HERKT v NEW ZEALAND POLICE [2019] NZHC 1014

HERKT v NEW ZEALAND POLICE [2019] NZHC 1014 [9 May 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-000033[2019] NZHC 1014BETWEEN ROCHELLE OLIVIA HERKTAppellantAND NEW ZEALAND POLICEDefendantHearing: 8 May 2019Appearances: O K Jarvis for AppellantJ H Whitcombe for RespondentJudgment: 9 May 2019JUDGMENT OF GENDALL JIntroduction[1] The appellant, Rochelle Herkt, pleaded guilty in the District Court to onecharge of theft by a person in a special relationship. She applied to the court for adischarge without conviction under s 106 of the Sentencing Act 2002, but thatapplication was dismissed by Judge Garland.1 His Honour instead entered a convictionand sentenced the appellant to 150 hours' community work and reparation of $1000.The appellant appeals her conviction on the grounds that a discharge withoutconviction should have been imposed.Facts[2] The appellant was 23 at the time of the offending, and worked at New WorldIlam as the Lotto Manager. She was entrusted with the combination to the safe at the1 Police v Herkt [2019] NZDC 3142.store as part of her duties. A condition, however, was that she was not allowed to takecash from the store for any reason.[3] On 11 August 2018, while the appellant was at work, she went into the cashroom and carried out some regular duties before leaving the room. She returned shortlyafterwards wearing a jacket. The appellant opened the safe using the combination, tookabout $2,000 in cash, and placed it in her pocket. She then left the store with thatmoney, taking it to her car.[4] Later, the appellant gave $1,000 of the stolen cash to her then partner to repaya debt to him. She kept the other $1,000 for her own purposes. This $1000 amountwas subsequently recovered.District Court decision[5] In his decision, Judge Garland outlined the provisions of the Sentencing Actrelevant to discharge without conviction.2 The test is whether the direct or indirectconsequences of a conviction would be out of all proportion to the gravity of theoffence.[6] First the Judge considered the gravity of the offending. His Honour noted thatthe offence carries a maximum penalty of seven years' imprisonment. It involved herea serious breach of trust and an abuse by the appellant of a position of responsibility.Judge Garland assessed that there was a degree of premeditation and, in his words, henoted that the $2000 stolen was "a not insubstantial sum of money". The cash wasonly taken on one occasion, however, which the Judge found suggested thepremeditation was not extensive.[7] Judge Garland then looked at factors personal to the appellant. He noted thatshe was then aged 24 (23 at the time of offending), had no prior convictions, and herreferees had said she was otherwise a reliable and responsible person. The appellantclaimed she was under financial stress at the time of the offending. She tookresponsibility and entered an early guilty plea. Judge Garland noted that the appellant2 Sections 106 and 107.cooperated with police during the investigation, but suggested she was left with littlechoice based on the evidence against her. Since the offending, she had offered to attendrestorative justice, and she had also engaged the services of a budget advisor. Basedon this information, the Judge assessed the offending as being at a moderate level ofits type.[8] The next step of the proportionality test was to consider the direct and indirectconsequences of a conviction. The Judge identified the appellant's primary concern asbeing a potential inability to obtain work as a veterinary nurse, the career she iscurrently studying towards. His Honour considered there was insufficient evidencethat a conviction would impact this. He noted that employment law would appear torequire the appellant to disclose offending to a prospective employer regardless ofwhether a conviction was entered.3 His Honour also stated that most employers wouldbe prepared to look beyond the bare fact of a conviction.4[9] Given that Judge Garland had found the gravity of the offending to be moderateand the consequences of conviction to be low, he was not satisfied that a convictionwould be out of all proportion to the gravity of the offence. He therefore declined theapplication for discharge, and sentenced the appellant, as I have noted, to 150 hours'community work and reparation of $1000 at a rate of $20 per week.Principles on appeal[10] Section 232 of the Criminal Procedure Act 2011 provides that the High Courtmay only allow an appeal against conviction if satisfied that the trial judge "erred inhis or her assessment of the evidence to such an extent that a miscarriage of justicehas occurred", or that "a miscarriage of justice has occurred for any reason." Amiscarriage of justice means any error, irregularity, or occurrence in or in relation tothe trial that has created a real risk that the outcome of the trial was