Bullock v Police

[2012] NZHC 1374

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-102 [2012] NZHC 1374

RYAN CRAIG BULLOCK

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         18 June 2012

Counsel:         K Trotter for the Appellant

K Francis for the Respondent

Judgment:      18 June 2012

(ORAL) JUDGMENT OF WOODHOUSE J

Counsel/Solicitors:

Mr K Trotter, Barrister, Auckland

Mr K Francis, Meredith Connell, Office of the Crown Solicitor, Auckland

BULLOCK V POLICE HC AK CRI-2012-404-102 [18 June 2012]

[1]      Mr Bullock has appealed against the refusal of a District Court Judge to discharge him without conviction under s 106 of the Sentencing Act 2002.  This was on Mr Bullock’s pleading guilty to a charge of having possession for supply of the class B drug ecstasy.

[2]      The essence of the facts is as follows.  In September 2011 Mr Bullock, then aged 17 and at school, was seen by police in a carpark just after midnight.  He was with a friend.  The two of them were found to be consuming a drug.  Police found tablets in Mr Bullock’s possession.  16 of these were ecstasy tablets.  The remainder

– 40 tablets – were a class C drug.  Mr Bullock claimed to the arresting police officer that they were for his own use.  Later he admitted that he intended to sell some of them and the remainder were for his own consumption.

The District Court judgment

[3]      Judge Ryan, after outlining the facts (in more detail than I have done) and the comprehensive submissions she received for Mr Bullock and for the Crown, turned to the assessment of the s 106 application under the three part enquiry in s 107.  She accepted that the offending was at a low level of commerciality, but described it as nevertheless “of moderate seriousness”.  The learned Judge expanded on this aspect and considered consequences of a conviction as follows:

[16]     Nonetheless, I consider the High Court decision of Liang v Police (HC Wellington, AP38/03, 16 April 2003, Hammond J), a decision from Wellington which holds that the Court should not hide from decision making authorities, including employment boards and other tribunals, a history of convictions, and should leave it to such authorities to decide.   This is especially if the conviction involved not just taking drugs, but drug dealing. I find that you would be able to explain to an authority, “Yes, I have been involved in drug dealing; it was on a minor scale.   I have taken steps, including going to voluntary rehabilitation and I have overcome this.”

[17]     I consider that a moderately serious offence like this should not be hidden from appropriate authorities.   But I consider also that there are consequences to you; certainly there may be consequences that inhibit your travel, or may inhibit your academic career although as I pointed out, it only temporarily arrested the academic career of someone like Greg Newbold.  I consider when it comes to disproportionality, I do not find that the consequences of conviction in this case are disproportionate.

Decision

[18]      I accept that you are 17.  I accept that you have no previous record. I accept that you have been honest and co-operative, but nonetheless, in my view, had you been simply consuming ecstasy, that might have been a different situation.   The possession for supply or sale, in my view, takes offending to a greater level.  I do not believe it is in the public interest and nor  do  I believe  I should  be  hiding  from the  community  the  fact  that, although you were under stress, not everyone who is under stress because of family difficulties goes out and sells ecstasy.  You did and it is a matter for which there is a high maximum penalty.  Selling of a class B drug is a matter that I have decided in this case is moderately serious, so therefore I am not prepared to find that the consequences of conviction are disproportionate.

[19]      Yes, there will be stigma; there is always stigma for any conviction. Yes, there will be stigma involving a drug dealing conviction, but it was you who chose to do this.  You decided to uplift those drugs and were it not for the fact that you decided to sample them, or have a bit of a try, you may well have been able to sell the drugs undetected and inflict the misery of a class B controlled drug on somebody else.  I do not consider that the consequences for this type of offending are disproportionate and accordingly I decline the application for a s 106 discharge without conviction.

Discussion

[4]      I have been materially assisted by careful submissions from Mr Trotter, for the appellant, and Mr Francis, for the Crown.

[5]      I agree with the Judge that this offence can properly be described as one of moderate seriousness.  However, the gravity of this offence had to be assessed – at some point – in relation to the relative culpability.   Although the Judge has not ignored the question of culpability, in my respectful judgment undue emphasis has been placed on the nature of this offending in a general sense – drug dealing.  The gravity of the offence by this offender needs to be assessed in respect of all matters bearing  on  culpability.    In  making  these  observations  I  am  conscious  of  the

observations of the Court of Appeal in Blythe v R.[1]   I emphasise that the matters that

I am referring to here are ones bearing on the culpability of this particular offender for the offence.

[1] Blythe v R [2011] NZCA 190; [2011] 2 NZLR 620.

[6]      A comprehensive report was provided by a clinical psychologist.  This report pointed to a range of factors which, if the report writer’s opinions are given weight,

substantially reduce the culpability of Mr Bullock. I do not consider it necessary to outline the range of factors referred to by the psychologist. The relevant point is that they go well beyond the element of stress referred to by the Judge at [18]. Central to this is that this was offending by a 17 year old still at school. The school that he was at when this offending occurred is a school that he had joined for his final year – year 13. His secondary schooling up to that point had been at a private school of a completely different type and where, amongst other things, peer pressures on a young male were quite different from the peer pressures on the appellant at the new school.

