ALLEN v R [2022] NZHC 2407

ALLEN v R [2022] NZHC 2407 [20 September 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-000114[2022] NZHC 2407BETWEEN SAVANNAH LINDA ALLENAppellantAND THE KINGRespondentHearing: 1 September 2022Appearances: K T White for the AppellantG E R Alloway for the RespondentJudgment: 20 September 2022JUDGMENT OF NATION JIntroduction[1] Savannah Allen pleaded guilty to a charge of being an accessory after the factto aggravated robbery.1 She was sentenced to three and a half months' home detentionby Judge Garland on 17 June 2022, after his Honour declined an application fordischarge without conviction.2 Ms Allen appeals the decision to not grant her adischarge without conviction. She alternatively appeals the sentence on the basis itwas manifestly excessive.Background[2] The summary of facts stated:1 Crimes Act 1961, ss 71(1), 235(b), and 312: maximum penalty five years' imprisonment.2 R v Allen [2022] NZDC 11693.CHARGE Aggravated Robbery (Accessory after the fact)Crimes Act 1961 Section 235(b) & 71(1)Penalty: 14 years imprisonment____________________________________________________________INTRODUCTIONAt 8:55am on Sunday the 13th of June 2021 an aggravated robbery wascommitted at the Keystone Dairy at 152 Keyes Road, New Brighton,Christchurch.Tobacco products to the value of $5,000 were taken in this robbery.The defendant in this matter, Savannah ALLEN is the partner of one of thedefendants in the aggravated robbery matter Ethon BAKER-CLEVELAND.CIRCUMSTANCESThe defendant in this matter, Savannah ALLEN has been in the company ofBAKER-CLEVELAND since the aggravated robbery.On Thursday 24 June 2021, the defendant was advised by Police that BAKER-CLEVELAND was sought and would be arrested by Police for fouraggravated robberies.The defendant then intentionally misled Police by advising them she was at alocation that she was not at in order for her and BAKER-CLEVELAND toavoid arrest.The defendant was with BAKER-CLEVELAND as he evaded-Police-atvarious locations where they were residing.On Tuesday, 6 July 2021 the defendant was located at the Classique Lodge onBlenheim Road, Christchurch with BAKER-CLEVELAND where they hadbeen residing for several days.DEFENDANT COMMENTSThe defendant was spoken to Police [sic] and admitted being with BAKER-CLEVELAND throughout this time but denied deliberately helping thedefendant to evade arrest.The defendant has previously appeared before the Court.MVY69307/07/2021[3] Ms Allen first appeared in court on 7 July 2021.[4] The charging document described the offence as being an accessory after thefact to robbery and cited ss 235(b) (aggravated robbery) and 71(1) (accessory after thefact) of the Crimes Act 1961. The charging document was amended. The date of theoffence was changed from 13 June 2021 to between 13 and 24 June 2021. It waschanged to a representative charge and the maximum penalty was changed from 14years' imprisonment to five.[5] Ms Allen was remanded on bail on a number of occasions. In August 2021,there were two remands because of COVID-19.[6] Ms White appeared as counsel for Ms Allen.[7] On 6 October 2021, Ms Allen pleaded guilty to an amended charge. Ms Allenwas remanded on bail awaiting sentence and a pre-sentence report was directed. It isnot clear from the record whether the amendments on the charging document werenoted at the time the guilty plea was entered. The handwriting and signatures wouldsuggest the amendments were noted by the Judge presiding at Ms Allen's nextappearance on 25 November 2021.[8] The pre-sentence report was prepared by the Department of Corrections on 15November 2021. The offence was described as "AGGRAVATED ROBBERY(TOGETHER WITH ANOTHER PERSON/S – S235(B)".[9] On 3 November 2021, Ms Allen filed an affirmation to support an applicationfor a discharge without conviction. She said she had pleaded guilty to a charge ofaccessory after the fact to aggravated robbery on 6 October 2021.[10] In her affirmation, Ms Allen said she did not know her then boyfriend, MrBaker-Cleveland, was involved in the robberies until the Police called. Even then, hesaid he was only the driver and not involved, and Ms Allen said she believed him. Shesaid she travelled with him as his fiancée but did not assist him.[11] In her affirmation, Ms Allen provided information as to her family backgroundand particular difficulties that had arisen in her life while at school and through an ex-partner who she met when she was 15 and was involved with for six years.[12] On 18 November 2021, the Crown filed submissions as to sentencing. In thosesubmissions, the charge was described as "aggravated robbery (accessory after thefact)" with a maximum penalty of five years. The summary of facts attached to thesubmission was the summary of facts for the four defendants who had been involvedin three aggravated robberies of dairies. There can however be no suggestion that theJudge would have been misled as to this. The Court had the correct summary of facts.It was not suggested in the Crown's submissions that Ms Allen had been involved inany way with the actual robberies.[13] Attached to the Crown's submissions was a jobsheet prepared by Police withinformation I refer to later which had been on Ms Allen's cell phone. The Crown alsoquoted a call which the Police had recorded between Ms Allen and one of Mr Baker-Cleveland's co-offenders on 15 June 2021.[14] Ms Allen's sentencing scheduled for 25 November 2021 was adjourned onseveral occasions for Ms Allen to attend a Limited Service Volunteer (LSV) coursewith the New Zealand Army at Burnham. She was released from the course on 18February 2022 for disrespectful behaviour towards staff and trainees. Her sentencingwas rescheduled for 17 June 2022.[15] When she was released from the course, a social worker recorded arecommendation "for trainee to access psychological support around managingemotions. Consideration to be given to Clinical Psychology input if funding isavailable."[16] An updated presentence report dated 8 March 2022 referred to Ms Allen'soffence as "AGGRAVATED ROBBERY (TOGETHER WITH ANOTHERPERSON/S) − S235(B)". It recommended supervision.