WU v NEW ZEALAND POLICE [2020] NZHC 2022

WU v NEW ZEALAND POLICE [2020] NZHC 2022 [10 August 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-203[2020] NZHC 2022BETWEEN HUI WUAppellantAND NEW ZEALAND POLICERespondentHearing: 10 August 2020Appearances: M W Ryan and J-A E Tulloch for the appellantR M Gibbs for the respondentJudgment: 10 August 2020ORAL JUDGMENT OF JAGOSE JCounsel/Solicitors:M W Ryan, Barrister, AucklandKayes Fletcher Walker, Crown Solicitor, Manukau[1] Hui Wu appeals against Judge C S Blackie's decision in the District Court atManukau on 16 December 2019 to refuse him discharge without conviction,1 onMr Wu's guilty plea to three charges of theft by a person in a special relationship.2 Ashis first offending, the Judge sentenced him to 150 hours' community work, andordered reparation of the stolen money.Background[2] Mr Wu was employed as a trainee in a hardware store in May 2017, andpermitted to operate its store alone from August 2017, serving customers, receivingpayment for items, issuing invoices, and recording sales in a sale book. In December2017, he stole minorly in excess of $1,000 paid by customers in cash, omitting torecord the foundation transactions. He pleaded not guilty in July 2018, but changedhis plea to guilty in August 2019, on establishing the correct sums subject to his thefts.He unsuccessfully sought discharge without conviction, being sentenced instead to150 hours' community work, and ordered to pay reparations.Judgment under appeal[3] Mr Wu was entitled to be discharged without conviction only if the direct andindirect consequences of his conviction were out of all proportion to the gravity of theoffence.3 Only then may the sentencing judge decide if to exercise residual discretion.4The proportionality test is a question of fact requiring judicial assessment. There mustbe a "real and appreciable" risk any given consequence will arise; this recognises thecourt is assessing future likelihood.5[4] The Judge considered Mr Wu's offending was relatively serious, involving abreach of trust, and resisted for an extended period by him (without apology orreimbursement). He noted the victim nonetheless had not expressly dismissed Mr Wufor that offending, whose employment ended on other grounds. The application for1 Police v Wu [2019] NZDC 25361.2 Crimes Act 1961, ss 220 and 223(a). Maximum penalty seven years' imprisonment.3 Sentencing Act 2002, ss 106–107; Scott v R [2019] NZCA 261 at [78]–[80], citing Prasad v R[2018] NZCA 537 at [11].4 An appeal against a refusal to grant a discharge is an appeal against conviction and sentence; seeJackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.5 DC (CA47/2013) v R [2013] NZCA 255 at [43].discharge without conviction was made, without reference to any substantiatinginformation, exclusively on grounds Mr Wu's subsequent employer of some fourteenmonths may dismiss him if his conviction came to light. That was an insufficientspeculative basis on which "to conceal issues which are otherwise public from peoplewho might have a genuine interest in knowing about them".6[5] Mr Wu's counsel, Mark Ryan, argues on orthodox grounds the consequencesof Mr Wu's conviction on his current and future employment are whollydisproportionate to the gravity of his offending.Approach on appeal[6] An appeal against a refusal to grant a discharge without conviction is an appealagainst conviction and sentence.7 I must allow an appeal against conviction if I amsatisfied the Judge "erred in his assessment of the evidence to such an extent that amiscarriage of justice has occurred", or if I am satisfied "a miscarriage of justice hasoccurred for any reason". Otherwise I must dismiss the appeal.8 By 'miscarriage ofjustice' is meant something has occurred in relation to trial to create a real risk againsta more favourable outcome for Mr Wu, or has resulted in an unfair trial or a nullity.9The threshold is high; not every error will amount to a miscarriage of justice.10[7] If Mr Wu can establish Judge Blackie was wrong, I will consider hisapplication for discharge without conviction afresh.11[8] If the conviction appeal fails, I then may determine if the correct sentence wasimposed.12 But there is no challenge to the sentence here.6 Police v Wu, above n 1, at [13].7 At [9].8 Sentencing Act 2002, ss 240 and 232.9 Section 232(4); and R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].10 Otis v Police [2019] NZCA 231 at [4]; and McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764at [38].11 Maraj v Police [2016] NZCA 279 at [11]; and Austin, Nichols & Co Inc v Stichting Lodestar[2007] NZSC 103, [2008] 2 NZLR 141 at [13].12 Jackson v R, above n 4, at [13].Further evidence[9] Mr Wu seeks to adduce further evidence on appeal before me, explaining thecircumstances of the termination of his former employment, the terms of his currentemployment, and his wish to enrol his daughter at a childcare