affected, or hasresulted in an unfair trial.5 In this section, a trial includes a proceeding in which theappellant pleaded guilty.63 At [18], citing ASG v Hayne [2017] NZSC 59.4 At [20], citing Edwards v R [2015] NZCA 583.5 Section 232(4).6 Section 232(5).SubmissionsAppellant's submissions[11] Ms Jarvis, for the appellant, argues first, that Judge Garland was incorrect toassess the seriousness of the offending here as moderate. She states that the Judgefailed to take into account the genuine remorse of the appellant, her age and the stageof life she was at, the steps she had taken to address the causative issues of theoffending and her offer of reparation. Ms Jarvis further suggests that the Judge placedtoo much weight on the breach of trust on the part of the appellant here given this wasinherent in the offending and not an aggravating feature.[12] Secondly, Ms Jarvis contends that the Judge erred in his assessment of theconsequences of conviction. A submission that a conviction would hinder theappellant's ability to obtain a job as a veterinary nurse had been put forward in theDistrict Court. That has been furthered on this appeal with two written affirmationswhich are now before this Court. The first, from Lindsay Colwell (Doctor ofVeterinary Medicine at Prebbleton Veterinary Service and Hospital) states that theveterinary industry is extremely competitive and that an applicant with a convictionwould automatically be rejected by her veterinary practice from an applicationprocess. The second, from Jessica Sonne (a veterinary nurse at Rolleston VeterinaryServices), supported the opinion that there are limited jobs in the vet nursing industry.She added too that the role of a veterinary nurse rarely involves handling money.[13] Ms Jarvis then went on to submit that Judge Garland had incorrectly analysedthe decisions in Edwards v R and ASG v Hayne and this impacted on his assessmentas to the consequences of a conviction.7 Edwards was suggested to be authority forthe proposition that most employers would be willing to look past the mere fact of aconviction. Ms Jarvis submits this has been rebutted in the present context by theevidence provided by practitioners. The Judge referred to Hayne as authority that theappellant would have had to disclose her offending to future employers regardless ofwhether a conviction was entered. Ms Jarvis submits that this was incorrect but arguesthat because the Court has now been given evidence that handling money is not a7 Above n 3 and 4.primary role of a veterinary nurse, the dicta in Hayne is irrelevant anyway. She statesthat Hayne involved a link between the defendant's offending and the role of securityin the job he applied for, and no such link applies between the appellant's offendingand her intended career.[14] In Ms Jarvis' submission, these errors led to a miscarriage of justice. She arguesthat the appellant should be granted a discharge without conviction because the gravityof her offending is only low or, at worst, low to moderate and the consequences of aconviction upon her employment prospects would outweigh the gravity of theoffending.Respondent's submissions[15] In response, Mr Whitcombe, for the respondent, submits that Judge Garlandwas correct in his findings. He refers to the case JSJL v Police to support an argumentthat the gravity of the offending here was correctly assessed as moderate.8[16] With regard to the consequences of conviction, Mr Whitcombe maintains thata dishonesty conviction will naturally impact a person's employment prospects, butthat is not on its own a serious consequence. He properly outlines the importance ofpotential employers here being well informed about the appellant's entire background,regardless of whether the appellant would be in a similar position in a new job handlingcash as a veterinary nurse. Mr Whitcombe concludes that the Judge was correct to findthe consequences of conviction for the appellant were low.[17] Based on these assessments, Mr Whitcombe contends that Judge Garland didnot err in his assessment that the consequences of conviction were not out of allproportion to the appellant's offending and thus he submits that the appeal should bedismissed.Analysis[18] Judge Garland did outline all of the relevant factors that go toward theseriousness of the offending. The appellant, it must be acknowledged, is reasonably8 JSJL v Police [2017] NZHC 635.young, although no longer a teenager, she has a clean record and good references ofcharacter. She says she was under monetary stress at the time of the offending. Thisis of some relevance particularly relating to her claim she owed $1000 to her thenboyfriend, and it is likely she could have faced some repayment pressure from him.This does not explain, however, her decision to steal a further $1000, albeit that sheimmediately returned it upon being questioned. It is acknowledged that the theftoccurred on one occasion only, not in incremental amounts over a period of time. Thismight perhaps signal some level of desperation on the appellant's part. Premeditation,however, played a part here. Ms Jarvis goes on to submit that the appellant has showngenuine remorse here, and was willing to take part in restorative justice.