MODISE v POLICE [2018] NZHC 2737

MODISE v POLICE [2018] NZHC 2737 [23 October 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-000241[2018] NZHC 2737BETWEEN MOSES PRETE THABANG MODISEAppellantAND NEW ZEALAND POLICERespondentHearing: 15 October 2018Counsel: HJ Croucher and AJ Ewing for AppellantLM Deane for RespondentJudgment: 23 October 2018JUDGMENT OF DOWNS JThis judgment was delivered by me on Tuesday, 23 October 2018 at 3 pm.Registrar/Deputy RegistrarSolicitors:Public Defence Service, Auckland.Crown Solicitor, Auckland.The appeal[1] Mr Moses Modise is a reintegration officer with Serco New Zealand Ltd.1 On16 July 2017, he committed an offence contrary to the Telecommunications Act 2001.2Mr Modise repeatedly rang his partner, and verbally abused her. Judge A M Manuel'ssentencing remarks succinctly capture what happened:3You ... called the victim's friend a "motherfucker" and a "bitch". Youcontinued to call her, using obscene language, before she arrived home. Shedecided to report the abuse to the Manukau Police Station. While she was inan interview room at the station with a police officer, you made more than 40calls and left 15 messages on her phone using language such as "fucker","motherfucker" or "fuck you, motherfucker" in relation to the victim.In a victim impact statement made in July 2017, the victim said she was scaredof you and tired of the way you treated her. She wanted you to go to somekind of anger management course to try to help yourself. She said she hadtried to end your relationship but she was scared and needed help herself.[2] The Judge dismissed Mr Modise's application for a discharge withoutconviction. Mr Modise appeals. He contends the Judge erred.Law[3] The relevant provisions are ss 106 and 107 of the Sentencing Act 2002. Theseprovide:106 Discharge without conviction(1) If a person who is charged with an offence is found guilty or pleads guilty,the court may discharge the offender without conviction, unless by anyenactment applicable to the offence the court is required to impose aminimum sentence.(2) A discharge under this section is deemed to be an acquittal.(3) A court discharging an offender under this section may—(a) make an order for payment of costs or the restitution of any property;or(b) make any order for the payment of any sum that the court thinks fairand reasonable to compensate any person who, through, or by meansof, the offence, has suffered—1 More easily, Serco.2 Offensive or disturbing use of a telephone, s 112(1).3 Police v Modise [2018] NZDC 14907 at [2]–[3].(i) loss of, or damage to, property; or(ii) emotional harm; or(iii) loss or damage consequential on any emotional or physicalharm or loss of, or damage to, property:(c) make any order that the court is required to make on conviction.(3A) Sections 32 to 38A apply, with any necessary modifications, to an orderunder subsection (3)(b) as they apply to a sentence of reparation.(4) Repealed.(5) Despite subsection (3)(b), the court must not order the payment ofcompensation in respect of any consequential loss or damage describedin subsection (3)(b)(iii) for which compensation has been, or is to be, paidunder the Accident Compensation Act 2001.(6) Repealed.(7) Repealed.107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unless the courtis satisfied that the direct and indirect consequences of a conviction would beout of all proportion to the gravity of the offence.[4] Applicable principle is well known.4 A Court must:(a) Identify the gravity of the offence.(b) Identify the direct and indirect consequences of a conviction.(c) Determine whether the direct and indirect consequences of theconviction would be out of all proportion to the gravity of the offence.[5] In this setting, the appeal Court's view is determinative. So, the appeal shouldbe allowed if the Court concludes the consequences described above would be out ofall proportion to the gravity of the offence.54 See, for example R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.Analysis[6] Ms Croucher contends the Judge erred in assessing the gravity of the offenceas "moderate". She notes the offence is punishable by maximum penalty of threemonths' imprisonment, and no violence was involved. Ms Croucher also contends theJudge gave undue weight to the fact Mr Modise and the victim were in a relationship.[7] The mere fact an offence provision has a modest maximum penalty does notassist in determining whether a conviction is appropriate. Rather—and as always—facts matter.[8] As to these, the nature of the relationship between Mr Modise and the victimdid aggravate the seriousness of the offending. Conduct that may be offensive butrelatively less serious in relation to a stranger can, in a domestic setting, assume adifferent complexion—and hence be more serious. Intimate relationships are basedon trust. They can be both complex and fragile. Sometimes, one party is vulnerableto abuse by the other. Sadly, in this country, that other is typically female.[9] The Judge noted "power and control issues" were at play. Plainly that was so.So too the Judge's observation this was "no way to treat someone who should havebeen able to look to [Mr Modise] for love and protection".6 For the same reasons,absence of related physical violence is not determinative.