centre at which hiscontended mandatory supervision of her would require a police check. Mr Wu shouldhave put the information he now seeks to adduce before me before the Judge to providea factual basis for a decision if the test was satisfied. But there was no legal onus onhim to do so.13[10] Leave will be granted if the interests of justice favour admission of newevidence on appeal.14 If the evidence is both credible and fresh, it generally should beadmitted.15[11] Mr Wu's desired evidence falls a good way short on both counts. That Mr Wu'sformer employer may have treated him unlawfully is not credible evidence he hadsome justification to steal in diminution of the seriousness of his offending. Self-helpis not an available response. Neither is Mr Wu's current employment contract'sreference to summary dismissal for criminal offending credible evidence hisemployment is at material risk. The test for dismissal remains one of objectivejustification, if "the employer's actions, and how the employer acted, were what a fairand reasonable employer could have done in all the circumstances at the time thedismissal occurred".16 Nor are the childcare centre's requirements credibleevidence his daughter could not be enrolled there, or Mr Wu's dishonesty offendingwould disqualify him from her supervision. The evidence is simply that a police checkis required for the person bringing the child to the centre. The terms of Mr Wu's formerand current employment were available at the time of the Judge's decision, as likelywere the childcare centre's conditions, or at least their statutory foundation.1713 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [49] and [53]; and DC (CA47/2013) v R,above n 5, at [43].14 Criminal Procedure Rules, r 8.8; Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119]; andBain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].15 Lundy v R, above n 14, at [120].16 Employment Relations Act 2000, s 103A.17 See also Education Act 1989, ss 319D–319FA: a "satisfactory Police vet".[12] None of the proposed evidence offers any prospect Mr Wu's trial may havemiscarried. There is no interest of justice in its belated admission. I will not allow thefurther evidence to be adduced.Discussion—gravity of the offending[13] I do not accept Mr Wu's offending was low-level. The Judge assessed thegravity of the offending as "relatively serious". It was by an employee entrusted tooperate a retail sales facility unsupervised, in which Mr Wu took advantage of hisvulnerable employer, whose knowledge of Mr Wu's offending only cameinadvertently to his attention.[14] As I have explained in connection with refusing leave to adduce furtherevidence, Mr Wu's personal circumstances are not mitigating. Neither does his disputeas to the amount stolen, or his resistance to reparation before this appeal is determined,offer any basis to reduce the gravity of his offending. It always was open to him toidentify what he had stolen (especially as he says it precisely equated with that whichhe says he was owed), and to restore it, whether or not with police agreement.—consequences of conviction[15] The Judge did not make any express finding as to the consequences ofconviction. Nevertheless, his views on the seriousness of it were apparent from hisdescription of the consequences as speculative, and no more serious than anyonebefore the court facing a dishonesty conviction. That is to say, where honesty is atissue in any endeavour, Mr Wu has an additional and warranted barrier to cross. Butthe actuality of those consequences for Mr Wu remain speculative, even on theadditional evidence he would have me take into account.[16] I do not see the Judge's reference to Mr Wu keeping his offending "underwraps" from his current employer is unjustifiably prejudicial to Mr Wu. It merely wasa statement of fact, but illustrative of Mr Wu's continuing lack of probity.[17] The effect of conviction on Mr Wu's future employment prospects was centralto the Judge's reasoning. He directly confronted the prospect of prejudice in futureemployment, but considered future employers have a right to know of prospectiveemployees' relevant past offending. In continuation of Mr Wu's retail sales career, thatincludes his dishonesty offending. Courts cannot be party to concealing that relevantbackground, to give Mr Wu unfair advantage in competition for work in which histrustworthiness is relevant.18 If he wishes a career in which his honesty is relevant,Mr Wu must re-earn that trust. Transparency of disclosure, and assurance ofredemption, is the better course.—proportionality[18] Far from being wholly disproportionate, the consequences of Mr Wu'sconviction are entirely condign to the gravity of his offending. There was no prospectof a more favourable outcome for Mr Wu. There was no miscarriage of justice.Result[19] The appeal is dismissed.—Jagose J18 Lawrence v Police [2016] NZHC 148 at [24].