Former Green Party MP, Golriz Ghahraman, pleaded guilty to two charges of theft over $1,000, one of theft between $500 and $1,000 and one of theft under $500 for theft of clothing on four separate occasions to a total value of just under $9,000. These thefts were committed while she was a sitting Member of Parliament.
She appealed the decision of Judge Jelaš in the District Court to decline her application for a discharge without conviction. Justice Venning in the High Court dismissed the appeal in a decision released on 17 October 2024.
Apart from the obvious wider interest, there are two interesting legal aspects of this decision:
- The discussion of the evidence that is required of causal impact of mental health on the offending to establish reduced culpability; and
- The Court’s consideration of the recent Supreme Court decision of Bolea v R in this context.
The judgment is below:
Discharge without conviction
A discharge without conviction under sections 106 and 107 of the Sentencing Act 2002 is a sentencing option that allows a defendant to avoid the entry of a criminal conviction on their record. It is deemed to be an acquittal.
Section 107 formulates a balancing test in which the following questions are asked:
- What is the gravity of the offending?
- What are the direct and indirect consequences of conviction?
- Are the consequences out of all proportion to the gravity of the offending?
If the consequences are found to be out of all proportion to the gravity of the offending, the sentencing Judge has the discretion to grant a discharge without conviction.
Impact of Mental Health on Culpability and Gravity of the Offending
The Judge in the District Court did not accept the submission on behalf of Ms Ghahraman that her poor mental health was a substantive or operative cause of the offending. She did accept that Ms Ghahraman was suffering from mental health issues at the time of the offending as a direct result of past and ongoing exposure to trauma – noting that, as a public figure, she had been subject to a level of harassment and threats that were at a high level in both volume and severity.
In support of this submission a report by a clinical psychologist was provided in which Ms Ghahraman was diagnosed as having Post Traumatic Stress Disorder (“PTSD”).
In considering the consequences of conviction, the Judge was not satisfied that there was evidence of a real and appreciable risk that Ms Ghahraman’s mental health would be further negatively impacted if a conviction was entered. The Judge went on to say that a number of the mental health issues arose from the offending itself and what followed, not the entry of convictions.
The Crown referred to the cases of R v Sabuncouglu [2008] NZCA 448 at [27] and Wheeler v R [2017] NZCA 193 at [15] in support of the proposition that ‘persuasive and independent evidence is required of the causal impact of mental health on the offending to establish reduced culpability.’ (at [23]).
On appeal, Venning J considered the psychologist’s report to be “equivocal” on whether there was a causative link between the appellant’s mental health condition and the offending. He went on to say (at [26]):
… Even if the report had not been equivocal, while the opinion of medical professionals deserves respect and must be considered, the Court need not defer to them, and ultimately it is for the sentencing judge to assess whether there is such a causative link having regard to all the circumstances.
Judge Jelas said that (at [30] of the DC decision, [27] of this decision):
I consider her mental health to be a feature contributing to the offending but not necessarily causative of it. Her mental health has made her more vulnerable to offend.
This treatment of the matter was accepted by Venning J (at [28]):
On the basis that offending of this nature could be categorised as falling within bands expressed as low, moderate and serious, Ms Ghahraman’s offending on the bare facts would be regarded as within the low end of the serious band … Taking account of Ms Ghahraman’s personal circumstances reduces the gravity of the offending overall to the lower end of the moderate band as the Judge concluded.
Bolea v R
Ms Ghahraman had applied for a position at the International Criminal Court as an ‘International Cooperation Adviser’. It was submitted on her behalf in the District Court that a person with a serious criminal or disciplinary offence would not meet the criteria for admission. Furthermore, to take up this position she would need to have a current practising certificate issued by the New Zealand Law Society.
Counsel for Ms Ghahraman raised the recent Supreme Court case of Bolea v R (which I have written about in detail here) in support of the submission that, in considering the impact of convictions on the Law Society’s assessment of whether Ms Ghahraman is a fit and proper person, and – therefore – risk to her future employment, these risks were a consequence of the offending rather than the convictions. The submission was that the Supreme Court had rejected such an approach in Bolea when it stated:
[41] Our view is that where, as here, there is unchallenged evidence that the issue of a deportation liability notice will “almost certainly” occur, then (in the absence of other evidence) both the liability for deportation and the risk of actual deportation should be treated as consequences of conviction under s 107. It follows that we do not agree that, for persons in Ms Bolea’s position, the process followed by the immigration authorities means that the “usual” position is that the prospect of deportation will be a consequence of the offending rather than the conviction.
Reasoning by analogy, counsel submitted that the risk to her future employment was a consequence of the convictions, not the offending. This was rejected by Venning J on two bases; first, that Bolea was specific to deportation matters (at [34]):
[W]ith respect to the appellant’s reliance on the Bolea decision, it must be seen in the context of its own particular facts. The Supreme Court confirmed as much in its introductory comments when stating that the appeal concerned how a sentencing court was to treat “the risk the defendant will be deported when considering an application for a discharge without conviction.”
Secondly, that in any event the requisite certainty of the consequence was lacking. Bolea had turned on the fact that there was unchallenged evidence that the issue of a deportation liability notice would “almost certainly” occur on conviction (at [37]):
Ms Ghahraman’s case is different. In her case, there was no evidence before the Judge that the Law Society would “almost certainly” not approve her application for a practising certificate if she was convicted.
The Court concluded that the entry of the convictions will not expose Ms Ghahraman to any additional liability as she will have to account to the Law Society for her conduct in relation to the offending itself.
The Court also gave short shrift to the submission that the effect on Ms Ghahraman’s mental health from the shame, stress and media intrusion should be treated as a consequence of conviction (at [43]):
However, with respect that is an unrealistic submission in the circumstances of the case. Once Ms Ghahraman’s offending became public it created a media storm which undoubtedly would have had an impact on Ms Ghahraman’s mental state even before she was charged. It also led to her resignation as a Member of Parliament even before conviction. A conviction entered some months later would add little to the stress engendered by the earlier publicity following the discovery of her offending.
Venning J concluded that the consequences of conviction fall within the low band, although at the higher end of that low band. Given this, he concluded that consequences of the convictions were not “out of all proportion” to the gravity of the offending and dismissed the appeal.
Vernon Tava 