Ghahraman, a lawyer who had served as the Greens’ justice spokeswoman, was convicted in June and fined $1600 rather than being ordered to serve acustodial or supervision sentence. But in the Auckland District Court, Judge June Jelas denied her request for a discharge without conviction, the basis for an appeal heard last week in the High Court at Auckland.
In a judgment released this morning, High Court Justice Geoffrey Venning said “the consequences of conviction cannot be said to be ‘out of all proportion’ to the gravity of offending in this case” — meaning there was no error in the district court decision.
Ghahraman’s conviction decreased the odds of being allowed to revive her legal career after a seven-year hiatus prompted by her ascent to Parliament.
Lawyer Annabel Cresswell told the district court in June that a mental health report formed the crux of her submissions regarding her request for a discharge without conviction. It found a “clear diagnosis of complex PTSD [post-traumatic stress disorder]” with two key contributing factors: Ghahraman’s early life in war-torn Iran and the “public vitriol, threats and abuse” she received while in Parliament.
Cresswell said the “threats of rape and death were constant and ongoing and credible”, to the point where the MP’s security detail was similar to that of the Prime Minister.
The lawyer described “loss-reactive shoplifting” in which otherwise law-abiding individuals steal as part of a mental health crisis.
The fact her client had so much to lose showed a mental health crisis, Cresswell said.
“This offending was extraordinarily out of character,” she explained. “She didn’t need the items that were taken.”
At the sentencing hearing, Crown solicitor Alysha McClintock argued against a discharge without conviction. The link between Ghahraman’s mental health and her criminal conduct was not as strong as the defence made out, the prosecutor argued, noting a mental health assessor found there was “a possible link”.
“The possibility of that is no more than that – a possibility,” she said.
While a conviction might make it more difficult to revive a legal career, that was a decision that would ultimately be up to the Law Society, McClintock said.
The offending had the hallmarks of premeditation, she said.
“This was a spree of offending,” McClintock explained. “It’s not a one-off event. It’s not a ‘moment of madness’-type case.”
There might be another explanation for the offending other than a mental health breakdown, she said: “Simply, that she wanted the items that she took”.
“On its face, that explanation, given the [premeditated] nature of the conduct, appears the more likely of the two.”
McClintock also suggested Judge Jelas take into account the breach of trust with the public given “a person of her standing and her role has a certain standard expected of them – as a former lawyer and a member of Parliament”, and the “heightened understanding of the significance of their conduct”.
Judge Jelas found that possible consequences to Ghahraman’s legal career would be the result of the offending itself — not a conviction. And in any case, the consequences would not be out of all proportion, she found.
During the High Court appeal hearing last week, the defence argued Judge Jelas had overstated the gravity of the offending and erred in finding the consequences of a conviction wouldn’t be out of all proportions to the gravity. Offending can be classified as serious, moderate or low, and Judge Jelas had determined Ghahraman’s offending – once her mental health and other factors were taken into consideration – to be at the lower end of moderate.
A man understood to be acting as security for Golriz Ghahraman shines a torch into photographers' cameras after an Auckland District Court hearing. Photo / Dean Purcell
“I consider her mental health to be a feature contributing to the offending but not necessarily causative of it,” the district court judge explained at the time. “Her mental health has made her more vulnerable to offend.”
But the defence had argued on appeal that Judge Jelas should have further reduced the gravity level to “low”.
Justice Venning disagreed.
In today’s decision, he noted “the offending itself is rightly regarded as an example of serious theft”.
“The offending took place on four separate occasions,” he explained. “It was not spontaneous offending. It involved a degree of planning both in preparation for the offending and during its execution.
“Ms Ghahraman remained in the stores for some time and concealed the items in a tote bag she carried with her. The items were secreted into her bag in changing rooms or in corners of the store which she sought out. The offending involved quite deliberate attempts to avoid detection, and, on one occasion, Ms Ghahraman went as far as providing a false explanation to staff of the store when challenged.
“A number of items were taken. On two occasions, items worth $2060 and $5773 were taken. The maximum penalty for such theft is seven years in each case. The total amount of property stolen was in excess of $8900.”
Justice Venning also noted a psychological report provided by the defence was “equivocal on the critical issue” of whether Ghahraman’s PTSD diagnosis had a positive link with her offending.
The judge added: “Even if the report had not been equivocal, while the opinion of medical professionals deserved 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.”
Ultimately, he said, Judge Jelas made the right call.
“Ms Ghahraman’s offending on the bare facts would be regarded as within the low end of the serious band, as reflected in the judge’s starting point for sentence,” he said. “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.”
Craig Kapitan is an Auckland-based journalist covering courts and justice. He joined the Herald in 2021 and has reported on courts since 2002 in three newsrooms in the United States and New Zealand.
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