MALAPAKA v NEW ZEALAND POLICE [2020] NZHC 1121

MALAPAKA v NEW ZEALAND POLICE [2020] NZHC 1121 [26 May 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-427[2020] NZHC 1121BETWEEN KRISHNA MALAPAKAAppellantAND NEW ZEALAND POLICERespondentHearing: 25 May 2020Appearances: J Harder for AppellantL N Wilson for RespondentJudgment: 26 May 2020JUDGMENT OF LANG J[on appeal against refusal to grant discharge without conviction]This judgment was delivered by me on 26 May 2020 at 3 pm.Registrar/Deputy RegistrarDateSolicitors:Crown Solicitor, AucklandCounsel:J Harder, Barrister, Auckland[1] Mr Malapaka pleaded guilty in the District Court to a representative charge oftheft by a person in a special relationship.1 The maximum penalty for that offence isseven years imprisonment.[2] On 17 September 2019, Judge J C Down declined an application byMr Malapaka to be discharged without conviction under s 106 of the Sentencing Act2002.2 Mr Malapaka appeals against that decision.The offending[3] Mr Malapaka pleaded guilty on the basis of two summaries of agreed fact.These recorded that the offending occurred whilst Mr Malapaka was employed as aloan officer for a credit union. The credit union offers banking and financial servicesto its members.[4] On 19 occasions between 12 January 2018 and 19 February 2019 Mr Malapakaused an automated teller machine (ATM) to withdraw cash from members' accounts.Each withdrawal was for amounts between $200 and $400. On one occasion he wasresponsible for processing an application by a member for a loan of approximately$1,000. He altered the application so that it sought a loan of $1,653. He thentransferred the amount of the loan to the member's account but then withdrew the sumof $600 from an ATM. In total Mr Malapaka stole $5,200 from members in this way.[5] The credit union refunded members the amounts that Mr Malapaka had takenfrom their accounts. He subsequently reimbursed the credit union in full for thesesums.[6] When the police spoke to Mr Malapaka about his offending he said his motherhad been injured in an automobile accident in India and that he had stolen the moneyto pay for their medical treatment. In an affidavit filed in support of the presentapplication he also said he had suffered a recurrence of an old injury to his spine andthe medical costs needed to treat this were not covered by ACC. Both of these mattersplaced him under significant financial pressure and led to his offending.1 Crimes Act 1961, s 220.2 New Zealand Police v Malapaka [2019] NZDC 26415.Relevant principles[7] An application for discharge without conviction is governed by s 106 of theAct, which relevantly provides as follows:106 Discharge without conviction(1) If a person who is charged with an offence is found guilty or pleadsguilty, the court may discharge the offender without conviction, unlessby any enactment applicable to the offence the court is required toimpose a minimum sentence.[8] In applying s 106, the Court must follow the guidance contained in s 107 ofthe Act. This provides:107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unless thecourt is satisfied that the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence.[9] A court considering an application for discharge under s 106 must considerthree issues.3 It must first assess the gravity of the offending having regard to the factsof the particular case. This exercise is not restricted to the aggravating and mitigatingfactors of the offending itself. Factors personal to the offender may also be relevant.4Next, it must identify the direct and indirect consequences of a conviction beingentered. In this context there must be a "real and appreciable" risk that any positedconsequence will occur.5 Thirdly, the court must determine whether the consequencesof a conviction would be out of all proportion to the gravity of the offending. Thereis a residual discretion not to grant a discharge but that will rarely be exercised wherethe statutory criteria have been met.[10] An appellate court is required to reach its own view as to whether the directand indirect consequences are out of all proportion to the gravity of the offending. Ifit accepts the statutory threshold has been met, the court must determine whether the3 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16] to [17].4 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; DC (CA47/2013) v R [2013]NZCA 255 at [35].5 DC (CA47/2013) v R, above n 4, at [43].court at first instance erred in principle when exercising its discretion go grant orrefuse to grant a discharge.The Judge's decision[11] The Judge assessed the gravity of Mr Malapaka's offending as beingmoderately serious without taking into account mitigating factors.6 These