CAMMISH v NEW ZEALAND POLICE [2019] NZHC 1887

CAMMISH v NEW ZEALAND POLICE [2019] NZHC 1887 [5 August 2019]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECRI 2019-042-1154[2019] NZHC 1887BETWEEN JENNA LORRAINE CAMMISHFirst AppellantHEDEN RAFFINSecond AppellantAND NEW ZEALAND POLICERespondentHearing: 16 July 2019Counsel: T C Lyall and S M Day for AppellantsA R Goodison for RespondentJudgment: 5 August 2019JUDGMENT OF MALLON JIntroduction[1] Jenna Cammish and Heden Raffin (the appellants) pleaded guilty to sevencharges of jointly stealing groceries from two supermarkets.1 In the District Courtthey were convicted and each sentenced to fines totalling $1,400 and court costs of$130, having been declined a discharge without conviction.2 They appeal against thedecision not to grant them a discharge without conviction.1 Crimes Act 1961, s 219. Section 223(d) provides that the maximum penalty for theft of propertynot exceeding $500 in value is three months' imprisonment.2 Raffin v Police [2019] NZDC 11833.Summary of offending[2] Ms Cammish is a British national and Mr Raffin is a French national. Theywere in New Zealand on working holiday visas. They had been here since October2018. At the time of the offending they were employed as seasonal workers in avineyard in the Blenheim area. Ms Cammish was aged 25 and Mr Raffin was 21.[3] The offending took place on seven occasions between 13 and 24 January 2019.On each occasion, Ms Cammish and Mr Raffin walked around the aisles of thesupermarket with a personal bag placed on a trolley. They would put some items inthe trolley which they would pay for at checkout, but also place other items directlyinto the personal bag which they would not pay for.[4] The items they stole included: coffee, hummus, nuts, peanut butter, almondbutter, ginger beer, chia seeds, organic kombucha drinks, pâté, Whitaker's chocolate,cacao and assorted items from the bulk bins. They stole goods to the total value of$75.70 from three trips to one supermarket, and goods to the total value of $154.70from three trips to the other supermarket. They were apprehended on the fourth tripto the second supermarket with goods to the value of $76.44 in their personal bag.They paid for these goods upon being apprehended. They explained that they hadstolen the goods because they had run short on funds due to an unexpected delay inbeing paid for their seasonal work. Mr Raffin said that he is gluten intolerant andvegan as an explanation for the nature of the goods stolen.[5] Having been apprehended on this last occasion, the Police indicated toMs Cammish and Mr Raffin that they were not going to be charged. They signed a"pre-charge warning".3 However, the supermarkets reviewed CCTV footage whichshowed the previous six instances of theft by the couple. This led to the seven chargesagainst them for each occasion of theft. The couple were not offered police diversionapparently because shoplifting by tourists is regarded as a problem in Blenheim andbecause of the repetitive nature of the offending.3 I infer that this is a record that a warning has been given for offending for which charges will notbe brought.[6] The appellants first appeared in the District Court on 25 February 2019. Theypleaded guilty at their next appearance on 8 March 2019 and paid full reparation on18 March 2019. They also apologised to the managers of the two supermarkets. Theyapplied for a discharge without conviction on 26 March 2019. At this time, they eachoffered to pay $300 to an appropriate charity and had those funds available to pay thatday. They said they could pay more than this if the Court considered they should, butthey would need time to arrange additional funds to do so.The legal test for a discharge without conviction[7] Section 106 of the Sentencing Act 2002 permits a court to discharge anoffender without conviction. Section 107 provides that a court must not do so unlesssatisfied that the direct and indirect consequences of a conviction would be out of allproportion to the gravity of the offence.[8] The Court of Appeal has outlined the following approach for determining suchapplications:4(a) first, consider all the aggravating and mitigating factors relevant to theoffending and the offender to assess the gravity of the offending;(b) second, identify the direct and indirect consequences of the convictionfor the offender;(c) third, consider whether those consequences are out of all proportion tothe gravity of the offence; and(d) fourth, consider whether the Court should exercise its discretion togrant a discharge without conviction.[9] The first three steps are matters of fact, not discretion, which requirereassessment by an appeal Court according to the guidance of the Supreme Court in4 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].Austin Nichols & Co Inc v Stitching Lodestar.5 The final step is an exercise ofdiscretion.District Court decision[10] The District Court Judge commenced his decision with the followingobservations:6[2] Sometimes in an attempt no doubt to sanitise this sort of offending, itis referred to as "shoplifting". It is not shoplifting, it is theft, and I have nodoubt that in your respective countries of France and England that theft on thislevel would be treated reasonably harshly. You come to New Zealand astourists, and I get the impression that tourists might regard this country as asoft touch because I am told, without any opposition from anybody, in thepolice submissions that theft from particularly supermarkets by foreignnationals, and often regrettably they are from France, is of almost epidemicproportions in that [Blenheim] area.