[17] In supplementary submissions for the rescheduled sentencing, Ms Whiteprovided information and an explanation for what had occurred at the LSV course butsubmitted involvement with the course had benefited Ms Allen. With the submissionswere letters from pro-social family members noting Mr Allen's change in attitude andmotivation levels since returning from the LSV course. There were also furthersubmissions to support the application for a discharge without conviction.District Court decision[18] The District Court Judge assessed the application for a discharge withoutconviction and also the appropriate sentence for Ms Allen.[19] The Judge considered the gravity of the offending to be low to moderate. Incoming to this assessment, the Judge considered:(a) the seriousness of the charge, being one with a maximum penalty of fiveyears' imprisonment and involving a person interfering with the dueadministration of justice;(b) the aggravating factors of this offending, being that Ms Allen deliberatelymisled the Police and assisted Mr Baker-Cleveland in avoiding arrest foran extended period of time. Ms Allen knew Mr Baker-Cleveland was introuble from 15 June and she expressed a willingness at that time to helphim avoid apprehension;(c) the case law, especially R v Duff, R v Everitt and R v Te Tomo;3(d) the fact Ms Allen had no previous convictions, although she has had thebenefit of previous diversion;(e) the fact the offending could be partly attributed to Ms Allen's loyalty toMr Baker-Cleveland at the time;3 R v Duff HC Rotorua CRI-2009-063-6473, 9 December 2010; R v Everitt HC Whangarei CRI-2006-088-3601, 28 February 2007; and R v Te Tomo [2012] NZHC 71.(f) the difficult situation for Ms Allen growing up, including the criminalenvironment in which she was placed and the abusive relationship she wasin;(g) her young age of 21; and(h) her remorse and steps taken to improve her life since the offending,including her evidence (without independent verification) that she was nolonger using methamphetamine, that she was currently trying to findemployment and that she was undertaking studies to better herself.[20] The Judge then considered the consequences of a conviction. The maincontention was that a conviction would effect Ms Allen's prospects of futureemployment. Ms Allen was, at the time of sentencing, on a job seeker benefit. Hesaid she had a few days of employment experience working in hospitality, but that wasthe extent of her experience. Ms Allen did not have the benefit of extensive schoolingand did not achieve academic qualifications at school. She has since achieved somequalifications in hospitality.[21] The Judge accepted that it would be more difficult for Ms Allen to find workwith a criminal conviction. The Judge concluded that:[47] Significantly you are not charged with dishonestly offending yourself.Given your age and your otherwise unblemished record I would think it likelythat any reasonable and fair employer would be likely to make enquiry as tothe circumstances of the offending behind the conviction and not just dismissyour interests in employment outright. While I accept a conviction may makeit more difficult to get a foothold in the hospitality industry and retail industry,I consider it is just as likely that your limited schooling and qualifications,your time spent since leaving school not working and your limited workexperience and qualifications in hospitality will influence any prospectiveemployer equally, even a fair-minded employer who is appraised of thebackground of the conviction.[22] The Judge noted the importance of not depriving potential employers in theretail and hospitality industry relevant information. Although he said this was not aconviction for dishonesty, the Judge noted the offending did involve an attitudetowards authority that should not be disguised. The Judge noted Ms Allen wasdischarged from the LSV course and considered this tended to show she continues toharbour disrespect for authority.[23] Regarding her age, the Judge considered that she is a young adult, and theconsequences of a conviction were the same as he covered regarding her employment.Regarding Ms Allen's embarrassment, loss of pride, stigma and shame, the Judgeconsidered these feelings were not out of the ordinary for those who appear before thecourt.[24] Overall, the Judge considered the direct and indirect consequences of theconviction to be low to moderate at their very highest. He therefore considered thedirect and indirect consequences of a conviction were not out of all proportion to thegravity of the offending, and so declined the application.[25] For sentencing, the Judge considered an appropriate starting point was 12months' imprisonment, having regard to the cases listed above.4 He gave a 40 per centdiscount for Ms Allen's early guilty plea (taking into account the delays caused byCOVID-19), her lack of previous offending, her remorse and her youth. That left asentence of seven months' imprisonment, which the Judge commuted to a sentence ofthree and a half months' home detention. She was also to attend and complete anyrecommended intervention for alcohol and drug use to the satisfaction of a probationofficer.Principles on appeal[26] The Court may grant a discharge without conviction under s 106 of theSentencing Act 2002 only if it is satisfied, under s 107, that the direct and indirectconsequences of a conviction would be out of all proportion to the gravity of theoffending.5[27] Appeals against the proportionality test under s 107 are by way of rehearing,with the appellate Court making its own assessment of whether the criteria are4 Above n 3.5 Sentencing Act 2002, s 137.established.6 If a discharge without conviction should have been granted, then therewill have been a material error by the sentencing Judge, or a miscarriage of justice willhave occurred for any other reason, and so the appeal against conviction must beallowed.7[28] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied there hasbeen an error in the imposition of the sentence and that a different sentence should beimposed.8 