Bigy v Police - [2012] NZHC 2852

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000222 [2012] NZHC 2852

BETWEEN SAMAN AHMAD KHAN BIGY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 29 October 2012

Appearances: G J Newell for Appellant
S McMullan for Respondent

Judgment: 30 October 2012

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 30 October 2012 at 4:30 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date…………………………

Solicitors: Meredith Connell, P O Box 2213, Auckland 1140
Fax: (09) 336-7629 – S McMullan

Counsel: G J Newell, P O Box 105444, Auckland 1143
Fax: (09) 309-9840

BIGY V NZ POLICE HC AK CRI-2012-404-000222 [30 October 2012]

[1] Mr Bigy appeals his conviction on one charge of possession of a Class C controlled drug for supply and against Judge Everitt’s refusal to discharge him without conviction under s 106 of the Sentencing Act 2002.[1] The grounds of appeal were that the Judge erred in characterising the offending as serious and failed to give adequate consideration to the consequences of a conviction for Mr Bigy.

[1] Police v Bigy DC Auckland CRI-2011-004-013689, 15 June 2012.

[2] The respondent maintained that the Judge’s characterisation of the offending was open to him but also acknowledged that it was open to this Court to find that the direct and indirect consequences of a conviction would be out of proportion to the gravity of the offence. Otherwise it took no position on the appeal.

[3] After hearing from Mr Newell, for Mr Bigy, and having already considered counsels’ submissions, I indicated that the appeal would be allowed with my reasons to follow.

Reasons for decision

[4] The offending related to Mr Bigy’s offer to supply 100 “Green Cat” party pills to an associate. The pills contained the controlled Class C drug methylethcathinone (4-MEC). The associate had been detained by the Police when Mr Bigy sent his text. The Police arranged a meeting. When told he was to be searched Mr Bigy was frank with the Police and later co-operated by providing information regarding the source of the pills.

[5] At the sentencing in the District Court Mr Bigy’s counsel sought to have the Judge make an order under s 106 of the Sentencing Act 2002 discharging him without conviction. Under s 107 such an order cannot be made “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” This is a legal test, not a matter for the Judge’s discretion. It is only if that test is satisfied that the Judge may exercise his or
her discretion to grant the order.[2] That discretion has been described by the Court of

Appeal as residual because “[i]t will be a rare case where an offender has passed through the s 107 “gateway” but is then not discharged under s 106(1).[3]

[2] Blythe v R [2011] NZCA 190 at [12].

[3] Blythe, above n2, at [13].

[6]…

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 Bigy v Police

Details

AGLC: Bigy v Police [2012] NZHC 2852
Case: [2012] NZHC 2852
Decision Date: 30 October 2012

CaseChat Overview and Summary

In this case, the appellant, Mr. Bigy, appealed against his conviction for possession of a Class C controlled drug for supply and against the Judge's refusal to discharge him without conviction under section 106 of the Sentencing Act 2002. The respondent, the New Zealand Police, argued that the Judge's characterisation of the offending was open to him but acknowledged that it was open to the Court to find that the direct and indirect consequences of a conviction would be out of proportion to the gravity of the offence. The Court found that the Judge had overstated the gravity of the offending and erred in his conclusion regarding the proportionality of the consequences of conviction.

The court considered the implications for Mr. Bigy’s overseas travel in connection with the family importing and travel businesses. Mr. Bigy's parents had established these businesses since coming to New Zealand from Iran in 1999 with Mr. Bigy and his younger brother. Ms. Lofti, Mr. Bigy's mother, referred to the family’s intention that after he completed his Bachelor of Commerce degree, he would work to expand the family business including identifying new markets for products imported from Iran. That would involve him being able to travel overseas including to Australia and the United States to locate new suppliers and new customers. Mr. Bigy had already had direct involvement in his parents’ businesses. The court found that the Judge did make an error in finding that the consequences of the conviction would not be out of all proportion.

The court concluded that it was a proper case for the exercise of the discretion under s 106 of the Sentencing Act 2002. The appeal was therefore allowed and Mr. Bigy’s conviction was quashed. The Court made an order that he be discharged without conviction under s 106 of the Sentencing Act 2002. The Court emphasised that Mr. Bigy was fortunate to have avoided a conviction in this case and that he could not expect the same outcome in the event of any further offending.

Orders