[11] The Judge set out the summary of facts and then summarised the submissionsadvanced on behalf of the appellants. In doing so the Judge commented that the factthe appellants did not receive diversion "simply underscores the fact that in theBlenheim area this offending is regarded as being rife".7 He rejected the submissionthat the appellants were in a desperate situation because they had not been paid,commenting that if this were true then "the items that you took would have been ratherdifferent in character than those you did take".8 He also rejected the submission thatthe amounts taken were of low value, commenting:[15] Well, I doubt that the respective owners of the supermarkets wouldagree. The Court hears often that supermarkets and other retailers in the foodarea work on very slender margins, and we hear statistics indicating that theftfrom these institutions runs into millions of dollars every year, and so I do notregard the amount as being low at all.[12] Turning to the test for a discharge without conviction and his view on whetherit was met, the Judge said:[21] In the New Zealand context the Court is able to stand back fromconviction having gone through a three stage process. That process involves,5 H (CA680/2011) v R [2012] NZCA 198 at [30]; and Austin Nichols & Co Inc v Stichting Lodestar[2008] 2 NZLR 141, [2007] NZSC 103.6 Raffin v Police, above n 2.7 At [14].8 Above.firstly, an assessment of the seriousness of the offending, then, secondly, ananalysis of what the direct and indirect consequences of entering a convictionagainst you would be and, thirdly, then making an assessment as to whetherthere is a disproportionality in your favour.[22] As to the seriousness of the offending, I hope it will be clear fromwhat I have already said that I regard this as quite serious offending. That isbecause of its repetitive nature, the fact that the shops were being victimisedon more than one occasion in each case, that there was a certain sophisticationand therefore pre-planning as to how you went about this, and that I do notregard the amounts as low for the reasons I have already explained.[23] Therefore, I then move to the questions of what are the consequencesfor you if I do convict you, and clearly the focus is on Canadian travel althoughI accept there are other matters raised, and I have no doubt that there will bedifficulties occurring for both of you should there be in fact convictionsentered.[24] As against that, I then move to the third step and ask aboutdisproportionality. It appears that the grandmother who is very ill was knownabout for some months, and no doubt at the time you were embarking on thesedeliberate offences. In these circumstances I regard it as not beingdisproportionate that you be convicted.[25] I understand the difficulties you might have in travel, but it seems tome that it would send entirely the wrong message to tourists like you whothink you can come to this country and just steal with impunity. You cannot.[13] The Judge convicted the appellants on the charges and ordered them each topay $200 per charge and court costs of $130 on one charge.Subsequent events[14] The Judge's decision was covered by Stuff in this country. It also receivedcoverage in the Daily Mail under the headline "Wave of hipster shoplifting hits NewZealand as backpackers help themselves to hummus, kombucha and chia seedsbecause 'food is too expensive'". The article that followed began with "A pair ofhipster tourists visiting New Zealand on work and holiday visas have gone on ashoplifting spree, targeting several stores and stealing luxury food items".[15] At the District Court hearing it was argued that a consequence of a convictionfor Ms Cammish was that she would not be able to visit her terminally ill grandmotherin Canada. Since then Ms Cammish has received a letter from the High Commissionof Canada advising her that she is not eligible for an Electronic Travel Authorisationbecause she has been convicted of two offences not arising out of a single occurrence.Ms Cammish has also filed an affidavit providing further information about why shewishes to travel to Canada. Ms Cammish explained that when the offending occurredshe was aware her grandmother had breast cancer but also knew she was receivingtreatment. On 25 March 2019, she received a message letting her know that the cancerhad spread to the bone and maybe the brain as well. She received a call after thismessage informing her that the cancer was terminal.[16] At the appeal hearing I was informed that the appellants had left New Zealandand were now in Thailand. I was also informed that the appellants were still willingto make a payment to an appropriate charity. Subsequently, I have receivedconfirmation that the appellants have now each paid $300 to the Salvation Army inBlenheim, which operates a food bank for those in need.Assessment of appeal[17] On appeal it is said that the Judge erred in his assessment of the gravity of theoffending (step one in the test set out above9). This is because: the Judge failed to takeinto account that the offending was a course of conduct that occurred over a briefperiod; overstated the level of sophistication involved; wrongly rejected that the goodswere of low value; took into account that nationwide thefts from supermarkets run intomillions of dollars annually without evidence of this; took into account that this typeof offending by tourists, often French nationals, was rife in Blenheim without evidenceof this; and failed to take into account the mitigating factors.[18] I accept those submissions. It is true that it is aggravating that the offendingoccurred on seven occasions. Nevertheless, it was relevant that it was a course ofconduct over a confined period which in total involved goods of a relatively low value($306.84). Although repetitive, it contrasts with an offender who continues to offendafter being apprehended. These appellants acted dishonestly over an 11-day periodwhen they were apparently short of cash. Their apprehension has brought home tothem that their conduct was criminal.9 At [8].[19] There was nothing sophisticated about the offending. Presumably, theythought they would not be detected because they were paying for some items.However, putting some items in a personal bag that is sitting on the trolley seems arather obvious way to hide additional items. The offending was more foolish than itwas sophisticated. It was easily detected as is evident by the fact they wereapprehended on the seventh occasion and because the other six occasions werecaptured on the CCTV cameras operating in the stores.