As the Court of Appeal mentioned in Tutakangahau v R quoting the lowercourt's decision, a "court will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles".9 It is only appropriatefor this Court to intervene and substitute its own views if the sentence being appealedis "manifestly excessive" and not justified by the relevant sentencing principles.10SubmissionsAppellant's submissions[29] Ms White, in thorough and clear submissions, first noted that the convictionhad been recorded on Ms Allen's criminal record as "aggravated robbery", instead ofas "accessory after the fact to aggravated robbery". She had brought this to theattention of the District Court Registry and had been told this was how it had to berecorded. Ms White submitted, as the sentencing Judge would not have known thiswas how the charge would be reflected on her criminal record, the Judge did not haveregard to this when considering what the consequences of a conviction would be. Sheasked the Court to take steps to rectify what had occurred if Ms Allen's appeal againstthe refusal of a discharge was unsuccessful.[30] For the appeal against the refusal to grant a discharge without conviction, MsWhite contended the District Court Judge erred in assessing the gravity of the6 H v R [2012] NZCA 198 at [35]-[36].7 Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].8 Criminal Procedure Act, ss 250(2) and 250(3).9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].10 Ripia v R [2011] NZCA 101 at [15].offending by holding, contrary to the summary of facts, that Ms Allen providedassistance to Mr Baker-Cleveland for "up to nine days" to evade arrest. She submittedit was more accurate to characterise Ms Allen's offending as a one-off incident whenshe misled the Police over the phone. She submitted there was no evidence that, priorto the phone call from the Police, Ms Allen was aware of the aggravated robberies.She submitted Ms Allen should have been sentenced on the basis she knew only thatMr Baker-Cleveland was in trouble through cutting off his electronic-monitoringbracelet. She had not known over the relevant time that he had been involved in anaggravated robbery, an element the Crown would have had to prove for her to be guiltyas an accessory after the fact through any assistance she gave Mr Baker-Clevelandover that time. She also submitted there was no evidence that, in the time between thephone call from the Police and her arrest, Ms Allen had supported Mr Baker-Clevelandlogistically or financially. Rather, she had been with him simply as his fiancée. MsWhite submitted, given Ms Allen's background, it was not surprising that she trustedMr Baker-Cleveland and believed him when he said he had not been involved and wasonly the driver.[31] Ms White submitted, because Ms Allen's offending was a one-off incident, itwas inaccurate of the District Court Judge to characterise it as being at a similar levelto the offending in R v Everitt.11[32] Ms White also submitted the Judge erred in assessing the consequences of aconviction by:(a) finding that any reasonable and fair employer would be likely to makeenquiry as to the circumstances of the offending after seeing the convictionas the case law illustrates that any conviction (regardless of type) is likelyto disadvantage the defendant;12(b) placing inappropriate weight on the need to not disguise a disrespect ofauthority from future employers because that would not be apparent from11 R v Everitt, above n 3.12 O'Riley v Police HC Wellington CRI-2011-485-98, 25 November 2011 at [12]; and Parkinson vPolice [2015] NZHC 3272 at [38].simply seeing the conviction on her criminal record. Rather, an employerwould assume that she was involved in violent and dishonest offending;(c) proceeding on the basis that Ms Allen's limited schooling andqualifications, the time she spent not working, and her limited workexperience in hospitality and retail would limit her career prospects ratherthan a conviction. She submitted it took no account of the year she spentworking at a sports club and was inconsistent with observations made inother cases as to how convictions can have disproportionate effects onyoung people;13 and(d) disregarding the consequence of embarrassment, loss of pride, stigma andshame as "not something out of the ordinary", as there is no requirementfor the consequences to be out of the ordinary for them to be consideredon a discharge without conviction application.[33] Ms White also submitted, the fact Ms Allen's conviction would be recorded asaggravated robbery, without mentioning she was an accessory after the fact, shouldhave been factored into the consequences of conviction. Ms White submitted thiswould have further impact on Ms Allen because the crime of aggravated robbery issignificantly more damning, given its violent nature and the recent attention on youthcrime. This would also affect her in the unlikely event she was to appear before thecourt again. Ms White submitted that Ms Allen's rights under s 27 of the New ZealandBill of Rights Act 1990 are being breached with the inaccurate recording of herconviction.[34] For the proportionality assessment, Ms White submitted the consequences ofthe offending would be out of all proportion with the gravity of the offending. Shesubmitted the consequences of the offending would be severe, as Ms Allen wouldstruggle to get employment with employers dismissing her out of hand because of herconviction, particularly so if it continues to be labelled as an aggravated robbery. Inthe proportionality assessment, Ms White submitted the Court should have regard to13 Amstad v Police HC Auckland CRI-2011-404-161, 6 September 2011; and R v M [2014] NZHC1848 at [38].Ms Allen's upbringing where she grew up surrounded by crime, was abused and wasaddicted to methamphetamine from the ages of 16 to 21.[35] For the alternative appeal against sentence, Ms White submitted the DistrictCourt Judge erred in failing to consider the least restrictive sentence appropriate in thecircumstances, which she submitted should have been a sentence less restrictive thanhome detention. She submitted the Judge erred by being influenced by Crownsubmissions that "compelling circumstances" were required to drop the sentencefurther down the hierarchy to below home detention. She submitted this was incorrectin law.