MORGAN v NEW ZEALAND POLICE [2022] NZHC 2999

MORGAN v NEW ZEALAND POLICE [2022] NZHC 2999 [16 November 2022]IN THE HIGH COURT OF NEW ZEALANDWHANGANUI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGANUI ROHECRI-2022-483-20[2022] NZHC 2999BETWEEN BRITTANY NATALIE ROSLYNMORGANAppellantAND NEW ZEALAND POLICERespondentHearing: 2 November 2022Appearances: E Copeland for AppellantJ C H Liu for RespondentJudgment: 16 November 2022JUDGMENT OF McQUEEN J[1] The appellant pleaded guilty to one charge of failing to carry out obligations inrelation to a computer system search.1 She applied for a discharge without conviction.This was declined by the sentencing Judge and the appellant was instead convictedand discharged without further penalty.2 This decision is now appealed against.BackgroundOffending[2] On 15 June 2022 a search warrant was executed at the appellant's residentialaddress. This authorised the Police to search for and seize evidential material,including mobile cellular devices. The appellant's mobile phone was seized as anexhibit. The appellant was asked to provide her PIN number, which she refused to1 Search and Surveillance Act 2012, s 178; maximum penalty three months' imprisonment.2 Police v Morgan [2022] NZDC 17991.provide as she said it was a "huge invasion of [her] privacy". During the search, twoiPads belonging to the appellant's children were also seized, to which she did providethe PIN numbers.Application for a discharge without conviction[3] The appellant pleaded guilty to the charge on 28 June 2022 and applied to bedischarged without conviction. The appellant filed an affidavit in support of herapplication. She explained that she works as a Business Development Manager for areal estate company.3 As a result of this role, she has private information belonging toher clients on her phone and she has been trained to protect that information on behalfof her clients. She said that when she refused to give the Police the PIN number to hermobile phone she was not aware that this was a criminal offence. She says she is nowembarrassed to be appearing before the Court.[4] The appellant reported her concerns as to the harm the conviction may have toher career and her life options. She attached a letter provided from her manager at thecompany that indicated she is a valued member of the team and a person of goodstanding but that a conviction may affect her position.[5] The appellant noted that she would like to attend school camps and be involvedin charitable organisations, school boards and committees as well as to travel in thefuture. She said a conviction may impede her ability to do these things.Legal principles — discharge without conviction[6] If a person pleads guilty to an offence, the Court may, instead of imposing asentence, direct that the offender be discharged.4 The Court must not discharge anoffender without conviction unless the Court is satisfied that the direct and indirectconsequences of a conviction would be out of all proportion to the gravity of theoffence.53 She explains that in this role she is required to grow the business in the property management andrental market sector. The job involves marketing, vetting tenants and on occasion going to theTenancy Tribunal.4 Sentencing Act 2002, s 106(1).5 Section 107.[7] In Z (CA447/2012) v R, the Court of Appeal set out a three-stage test to beapplied by the courts when considering applications for a discharge withoutconviction:6That is: when considering the gravity of the offence, the court should considerall the aggravating and mitigating factors relating to the offending and theoffender; the court should then identify the direct and indirect consequencesof conviction for the offender and consider whether those consequences areout of all proportion to the gravity of the offence; if the court determines thatthey are out of all proportion, it must still consider whether it should exerciseits residual discretion to grant a discharge (although, as this Court said inBlythe, it will be a rare case where a court will refuse to grant a discharge insuch circumstances).(Footnote omitted)District Court decision[8] In assessing the appellant's application, the District Court Judge first assessedthe gravity of the offending. He observed that:7[19] [The appellant] submits that as a result of this backgroundinformation, the gravity of the offending should be assessed properly at a low-level. I consider that the maintenance of law, the compliance with lawfuldirections, particularly directives that have been audited by an independentprocess is important and refusal to comply is relatively significant. However,here there has been partial compliance because of course the police do haveher cellphone and that in my view lessens the gravity and the gravity islessened by her personal circumstances.[9] The Judge was not satisfied that there was any evidence of adverseconsequences for the appellant. The Judge referred to an email provided from theappellant's manager, attached to the appellant's affidavit, as indicating that her jobmay be compromised by the conviction. The letter reads:I have had the pleasure of working closely with [the appellant] over the lastfew years. She is a valued member of our Property Management team, in herrole as Business Development Manager, and an integral part of our team.Due to the nature of the job, we do conduct police checks on our staff, and aconviction may affect her position within our team.6 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27], citing A (CA747/2010) v R[2011] NZCA 328; and Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.7 Police v Morgan, above n 2.It is my sincere hope that the court takes this letter into consideration. Despitethe current case, I still believe [the appellant] to be an honorable [sic]individual, a valuable member of my team, and a person of good standing.