[20] The Judge regarded the offending as serious based on the police submissionsthat offending of this kind, particularly from French nationals, was rife in the Blenheimarea and also because he had heard the supermarkets operated on slender margins andshoplifting losses ran into the millions of dollars. There are several problems withthis:(a) First, the information was not necessarily reliable. The police inBlenheim may have this view, but without statistics or some otherreliable way to measure it, this would seem to be no more than animpression. Similarly, it is unclear what the Judge's understanding ofthe profitability of supermarkets and their losses was based on.(b) Secondly, this information was not in the summary of facts on whichthe appellants were to be sentenced. The appellants did not have theopportunity to contest it if they wished to do so. By way of illustration,on appeal, the appellants' counsel presented statistical information thatshowed thefts were less prevalent in Blenheim than they were in theWest Coast on a per population basis.(c) Thirdly, the comment that offenders were often French nationals wasnot only potentially unreliable, it was also irrelevant. Mr Raffin was tobe sentenced for the offending in accordance with the purposes andprinciples of the Sentencing Act and not on the basis that he wasFrench. Mr Raffin may have been left with the impression that he wasdealt with more harshly than he otherwise would have been had he notbeen French. I am confident that this was not the case, but the commentwas unhelpful.(d) Lastly, the offence with which the appellants were charged (theft ofproperty under $500) had a maximum penalty of three months'imprisonment. It was not more serious offending because it was theftfrom a supermarket.[21] Most importantly, the Judge's assessment of the gravity of the offending didnot take into account the appellants' mitigating factors. In setting out the first stepunder s 107 of the Sentencing Act, the Judge did not acknowledge that the offenders'mitigating factors where relevant to the assessment of the seriousness of the offending.His subsequent discussion of why he regarded the offending as quite serious did notrefer to them either. There were, however, several mitigating factors. The appellantshad paid full reparation promptly. They had apologised to the store managers. Theyentered guilty pleas at the first opportunity. They did not have previous convictions.They were relatively young. They were willing to give back to the community by wayof an appropriate donation to charity.[22] In my view, these mitigating factors significantly reduced the gravity of theoffending. The offending was low-level, foolish and opportunistic theft by a youngcouple not turning their minds to the possibility of being caught and the consequencesof that. Once apprehended, the couple displayed their remorse and endeavoured tomake amends in every way they could. The two supermarkets have not suffered anyfinancial loss from their offending. Although the couple have left the country theyhave now made a payment to an appropriate charity. They have also suffered theembarrassment of media coverage of their offending.[23] I consider the gravity of the offending was low given the amount taken and itsopportunistic nature even before the personal mitigating factors are taken into account.The low-level nature of the offending is illustrated by the fact that the appellants mighthave received diversion for it had they not been tourists and shoplifting in a townwhere the police considered that offending was regarded as rife. When the personalmitigating factors are taken into account the gravity of the offending is near the lowestend. In such circumstances, less in the way of consequences of conviction are requiredfor them to be out of all proportion to the gravity of the offending.[24] The specific consequence of a conviction advanced in the District Court wasthe possibility that Ms Cammish would not be able to see her dying grandmother inCanada. The Judge discounted this because Ms Cammish's grandmother had beenunwell for a while and at the time that Ms Cammish chose to offend. While that is so,as Ms Cammish has explained, her parents in the United Kingdom are no longer alive.She has extended family in Canada and intended to visit them and her grandmother.Her grandmother's terminal illness, of which she learned after the offending had takenplace, has likely crystallised her desire to do so.[25] Since being convicted she has made enquiries of the Canadian authorities abouttravelling there. While the letter from the Canadian High Commission does not sayshe will not be able to travel there, it is less straightforward because of her convictions.The fact that she received seven convictions, despite the theft being a connected courseof conduct, potentially gives an impression of offending of greater seriousness thanwas the case.[26] It is unclear whether travel to Canada is of great moment to Mr Raffin.However, he is a young man who will be saddled with the general consequences of aconviction as he makes his way in life. As the Judge recognised, inevitably there willbe general consequences that follow from a conviction for both Mr Raffin and MsCammish. In a variety of ways (eg. employment, insurance and immigration) peopleare asked to disclose whether they have criminal convictions). Even when theoffending is of a low-level nature, as here, having to answer that question truthfullymay count against them.[27] In these circumstances, I consider the consequences of a conviction are out ofall proportion to the gravity of the offending for each appellant. This couple havelearnt their lesson and made amends. A discharge without conviction is appropriate.Result[28] The appeal is allowed. The convictions and sentences entered in the DistrictCourt are quashed. The appellants are discharged without conviction.Mallon J