[36] Ms White submitted the factors raised regarding the discharge withoutconviction application were also relevant to Ms Allen's sentencing. She submittedthat imposing a community-based sentence would send a message to future employersabout the low gravity of this offending. She submitted an appropriate sentence wouldbe supervision combined with community work or community detention. Ms Allenhas already served two and a half months of her three-and-a-half-month sentence.Respondent's submissions[37] Mr Alloway, for the Crown, submitted the Judge was correct in holding thatMs Allen knew Mr Baker-Cleveland was involved in the aggravated robbery and shehelped him for a prolonged period. Mr Alloway pointed to evidence showing Ms Allenknew about the robbery after she was phoned by the Police. Regarding her assistance,Mr Alloway pointed to a message Ms Allen sent to one of the other offenders in therobbery on 15 June 2021 (before the Police call) that he should have dropped MrBaker-Cleveland off already and she would have gotten him out of town and he wouldbe fine. He also pointed out that she paid for a motel room on 6 July 2021 (after thePolice call). Mr Alloway cited these examples as providing evidence of Ms Allen'sintention to assist and encourage Mr Baker-Cleveland and her logistical and financialsupport respectively. He said the Judge did not deem the support to have been beforethe Police call, but a prolonged period of support after the Police call until Mr Baker-Cleveland was apprehended by the Police.[38] For the consequences of the conviction, Mr Alloway said, as Ms Allen did notcurrently have employment, the effect of a conviction would be that she would be lesslikely to be shortlisted for future roles. He submitted this was not out of the ordinaryand therefore at the lower end of the scale for the seriousness of the consequences. MrAlloway accepted that there are issues with how the conviction is currently recordedbut, if that was rectified, it would properly reflect Ms Allen's culpability.[39] Mr Alloway submitted, as the consequences of the conviction were at the lowerend of the scale, it was open to the Judge to conclude they were not out of allproportion to the low to medium gravity of the offending.[40] For the sentence appeal, Mr Alloway submitted it was open to the Judge toconclude that home detention was the least restrictive sentence available, especiallygiven his Honour considered it was important to denounce and deter the particularoffending. Mr Alloway said, while the Crown submitted there was no compellingreason to move away from home detention, that is not the test the Judge adopted insetting the sentence as home detention. The Judge considered that home detentionwas the least restrictive sentence available in the circumstances.[41] In reply, Ms White submitted the Crown could not, at sentencing, have reliedon statements outside the summary of facts referring to statements from the Court ofAppeal, emphasising that sentencing must proceed on the basis of the summary offacts or inferences grounded on established primary facts.14AnalysisThe incorrect recording of the conviction[42] I deal first with the way Ms Allen's conviction was recorded.[43] As it stands, any government department, including the Police, entitled toaccess to Ms Allen's criminal and traffic history would see the conviction recorded as14 R v Apostolakis (1997) 14 CRNZ 492 (CA); Pokai v R [2014] NZCA 356; and R v WhiunuiCA212/05, 9 November 2005."Aggravated Robbery (Together With Another Person) (Representative)". Hersentence is also set out.[44] The Crown agrees this is misleading and unfair to Ms Allen. Ms White alsoproperly conveyed a concern that other people could be similarly affected if what theDistrict Court did in this instance reflects what happens generally when a person ischarged with being an accessory after the fact to another offence.[45] Ms White had raised the issue with a person at the District Court Registry whoresponded in a way that indicated she wanted to help and had sought advice fromsomeone more senior over the issue. She responded:Although the charge was amended from "not representative" to"representative", and from maximum penalty of 14 years to 5 years, thecorrect code was used and therefore this was never changed. The offence codeis for Agg Rob but this covers and includes as an accessory.She referred to the way the charge had been worded on the original chargingdocument.[46] Mr Alloway suggested it seemed there was a systemic problem within theRegistry and the conviction had been wrongly recorded because the Ministry did nothave a way of coding the particular offence otherwise.[47] It may be this was not the reason for the error. It may have resulted from theway the offence was described on the initial charging document. There may not besuch an error in other circumstances when a person has been charged as being anaccessory after the fact.[48] Whatever the reason, the conviction has been recorded in a way which isinaccurate, seriously unfair and with the potential to disadvantage Ms Allen in anydealings she might have with government departments or other agencies that haveaccess to her criminal record. The Crown said the appropriate way to record theconviction would be "Accessory after the fact (aggravated robbery)".[49] A conviction should not be recorded wrongly in the way that occurred in thiscase because of some coding limitation in the platform the court uses for doing this, ifthat was the reason for the error. The issue is a serious one. Accordingly, I will drawthis to the attention of the Chief District Court Judge so he can bring it to the attentionof the appropriate people within the Ministry of Justice.[50] The Court has been advised that the way an offence and conviction has beenrecorded depends, at least in part, on how the offence has been described by the Police.The Court has been told the coding system in the District Court would have allowedthis conviction to be recorded as "Accessory after the fact (general)".