[10] The Judge considered this letter was "nebulous and at the best equivocal".8The Judge noted that on one hand the manager identifies that the conviction couldaffect the appellant's employment but then goes on to praise the appellant ashonourable, valued and of good standing. He observed that "[t]hese are not the wordsof someone identifying that a position is in jeopardy".9 He further noted that the courtshave consistently identified that it is not for the court to interfere in an appropriateemployment process.10 Regarding the other consequences advanced by the appellant,the Judge went on to say that:(a) the charge does not engage any issues of child safety and there was noevidence that a conviction would result in an inability to engage in anyschool or extracurricular activity;11 and(b) no evidence was put before the Court as to the impact of the convictionon her international travel.12[11] The Judge concluded:13I am not satisfied that there is really any material that positively identifies theconsequence that will result in any of the events claimed occurring. What isidentified is possibility and nothing more. What is clear is that there isembarrassment but embarrassment is not sufficient to get over the threshold.[12] Ultimately the Judge considered he was not satisfied that "any consequence ofsubstance is established that leads to a finding that such consequence is out of allproportion to the gravity of the offending".148 At [22].9 At [22].10 At [22].11 At [23].12 At [24].13 At [25].14 At [26].Approach on appeal[13] An appeal against a refusal to grant a discharge without conviction is an appealagainst both conviction and sentence. The Court of Appeal has confirmed that thethreshold test in s 107 is not a matter of discretion, but rather a matter of fact requiringjudicial assessment, which can be subject to appeal on normal appellate principles.15Accordingly the appeal is conducted by way of rehearing, with the appellate courtmaking its own assessment as to whether the s 107 threshold has been met. In Jacksonv R, the Court of Appeal observed that:16 the principled basis for determining an appeal against a discharge withoutconviction is to establish that a miscarriage of justice has occurred by virtueof a material error by the sentencing judge in entering a conviction. That isbecause a trial includes a proceeding in which the appellant has pleaded guilty.Alternatively, it can be said that a miscarriage of justice has occurred "for anyreason" if the Judge has erred in applying the principles for discharging anoffender without conviction found in s 107 of the Sentencing Act.Submissions[14] The appellant submits that the offending was of the "lowest level". She acceptsthat there is a need to maintain the rule of law but submits her actions did not amountto perverting justice.[15] The appellant then submits that the consequences of the conviction are high,out of all proportion to the gravity of the offending. She refers to:(a) the immediate and future impact on her employment if a conviction wasrecorded;(b) the potential impact of a conviction on her ability to engage incommunity and charitable organisations;(c) the potential impact on her ability to attend school camps with herchildren due to police vetting requirements; and15 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].16 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]–[9].(d) the risk of certain countries preventing her entry due to border securityrequirements.[16] Counsel for the appellant, Mr Copeland, submits that to lose her clean recordand good character is a serious outcome that is causing the appellant considerableanxiety. He submits that the conviction will have both immediate direct impacts andindirect impacts in the future that are necessarily more speculative.[17] The Police emphasise the importance of complying with the obligations underthe Search and Surveillance Act 2012. The Police say that failing to comply with thoseobligations disturb the process of administration of justice, potentially disrupting timecrucial police investigations, and must be deplored. The Police consider the gravityof the offending to be of a low to moderate nature and not to be discounted as theappellant submits.[18] Regarding the consequences of the conviction, the Police submit that there isno evidence to satisfy the Court that the appellant's conviction will have any real andappreciable consequence that is out of all proportion to the gravity of the offence.While acknowledging there is no legal onus on the appellant to put forwardinformation providing a factual basis on which the s 107 test is to be satisfied, thePolice refer to the Court of Appeal guidance that it is ordinarily the case that suchinformation is necessary.17 The Police refer to the appellant's affidavit that sheremains employed and is held in high regard by her employer. The Police also saythat there is no evidence that the conviction will have any effect on her ability toundertake school activities with her children.