includedprevious good character, his early guilty plea and the fact that Mr Malapaka had repaidall of the money he had stolen. These factors reduced the overall gravity of theoffending to a point where it was "towards the lower end of moderately serious".7[12] Turning to the likely consequences of the conviction, the Judge acceptedMr Malapaka was liable for deportation, but this did not mean he would ultimately bedeported. The Minister of Immigration still has the ability to cancel the deportationorder if he or she thinks fit. The essence of the Judge's decision declining to grantMr Malapaka a discharge without conviction is contained in the following paragraphsof his decision:8[30] I am not satisfied that this [deportation] will be devastating to othermembers of your family. If you return to your home country you will takewith you the skills and experience that you have gained in New Zealand, andI have no doubt that you will be able to successfully work in India and supportyour family.[31] You would prefer to stay in New Zealand, and I understand that. It isa wonderful country to live in. But you have breached the trust that has beenplaced in you, not only by your employer but also by the people of NewZealand; I am afraid that the normal and natural consequences of convictionshould apply here.[32] I have concluded that the offending is so serious that the consequencesof conviction for you, although serious, do not far outweigh the gravity of theoffending. Yes, the consequences may be serious, and by carrying out a finebalancing exercise, it may be that that would go in your favour, but that is notthe test that I must apply under s 107. The consequences must be whollydisproportionate to the gravity of the offending, and I do not find that that isthe case here. Therefore, I am going to enter a conviction.6 New Zealand Police v Malapaka, above n 2, at [13] and [27].7 At [14] and [28].8 New Zealand Police v Malapaka, above n 2.The arguments[13] On Mr Malapaka's behalf Mr Harder argues the Judge erred in several respectsin reaching his decision. First, he submits the Judge overstated the overall gravity ofMr Malapaka's offending by double-counting the aggravating factor of breach of trustand concluding the overall gravity was moderate to serious. Mr Harder submits theoverall culpability of the offending must be regarded as low to moderate oncemitigating factors are taken into account.[14] Mr Harder also contends the Judge erred in reaching conclusions aboutMr Malapaka's future employment prospects if he is returned to India. Mr Hardersubmits there was no evidence on which the Judge could reach conclusions regardingMr Malapaka's likely employment prospects if he is deported to India.[15] Finally, Mr Harder submits the Judge failed to take into account the effects onIndia's economy as a result of the current Covid-19 pandemic. He says this issueought to have been factored into the equation in assessing the overall consequences ofa conviction followed by deportation.[16] For the Crown, Ms Wilson contends the Judge correctly categorised the gravityof the offending as being moderate to serious. She says the Judge was entitled toconclude the overall consequences of the conviction, including possible deportation,were not out of all proportion to the overall gravity of the offending. She thereforesays the Judge did not err and the appeal should be dismissed.DecisionGravity of the offending[17] Mr Malapaka's offending had several aggravating factors. First, it was not a"one-off" event occasioned by a lack of judgement. Rather, it continued over a periodof more than five weeks and involved 19 separate transactions. This means it wascalculated and premeditated offending.[18] Secondly, the offending involved a degree of sophistication becauseMr Malapaka obviously used his position as an employee of the credit union to devisea means by which he could gain regular access to members' accounts. This wouldordinarily involve the use of a password or PIN known only to the owners of theaccounts. The offending involving the forgery of a member's loan application addedanother dimension to his offending.[19] Thirdly, although the total amount stolen was not substantial it wasnevertheless still significant.[20] Fourthly, I do not accept Mr Harder's submission that the fact that theoffending involved a breach of trust was wholly subsumed in the nature of the charge.Mr Malapaka was trusted not only by the credit union's customers but also by hisemployer and fellow employees. All were entitled to expect he would not abuse hisposition for personal gain but he betrayed that trust.