[51] I thus deal with the issues on this appeal on the basis that, if Ms Allen remainsconvicted, her record will show her to have a conviction for accessory after the fact(general).The gravity of the offending and the Judge's reference to information on Ms Allen'scell phone and of a call she had made[52] Ms Allen pleaded guilty to the charge of accessory after the fact (aggravatedrobbery). It was apparent from the wording of the charge and the summary of factsthat, with her plea of guilty, she was admitting to having committed that offence whenshe lied to the Police about where she and Mr Baker-Cleveland were on 24 June 2021.For her to be guilty of that offence, she had to be admitting that she knew at that timeMr Baker-Cleveland had been involved in an aggravated robbery. For her to claimshe had not believed him to have been involved in the days afterwards, before herarrest, was inconsistent with her guilty plea.[53] I next consider the gravity of the offending, a matter relevant to both dischargewithout conviction considerations and the ultimate sentence.[54] In the circumstances of this case, I do not ignore the evidence put before theJudge as to the communications on Ms Allen's cell phone as provided to the Courtwith the Crown's submissions for sentencing. Ms White pointed to authority wherethe courts have held, where sentencing is to proceed on an agreed summary of facts,the Court cannot depart from that summary of facts for sentencing nor on appeal.15[55] Lang J in Waiapu v R, referring to authorities, held that where a Judge wantsto take into account an aggravating factor not apparent from the summary of facts orrelied upon by the prosecution then the defendant must have the opportunity to contestthe fact at a disputed facts hearing if they dispute the fact.16[56] In Archer v R, the Court of Appeal discussed the factual basis on which asentencing must proceed.17 The Court said:[15] In this regime, it is an essential part of counsel's responsibilities toidentify disputed facts that may be thought material, to discuss them with thecourt and to call for a hearing if necessary. If counsel has failed to act at thetime, it may not be easy on appeal to show that something has gone wrong.[57] In applications for a discharge without conviction, defence counsel oftenprovide additional details as to the culpability of the defendant without these beingcontained in a summary of facts. Where these are contested by the Crown, this couldrequire a disputed facts hearing.18[58] There were disputed facts in this case in the sense that Ms Allen contended shedid not have knowledge of the aggravated robberies prior to being told by Police andshe did not believe Mr Baker-Cleveland to be involved until after they were arrested.This information was not in the summary of facts and was from her affirmation. Thesewere relevant and important factors in determining the gravity of her offendingrelevant to an application for a discharge without conviction. It was appropriate forthe Crown to respond to these matters insofar as they relate to the discharge withoutconviction application and sentencing. They did that by putting before the Courtinformation that was on Ms Allen's cell phone and thus information she knew about,the accuracy of which she could verify.15 Above n 14.16 Waiapu v R, [2016] NZHC 2491, [2016] NZAR 1561 at [14]. Emphasis added.17 Archer v R [2017] NZCA 52 at [9]−[15].18 Cowley v R [2020] NZHC 638 at [30].[59] Given the differences between what Ms Allen said in her affirmation as to herbeliefs at the time and inferences that could be drawn from the information on her cellphone, there could have been a disputed facts hearing under s 24 of the SentencingAct. This was not suggested or requested by either Ms Allen or the Crown.[60] The reality of sentencing in the District Court has to be recognised. It is notunusual for both the Police and the defence to recognise that certain disputes can beresolved without the delay and burden of a separate disputed facts hearing.[61] In this case, it is hard to see how there could have been any dispute that therelevant communications had been made to Ms Allen and her knowledge and actionswould have been consistent with what was recorded on her phone. It was notsuggested by her counsel on appeal that there was anything inaccurate in theinformation put before the Court in this way. As such, I consider there was nounfairness in the Crown asking the sentencing Judge to draw certain inferences fromthat information, in the same way a sentencing Judge is entitled to do based on thesummary of facts.[62] The ultimate test on appeal against conviction is whether there was amiscarriage of justice; for an appeal against sentence, whether there was an error inthe sentence imposed and whether a different sentence should be imposed. In thecircumstances of this case, the Crown was responding to information provided by MsAllen that went beyond the summary of facts. I do not consider a different sentenceshould be imposed because information on Ms Allen's cell phone was considered bythe sentencing Judge, or that there was a miscarriage of justice on that basis.[63] As referred to by Mr Alloway, but not included in the information Policegleaned from searching Ms Allen's phone, on 15 June 2021, Ms Allen texted the co-offender saying he should have dropped "him" off and she would have got "him" outof town.[64] On 17 June 2021, Ms Allen received Snapchats from Mr Baker-Clevelandshowing him in the company of another party involved in the aggravated robberies.In that video Mr Baker-Cleveland said "I don't know if you're looking at this now orwhen we're in the pen, but I love you and we'll get through this together and thanksfor being there for me and the bro ".[65] On 22 June 2021, there was a screenshot of a bank transfer of $40 from MsAllen to Mr Baker-Cleveland's sister.[66] On 24 June 2021, there was the phone call from the Police in which Ms Allenlied about where they were.