[19] The Police submit that without further evidence in this case, the Court couldnot be satisfied that the requirements and standard of proof in s 107 is met.17 R v Taulapapa [2018] NZCA 414 at [23].DiscussionGravity of offending[20] While not providing a specific conclusion in his judgment on the point, itappears to me that the District Court Judge accepted that the offending is at a low level,following his reflection on the aggravating and mitigating factors relating to theoffending and the appellant. This is further reflected by his decision not to grant anyfurther sentence regarding the offending, beyond the conviction.18 I accept, as doesthe appellant, the general importance of complying with the obligations under theSearch and Surveillance Act, but note the submissions for the appellant that:(a) her explanation for not providing the PIN number was that she has beentrained in her role to protect private information of clients, which shekeeps on her phone;(b) although accepting it was not a defence to the charge, she did not knowthat the Police could demand the PIN number as a legal requirement ofher:(c) while the PIN number was not provided, her phone was seized as anexhibit; and(d) the appellant provided the PIN numbers to the two iPads seized.[21] In addition, the appellant has a clean criminal record, made an early guilty pleaand has expressed remorse. The Police cast doubt on her remorse as she was shownand advised of the search warrant before being requested to provide the PIN numberand continued to refuse to comply despite being charged. There was a suggestion fromcounsel for the Police at the hearing before me that the PIN number has still not beensupplied and the phone not searched. Counsel for the appellant, however, submittedthat the Police have the capability to access a phone without a PIN number beingprovided. I note that the District Court Judge was reluctant to consider the proprietyof whether or not the PIN number had been provided at the time of his decision andpreferred to leave the matter on the basis that a plea of guilty had been entered to the18 As noted earlier, the maximum penalty for the offence is three months' imprisonment.charge as laid.19 I similarly take that view, in the absence of any evidence as to theposition.[22] I consider it likely that the refusal to provide the PIN number at the time of thesearch can be explained by the appellant's concerns about protecting confidentialclient information. I note that in her affidavit the appellant apologises to the Policeand the Court for wasting their time and confirms that "[she] will not appear beforethe Court again". I am confident that the whole episode has been a salutary experiencefor her.[23] I conclude then that the gravity of the offending is at a low level.Consequences of conviction[24] The real issue to my mind is whether the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offending. Thoseconsequences include all direct and indirect consequences where there is a "real andappreciable risk" they will occur.20[25] It is not obvious to me that the offending to which the appellant has pleadedguilty is of the type that would prevent the appellant's involvement with her children'sschool or ability to engage in community activities, and there is no evidence to supportthe contrary view. Accordingly, I focus my assessment solely on the appellant'semployment situation and prospects.[26] The Court of Appeal has confirmed that in the absence of evidence of specificconsequences, a sentencing Judge is entitled to take into account the generalconsequences of conviction, including the general impacts that a conviction may haveon employment.21 The Court of Appeal then goes on to cite a number of casesinvolving low level offending where the general consequences operating to the19 Police v Morgan, above n 2, at [18].20 DC (CA47/13) v R [2013] NZCA 255 at [43].21 J v R [2021] NZCA 690 at [42].appellant's disadvantage have been found to be out of all proportion to the gravity ofthe offending. The Court cites Nash v Police, which notes:22 there are general consequences that follow from a conviction. In a varietyof ways (eg. employment, insurance, immigration) people are asked todisclose whether they have criminal convictions. For those that are remorsefulthere can be a loss of pride and self-esteem or at least embarrassment in havingto answer that question honestly. It may also materially disadvantage [them]it may count against [them] when competing for a position against someonewho does not have a conviction. [27] Another relevant case cited by the Court of Appeal is Taavili v Police.23 Theappellant, 37, was a single mother of three and the breadwinner for her family. Shewas charged with common assault along with other family members, although thisCourt concluded her limited involvement meant the gravity of her offending was atthe low end of the spectrum. She had been employed as an administrator and had beenundertaking additional study to improve her future career prospects. The focus of thejudgment was the impact of a conviction on future job prospects, given the appellantsought to apply for more senior administrative roles following the completion of herstudies. However, the appellant also noted she was required to disclose any criminalconvictions and undergo police checks in her current role. The High Court noted:24A conviction of itself is a significant factor. Various Judges of this Court havepreviously held that the impact of convictions on job applications is a relevantfactor even though such consequences may be "general consequences" likelyto flow from a conviction rather than being related to an appellant's particularcircumstances.I have no difficulty accepting that the appellant's ability to secure more senioradministrative positions is likely to be compromised by having a criminalconviction. There is a real and appreciable risk that [the appellant's] futureemployment prospects could be negatively affected by her conviction. Allother things being equal, persons without convictions are likely to be preferredover those who have a criminal record.