of her time to community causes. The extensive and impressive list of projects and organisations she has been involved with and made contributions to clearly demonstrates her genuine and selfless commitment to her community. Her work extends over a broad spectrum including welfare, cultural, environmental, and local community issues.
[64] The gravity of the offending, which was appropriately assessed as being moderately serious having regard to the deception involved in Ms Edwards’ offending, is however significantly reduced when her personal circumstances during the time of
the offending, her previous good character, and her remorse are also taken into account.
[65] Under this step it is relevant to assess the nature and seriousness of the consequences, and the degree of likelihood of those consequences occurring.37 As the Court of Appeal has noted, the “higher the likelihood and the more serious the consequences, the more likely it is that the statutory (disproportionality) test can be satisfied”.38 As to likelihood of the consequences occurring:39
... it 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 there is a real and appreciable risk that such consequences would occur.
[66] Ms Edwards points to the following consequences of conviction:
(a) difficulties in travelling overseas, particularly to the USA and Canada, to pursue her research and international academic career;
(b) difficulties in securing employment as an academic at universities in New Zealand or overseas; and
(c) difficulties in being admitted to the roll of barristers and solicitors.
[67] More broadly, she says that these consequences will mean the committed efforts and sacrifices she has made pursuing her studies and academic qualifications over the past ten years will have been largely in vain if she is now unable to obtain employment in an academic position and be unable to apply her qualifications and skills towards benefitting indigenous people, including particularly her own Māori community.
[68] I am satisfied that it is particularly important to Ms Edwards to be able to travel overseas, and especially to the USA and Canada as the countries in which she has focussed her comparative research. As Associate Professor Rumbles says, it is an essential part of an academic’s life to travel to conferences overseas and undertake collaborative research across jurisdictions. There is a real and appreciable possibility that Ms Edwards will be required to travel overseas as part of her academic career, and indeed she has already travelled to the USA and Canada for this purpose on several occasions.
[69] Mr Dillon submits, however, that the evidence submitted to demonstrate Ms Edwards will have difficulties in travelling overseas is insufficient. He refers to the observations of the Court in Appeal in Edwards v R on this point:40
- [24] ... Mr Edwards need only point to a real and appreciable possibility that he will need to travel overseas for work.
[25] It does not follow, however, that a court will permit an applicant to speculate about matters of present fact, in which we include any existing travel restrictions that are said to preclude travel. Proof of these matters may require expert evidence if they are not agreed and cannot be established in any other way.
[26] It seems to us, speaking generally, that a court will ordinarily expect to be satisfied that under the law and practice of the jurisdiction concerned:
(1) the conviction must be disclosed but, assuming a discharge is given, the fact that the offence was committed need not be; and
(2) in consequence of the conviction, the applicant is prima facie inadmissible, and for how long; and
(3) there is no alternative entry process available or that, if there is, such process is unreasonably difficult and uncertain in all the circumstances.
[27] If all of these things can be established, a sentencing court must further be satisfied that the offence is not so serious that it would be wrong to allow the applicant to present himself or herself to foreign immigration authorities without disclosing it.
(footnotes omitted)
40 Edwards v R [2015] NZCA 583.
[70] In that case, the Court concluded that the affidavit evidence presented fell “significantly short” of establishing that the appellant would be unable indefinitely to travel to the USA or Canada.41
[71] In the present case the evidence regarding the visa entry criteria and requirements of Canada and the USA has also been presented in a rather unsatisfactory manner by the production of material drawn from those countries’ immigration websites. It does not establish that Ms Edwards would be conclusively or permanently unable to travel to the USA or Canada. In both cases it appears that the immigration authorities retain a residual discretion to allow entry to those with criminal convictions, whether through the ineligibility waiver process in the USA or the temporary resident visa process in Canada. However, I accept that this process does not have any guaranteed outcomes and is likely to involve a period of delay and uncertainty. This is undesirable and impractical in the context of travelling overseas to academic conferences where, as Associate Professor Rumbles says, notice of acceptance of academic papers may come only a few months before the conference takes place. I therefore accept that travel difficulties, even if they do not amount to absolute restrictions on entry, may impose a functional barrier to attending overseas academic conferences for Ms Edwards. Further, I do not consider that her offending is of such seriousness that it would be wrong to allow her to present herself to foreign authorities without disclosing it.