[7]      The psychological report refers to the impact on an impressionable youth thrown into an  environment with peer pressures relating to drug activity.    It is sufficiently clear from the report and other evidence that this youth was not equipped to deal with it in a manner consistent with the way he had behaved up to that point. His behaviour up to that point had provided no indication that he would get involved in criminal activities of this sort.

[8]      The psychologist’s report goes beyond the matters I have referred to.   The essential point is, as I earlier indicated, that the relevant matters go well beyond stress.   There are factors which, in my judgment, accepting the opinions of the psychologist, substantially reduce the culpability of this appellant in respect of this offending.

[9]      The Judge referred to a public interest in not hiding the offending from the community.    With  respect,  this  cannot  provide  a  substantial  reason  to  refuse discharge.   Otherwise there would be no grounds for granting discharges; at least where there are questions of future employment.  In this context I also consider, with respect, that the reference to the performance of Greg Newbold does not materially assist.

[10]     It may very well be in many cases involving applications for discharge that it will be appropriate to weigh in the assessment the question as to whether it will be better to leave for a professional body, or an employer, the assessment of the significance of a conviction.  But it should not become a general basis for declining

applications.   In this regard reference may be made to a decision of the Court of Appeal in Brown v R.[2]   In that case the appellant, who had sought discharge without conviction, was a 40 year old who was completing academic qualifications to seek employment in the IT industry.  There was evidence from a person with experience in the industry who said that a conviction (in that case for assault) was likely to be a substantial impediment to the appellant’s obtaining employment.  The witness also

[2] Brown v R [2012] NZCA 197; CA684/11, 17 May 2012.

said – and as the Court of Appeal observed being the matter of particular importance

– that potential employers would not look beyond the fact of the conviction to

ascertain the “true culpability of the offending”. As the court put it, at [26]:

In other words, regardless of the gravity of the assault committed by the appellant, the conviction is likely to present a barrier to his employment in the IT sector.

[11]     This was a material factor leading to the Court of Appeal’s allowing the appeal and granting a discharge without conviction.   In that case there was direct evidence relating to the IT sector. There is no direct evidence of this sort in this case, but I am satisfied that this court is entitled to conclude that it is reasonably likely that prospective employers approached by this appellant in the future will simply not entertain an application from him for employment if his particulars include the fact that he has been convicted for drug dealing.  This must be the sort of problem that s 106 is designed to address in appropriate cases.

[12]     In any event, I am satisfied that the consequences of conviction may go well beyond employment.  This is a case involving a youth who, at the age of 16 in his penultimate year at school, was well set to lead a productive life without significant blemishes in it.  This course changed in the way I have already described when he moved  schools.    I  accept  that  there  is  a  risk  of  what  may  be  described  as psychological damage (without wanting to over emphasise what is entailed in that expression) from the fact of conviction having been entered at the point that this young man was about to embark on his adult life.  What I have sought to capture in those words – and perhaps not effectively – is that the impact of the conviction of itself, in my judgment, in respect of this particular appellant, may go well beyond

what the Judge described as stigma.

[13] And stigma alone is significant. This, in my judgment, cannot be set to one side by saying that the appellant “chose” to be involved in drug dealing, as the Judge said at [19]. If this provided substantial grounds for declining an application – or at least for diminishing the impact of a conviction – there would again be no basis for discharge in any case. This is because every case in which there is an application for discharge involves a person who, effectively by definition, chose to commit a crime.

[14]     For these reasons I am satisfied that the consequences of a conviction in this case would be disproportionate to the gravity of the particular offending.   Having come to that conclusion under s 107, contrary to the conclusion of the Judge, I need to consider whether discretion should be exercised under s 106.   As the Court of Appeal has observed, if this point is reached, it is likely that a discharge will be granted.   One matter that may be added into the mix at this point – and perhaps which might have been taken into account under s 107 – is the substantial body of evidence indicating that the risk of reoffending by this appellant is low.  In terms of the need to seek to reinforce that, and to hold this young man accountable for his criminal conduct, I am also satisfied that the experience that he has had in the criminal justice system, having regard to his particular personality and background, will of itself have had a substantial impact.  And this included, I am informed, an electronic monitoring bracelet around his ankle for a short period, with it being removed when the appeal was lodged.

Result

[15]     Taking all these factors into account I am satisfied that the appeal should be allowed and an order made under s 106 discharging the appellant without conviction.

[16]     It is important to emphasise that this decision has been made having regard to all of the evidence that is available in this case.   In particular, there is the comprehensive report of the psychologist relating to the circumstances of this appellant.   In other words, this case turns on its own facts and the evidence of, amongst others, the psychologist.   It does not provide some form of precedent in relation to school boys who commit what was, as the Judge quite properly said, a moderately serious offence.

[17]     I also add for the particular attention of the appellant, that he is being given a real chance.  He must now make the most of this opportunity and ensure that he does

not offend again.

Woodhouse J