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the premises to be used for the commission of an offence against the Misuse of Drugs Act 1975, that charge was withdrawn.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 that the Teachers Council had already been advised of the prosecution.   The Judge took the view that it was for the Teachers Council to consider the consequences for Ms Andrews, and that those consequences followed not from the fact of conviction, but from her admitted use of methamphetamine.

[8]      The Judge concluded that the consequences were not out of proportion to the gravity of the offending.   The application for a discharge without conviction was therefore declined.

Submissions

[9]      I heard from Mr Eastwood on behalf of Ms Andrews.  He emphasised that the gravity of the offending was low.  He pointed out that the Judge did not refer to a mitigating factor – namely that Ms Andrews had voluntarily undertaken five sessions of a CADS rehabilitation course.  He also submitted that Judge Couch did not give Ms Andrews any credit for her guilty plea or for the fact that she was candid with the police.   Mr Eastwood was however unable to point to any consequences of the conviction other than those advanced by Ms Andrews in her affidavit.  Rather he told me that Ms Andrews has since left the teaching profession.

[10]     Mr Barry, for the respondent, submitted that Judge Couch made no error in assessing Ms Andrew’s conduct as being towards the lower end in terms of seriousness.  He accepted that the Judge did not factor in the CADS counselling but he submitted that it would have made no material difference to the Judge’s overall conclusion as to the gravity of the offending.   He submitted that there was no evidence  of  any  significant  consequences  whether  direct  or  otherwise  on  Ms

Andrews’ career.  He submitted that the Courts should be hesitant to usurp the role of a professional body in deciding the significance of a particular conviction.   He argued that the potential impact of a conviction for Ms Andrews is uncertain, and that the Court cannot conclude on the materials before it that there is any real or appreciable risk that Ms Andrews’ employment as an early childhood teacher, or her ability to work in that or any other profession, is at risk.

Analysis

[11]     The Court has a discretion to grant a discharge without conviction under s 106 of the Sentencing Act.  The threshold detailed in s 107 of the Act must be met before the Court can consider exercising the discretion.   Section 107 provides as follows:

107 Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[12]     The principles relevant to discharges without conviction were set out by the

Court of Appeal in R v Hughes.1   The Court there noted as follows:

[10]      … the court must first consider whether the disproportionality test in s 107 has been met. If, and only if, the court is satisfied the s 107 threshold has been met may the court proceed to consider exercise of the discretion to discharge without conviction under s 106.

[11]      The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles…

[13]     In Z v R2 the Court of Appeal dealt with the appropriate test to be applied.  It observed that s 107 requires the consideration of three factors:

(a)      the gravity of the offence;

(b)      the direct and indirect consequences of a conviction; and

(c)       whether those consequences are out of all proportion to the gravity of the offence.

The Court expanded on this test as follows:

[27]      For  our  part,  we consider that  there  is much  to  be said for  the approach adopted by the Divisional Court in A(CA747/2010). That is: when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and  indirect  consequences  of  conviction  for  the  offender  and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion,  it  must  still  consider  whether  it  should  exercise  its residual discretion to grant a discharge (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).

[14]     Against this background I turn to consider the gravity of the offending.  It is open to the Court at this stage of the analysis to consider all of the aggravating and mitigating factors relating to the offending and to the offender, and I do so.3

[15]     I agree with Judge Couch’s assessment that the gravity of the offending was towards the lower end of the scale for drug related offending.  Methamphetamine is a dangerous and highly addictive drug.  However the offending in issue was the one- off use of the drug and it involved a very small amount of the methamphetamine.  It was not alleged that Ms Andrews was involved in the potential manufacture of the drug and the Judge expressly acknowledged that.  I accept that there were personal factors relevant to Ms Andrews.  She was remorseful and she regretted smoking the methamphetamine.   She pleaded guilty at an early stage once the charge list was amended.  She has only one previous conviction for drink driving, committed some

10 years ago.  She deserved credit for self referring herself to the CADS programme.

[16]     Judge Couch did not refer in detail to all of these matters but I agree with Mr Barry that that did not lead to an error in the Judge’s assessment of the gravity of the offending.  It was low level offending and Judge Couch correctly recognised that.

[17]     I now turn to the consequences of a conviction.   In this regard I note the comments of Justice Randerson in Iosefa v Police:4

[34]      … it is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient if the Court is satisfied there is a real and appreciable risk that such consequences would occur.

[35]     However, the nature and seriousness of the consequences and the degree of likelihood of their occurring will be material to the Court's assessment of whether those consequences would be out of all proportion to the gravity of the offence. In other words, the higher the  likelihood  and  the  more  serious  the  consequences,  the  more likely it is that the statutory test can be satisfied.

[18]     The  main  issue  in  this  case  is  whether  or  not  Judge  Couch  afforded appropriate weight to the potential impact on Ms Andrews’ career either as a teacher or otherwise.  In my view he did do so.

[19]     Ms Andrews holds a provisional practising certificate from the New Zealand Teachers Council which expires in November 2017.   She was concerned that the consequences of a conviction could mean that she would have difficulty working in early childhood education because the Teachers Council might take a serious view of her drug use.   She expressed concern that her registration may not be renewed in

2017.

[20]     It  is  noteworthy however  that  Ms Andrews  has  already disclosed  to  the Teachers Council her involvement in the offending.  She did so before the conviction was entered.  The Teachers Council would have had to consider the matter in any event, and whether or not a discharge was granted by the Court.

[21]     Where an offender is a member of a profession that has a regulating body charged with disciplining or granting entry to the profession, the Court will be slow to grant a discharge. I note the observations of Justice Hammond in Liang v Police:5

[17]      Whether a conviction will form an occupational barrier is a relevant consideration in determining whether to grant a discharge without conviction. Where the conviction will result in an absolute bar to the occupation that may carry extra weight with the Court. I do not think there is any such suggestion in this case. If there is an independent body charged with determining the suitability of individuals for particular employment, the Court may be  more ready to enter a conviction, it being of the view that it is in the public interest that that body is best able to make a decision with the benefit of full

5      Liang v Police HC Wellington AP38/02, 16 April 2003 at [17]. See similar comments made in

Stewart v Police [2015] NZHC 165 at [30]-[31].

disclosure of the fact. The fact that the conviction may act as a barrier to gaining entrance to an occupation is not a determinative factor  -  it  is  merely  a  factor  to  be  considered  in  the  balancing exercise.

[22]     In my view, the Court should not usurp the role of the Teachers Council as the professional body with responsibility for deciding whether or not to renew Ms Andrews’ registration.

[23]     There   is   no   evidence   to   suggest   that   there   will   be   any   additional consequences for Ms Andrews.  A criminal conviction will not necessarily bar her from  a  future  career,  either  in  teaching  or  in  any  other  field.    This  Court  has cautioned against granting a discharge when the impact of a conviction on employment is unclear and where there is insufficient evidence to support any assertions made as to the alleged consequences.6 This case falls into that category.

[24]     Turning  to  the  balancing  test,  although  the  seriousness  of  Ms Andrews’ offending is at the lower end, she has not been able to identify any real direct or indirect consequences of a conviction.   Therefore there is no basis on which the Court can find that the s 107 threshold has been met.

[25]     The appeal is dismissed.

Wylie J

6      M v Police [2013] NZHC 1101, [2013] NZAR 861; Simmonds v Police [2014] NZHC 2488.