C v Police HC Auckland CRI 2009-404-77

[2009] NZHC 657

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-404-77

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         2 June 2009

Appearances: B M Ward for Appellant

S K Pidgeon for Respondent

Judgment:      2 June 2009

JUDGMENT OF KEANE J

Solicitors:

Wynyard Wood, East Tamaki, Auckland

Crown Solicitor, Auckland

C  V POLICE HC AK CRI 2009-404-77  2 June 2009

[1]      On 11 December 2008, on a plea of guilty, Gareth C   was convicted of selling the class C controlled drug cannabis between 27 – 31 October 2008. He was fined $500 and ordered to pay costs.

[2]      Mr C   appeals both his conviction and sentence. Though he intimated a plea of guilty, he sought to be discharged without conviction under s 106 of the Sentencing Act 2002, contending that the consequences of conviction would be out of all proportion.

[3]      In concluding that nothing less than a conviction and fine would serve and placing the gravity of the offence before the consequences, Mr C   contends, the Judge erred.

Context

[4]      The statement of facts on which the Judge sentenced said this:

Between Monday 27 October and Friday 31 October 2008, the defendant … was at his home address … He received a text message from an unknown associate over 18 years of age.

The text message read, ‘I’d like to be helped out’, which is a phrase used when asking if the defendant has cannabis to sell.

The defendant told his associate to come to his home address … On arrival the  defendant  told  his  associate  to  wait  in  the  lounge.  He  went  to  his bedroom and returned with a plastic container, containing cannabis. The defendant asked the associate if he wanted a $20 or a $50 bag. The associate asked  for  a  $50  bag  and  the  defendant  proceeded  to  fill  the  bag  with cannabis. The defendant then sold the bag of cannabis to his associate for

$50 cash.

When spoken to by the police the defendant admitted the facts as outlined. He  stated  that  he  had  been  selling  cannabis  from  his  home  since  the beginning of the year and only sold it to his friends to help them out.

[5]      The statement continued to say that Mr C   was 26 years of age and employed as a sales representative. He had previously appeared. He has one conviction, as it appears, incurred some four years before of driving with an excess breath alcohol, for which he was fined, and a minimum term of disqualification imposed. At 19 he was convicted and fined for breaking a liquor ban.

[6]      In applying to be discharged without conviction Mr C   explained that he sold cannabis in order to pay for what he needed himself. He used cannabis as a form of medication.

[7]      From an early age, he said, he had been in his mother’s sole care. He started smoking cannabis as the age of twelve. His mother had him undergo counselling. He attended Alcoholics Anonymous. In 2001 he spent six months on an Outward Bound course. But afterwards he suffered depression.  In 2001, as a medical certificate confirms, he was prescribed anti-depressants. But, finding this made matters worse, he resumed using cannabis.

[8]      In this  way Mr C    invited  the Judge to  distinguish  him  from  an ordinary dealer who deals with members of the public. He was to be seen rather as assisting himself by assisting his friends. By supplying them he was able to supply himself. He made no profit from the venture.

[9]      The consequences of a conviction, he said, were that he would lose his job working as a salesman for a security company selling alarms and surveillance systems, home networking and intercom systems and the like. He would be unable to travel. He would be unable to pay off a $12,000 debt.

[10]     Two officers of the company that has employed Mr C   for two years, the general manager and a senior account manager, confirmed that he is highly valued. But the general manager said also that it was unlikely he could sustain his position if convicted. The company is a security company. Conversely, the general manager said, if a discharge were given the company would retain and assist him.

Decision under appeal

[11]     In deciding whether to impose a conviction would have direct or indirect consequences out of all proportion to the gravity of Mr C  ’s offence, the Judge began with the offence itself.

[12]     The Judge accepted that this was a single instance of offending and it was low level. But, as he said, Mr C   had admitted to offending on a number of occasions in this way and deterrence, as the Court of Appeal confirmed in R v Terewi [1999] 3 NZLR 62, had to be paramount.

[13]     The primary consequence of a conviction, the Judge recognised, was that Mr C   could well lose his job. He was surprised Mr C   had been able to retain it with or without a conviction. (In this the Judge mistakenly assumed Mr C   was a security officer rather than a salesman.) He did not think, therefore, think this consequence decisive nor any limitation on travel to be disproportionate.

[14]     While, therefore, the Judge took into account Mr C  ’s dependence and its relation to continuing depression, he saw no alternative but to convict and fine. The fine he imposed, he said, was the very minimum response called for. Deterrence had to be given first place.

Principles applying

[15]     On this appeal there is an onus on Mr C  , as the Court of Appeal recently confirmed in a case concerning the exercise of the s 106 discretion, R v Hughes [2008] NZCA 546, to satisfy the Court on appeal that the decision taken was wrong. Equally as the Court said, in this too applying the Stichting Lodestar principles, the Court must on the appeal make its own assessment. It must not simply defer.