[10] Ms Croucher also contends the Judge gave excessive weight to victim impactand inadequate weight to remorse. The Judge's remarks do not support thissubmission. The Judge noted Mr Modise had pleaded guilty "at the earliestopportunity" and "expressed remorse".7 The only reference to victim impact is thatreproduced at [1].[11] It follows the Judge did nor err when assessing offence seriousness.Mr Modise telephoned the victim more than 40 times, and issued a tirade of abuse.The offending involved an element of harassment of an intimate partner, hence itsmoderate seriousness.6 Police v Modise, above n 3, at [7].7 At [5].[12] Which brings us to employment consequences. Ms Croucher submits theJudge erred when assessing consequences of conviction in relation to these. Shecontends there is an appreciable risk Mr Modise will lose his job at Wiri Prison, andeven if he does not, conviction will impair Mr Modise's career with Serco.[13] The Judge acknowledged Mr Modise has "a good job",8 but was unpersuadedemployment altered the calculus:9I accept that a conviction may be a barrier to progression for you at yourworkplace. The question is whether you would lose your job if a convictionwere entered. I have only your say-so that you could lose your job. When Iexplored the situation with counsel, I was not satisfied that there was a real orappreciable risk of job loss. Your employment contract provides that you mustmaintain a satisfactory criminal conviction check but that is different to statingthat if you receive any criminal conviction you would lose your job. Thepolice submit that employment consequences are part of everyday life forpeople who are convicted by the courts.I have some concern that your job involves you in a position where you havea degree of power over those under your supervision. Had you not appraisedyour employer of the situation, I would nevertheless have thought it wasproper that they were made aware of the details as well as the nature of youroffending.The issue is whether the consequence of a conviction would be out of allproportion to the offending. Given that I am not satisfied that there is a realand appreciable risk that you would lose your job, I cannot be satisfied thatthe consequences are out of all proportion to a conviction. I recognise howimportant your job is to you and that you have made significant progress inyour life since this offending took place. But I am not persuaded that yours isan appropriate case to grant a discharge without conviction and I decline to doso.[14] Mr Modise's employment is conditional on him "maintaining a satisfactorycriminal conviction check". Like the Judge, I consider this means Serco must consider"satisfactory" the result of any such check. The provision contemplates an evaluativeassessment on Serco's part if a conviction is disclosed; the mere fact of one is not abarrier to continued employment.[15] Mr Modise's High Court affidavit supports this conclusion.10 Mr Modise sayshis supervisor "hoped" Judge Manuel would discharge him without conviction, but "if8 Police v Modise, above n 3, at [8].9 At [9]–[11].10 Police opposed reception of this on well-known freshness grounds. I received the affidavit as itprovided additional information, helpful to my task.the conviction stays it will be up to the company what to do". As will be apparent,Serco knows of Mr Modise's offending. No recitation of authority is required for theproposition Courts are reluctant to usurp employment-related decisions in this context.[16] Beaver v Police is distinguishable.11 In that case, Venning J allowed a s 106appeal on the basis conviction for a low-level (albeit domestic assault) riskedconsequences out of all proportion to the gravity of the offending. Mr Beaver wantedto join the Department of Corrections as a prison officer. Materially, the Judge found"conviction would be a bar" to that employment.12[17] Ironically, more on point is Modise v Police,13 a case cited by Venning J andinvolving Mr Modise—the instant appellant. In 2010, Mr Modise pleaded guilty toone charge of intimidation under s 21 of the Summary Offences Act 1981. Mr Modisethreatened violence against his wife. It appears his instant victim is a later partner.Judge Lovell-Smith declined to discharge Mr Modise without conviction. Mr Modisethen worked for the Department of Corrections as a prison officer. He appealed onthis basis:(d) Because of the privatisation of Mt Eden, Mr Modise has had to reapplyfor his job. A background check would be undertaken as part of thatprocess. Mr Modise therefore submitted that there was a real andappreciable risk that he will miss out on a position within the newMt Eden structure if a conviction is entered against him.[18] Ellis J dismissed the appeal. The Judge considered it important theemployment "code of conduct makes it clear that when such disclosure is made thereremains a discretion as to what the consequences of a conviction will be".14 TheJudge was "confident" in exercising that "discretion (or any similar discretion thatexists in terms of the new operators of Mt Eden) account will be taken" of the "minornature of his offending and of the admirable steps taken by Mr Modise to address thecauses of it".11 Beaver v Police [2014] NZHC 2746.12 At [22].13 Modise v Police HC Auckland CRI-2010-404-514, 21 March 2011.14 At [20].