KING v NEW ZEALAND POLICE [2021] NZHC 1652

KING v NEW ZEALAND POLICE [2021] NZHC 1652 [6 July 2021]ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES,OCCUPATIONS OR IDENTIFYING PARTICULARS OFWITNESS/VICTIM/CONNECTED PERSONS PURSUANT TO S 202CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360349.htmlIN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-000251[2021] NZHC 1652BETWEEN SOPHIE KINGAppellantAND NEW ZEALAND POLICERespondentHearing: 5 July 2021Appearances: A Wei for AppellantA Mackenzie for RespondentJudgment: 6 July 2021JUDGMENT OF VENNING JAppeal against convictionThis judgment was delivered by me on 6 July 2021 at 11.30 am,Registrar/Deputy RegistrarDateSolicitors: Meredith Connell, AucklandCounsel: A Wei, Auckland[1] Sophie King pleaded guilty to two charges of accessing a computer system fordishonest purposes.[2] Judge S J Maude declined her application for a discharge without convictionand imposed a sentence of 18 months' intensive supervision.1 In addition the Judgedirected a notional harm repayment of $500 to each of the two victims of heroffending.[3] Ms King appeals against the Judge's refusal to discharge her withoutconviction.[4] At the time of the offending Ms King was a teacher at an Intermediate Schoolin the North Island. By deception she presented herself as a male on a social mediaplatform to two fellow female teachers. Through the fictitious profile Ms Kingengaged with the victims and built online romantic relationships. Ms King lured thefirst victim B into sending her a number of online photos of herself naked and seminaked. B also sent photos of her semi naked niece to Ms King. The offending inrelation to B involved contact over a period of 15 months. Ms King's involvementwith the second victim was of a similar nature but shorter lived. It was for threemonths.[5] During the contact with B Ms King sent photographs of a male with his chestand penis exposed (but not showing any photos of the face). The photos were croppedversions of an Australia rugby league player. Ms King told both victims that she knewthe fictitious person and effectively vouched for him.[6] Until she discovered the truth, Ms B believed she was in a relationship withthe online character created by Ms King. Both victims have suffered panic attacks andongoing anxiety. They regarded Ms King as a friend. The offending only ceased whenMs B's family became involved. Ultimately B reported it to Netsafe and the school atwhich they all worked.1 NZ Police v King [2021] NZDC 8425.Judgment[7] In declining the application for discharge without conviction, the Judgeconsidered that, in light of the breaches of trust and the foreseeable impact on thevictims, the starting level for the gravity of the offence was upper moderate. The Judgereduced that down to moderate after taking account of the psychological profile whichnoted the abuse Ms King had herself suffered, her dissociative identity disorder, andthe steps she was taking to address her issues.[8] In relation to the consequences of conviction the Judge noted that a convictionwould likely impact Ms King's employability as a teacher. The Judge also consideredthe impact on her ability to travel to Australia in the future. Having regard to MsKing's personal circumstances the Judge regarded the impact of a conviction for herwas moderate. On that basis the Judge did not consider the consequences of convictionwould be out of all proportion to the gravity of the offending.[9] If he was wrong in that assessment the Judge observed that he would havestruggled to exercise any discretion in favour of a discharge without conviction giventhe offending had been generated from a school, had involved fellow teachers and hadelicited partly naked pictures of one of Ms B's nieces.[10] For those reasons the Judge declined the application and convicted Ms King.Appeal points[11] In support of the appeal against conviction counsel submits the District CourtJudge erred in assessing the overall gravity of the offending, particularly by placinginsufficient weight on the mitigating factors in assessing that gravity. Counselacknowledged the offences were moderately serious offences given the number ofaggravating features of the offending. However, counsel submitted the Judge failedto give adequate weight to the fact the appellant's offending was connected and relatedto her mental illness (the dissociative identity disorder). Given that disorder counselsubmitted the Judge was wrong to observe that the foreseeable impact on the victimswas an aggravating feature of the offending.[12] Counsel referred to the decisions of Nelson v R; Shailer v R; and Orchard v Rwhere the Court of Appeal had recognised that mental disorder may mitigate moralfault and accordingly criminal liability.2[13] In relation to personal mitigating factors counsel emphasised that Ms King hadno previous convictions and has taken steps to address the underlying causes. Inparticular she has referred herself to a registered psychotherapist and continued otherrehabilitative work. She has, on his calculation, attended over 60 counselling sessions.[14] Counsel noted the consequences to Ms King involved losing well paid and fulltime employment as a teacher. She has agreed with the Teaching Council that shewould not teach and has relocated from where the offending occurred to Auckland,which was a major disconnection for her.[15] Counsel also noted Ms King's youth at the time. She was only 23 to 24 at thetime of the offending.[16] Finally, despite the fact she has limited income she has paid all reparation foremotional harm.[17] For all those reasons and particularly having regard to the causative effect ofMs King's dissociative identity disorder at the time of the offending counsel submittedthe gravity of the offending should be assessed as low to moderate.