Andrews v Police - [2015] NZHC 3212

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000325

CRI-2015-004-001290 [2015] NZHC 3212

BETWEEN
RAWINIA ANDREWS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 14 December 2015

Appearances:

P T Eastwood for Appellant
J Barry for Respondent

Judgment:

14 December 2015

ORAL JUDGMENT OF WYLIE J

Solicitors/counsel:
P Eastwood, Auckland
Meredith Connell, Auckland

ANDREWS v NZ POLICE [2015] NZHC 3212 [14 December 2015]

Introduction

[1] On 11 September 2015, the appellant, Ms Andrews, pleaded guilty to one charge of consuming methamphetamine. She was convicted and fined $400 in the District Court by Judge AA Couch. Ms Andrews now appeals against the refusal by Judge Couch to grant her a discharge without conviction.

[2] The appeal was brought four days out of time. It appears that Ms Andrews’ counsel was labouring under a misapprehension as to the time within which any appeal had to be filed. Mr Barry appearing for the Crown did not oppose an extension of time and in my view it is appropriate and in the interests of justice to grant the same.

Factual background

[3] On 6 February 2015 Ms Andrews was apprehended whilst consuming methamphetamine with another individual. She consumed approximately 0.1 grams of methamphetamine.

[4] The individual and another person had been staying in Ms Andrews’ garage over the course of the previous week and they had paid her rental. The individual and a third person had obtained materials and equipment and were intending to manufacture methamphetamine in the garage. Ms Andrews said that she was unaware of what they were proposing to do. While Ms Andrews was initially charged with permitting the premises to be used for the commission of an offence against the Misuse of Drugs Act 1975, that charge was withdrawn.

District Court Judge’s decision

[5] Judge Couch recorded that Ms Andrews had pleaded guilty to the charge of consuming methamphetamine and that she was seeking a discharge without conviction. He referred to s 107 of the Sentencing Act 2002 and to the various matters the Court was required to consider under that provision.

[6] The Judge acknowledged that the amount of methamphetamine consumed by Ms Andrews was small. He noted that another more serious charge had been laid against the other individuals involved, and expressly recorded that he did not place

any weight on the fact that initially the police proceeded against Ms Andrews in that regard as well. He noted factors personal to Ms Andrews, namely that she had only one previous conviction. He took the view that the gravity of her offending was towards the lower end of the scale.

[7] Turning to the consequences of the conviction, Judge Couch referred to an affidavit Ms Andrews had filed. He noted that she had recently qualified as an early childhood educator and that she has a provisional practising certificate from the New Zealand Teachers Council. He noted Ms Andrews’ assertion that a conviction could mean that she might have some difficulty continuing to work in pre-school education, but also recorded…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 3212
Decision Date: 14 December 2015

CaseChat Overview and Summary

The appellant, Rawinia Andrews, appealed against the decision of Judge AA Couch in the District Court, who refused to grant her a discharge without conviction after she pleaded guilty to consuming methamphetamine. The appeal was filed out of time but was granted an extension as Ms Andrews' counsel had acted under a misapprehension regarding the time limit for filing an appeal. The Crown did not oppose the extension, and the Court found it appropriate to grant the extension in the interests of justice.

The legal issues before the Court were whether the Judge had correctly assessed the gravity of the offence and whether the consequences of a conviction were out of proportion to the gravity of the offence under s 107 of the Sentencing Act 2002. The Court examined the threshold requirements for granting a discharge without conviction and the relevant factors to consider in making this decision. It also considered whether the Court should defer to the decision of the professional body, the New Zealand Teachers Council, in deciding the impact of a conviction on Ms Andrews' career.

The Court found that the gravity of the offence was towards the lower end of the scale, given the one-off use of a small amount of methamphetamine. However, it also found that the consequences of a conviction were not out of proportion to the gravity of the offence, as Ms Andrews had already disclosed her involvement in the offending to the Teachers Council before the conviction was entered, and the Council would have had to consider the matter in any event. The Court was slow to grant a discharge when the impact of a conviction on employment was unclear and where there was insufficient evidence to support assertions made as to the alleged consequences. In this case, the Court found that there was no real direct or indirect consequence of a conviction, and therefore, the s 107 threshold had not been met. The appeal was dismissed.

The Court did not grant the discharge without conviction sought by Ms Andrews.

Orders