[67] On 25 June 2021, Mr Baker-Cleveland's sister messages Ms Allen on Snapchatin terms that indicate they have worked together to make sure arrangements have beenmade so they and Mr Baker-Cleveland could stay in a motel.[68] On 26 June 2021, there was a communication from someone else referring tosome person or place having been raided. In the course of that exchange, Ms Allentold that other person about what she had told the Police on 24 June 2021. The otherperson messaged "tell him [obviously Mr Baker-Cleveland] he an ass for robbing mydairy that lady used to tik me ciggys".[69] On 29 June 2021, there were messages from Mr Baker-Cleveland using MsAllen's account which show he was communicating with someone about and referringto one of the aggravated robbery co-offenders being in jail.[70] On 6 July 2021, there was a message from Ms Allen to Mr Baker-Cleveland'ssister saying "paid for the room". On 6 July 2021, Ms Allen and Mr Baker-Clevelandwere arrested.[71] In his decision, the Judge referred to several of these communications and saidthey cut against Ms Allen's comments that she had no idea Mr Baker-Cleveland wasinvolved in the robberies. There was no error in that statement.[72] I am also not satisfied from the statements made in Ms Allen's affirmation thatshe could have naively thought Mr Baker-Cleveland had not been involved in therobbery even after the Police called and spoke to her on 24 June 2021. Ms Allen said,after that call, she challenged Mr Baker-Cleveland about it and he told her he had beena driver for his friends, "but that was it and he was not involved". I consider, givenwhat Ms Allen said of her background, she would have known that, if he assisted theothers in that way, then he was involved. In her affirmation she said, referring to herconversation with the Police officer on 24 June 2021, she had been annoyed and she"told the officer he couldn't charge me, he could only do that if I was with Ethan [MrBaker-Cleveland] if he was involved at all".[73] In her affirmation, she described the difficulties she had after she was 15, in aprevious relationship that continued on and off for six years. She said how that personwas into stealing cars and then later people's tools and other stuff. She said, around2020, this person got her to pawn some items at shops for him, this had led to her beingcharged with receiving for which she received diversion, it would seem in June 2021.[74] In response to my putting some of these matters to Ms White, counsel acceptedMs Allen could have been wilfully blind to Mr Baker-Cleveland's involvement withthe aggravated robbery. The Police had provided the Judge with information that MsAllen had been involved in the arrangements for them to stay at a motel, and had giventhe sister $40 on 22 June 2021. It would therefore appear that Ms Allen provided someassistance for Mr Baker-Cleveland while he was evading the Police.[75] On the other hand, Ms Allen did not have a history of serious criminalconvictions. The initial pre-sentence report prepared for her on 15 November 2021referred to her then boyfriend, Mr Baker-Cleveland, as a: prolific violence offender, who is currently a sentenced prisoner and facinga raft of serious charges. He is unlikely to be a positive influence on Ms Allenin terms of offending risk.[76] That report said Ms Allen had assisted Mr Baker-Cleveland out of loyalty tohim.[77] In her affirmation, Ms Allen said she was around crime from a young agebecause of her family (not her stepfather who she regards as her father, or his partner).[78] In her affirmation, Ms Allen said, after Mr Baker-Cleveland cut off his EMbracelet, they stayed at his mother's place for a while and, while there, becameengaged. The mother had wanted them all to go to Hanmer Springs on a camping tripto celebrate. His mother must have known her son had cut off his EM bracelet so itwould be reasonable to infer she had promoted the idea of her son leaving town at atime the Police were looking for him. The actual practical assistance Ms Allen mayhave given Mr Baker-Cleveland to evade the Police over a longer period was likelylimited.[79] I do not however consider there was any material error in the Judge proceedingon the basis that Ms Allen had the knowledge and acted so as to be an accessory afterthe fact to aggravated robbery for a period that went beyond just the lie she told thePolice on 24 June 2021.[80] The Judge said Ms Allen had known from social media communications thatMr Baker-Cleveland was in trouble of some kind from 15 June 2021 and had expresseda willingness at that time to help him avoid apprehension. The Judge then referred tothe circumstances in other cases and the starting points adopted in those cases. Hereferred to Ms Allen's personal circumstances and background. He said, taking allthose factors into account, he assessed the overall gravity of the offending to be lowto moderate. It is not suggested there was any error in that regard.The consequences of conviction[81] As to the s 106 application, the Judge then considered what the consequencesof a conviction would be for Ms Allen. The Judge accepted there was a real andappreciable risk that a conviction would make it more difficult for Ms Allen to findemployment, as he said is the case for all persons who come before the Court chargedwith criminal offending.[82] There are several ways in which my assessment, as to what the consequencesof a conviction for Ms Allen are likely to be, would differ from that of the DistrictCourt Judge. At two points in his assessment, the Judge referred to the fact this wouldnot be a conviction for dishonesty. He said, given Ms Allen's age and her "otherwiseunblemished record", he thought it likely any reasonable and fair employer would belikely to make enquiries as to the circumstances of the offending behind the convictionand not just dismiss outright Ms Allen's interests in employment.