Babich v R - [2018] NZHC 2324

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2018-404-206 [2018] NZHC 2324

BETWEEN
JOSEPH PETER BABICH

Appellant

AND

THE QUEEN Respondent

Hearing: 3 September 2018

Counsel:

W M Ryan for Appellant
H G Max for Respondent

Judgment:

5 September 2018

JUDGMENT OF SIMON FRANCE J

[1] Mr Babich appeals the refusal of the District Court to discharge him on five charges of importing a class A drug, and one of importing a class C drug.1 If unsuccessful on this appeal, Mr Babich appeals the sentence of 12 months’ home detention.2 At first blush, the mere recitation of the charges is enough to cast real doubt on the availability of a discharge without conviction but it is important to unpack the circumstances.

[2] On three occasions in February 2017 parcels containing drugs were intercepted. The amounts were 3.9 grams of cocaine, 1.4 grams of methamphetamine and 4.2 grams of cocaine. Inquiries led to Mr Babich who when confronted admitted his offending. Mr Babich explained he had ordered them through the Dark Web, and gave police access to his computer, accounts and passwords. There were three further

1 R v Babich [2018] NZDC 10726.
2 R v Babich [2018] NZDC 15923.

BABICH v R [2018] NZHC 2324 [5 September 2018]

importations between March and May disclosed, meaning six charges in all. Those three charges involved 3.5 grams of cocaine (x2) and 3.5 grams of the class C drug ketamine.

[3] Mr Babich is 51 years of age. Other than two very minor driving offences he has no previous convictions. A once successful businessman, he fell on difficult times. Around the time of the offending he was depressed. Indeed, this is a condition from which he has long suffered, and at various times been medicated for. A report from Mr Babich’s psychiatrist details his long struggles with the illness, and the limited success of treatment interventions. He has a diagnosis of bipolar affective disorder.

[4] The imported drugs were Mr Babich’s attempt at self-medication through other drugs. He was aware there is research indicating ketamine has promise as regards being a treatment for depression. Cocaine was Mr Babich’s own idea. The offending period is short, the ordering component of it even shorter.

[5] Since his arrest Mr Babich has made significant efforts at addressing his issues. In addition to resuming treatment with his psychiatrist, Mr Babich has been attending Community Alcohol and Drug Services. Further, he has recognised a need for greater community involvement as a method of preventing him from focusing inward and has been involved in various community activities. It is clear he has got himself into a very different and positive place.

[6] Mr Babich has been offered employment in the wine industry. An existing marketing position has become vacant. It involves travel overseas to the wine company’s main markets. Convictions will end that opportunity. Mr Babich’s other work experience is in property development. He deposes, without challenge, that…

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.

Continue reading Babich v R

Details

AGLC: Babich v R [2018] NZHC 2324
Case: [2018] NZHC 2324
Decision Date: 5 September 2018

CaseChat Overview and Summary

In the case of Babich v R, the appellant, Joseph Peter Babich, appealed against the District Court's decision to refuse a discharge without conviction on five charges of importing class A drugs and one of importing a class C drug. The District Court also refused to impose a sentence of 12 months’ home detention. Babich's appeal was based on the circumstances of the drug importations, which were carried out over a short period in 2017, with a total of 16 grams of drugs involved. Babich admitted to ordering the drugs through the Dark Web, with the intention of using them as a form of self-medication for his long-standing struggle with depression. Babich cooperated fully with the police, providing access to his computer, accounts, and passwords. Babich's psychiatrist confirmed his diagnosis of bipolar affective disorder, and his efforts to address his issues since the arrest, including resuming treatment and attending community alcohol and drug services. The court considered the circumstances of the case, including the low quantity of each importation, the short duration of the offending, the motivations behind the offending, Babich's long-standing struggle with depression, his acceptance of responsibility, and the genuine efforts to address the causes of his offending. The court found that the consequences of conviction would be disproportionate to the seriousness of the class A drug offending and allowed the appeal. Babich was discharged without conviction on each charge, with no further penalty required.

The legal issues that the court had to decide in Babich v R were whether the District Court had correctly assessed the seriousness of the offending, and whether the consequences of conviction would be disproportionate to the seriousness of the class A drug offending. The court considered the factors that could be taken into account when assessing the seriousness of the offending, including the gravity of the particular offence, the overall total amount of drug imported, and the purpose behind the importation. The court also considered the factors that could be taken into account when deciding whether the consequences of conviction would be disproportionate to the seriousness of the offending, including the age of the offender, the circumstances of the offending, and the efforts made by the offender to address the causes of the offending. The court found that the District Court had not correctly assessed the seriousness of the offending, and that the consequences of conviction would be disproportionate to the seriousness of the class A drug offending. The court allowed the appeal and discharged Babich without conviction on each charge, with no further penalty required.

Orders