PIENEMAN v R [2019] NZCA 613

PIENEMAN v R [2019] NZCA 613 [4 December 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA752/2018[2019] NZCA 613BETWEEN ANNIKE RENEE PIENEMANAppellantAND THE QUEENRespondentHearing: 21 November 2019Court: Gilbert, Dobson and Whata JJCounsel: S Brickell for AppellantE J Hoskin for RespondentJudgment: 4 December 2019 at 10 amJUDGMENT OF THE COURTThe appeals against conviction and sentence are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Dobson J)[1] On 14 November 2018, the appellant (Ms Pieneman) was convicted inthe District Court at Auckland on one charge of theft. She was sentenced tosix months' supervision, 80 hours' community work and ordered to pay reparation inthe sum of $1,360, which was the amount established as having been taken from heremployer.11 Police v Pieneman [2018] NZDC 25889.[2] Ms Pieneman had sought a discharge without conviction and has appealedagainst her conviction on the basis that the sentencing Judge erred in not granting hera discharge without conviction. In the alternative, if the conviction remains, then sheseeks to argue that the sentence was manifestly excessive because entry ofthe conviction alone carries sufficient adverse consequences to be the appropriateoutcome. While there is no complaint about the orders for reparation and supervision,it is submitted that there should not have been any order requiring Ms Pieneman toundertake community work.The offending[3] Ms Pieneman was employed by a charitable trust that provided drug andalcohol counselling services for clients. On some occasions, clients paid for the trust'sservices in cash. On seven separate occasions between July 2015 and July 2017,Ms Pieneman applied sums totalling $1,360 for her own benefit that were divertedfrom amounts she should have receipted for the trust.[4] In support of her application for a discharge without conviction, Ms Pienemancompleted an affidavit in which she deposed that a conviction would threaten heron-going employment prospects, adversely affect her involvement as a parent with herdaughter's school activities, likely impede any aspirations for international travel andgenerally leave her with a black mark disproportionate to the circumstances in whichshe had offended. She deposed that a conviction would, for unspecified reasons,threaten her marriage and relationships with friends and family who are otherwisesupportive of her.[5] She deposed to having her own difficulties with anxiety and depression, and tobeing emotionally vulnerable to the adverse consequences of having to live witha conviction.[6] By the time of her sentencing, she had pleaded guilty, demonstrated remorsefor her offending and had participated in a restorative justice process.The statutory framework[7] Applications for discharge without conviction are to be dealt with in terms ofss 106 and 107 of the Sentencing Act 2002. Under s 107, the Court must not dischargean offender without conviction unless satisfied that the direct and indirectconsequences of the conviction would be out of all proportion to the gravity ofthe offence.[8] A sentencing Judge's task involves three steps:2(a) first, identifying the gravity of the offending by analysis of theparticular facts;(b) second, identifying the direct and indirect consequences of a convictionfor the offender; and(c) third, considering whether the consequences that are established wouldbe out of all proportion to the gravity of the offending.[9] The disproportionality test is to be applied in terms of s 107, so that materiallymore is required than a simple finding that the adverse consequences weigh moreheavily than the gravity of the particular offending.3The sentencing[10] Judge Orchard assessed the behaviour as pre-meditated, occurring over a longperiod of time and involving a serious breach of trust.4 The very small staff ofthe charitable trust depended on Ms Pieneman to do the banking and bookkeeping forthat part of its work involving payments from clients. The Judge accepted thesubmission made on behalf of Ms Pieneman on sentencing that the offending wasmoderately serious.52 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].3 R v Smyth [2017] NZCA 530 at [12].4 Police v Pieneman, above n 1, at [7].5 At [11].[11] By the time of sentencing, Ms Pieneman had been employed at a new job forapproximately one year. In breach of the terms of her employment contract, she hadnot advised her new employer of the existence of the charge or anything ofthe circumstances involved in it. The Judge was not persuaded that it was the fact ofconviction which would prejudice continuation of that employment, rather thanthe offending itself.6[12] As for the other adverse consequences as described in Ms Pieneman'saffidavit, the Judge characterised them as usual consequences which could not berecognised as affecting her position out of all proportion to the moderately seriousoffending.7[13] For those reasons, the Judge considered the necessary threshold under s 107was not reached.Submissions[14] Mr Brickell's initial premise was that, whilst the offending reflected a breachof trust occurring on a number of occasions over two years, Ms Pieneman wasa relatively young person who took the money to help herself survive when she wasin pressured circumstances, taking the amounts from others with addiction issues whenshe also had mental health pressures herself. He submitted that the offending ought tohave been treated as at a low level.