[19] Her Honour's confidence was not misplaced. In his affidavit, Mr Modise sayshe told Serco about the 2010 offending. Mr Modise says, "they appreciated myhonesty". Obviously, Mr Modise kept his job.[20] Mr Modise says when the criminal background check was completed, the 2010conviction did not appear, and he would not have been hired if one had. Ms Croucherobserves risk of termination is heightened given the public's recent focus on Serco'sperformance.[21] The first answer to this submission is that above; the fact of conviction is notnecessarily fatal to Mr Modise's employment. The second is that Serco knows of thisoffending, and it would seem, that committed in 2010. So, this is a case in which anemployer knows about an employee's criminal conduct quite apart from the existenceof a conviction. The third is that should the worst come to pass, this would not be outof all proportion to the gravity of the offence. Mr Modise's offending was, asobserved, moderately serious. This conclusion is buttressed by Mr Modise's earlier(2010) offence, which tends to suggest that in 2017 is not wholly of character, at leastwhen Mr Modise is in an intimate relationship.[22] This leaves career progression. Because of the offending, Mr Modisewithdrew his application for a supervisory role within Serco. Mr Modise says hissupervisor encouraged him to do so on the basis "you need to be a role model" in sucha position. Ms Croucher contends the Judge did not address consequences of aconviction in this context.[23] No error arises here either. Absence of a conviction says little about whetherMr Modise should be promoted or considered a role model; the point remainsMr Modise committed the underlying conduct. Ms Croucher's argument reduces tothe proposition Serco should approach matters differently if Mr Modise's recorddiscloses no conviction. But as observed, Serco knows what Mr Modise did in 2017—and in 2010. Given the nature of its services, it could hardly be wrong for Serco toconsider Mr Modise's offending as a factor bearing on his suitability for a supervisoryrole, irrespective of the state of his formal criminal record.[24] Mr Modise's real concern may be that his 2010 conviction will become amatter of record unless this conviction is discharged, in turn compounding potentialemployment consequences. To elaborate, in his District Court affidavit, Mr Modisesuggested the 2010 conviction did not appear on his record because of the CriminalRecords (Clean Slate) Act 2004, but if the 2017 conviction stands, s 8 of the Act wouldmake that conviction visible. The point was mentioned in argument only briefly.[25] While s 8 of Criminal Records (Clean Slate) Act has the effect identified byMr Modise, that enactment is expressly exempted in relation to applications foremployment as a "prison officer", and this position is ultimately defined to includelike officials (as employees) of a "contract prison".15 The evidence does not disclosewhether a reintegration officer is simply the name for a private contractor who, ifemployed by the Department of Corrections, would be a prison officer.[26] In any event, and as observed, Mr Modise's employment contract calls for anevaluative assessment by Serco in relation to any conviction; the mere fact of one (ormore) is not an insuperable barrier to continued employment. Equally, Serco mayconsider Mr Modise's acceptance of responsibility and remorse mean he has thecapacity to become a more effective reintegration officer, by, for example, drawing onhis own experience of the criminal justice system when dealing with offenders. Again,if Mr Modise loses his job, this would not be out of all proportion to the gravity of theoffence, particularly given his earlier infraction.[27] Finally, the Criminal Records (Clean Slate) Act contemplates later criminalityas vitiating, at least temporarily, an individual's otherwise clean slate. There areobvious reasons for this. Consequently, Courts must be careful not to cut across thatAct when considering applications for a discharge without conviction. Put moredirectly, apparent patterns of criminal behaviour should not be concealed under thebanner of gross disproportionality.15 See Criminal Records (Clean Slate) Act 2004, s 19(3)(d)(iii). Under s 4 of the Criminal Records(Clean Slate) Act, "prison officer" means a person who is an officer as defined in s 3(1) of theCorrections Act 2004. Section 3(1) defines officer to include those appointed or engaged unders 11 to provide custodial services in respect of a prison. Section 11(2) concerns employees ofcontract prisons.Anonymisation of the judgment?[28] At the hearing, I asked counsel if the judgment should be anonymised becauseof the potential engagement of the Criminal Records (Clean Slate) Act. Ms Croucherventured it should. On reflection, I consider not. If the Act does not apply, no issuearises. If it does, the enactment does not provide for suppression of name in thiscontext,16 and because of s 8, the 2017 offending will render the 2010 convictionvisible anyway. Ellis J's judgment remains a matter of public record. And, there is astrong public interest in open reporting.Result[29] The appeal is dismissed...Downs J16 See s 13 of that Act.