[83] I consider a conviction for accessory after the fact to aggravated robbery wouldbe just as damning or prejudicial as a dishonesty conviction as far as futureemployment prospects are concerned, even to a fair-minded employer. Robberyinvolves theft with violence or the threat of violence so it does involve dishonesty.19Aggravated robbery would be commonly understood by many in the community,including prospective employers, as being more serious again. The potential sentencefor aggravated robbery is 14 years which is significantly more than the potentialsentence for theft or most offences involving fraud.[84] Ms Allen's criminal record will be amended to show she has a conviction for"accessory after the fact (general)", so it will not be immediately clear to prospectiveemployers that she was an accessory after the fact to aggravated robbery. However, ifany employer makes further enquiries, then Ms Allen will have to disclose the detailsof her conviction, including the fact it related to her helping her then boyfriend whowas on the run after an aggravated robbery.[85] As Ms White mentioned, there has been judicial recognition of the way aconviction will affect employment prospects of young people. Ms Allen's lack ofqualifications and limited work experience since school will create difficulties for herin obtaining employment, but that does not mean the consequences of a convictionwill be less serious for her than someone who has been working or who has attainedfurther qualifications.[86] There was evidence from Ms Allen, but also from others, to indicate Ms Allenis now committed to making changes in her life which should lead to improvedemployment prospects. In that sense, she is at the crossroads so the consequences ofa conviction as far as future employment prospects are concerned will be significant.The Judge acknowledged that a conviction will have those consequences. Where anemployer has to consider a number of applicants for a position, it would not be unusualfor that employer to whittle down the number of applicants they have to consider byinitially asking all applicants to disclose whether they have a criminal conviction. Itwould not be unusual for the employer to then cull out those with a conviction without19 Crimes Act, s 234.any further consideration of the actual circumstances of that offending or matters thatmight have been positive for an applicant.[87] The way in which I would assess the consequences of a conviction does thusdiffer from that of the sentencing Judge. Despite that, my ultimate conclusion wouldbe the same.[88] I have considered carefully the serious nature of the charge and also the seriousoffending Mr Baker-Cleveland had been involved in. Ms Allen lied to the Police tohelp Mr Baker-Cleveland evade the Police, knowing he was, at the very least,suspected of involvement in a serious aggravated robbery. She supported him whilehe was on the run, even if this was primarily through the emotional support sheprovided over that time.[89] Ms Allen has not satisfied me, as she did not satisfy the sentencing Judge, thatthe direct and indirect consequences of a conviction would be out of all proportion tothe gravity of the offence.[90] Ms Allen's appeal, insofar as it is against the refusal of a discharge withoutconviction, is dismissed.The appeal against sentence[91] I now deal with the appeal against sentence.[92] At the outset of his sentencing remarks, the Judge did not expressly say heconsidered home detention the least restrictive sentence but that does not mean he didnot take it into account. He said a rehabilitative element of sentence would beappropriate. He gave Ms Allen credit for having no previous history of offending, herappearing to be remorseful, what she had said about her difficult life in the past andthe steps she was now taking to improve herself. He noted the support she had fromher family and her age being 21. On account of overall mitigating features, the Judgereduced what he had found to be an appropriate starting point sentence by 40 per cent,or five months. That then led to the adjusted starting point of seven months'imprisonment and then the three and a half months' home detention.[93] I differ from the Judge however in that I attach more significance to thechanges Ms Allen said she was making in her life. The Judge was probably a littlesceptical about this given the way the LSV course had ended for Ms Allen and the wayinformation on her cell phone rather undermined her assertion as to her belief that MrBaker-Cleveland had not been involved in a robbery.[94] Nevertheless, Ms Allen's affirmation before the scheduled November 2021sentencing explained in detail the environment in which she had been brought up andthe way ultimately it had led to her leaving school at a very young age withoutqualifications. The information she provided as to the lifestyle that followed and theassociations she then made indicate she would have been seriously at risk of becominginvolved in criminal offending. She mentioned in her affirmation the way she hadbecome involved in using methamphetamine, an admission she did not have to makebut which tends to suggest that the picture she painted of her background was likelyhonest. There was information before the Court which indicated that she recognisedshe was at the crossroads.[95] She said in 2021 her family stepped in. They said she had to choose, "either itwas meth or them". She said she chose her family. As the Judge said, she has positivesupport from her family. This would seem to be primarily from her stepfather whohas been in her life since she was five years old. She said he is a good influence inher life. Before the Judge was what reads as a thoughtful and considered letter fromher stepfather's partner. It indicated how she and Ms Allen's stepfather had insightinto how Ms Allen's life had gone off the rails and were, in practical ways, helping herto do what she needed to do "to get a job and start taking responsibility for herself".Her stepfather's partner said in a letter of 2 November 2021 that Ms Allen: has made great progress over the last few months and I have seen a realchange in her. I never thought I'd be writing this and saying that I now feelcomfortable leaving my special needs daughter with her while I attendappointments. I would never have said that 6 months ago.