[28] The current appellant is a 29-year-old mother of two young children who worksto support her family. While the appellant's manager at work has expressed supportfor the appellant as a person of good standing and valuable member of the team, the22 Nash v Police HC Wellington CRI-2009-485-000007, 22 May 2009 at [19].23 Taavili v Police [2012] NZHC 2323.24 At [30] and [32] (footnote omitted).manager also observes that due to the nature of their work, police checks are conductedon staff and a conviction may affect the appellant's position.[29] As I have mentioned above, the Judge did not consider that the letter from hercurrent manager identified that the appellant's position was in jeopardy, given hermanager had also indicated she was an upstanding individual. I consider that thesetwo things can exist at once. The appellant is in the real estate industry. As she hasexplained, her role is one is public facing: it requires her to engage in the marketingof rental properties, vet tenants and grow the business of her real estate agency.Accordingly, public image may be important and there is a risk that if the communitywere privy to her conviction it may impact her ability to do her job. Accordingly, it ispossible that despite being respected by her colleagues, she may be in jeopardy oflosing that job. I consider the Judge was incorrect to disregard the statement by theappellant's manager that the appellant's job may be at risk.[30] Further, I note the appellant is still relatively young. In her affidavit sheexpresses her desire to continue unhindered in her career. The appellant has explainedthat her current role and earlier roles have been ones that require handling privateinformation and as a result have required police vetting. I consider that there is a realand appreciable risk that her future employment prospects could be negatively affectedby her conviction. All other things being equal, persons without convictions may wellbe preferred over those who have a criminal record.[31] The potential impact of a conviction on both her current job security and futurejob prospects reflects no more than the general consequences of a conviction and anemployer's right to know. However, I consider this to be a case similar to those citedby the Court of Appeal where these general consequences of a conviction are out ofall proportion with the offending.[32] I accept that the fact the appellant is held in high regard by her employer isrelevant to the assessment of her current job prospects. In Basnyat v Police, a similarissue arose as in the current case.25 The appellant was a "capable young engineer25 Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344.working for a reputable infrastructure company" for which he was well regarded.26The Court of Appeal declined to grant leave for a second appeal against the lowerCourts' decision to dismiss the appellant's application for a discharge withoutconviction. The Court of Appeal considered that the appellant's current job was notat risk. While observing that the risk of having a conviction was greater if and whenthe appellant sought employment elsewhere, the Court noted:27All other things being equal, similar candidates without convictions are likelyto be preferred to those with convictions. But that is a relatively narrow set ofcircumstances. We do not know how common it is for candidates to beseparable only by their criminal record. On the other hand, if [the appellant]is as valued by his current employer as his supervisor suggests, any suchhandicap could well be overcome by the sort of work or character referencesone would expect in that circumstance. Thus the potential impact can only bespeculation at this point, or at least insufficiently real and appreciable to justifya conclusion that the impact of a conviction would indeed be out of allproportion.[33] There are two differences between this case and the current case that I considermaterial, and in my view, lead to a different outcome. First, there was no indicationin Basnyat that the appellant's current job was at risk in any way. The affidavitprovided by his supervisor in support of his application indicated that it was "highlyprobable" that a conviction would impact his chances of a promotion to the "highestlevels within the Company", but it was not suggested he may lose his job.28 As I haveexplained above, the appellant losing her job is a live risk in the current appeal.[34] Second, the offending in Basnyat was held to be at the "low end of moderatelyserious".29 This is different than the gravity of offending involved in the current appealwhich I have held can be correctly described as low. While the general consequencesof a conviction may not have been out of all proportion in that case, the differentialgravity assessment means that is not the case in the current appeal.[35] Given my conclusions as to the severity of the offending, I consider this caseto be one where the consequences of a conviction are out of all proportion with the26 At [24].27 At [27].28 At [26]. The affidavit provided for Mr Basnyat is discussed in greater detail in the High Courtdecision: see Basnyat v Police [2018] NZHC 51.29 At [22].offending. I consider that there may be consequences for the appellant's current andfuture employment as well as her future in a more general sense as contemplated inNash v Police.30Conclusion[36] Overall, I conclude that the conviction is out of all proportion to the gravity ofthe offence and the District Court Judge erred in applying the principles of dischargingan offender without conviction under s 107.[37] The appellant is therefore discharged without conviction.Result[38] The Court allows the appeal and orders that the appellant be discharged withoutconviction.McQueen JSolicitors:Crown Solicitor, Whanganui for Respondent30 Nash v Police, above n 22.