[21] Furthermore, I do not accept Mr Harder's principal submission in this context,which was that the Judge placed too much emphasis on the vulnerability of the victims.Mr Harder based this submission largely on the following passage from the Judge'sdecision:9[25] I have read a victim impact statement prepared by Rob Collins. He isthe general manager of [a credit union in] Auckland, a credit union that hasbeen operating for over 50 years. he says this:Our members are predominantly Pasifika/Maori, low income wageearners or beneficiaries. Many of our members cannot or find itdifficult to obtain financial services from High Street banks.Consequently, without our help they are often prey to loan sharks,retail trucks and scammers. Our promise to them has bene that wewill do better than the rest of the banking/financial services sector.Consequently, the offending by Krishna Malapaka has beendevastating for our directors and staff, who feel betrayed. He joinedthe Credit Union in October 2018 in a position of trust. Most staffsaw him as a mentor over this time, but he used this to gain theknowledge and ability to surreptitiously access members' savingsaccounts, and falsify a loan in order to steal from them. Not only werethese members least financially able to withstand a loss by theseactions, but it was deliberate and calculated deception that broke thevery core of the relationship we have with our members.9 New Zealand Police v Malapaka, above n 2.[27] I have come to the conclusion that this offending is moderatelyserious. A breach of trust in stealing from an employer is always dealt withas serious. Where it impacts upon the customers of that company in a way asdirectly as this did, and had the potential to be devastating to them. This is atthe very highest end of moderately serious in my view, albeit that the sum ismuch less than in other cases that have been stated to me. $5000 is asignificant amount of money, particularly if one takes it in the context of thosefrom whom the money was stolen.[22] Mr Harder points out that the members whose money was stolen were neveraware of that fact because the credit union repaid the funds as soon as it discoveredthe theft. This submission overlooks the point that Mr Malapaka had no knowledgewhen he stole the funds that his employer would immediately take steps to ensuremembers suffered no loss. He knew he was stealing money from members and thatthey were the persons who stood directly to lose from his actions. He must also haveknown that many of the persons from whom he stole money could not afford to loseit.[23] Taking these factors into account I consider the Judge was correct to categorisethe gravity of the offending as being at the upper end of moderate to serious beforeconsidering the mitigating factors on which Mr Malapaka could rely.[24] As I have already observed, mitigating factors included Mr Malapaka's earlyguilty pleas, his previous good character and the fact that he refunded the amount hehad stolen in full. In addition, Mr Malapaka completed more than 370 hours ofvoluntary community work before he was sentenced. I therefore accept Mr Harder'ssubmission that Mr Malapaka had done all he could realistically do to atone for hisoffending after it was discovered. I do not accept, however, that these factors reducedthe overall gravity of the offending to the point where it could be described as low tomoderate. Rather, I would categorise it as being at the lower end of moderate toserious.The consequences of conviction[25] Mr Harder relies on two consequences that he says are likely to follow ifMr Malapaka is convicted of the charge. First, a conviction is likely to have asignificant effect on Mr Malapaka's future employment prospects wherever he maybe. Secondly, it is likely to result in his deportation back to India and this will have amajor impact on his ability to provide for his wider family.[26] The obvious point to be made in response to Mr Harder's first submission isthat future employers are entitled to know Mr Malapaka has been convicted of thisoffending because it clearly raises an issue regarding his honesty and integrity. Inparticular, it suggests he is not a person who can be trusted to have access to fundsbelonging to other people. This is not a consequence that is unique to Mr Malapaka.Any person convicted of this type of offending is likely to encounter difficulty infinding future employment in a field where an element of trust is required. Thatoutcome is a natural consequence of this type of offending.[27] As the Judge recognised, there must also be a considerable risk Mr Malapakawill be deported as a result of his conviction. Until September 2019 he held a residentclass visa but was required to obtain a permanent resident visa at that point to remainin New Zealand and be able to travel. Under s 16(1)(b) of the Immigration Act 2009Mr Malapaka is liable for deportation if he commits an offence for which themaximum penalty is two years imprisonment or more. A conviction on the presentcharge will therefore render him liable to deportation.