[72] As for the damage to Ms Edwards’ employment prospects, I note the Court of Appeal’s observation in Edwards v R that reasonable employers are likely to look beyond the bare fact of a conviction to assess the circumstances in which it occurred.42 Nevertheless, a conviction for obtaining by deception, with its connotations of fraud, carries a significant stigma. Ms Edwards and Associate Professor Rumbles consider it would be a barrier to Ms Edwards’ employment prospects in an academic position. It is apparent from the evidence of Associate Professor Rumbles that although he stopped short of saying that the convictions would definitely prevent Ms Edwards from being employed, the likelihood of her being employed at the Waikato University law school is substantially diminished if the convictions stand. I consider it realistic
41 At [28].
42 Edwards v R [2015] NZCA 583 at [18].
to proceed on the basis that in all likelihood, with the convictions in place Ms Edwards would not secure a teaching position at the Waikato University law school, or the law faculty of any other New Zealand University. Indeed, Ms Edwards says she has already been advised that she could not continue in her tutoring/mentoring role at the University of Waikato if her convictions remain.
[73] In this context I have also had regard to the following comments by the Court of Appeal in R v Malu:43
... where the alleged consequence of a conviction is loss of employment a court will need to scrutinise carefully whether that consequence flows from the conviction or from the underlying admitted conduct. A conviction will often be inconsequential to an employer's evaluation of an employee's suitability because it is the underlying conduct that would normally be relevant. However, for the reasons given, this is not such a case. The evidence is that the employer's concern does not relate to Mr Malu’s ability to fulfil his employment obligations but is instead the risk of adverse client perception if he were to remain employed after convictions are entered.
[74] I consider that this is also a case where the consequences for Ms Edwards’ employment prospects at the University of Waikato or any other university flow from the fact of the convictions, rather than the underlying conduct of which the University of Waikato is aware.
[75] Finally, Mr Wilkins refers to the damage that these convictions will likely have on any application by Ms Edwards in the future to be admitted to the roll of barristers and solicitors. I note however that Ms Edwards in her affidavits does not refer to an intention to practice as a lawyer. She has completed her legal professionals course, which is a necessary prerequisite to admission. However, she says in her initial affidavit that her studies are “exclusively focused towards a career in international academia”. She also refers in her January 2018 affidavit to her plans to seek an academic position after completing her PhD. I am not satisfied that there is a real and appreciable possibility Ms Edwards will apply for admission to the bar in the future and I disregard this in my assessment of the consequences of conviction.
43 At [23].
[76] The third step involves consideration of whether the consequences of convictions for Ms Edwards are so significant that they are out of all proportion to the gravity of her offending. This issue requires an evaluative assessment of fact.44
[77] Here, I have concluded that in all likelihood Ms Edwards would be unable to secure a teaching position at the law faculty of a New Zealand university should the convictions remain in place. Having regard to the truly enormous effort that Ms Edwards has put into her studies, and her intention to apply herself as a legal academic to studying and advancing knowledge of the legal issues confronting indigenous communities and the Māori community in particular, having her plans dashed at this stage would be an especially severe consequence for her.
[78] I have also concluded that difficulties in obtaining entry visas could in practical terms preclude Ms Edwards from travelling to attend conferences. Given her specialist field of research into the legal issues confronting indigenous people by comparing New Zealand with the circumstances of indigenous communities in Canada and USA, this too would be a severe consequence for her as it would substantially inhibit her from fulfilling her plans to use her legal knowledge of the indigenous perspectives to advance the interests of her community as well as the indigenous communities of those other countries.
[79] In assessing whether these consequences are out of all proportion to her offending, I consider it relevant that for Ms Edwards her plans to secure employment as a legal academic, and to use her position and skills for the purpose of improving the circumstances of indigenous people, have been her ultimate objective during the ten or so years she has been studying. She commenced her university studies ten years ago when her children were 11 and 10 years old, and has since qualified with Bachelors and Masters degrees and is now completing her PhD. These academic qualifications reflect her industry and commitment over a lengthy period in what must have been challenging circumstances. After striving to achieve these qualifications, she is finally on the cusp of completing her PhD and of being in a position to fulfil her plans, and
44 R v Malu [2017] NZCA 546 at [32].
being unable to implement them would be a substantial price to pay for her offending which she committed under circumstances of enormous personal stress. Ms Edwards has an outstanding record of public service which shows that her plans to use her academic legal skills for the betterment of the community are genuinely selfless and altruistic.