[15] Mr Brickell submitted there were very serious consequences froma conviction, particularly because the terms of her current employment contract willmake her vulnerable to dismissal if she is required to disclose this conviction.Whilst acknowledging the employer's right to know (disclosure being required asa term of the employment contract), Mr Brickell argued that Ms Pieneman would facethe risk that her current employer would not look beyond the fact of conviction.If the employer had regard to the terms of the Judge's sentencing remarks, Mr Brickell6 At [14].7 At [16]–[17].submitted that they were harsher than appropriate and would make Ms Pieneman'stask in attempting to keep her current job more difficult.[16] For the respondent, Ms Hoskin submitted that the necessary disproportionalitybetween the relative seriousness of the offending and the adverse consequencesclaimed for Ms Pieneman could not be made out and that the Judge's analysis onthis issue was correct.[17] Ms Hoskin contended it was not a case in which the Court should contemplateassisting Ms Pieneman's non-disclosure of the offending by granting a dischargewithout conviction in reliance on the perceived severity of the risk that Ms Pienemanwould lose her current employment. She submitted that indeed Ms Pieneman hadan advantage over many people convicted of dishonesty offences who then had to seeknew employment on terms including disclosure of such a conviction.In Ms Pieneman's case, she has now been employed for two years by her currentemployer. She therefore has the advantage of being able to urge the employer to assessher character, not as a newcomer having to assure the employer she is trustworthy butbeing able to rely on the employer's experience of her over the two-year period.[18] As to the adverse consequences in terms of possible travel restrictions andlimitations on her involvement as a parent in her daughter's school activities,Ms Hoskin submitted that these consequences were not out of the ordinary.[19] Ms Hoskin acknowledged that Ms Pieneman's participation in a restorativejustice process and her guilty plea should have been taken into account inthe sentencing analysis as mitigating factors. The terms of the sentencing notesdemonstrate that the Judge was cognisant of these matters, but there was no explicitacknowledgement that they were taken into account in evaluating the overallseriousness of the offending. However, the Judge's failure to acknowledge thosefactors did not lead to error. The Judge was right to accept the classification ofthe offending offered by Ms Pieneman's counsel on sentencing as moderately serious,and the Judge was clearly correct to find that the requisite disproportionality ofthe adverse consequences raised by Ms Pieneman could not be made out.[20] On the sentence appeal, Ms Hoskin submitted that the components ofthe sentence were perfectly orthodox. The offending had been protracted over a periodof time and the theft had been from a charitable trust, making it appropriate for thereto be a punitive element, so the combined elements of the sentence were plainly notmanifestly excessive.Analysis[21] We are not persuaded by Mr Brickell that the offending was less thanmoderately serious. The charitable trust employing Ms Pieneman structured its affairson terms requiring it to place substantial trust in her and she betrayed that trust overa period of time. The offending is accurately ranked as being moderately serious.[22] The fact that Ms Pieneman wishes to avoid a conviction in order to continue towithhold disclosure from her employer of the circumstances in which she was chargedcannot carry weight in making out disproportionately serious adverse consequences,relative to the seriousness of her offending. The general approach is that employersand potential employers ought to be able to learn of dishonesty offending and maketheir own assessments of the impact it has on the abilities of the employee or potentialemployee. The Court should not lend its assistance to employees seeking to withholdfrom their employers important information they are contractually obliged to disclose.The disclosure obligation in this case exists irrespective of whether a conviction isentered. The entry of a conviction was therefore properly disregarded as beingrelatively inconsequential in terms of her present employment situation.[23] As to the other consequences of a conviction raised by Ms Pieneman, weconsider her claims that she will lose her marriage, family and friends somewhatimplausible. The high hurdle in s 107 is not met.[24] As to the sentence appeal, we are not persuaded that the Judge erred or imposeda sentence that was manifestly excessive. Treating a conviction alone as sufficient onaccount of the adverse consequences would not meet the purposes of sentencing.Theft by employees in a position of trust needs to be denounced and some appropriatemeasure of deterrence signalled in the sentences imposed. The imposition of 80 hours'community work was unremarkable and well within the range of the sentencingJudge's discretion.Result[25] The appeals against conviction and sentence are both dismissed.Solicitors:Crown Law Office, Wellington for the Respondent