[28] Mr Malapaka has the ability to appeal to the Immigration and ProtectionTribunal but the grounds for appeal are limited. Mr Malapaka will be required toestablish exceptional circumstances of a humanitarian nature that make it unjust orunduly harsh for him to be deported to India.10 This is a high threshold and the factthat Mr Malapaka has no other dependent members of his family in this country meansit is unlikely an appeal will succeed.[29] Although the Minister of Immigration has the discretion to cancel or suspenda deportation liability notice this there are no obvious reasons why the Minister wouldtake that step in Mr Malapaka's case. Like the Judge, I therefore accept the prospectof deportation is very real.10 Immigration Act 2009, s 207.[30] Mr Malapaka deposes that if he is returned to India he will not be able to obtainemployment that enables him to care for members of his wider family as he currentlydoes. He will also be required to re-integrate into a society with which he has hadlittle recent association and in which his qualifications will carry little weight.[31] I accept Mr Harder's submission that there was no evidential basis for theJudge to be sure Mr Malapaka will be able to work in India and support his family.On the other hand, Mr Malapaka has provided no evidence to support his assertionthat he will not be able to find any form of work if he is deported to India. During histime in New Zealand he has worked in a variety of occupations. He is currentlyworking in a call centre. The Court is not required to accept uncritically his assertionthat he will not be able to find work if he is returned to India. He has succeeded infinding several types of employment during his time in New Zealand and, other thanthe limiting factor of the present conviction, there is no reason to believe he will notbe able to do the same in India.[32] It is difficult to assess the weight to be given to Mr Harder's final submissionbased on the effect of the COVID-19 pandemic on India because the only evidence hehas provided is a global report by the World Health Organisation dated 14 May 2020.A diagram attached to the report indicates India reported between 10,000 and 100,000new cases within the seven days preceding the report. A table attached to the reportstates that to date India has reported a total of 74,281 confirmed cases of personsinfected with COVID-19 and 2,415 deaths from the virus.[33] Without more, however, these figures are of little assistance for presentpurposes. Mr Malapaka has not said where he would live if he was deported to Indiaand the report does not report the number of confirmed cases or deaths on a regionalbasis. It is therefore impossible to assess the likely impact of the pandemic onMr Malapaka if he was deported to India. In any event I consider this to be an issuefor the immigration authorities to assess on a case by case basis when consideringwhether and when to deport persons from New Zealand. It is logical to assume thiscountry is not currently deporting persons to any region where the pandemic is not yetunder control.[34] Taking these factors into account I would assess the likely consequences ofconviction to be in the mid-range of moderate to serious.Are the consequences of a conviction out of all proportion to the overall gravity of theoffending?[35] I have found the overall gravity of the offending to be at the lower end ofmoderate to serious and have assessed the likely consequences of a conviction as beingin the mid-range of moderate to serious. The consequences are therefore slightlydisproportionate to the overall gravity of the offending.[36] I therefore find myself in the same position as the Judge. As the Judgeobserved, on the balance of probabilities Mr Malapaka would have succeeded inshowing the consequences were disproportionate to the gravity of the offending.11 Butthat is not the statutory test. Section 107 prohibits the Court from discharging anoffender without conviction unless the consequences of a conviction are out of allproportion to the overall gravity of the offending. The disconnect between theconsequences and the gravity of the offending in the present case is not sufficient tomeet that test. I am therefore satisfied the Judge had no option but to decline MrMalapaka's application and enter a conviction.Result[37] The appeal against refusal to grant a discharge without conviction is dismissed.Lang J11 New Zealand Police v Malapaka, above n 2, at [32] (set out above at [12]).