[18] As to the consequences, while accepting that it is not the function of the Courtto pre-empt decisions by employers about the suitability of prospective employees,counsel submitted it was reasonably foreseeable that a conviction for assessingcomputer systems for dishonest purposes would be significantly prejudicial for MsKing's goal of practising as a teacher. Job applications for teaching positions requiredisclosure of criminal convictions. Counsel submitted that other potential employerswould also be very likely to exclude Ms King from consideration because of theconvictions in this case. The reference to dishonest purposes made the convictionsmore serious than a drink driving conviction, for instance.2 Nelson v R [2014] NZCA 121; Shailer v R [2017] NZCA 38; and Orchard v R [2019] NZCA 529.[19] Next, counsel referred to the effect on Ms King's ability to travel and notedthat any criminal conviction must be declared. She may be considered a "behaviourconcern non-citizen" by Australian Immigration authorities and in that case, theconsequences could be severe. She may need to obtain a character waiver and if shecould not, then her ability to visit her biological father in Australia will be prejudiced.[20] Finally, in relation to the effect on her mental health, counsel referred to theconclusion by Ms Deane, Ms King's supervising psychiatrist, that a conviction wouldbe detrimental to Ms King's mental health and impede her recovery.[21] In summary Mr Wei submitted that the consequences of conviction faroutweighed the seriousness of the offending. He submitted that standing back andlooking at the matter overall the appellant has already faced major adverseconsequences as a result of her actions. She has suffered from anxiety and low mood,financial hardship, and lost meaningful employment. Despite that, she has a positivewell-structured lifestyle and a bright future. In all the circumstances counselsubmitted the appeal should be allowed.Principles[22] An appeal against refusal to grant a discharge without conviction is acomposite appeal against both conviction and sentence.3[23] As an appeal against conviction the Court must be satisfied a miscarriage ofjustice has occurred.4 In the context of a discharge without conviction this means amaterial error or that the Judge erred in applying the principles for discharging anoffender without conviction.5[24] The considerations under s 107 are:(a) the gravity of the offending;3 Jackson v R [2016] NZCA 627 at [7]–[8].4 Criminal Procedure Act 2011, s 232(2) and (3).5 Jackson v R, above n 3, at [12].(b) the direct and indirect consequences of a conviction; and(c) whether those consequences are out of all proportion to the gravity ofthe offending.[25] In Z v R the Court of Appeal clarified the approach to be taken on an application(or appeal) for a discharge without conviction.6 When considering the gravity of theoffence, the Court should consider all aggravating and mitigating factors relating tothe offence and the offender. The Court should then consider the direct and indirectconsequences of conviction and consider whether those consequences are out of allproportion to the gravity of the offence. If they are out of all proportion then the Courtmust consider the exercise of its discretion.Gravity of the offending[26] Offending under s 249 can vary significantly.7 The relevant factors in terms ofthe seriousness of the offending in this case are:(a) the length of time of the offending against victim B in particularcontinued;(b) the breach of trust – the victims were colleagues of Ms King whoregarded themselves as her friends. She used her relationship with themto further her offending;(c) the planning that was involved in the offending;(d) the offending was against two victims; and(e) the impact on the victims.[27] Before taking account of the appellant's personal circumstances that wouldhave placed this type of offending to be more than moderate. But I accept it would6 Z v R [2012] NZCA 599.7 Dixson v R [2015] NZSC 147; and Watchorn v R [2014] NZCA 493.not be regarded as high. On a scale of one to nine where one is low and nine is highit would be at about six to seven.[28] I agree with the submissions for the Crown that the Judge then properlyconsidered all relevant mitigating factors in terms of Ms King's personal mitigatingcircumstances, and in particular her psychological profile.[29] I also agree that, in this case there is no room for a separate consideration ofthe appellant's age. She was 23 and 24 during the course of the offending. Theoffending was not a spontaneous one-off act with no thought as to its consequencesbecause of youthful rashness. The offending continued over a lengthy period of timeand involved a significant number of messages.[30] Taking those personal mitigating factors into account I would assess the gravityof the offending at low to moderate but not in the range of mild offending as suggestedby Mr Wei. On the above scale the appellant's personal mitigating factors wouldreduce it to four to five.Consequences[31] The Court of Appeal have recently discussed the relevant principles in relationto consequences in Sok v R.8 The Court said:9Real and appreciable risk that a consequence will happen[41] There is no onus on the offender to establish that thedisproportionality test has been met; the Court must be "satisfied", meaningthat it has made up its mind. But the offender must be prepared to identifyconsequences of conviction and point to evidence of a "real and appreciablerisk" that the consequence will happen. That standard recognises that theCourt is gauging the likelihood of a future event, something that willhappen following conviction. A court may require evidence of matters ofwhich it is not prepared to take judicial notice. Where a consequence restson a matter of present fact, such as a requirement that a conviction bedisclosed, proof of that fact may be required under s 24 of the SentencingAct.8 Sok v R [2021] NZCA 252.9 (footnotes omitted).Causation[42] The legislation does not confer a general power of dispensation.Under s 107 a court may not discharge an offender unless a given outcomeis a consequence of conviction. The consequence may be "direct orindirect". [43] The language of indirect causation signifies that the jurisdiction todischarge extends to cases where the happening of a given consequencemay require some intervening event or action, such as the decision of athird party in which the conviction is relevant: by way of example,decisions of a prospective employer or a disciplinary or qualificationsauthority or an immigration officer.