[80] Accordingly, I consider that if her convictions were to preclude her from proceeding with her plans, the direct and indirect consequences would be out of all proportion to the gravity of her offending.
[81] Having reached that conclusion, I now turn to the s 106 discretion to discharge Ms Edwards without conviction.
[82] I have already mentioned the possible effect of the convictions identified by Ms Edwards on a future application by her for admission as a barrister and solicitor. Although no such application has yet been made, it appears that such an application remains a possibility. In Maraj the Court of Appeal approved the statement of Wylie J in Roberts v Police in which he observed that where Parliament has established a statutory authority with the task of screening applicants for admission to a profession or trade:45
... it would be inappropriate, at any rate in all but the most exceptional case, for this Court to substitute its discretion as to what may or may not be relevant on the seeking of admission to a particular profession for the discretion which Parliament has seen fit to vest in a statutory body.
[83] While the principal consequences of the convictions relied upon by Ms Edwards are those affecting her university employment and international travel, she also relied on difficulties in being admitted to the roll of barristers and solicitors. However, this consequence was not pressed by counsel in submissions. In accordance with the approach described by Wylie J in Roberts, the consequences of convictions and difficulties encountered by Ms Edwards upon a future application for admission
45 Roberts v Police [1989] NZHC 488; (1989) 5 CRNZ 34 (HC) at 36, cited in Maraj v Police [2016] NZCA 279 at [28].
to the roll of barristers and solicitors do not provide a sufficient basis for the exercise of the discretion in s 106 to discharge her without conviction.
[84] I nevertheless consider that the consequences of the convictions upon Ms Edwards’ future employment in a university teaching role, and the effect upon her academic career by reason of difficulties travelling internationally, make it appropriate to exercise the s 106 discretion and order that she be discharged without conviction on the two charges of obtaining by deception brought under s 240(1)(a) of the Crimes Act.46
[85] However, before I would be prepared to make an order discharging Ms Edwards without conviction, it will first be necessary for her to either repay, secure or enter into a repayment plan for reparation of the full amount of money she obtained as a consequence of her deception and upon which the two charges against her were brought. I am advised by Mr Wilkins that Ms Edwards is presently repaying the sum of $38,757.14 at a rate $25.00 per fortnight. At that rate full repayment will not be achieved for nearly sixty years. Given that Ms Edwards has had the benefit of the use of public funds to which she was not entitled, I consider that before an order to discharge her without conviction is made it is necessary that she first make arrangements to pay, secure or enter into a formal repayment plan on terms acceptable to the Ministry to repay the full amount she obtained or benefited from by her offending. While Ms Edwards may not at present be in position to make any significant repayment, it can be expected that should she gain employment she will be in position to make full repayment over the next three years or so. A formal acknowledgement of her indebtedness and a flexible re-payment plan that will take account of any improvement of her financial position would be an appropriate mechanism to achieve this.
[86] A similar approach was adopted by the District Court Judge in R v Malu, although in that case the Judge indicated that he would make an order discharging Mr Malu without conviction provided that he had first completed 220 hours’ voluntary community work and saved $6,000.00 with which to make partial reparation of unpaid
46 CRN 16019500981 and CRN 16019500982.
tax of over $178,000. The Court of Appeal in its judgment expressly referred to this having been done and made no criticism of the approach, I note that Mr Dillon submits that while compliance with such a requirement is not relevant to the court’s assessment of the gravity of the offending, it can certainly be taken into account when the Court comes to exercise the discretion in s 106.
[87] To enable Ms Edwards to make arrangements to either repay or secure repayment of the full amount of the outstanding balance of the sum of $38,757.14, I propose to adjourn the appeal for a period of approximately one month to a date to be fixed by the Registrar in the week of 16 July 2018. Prior to that date, I direct Ms Edwards to file a memorandum and affidavits regarding arrangements made with the Ministry for repayment or securing the full amount obtained as a result of her offending.
Result
[88] The appeal is adjourned to a date in the week commencing 16 July 2018, to be fixed by the Registrar.
Paul Davison J
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2018/1404.html