[16]     Secondly, the Court said, the duty s 8(g) of the Sentencing Act 2002 imposes on the sentencing Judge, to impose the least restrictive outcome appropriate, in accord with the s 10A hierarchy, is reflected in s 11(1). It requires the Judge to consider  whether  to  discharge  without  conviction  under  s 106,  or  convict  and discharge under s 108, or convict and order to come up for sentence if called upon under s 110. Clearly an outright discharge is the least restrictive of the three.

[17]     Thirdly,  the  Court  said,  the  power  to  discharge  under  s 106(1),  though qualified by s 107, which prohibits the sentencing Judge from discharging without conviction ‘unless satisfied that the direct or indirect consequences of a conviction would be out of all proportion to the gravity of the offence’, imposes no onus. It is the Judge that needs to be satisfied. The one for sentence need only supply a basis.

[18]     Fourthly, the Court affirmed, drawing on Fisheries Inspector v Turner [1978]

2 NZLR 233, CA, a threefold inquiry is called for: as to the gravity of the offence, as to the consequences of conviction, and then, combining the two, as to whether they are out of all proportion. As Richardson J said, at 242 – 242:

It must have due regard to the nature of the offence and to the gravity with which it is viewed by Parliament; to the seriousness of the particular offending; to the circumstances of the particular offender in terms of the effect on his career, his pocket,  his reputation  and any civil disabilities consequential on conviction; and to any other relevant circumstances.

[19]     Fifthly, as to the nature of the test now reflected in s 107 itself, the Court affirmed what Richardson J had to say in Police v Roberts [1991] 1 NZLR 205, CA at 210, “The words ‘out of all proportion’ point to an extreme situation which speaks for itself.”

[20]     Sixthly, that Mr C   has committed a drug offence of some seriousness is not of itself decisive. A discharge has been given on appeal in cases of such gravity before; as, for instance, where the offence was cultivation of cannabis and

125 hours community work had been imposed: Doland v New Zealand Police (HC AK, CRI 2004-404-91, 21 May 2004), Randerson J.

Conclusion

[21]     There can be no question that the Judge was right to say that, even if Mr C   was supplying his friends to be able to supply himself, he was engaged in low  level  commercial  dealing.  Also  that  such  offending  ordinarily  calls  for  a deterrent sentence on the Terewi principle and that a conviction and fine is the very least penalty that might usually be imposed.

[22]     The issue is rather whether, accepting that to be so, the entry of a conviction and the imposition of a fine on Mr C   would be out of all proportion to the gravity of his offending. As to that, there are two consequences for Mr C   that must be weighed.

[23]     One is that if the conviction is sustained on this appeal the likelihood is that he will lose his job. That cannot be put more absolutely. As the Judge said, the general manager was guarded in this respect; and, I am told by Ms Ward, that was because he did not wish to be seen to predetermine an issue as to employment, which carries its own implications. But the company is a security company and that is significant in itself.

[24]     The second is as to the  effect on Mr C  ’s mental and  emotional health. As is documented in a medical certificate and confirmed in a psychiatric report obtained for the purpose of this appeal, Mr C   has suffered depression since 2001. He reacted intolerantly to anti-depressants and turned to marijuana. He is now endeavouring to wean himself off. But his underlying condition has still to be of concern.

[25]     Neither of these consequences individually may seem enough to answer the gravity of Mr C  ’s offending. The two combined, however, do seem to me to carry that weight.

[26]     If Mr C   were to lose his work in today’s climate he would not merely lose the ability to support himself and meet his current debt, $12,000. He would be faced with having to find work handicapped by his conviction. Anybody whom he approached would be entitled to know, of course, that he had been convicted. But there is this irony. He would be in that predicament because he had lost work, for which he was well fitted, and an employer, aware of his offending, prepared to assist.

[27]     Further, the effect of loss of work on his mental and emotional health could be adverse at a time when it seems to have reached  a new stability.  He has  a relationship he is finding sustaining. And thus, by a fine margin and not without

some hesitation, I differ from the Judge. It seems to me that he gave too great a weight  to  the  gravity  of  the  offence  and  not  enough  to  the  consequences  of conviction on Mr C   which, combined, do seem to me to be out of  all proportion.

[28]     A concern has to be that, if Mr C   is  relieved  of  the  conviction imposed he might resume cannabis use. He has been off it for forty days. He is able to point to one clear test. All one has eventually is Mr C  ’s assurance. That is a reason for pause. It does not dissuade me from allowing him the opportunity a discharge without conviction will give him.

[29]     I quash the conviction and fine. I do so on the basis that Mr C   will pay Court costs of $130 and make a $500 donation to Odyssey House. A copy of the

receipt is to be supplied to counsel for the Crown within seven days.

P.J. Keane  J