Bigy v Police
[2012] NZHC 2852
•30 October 2012
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] The Judge started by considering the gravity of the offence:
[36] In giving consideration to the gravity of the offence and these provisions of s 9 Sentencing Act 2002, I have isolated a number of factors which are peculiar to this matter, and some which are general. Drug dealing by way of sale for reward has always been regarded as serious offending, where the personal circumstances of the defendant are given less weight. The penalties provided, though not determinative, support the view that sale for reward is a serious offence, and I am talking here, of course, about drug offending.
[37] The defendant, or offender, is an intelligent young man of 21 years of age, he has had a good upbringing and education, with no excuse for being so involved in this dealing. It is not a case of his being driven by a drug habit or downright poverty. It involved the clandestine use, in my view, of a cellphone, which indicated that he was part of a trusted network. He was already known to the police and the caption summary of the police mentions not just one event.
[38] It involved, also, reasonably large quantities of drugs, 500 tabs on one occasion, which I am told had some value of $6250 or thereabouts but who knows. He was going to sell 50 for $1250 so ten times the amount one would think would be something in the order of $12,000. However, that, again, is not determinative but indicates the type of scale of this offending.
[39] The substance concerned in the charge methylethcathinone or shortly known as 4-mec is a class C drug, and is prohibited because of its harmful effects on those who take it, especially young people, in this particular set of circumstances, who take party pills. Hospitalisations of young people have occurred as a result of taking such pills. Young people in a party mood are particularly vulnerable to the use of such substances, where the content of the pill is unknown, and its effects are largely fortuitous in the circumstances.
[40] Further matters I take into account when looking at the gravity of the offence are that the police have advised, in one of its submissions, that such use of party pills is increasing; and finally, but not entirely exhaustively, the defendant’s irresponsible attitude in procuring pills for sale, the makeup of which he was totally unaware. It is fortuitous, as I say, whether those pills contained some deleterious substance which went straight to the brain of the person imbibing it or ingesting it, and being rushed off to hospital in a coma, just fortuitous.
[7] Later the Judge concluded by saying that:
[50] Whilst I do not resile from the fact that this was very serious offending, I will accept that it was foolish and stupid and you did not think it
through. In those circumstances, it is often encouraging, or somewhat of a comfort to the authorities to see, where a person has been convicted, they were discharged. The purpose of that, in my intention, is that if a person was looking at that for any purpose, they would see that the Court regarded the matter as serious enough to have a conviction, but not so serious as to impose a significant penalty. Accordingly, you will be convicted and discharged on payment of the costs of prosecution …
[8] There is, it seems to me, an inconsistency between the Judge’s characterisation of the offending as “very serious” and his subsequent comment that the offending was “not so serious as to impose a significant penalty”. Although it is true that Parliament regards all drug offending as inherently serious the particular offending in this case does not seem to me at the higher end of the spectrum in terms of gravity. The number of pills was not especially large and the level of commerciality low, it being an opportunistic sale of pills left over from personal use. In the circumstances I accept Mr Newell’s submission that the Judge overstated the gravity of the offending.
[9] I also accept that the Judge erred in his conclusion regarding the proportionality of the consequences of conviction. The major issue in this regard was the implications for Mr Bigy’s overseas travel in connection with the family importing and travel businesses. Mr Bigy’s parents have 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, has referred in her affidavit to the family’s intention that after he completes his Bachelor of Commerce degree he will 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 has already had direct involvement in his parents’ businesses.
[10] The Judge was not persuaded by this evidence. He said:
[26] I note, however, there is no suggestion in any of the papers before me that a conviction will prevent him from working as a principal in the business in New Zealand. I also note he has at least one brother and he is not the only person, I assume, that can assist his parents in the business. Indeed, the business looks to have the makings of a very successful business which could employ a number of people.
[27] I note from the papers that it cannot be said that there is definitely a ban on his overseas travels, as it were, as each embassy has its own provisions which will need to be discussed with an applicant such as Mr Bigy for a visa, when all personal circumstances of the applicant are taken into account.
[11] I note, first, that there was absolutely no evidence about the prospective involvement of Mr Bigy’s brother, who is now aged about 17, in the business. Secondly, there was some evidence to support the claim that a drug conviction would present difficulties in terms of travel for work. Looking at the evidence that was available to the Judge regarding the constraints on Mr Bigy of a conviction I have reached the view that the Judge did make an error in finding that the consequences of the conviction would not be out of all proportion.
[12] It follows that it is for me to make a fresh assessment of the application. I have already canvassed the significant aspects. Added into the mix is, however, Mr Bigy’s co-operation with the Police and early guilty plea. There is a reference in the Police summary of facts to Mr Bigy having previously appeared but no other information, save that it seems clear that there has been no previous drug-related offending.
Result
[13] In the circumstances I was satisfied that the consequences of a conviction would be out of all proportion to the seriousness of the offence and that it was a proper case for the exercise of the discretion under s 106. The appeal is therefore allowed and Mr Bigy’s conviction quashed. I make an order that he be discharged without conviction under s 106 of the Sentencing Act.
[14] I am sure it is clear to Mr Bigy how fortunate he is to have avoided a conviction in this case. He could not expect the same outcome in the event of any
further offending.
P Courtney J