[44] To state that causation may be indirect is to establish that theconviction need only be one of several conditions necessary to make theconsequence happen. It does not follow that the legislation admits anyconnection between conviction and consequence, however weak orremote. Nor is a but-for connection necessarily sufficient, as this case andothers demonstrate. Causation is a question of substance and degree,requiring judicial judgment. Like disproportionality, causation is anevaluative rather than a discretionary consideration.[32] In Ms King's case the consequences fall into three categories:(a) first, the impact on her future employment as a teacher;(b) second, her ability to travel, particularly to Australia to see her father;and(c) third, the impact on her rehabilitation, particularly the impact on hermental health.[33] In relation to Ms King's ability to obtain employment as a teacher, Mr Weiconfirmed that the Teaching Council is aware of her offending. Ms King has agreedwith the Council to cease teaching until the determination of these proceedings.Actually her psychotherapist reports that Ms King hopes to return once she hasregained her mental health. But any application for a teaching position in the futurewill require her to disclose the charges as Police vetting discloses not only criminalconvictions but any interaction with Police, whether it resulted in a criminal convictionor not.1010 Employment New Zealand, "Criminal record checks",https://www.employment.govt.nz/workplace-policies/tests-and-checks/criminal-record-checks/accessed 29 June 2021. I agree with that.[34] On that basis it is Ms King's actions rather than any conviction that will be theissue for her in relation to further future applications to the Teaching Council forregistration and for a teaching position at any future school.[35] Further, it has to be said that this is the type of offending one would expect aprincipal and school should know about when deciding whether to employ Ms King.The offending occurred while she was employed as a teacher and was committedagainst colleagues at her school. Whether she has a conviction a major issue for anyemployer in the future will be whether she has taken sufficient steps to address hercondition which she says led to the offending.[36] Similar considerations arise as to the issue Mr Wei raised in relation toemployment generally.[37] In relation to travel counsel has referred to the Australian Immigrationinformation. The information provided confirms that a criminal conviction may resultin a person being deemed a "behaviour concern non-citizen" and accordingly denieda visa but the matter is discretionary. There is no direct evidence before the Court asto the likelihood of refusal in Ms King's circumstances. As the Court of Appealobserved in Sok v R legislative policy decisions and statutory powers and process, bethey of New Zealand Immigration or, in this case Australian Immigration, may notonly establish consequences for an offender but also determine whether thosecircumstances are the product of a conviction and influence the proportionalityassessment. The offending is a fact that has been admitted or proved and the Court'sview of its gravity will be a matter of record. In such cases courts usually find anyoutcome a consequence of the offending behaviour rather than the conviction.11[38] A principal concern for the Court is whether a conviction might impactadversely on Ms King's mental health. The Judge took comfort from the fact that MsKing's medication was addressing the issue and that lessened the impact of theconsequence of the conviction. Mr Wei criticised that assessment. However, MsKing's own affidavit confirms that she has benefitted from her psychotherapy. MsKing has committed to receiving treatment for her mental health issues. She is11 Sok v R, above n 8, at [47].confident she has been equipped with sufficient skills and tools to manage herself.While her psychotherapist considers a conviction will be detrimental, that will betemporary and importantly Ms King has appropriate support to enable her to cope.Further, as Mr Mackenzie observed, Ms King has had time to adjust to the likelihoodof a conviction.[39] It is also relevant that in assessing the gravity of the offending itself the Courthas already taken into account Ms King's mental state to a degree in reducing herculpability for the offending. As the Court of Appeal in Z v R observed, that all therelevant factors are considered in the s 107 context, the precise point at which they areconsidered is unlikely to be material.12 However, they should not be double-counted.[40] Taken overall the consequences of a conviction, as opposed to theconsequences of the offending are properly assessed at somewhat less than moderate.On the scale of one to nine I would rate them at four to five also.Summary[41] Having regard to the gravity of the offending and the consequences of theoffending, it cannot be said that, in the circumstances of this case the consequences ofconviction are out of all proportion to the gravity of the offending. If not exactly eventhey are very closely balanced. It cannot be said that the consequences are out of allproportion to the gravity of the offending13 as the wording of s 107 requires.Result[42] The appellant fails to satisfy the Court that there was a material error in theJudge's reasoning or conclusion that the consequences of conviction are not out of allproportion to the gravity of the offending in this case.[43] There is no need to consider the issue of discretion in the circumstances.12 Z v R, above n 6, at [28].13 R v Smyth [2017] NZCA 530 at [12].[44] The appeal is dismissed.__________________________Venning J