[19] However, as Judge Garland noted, $2000 is not an insubstantial amount ofmoney and the appellant's actions here involved a serious breach of the significant andongoing trust her employer placed on her. On this basis I am satisfied the incident wascorrectly assessed as moderate offending, as the District Court Judge did.[20] The consequences of a conviction for the appellant here potentially are said tobe reasonably significant. Some evidence of its impact on her ability to pursue a careerin her chosen field, as I have noted, has been supplemented on appeal. A convictionmay well be some hindrance to her goal of being a veterinary nurse.[21] On these aspects, information is before this Court which was not before theDistrict Court detailing how veterinary nursing is a competitive profession and jobsare difficult to obtain. Ms Colwell, a Doctor of Veterinary Medicine and the owner ofa veterinary services business, as I have noted, has deposed that there are rarely jobvacancies in her business with many applicants for each position when jobs do becomeavailable. One method used by Ms Colwell to filter applications, amongst others, isto disregard any applicant with a conviction at the initial screening stage. A result ofthis would be that the appellant would not be considered for employment atMs Colwell's business. This too is supported by the "new" evidence of Ms Sonnenoted above at [12].[22] There is no evidence before me, however, that overall this is a widespread andgeneral industry practice. However, even if it is a common practice, this consequencemust be weighed against the need for potential employers to be well informed aboutan employee's entire background. As Wild J said in R v Martin:9I subscribe to what is now a solid body of authority that Courts should notconceal (by discharging without conviction) criminal wrongdoings on theground that it might affect future unemployment prospects. Rather, I agreewith many other Judges who regard it as important that the authorities shouldknow applicants' backgrounds, and be able to make fully informed decisions.[23] Judge Garland also referred in his decision to the Supreme Court decision inASG v Hayne.10 The Court in that case accepted that an employee might in someinstances be required to disclose offending that the employee had pleaded guilty to buton which the employee subsequently had been discharged without conviction.11 Here,the offending in question took place in the context of the appellant's employment andit involved a significant breach of her employer's trust. Regardless of whether theappellant may be handling cash or be otherwise involved in financial transactions infuture employment situations, either in the context of veterinary nursing employmentor otherwise, a future employer would have a legitimate interest in knowing about herprevious work history, including any previous misconduct.[24] The overall consequences of a conviction in this case, as I see it, really comedown to a suggested difficulty the appellant may have in finding full-time employmentin her preferred area. This, however, is merely the natural result of her offending.[25] The appellant having a conviction here, especially for a serious dishonestyoffence, may well have a negative impact to some degree on her specific employmentprospects. Again, as I see it, I repeat this is a natural consequence of any convictionand on its own does not represent a sufficiently serious consequence here to require adischarge without conviction. And it is not suggested that the appellant, at worst,would lose the chance of alternative employment opportunities, even if her first choiceof veterinary nursing proved unattainable. Therefore, I agree with Judge Garland'scharacterisation of the seriousness of the consequences of a conviction here as beingreasonably low.9 R v Martin HC Whanganui CRI-2003-083-432, 30 April 2004 at [22].10 ASG v Hayne, above n 3.11 At [82].[26] I agree that the gravity of the appellant's offending in this case is moderate andthe consequences of her offending are reasonably low. Therefore, the consequencesof a conviction in this case are not out of all proportion to the appellant's offending.Conclusion[27] For all these reasons, I am of the view that Judge Garland did not err in hisdecision here and no miscarriage of justice has occurred. A discharge withoutconviction is not appropriate in all the circumstances.[28] The appeal is dismissed....................................................Gendall JSolicitors:Public Defence Service, ChristchurchRaymond Donnelly & Co, Christchurch