[96] Although Ms Allen was released from the LSV course, the letter from theregistered social worker was not entirely negative. Her letter of 18 February 2022began:You attended LSV S01/22 and completed 19 days of the 41 day course. Yourtime at LSV has been a challenging journey for yourself and there were timeswhen you wished to submit a self-release form, but you made the decision towork through some of the challenges and were open to finding ways of dealingwith frustrations (time away from the situation, talking to staff).Unfortunately you were involved in an incident which has resulted in youbeing released on Disciplinary grounds.[97] The pre-sentence report of 8 March 2022 referred to that social worker's report,information obtained from Ms Allen's stepfather and partner, and their advice thatthere had been a noticeable change in Ms Allen's attitude and motivation levels sinceher return from LSV. They confirmed that Ms Allen had taken the initiative to enrolherself in a business administration course at Polytech and appeared to be more future-focused. They were satisfied that her relationship with Mr Baker-Cleveland was overand confirmed they had no current concerns regarding her other associates or hersubstance use.[98] The information Probation obtained from Ms Allen's stepfather and his partnerwas consistent with a letter they had provided for the Court which was presented withMs Allen's supplementary submission of 10 June 2022. Given their awareness of whyshe was before the Court, the relationships she had been previously involved in, andthe ultimatum they must have given Ms Allen as to her drug use, it is significant that,in their letter, they were able to say:We are both [sic] of the steps that she has made so far and we are both lookingforward to seeing her continue on her development[.]We are very proud of her[.][99] There was also a letter dated 6 January 2022 from her Case Manager at theMinistry of Social Development confirming she had been working with Ms Allen forthe past six months to help her find her pathway into further education, training andemployment. In that letter she said she had been impressed with Ms Allen's attitudeand "how she is now taking responsibility and is making positive choices to changeher life".[100] There was a letter form the Open Polytechnic confirming Ms Allen's enrolmentin a Business Administration course that was to begin on 14 March 2022, ending on31 July 2022.[101] In the District Court, Ms Allen's counsel had sought a sentence of supervisionperhaps coupled with community work, if the application for discharge was notsuccessful.[102] Despite the seriousness of the charge, in the particular circumstances of thisdefendant, the rehabilitative approach should have been given priority. The Judgeagreed that approach was appropriate. Home detention is an alternative to prison.Here, a lesser restrictive sentence should have been imposed. That could have been asentence of supervision. That sentence would have provided Ms Allen with the regularoversight of contact with a probation officer which would have been of assistance toher in making the progress she said she was committed to.[103] With supervision there could also have been the requirement for her to engagein particular rehabilitative programmes which Probation assessed would be beneficialto her. It may well have been appropriate for that to be coupled with community workas a way of holding her accountable for the harm she had done through making it moredifficult for the Police to apprehend Mr Baker-Cleveland for the offending which sheknew he had been involved in. Ms Allen has however now been under the significantconstraints of a home detention sentence for two and a half months.[104] I consider the imposition of that lesser sentence would also have been ofparticular assistance to Ms Allen and her rehabilitation because it would havemitigated the consequences of a conviction as far as future employment prospects areconcerned. A sentence of supervision would indicate to a prospective employer thatthe offending may not have been as serious as might be assumed with just thedescription of the conviction as accessory after the fact (general). Seeing the sentenceof supervision, a prospective employer might well be encouraged to make furtherenquiries. Through that, it is more likely Ms Allen would have the opportunity toshow she has made positive changes in her life so that she will be able to make apositive contribution as an employee if given the chance to do so.[105] For all the reasons discussed, I allow Ms Allen's appeal against the sentence ofhome detention. That sentence is quashed. Ms Allen is sentenced to supervision forone year.[106] It is a condition of that sentence that Ms Allen attend and complete anyrecommended intervention for alcohol and drug use to the satisfaction of a probationofficer or any other programme Probation considers will assist her in obtainingemployment and avoiding the sort of associations which led to this offending.[107] It is also to be a special condition of that sentence that Ms Allen reside at anaddress approved by her probation officer. Ms Allen's stepfather and his partner haveclearly provided support for her in changing her lifestyle. She resided at their addresswhile on home detention. I consider without their support there is a risk Ms Allen willstart to take drugs again and reoffend. Ms Allen has, herself, recognised that thepeople with whom she has associated in the past have put her at risk of offending.Requiring her to reside at an address approved by her probation officer should reducethe potential for her to renew or embark on the sort of associations that led to thisoffending and the earlier drug taking that she acknowledged in her affirmation.[108] I direct the Registrar of the District Court to correct the Court record so thatMs Allen's conviction is recorded as being accessory after the fact (general).[109] Ms Allen must contact Community Corrections within 48 hours of receivingthis decision.Solicitors:Public Defence Service, ChristchurchRaymond Donnelly & Co., Christchurch.