Cropper v Police
[2016] NZHC 2779
•21 November 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-149 [2016] NZHC 2779
BETWEEN MARC ADAM ROBERT CROPPER
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 18 October 2016 Appearances:
P Davey for the Appellant
H Clark for the RespondentJudgment:
21 November 2016
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 21 November 2016 at 12.30 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors: Crown Solicitors, Auckland
Counsel: P Davey, Auckland
CROPPER v POLICE [2016] NZHC 2779 [21 November 2016]
Introduction
[1] Mr Cropper pleaded guilty to three charges of possessing methamphetamine.1
He was sentenced to nine months supervision, a $300 fine and court costs of $130. Mr Cropper appeals the Judge’s dismissal of his application to be discharged without conviction.2
Offending
[2] The charges arose out of police surveillance of a number of people believed to be involved in the distribution of methamphetamine. One of those people was Mr Cropper’s neighbour, Mr Vernon.
[3] Intercepted communications revealed that Mr Cropper had obtained methamphetamine from Mr Vernon on 19 June, 20 June and 6 July 2015. The total amount purchased was two and a half grams. Mr Vernon was on home detention at the time. Mr Cropper would purchase things Mr Vernon needed such as food, cigarettes and glass tubing in exchange for the methamphetamine.
Personal circumstances
[4] Mr Cropper is 42 years of age. At the time of the offending he was a senior associate at a large law firm specialising in information technology and telecommunications. His employment has now ended.
[5] Mr Cropper began to use methamphetamine during a period of high stress at work and in his personal life. Prior to his arrest, he was attending CADS to address alcohol use and addiction to other substances. Following his arrest, Mr Cropper continued with CADS counselling, including participating in an intensive out-patient programme. He also attended Alcoholics Anonymous and Narcotics Anonymous up
to five times a week.
1 Misuse of Drugs Act 1975, s 7(1)(a). The maximum penalty is six months’ imprisonment or a
$1,000 fine.
2 Police v Cropper [2016] NZDC 8848.
[6] At the time of sentencing he had been accepted for an 18 week Higher Ground drug rehabilitation course. By the time of the hearing of the appeal that course had been completed successfully. That is a significant achievement as evidence before the Court suggests that only 50 per cent of those who enrol in the course eventually complete it.
[7] The lack of employment has taken a toll on Mr Cropper and his family. Mr Cropper is currently on a sickness benefit. Mr Cropper’s partner has previously been the primary caregiver for their two children and is expecting a third child in January. She has been diagnosed with significant health issues which appear to have been caused, at least in part, by the stress resulting from Mr Cropper’s offending. She is not in a position to earn income to support the family.
[8] Financially, Mr Cropper and his partner are now at a point of selling the family home as they are unable to service the mortgage. It is the impact of a conviction on future employment prospects that is at the heart of the appeal.
Discharge decision
[9] Judge Ryan dealt with Mr Cropper’s application to be discharged without conviction on 19 April 2016. She canvassed the evidence filed in support of the discharge in some detail. That included an affidavit by Mr Cropper, and two letters from recruitment consultants based in the United Kingdom and Sydney. Both consultants opined that a criminal conviction would represent an insurmountable obstacle to Mr Cropper obtaining legal employment.
[10] In assessing the gravity of the offending, the Judge first referred to the nature of methamphetamine and the harm it causes in society. She noted that Mr Cropper’s offending had occurred three times in the context of an admitted addiction. The Judge considered Mr Cropper’s culpability was high given he was an officer of the Court. Such behaviour had a detrimental effect on the reputation of law firms and the confidence placed in lawyers.
[11] The Judge took into account the fall from grace and the media attention
Mr Cropper’s offending had attracted. She also referred to the fact that the offending
was repetitive, premeditated and planned. The amount of methamphetamine involved was not an insignificant amount.
[12] Against this, the Judge referred to the fact Mr Cropper was a first time offender. She noted that he had two sons and a partner who depended on him. She also accepted that he had gone to CADS (although part of the current offending had occurred whilst he was attending CADS). She also took into account the fact that he had enrolled in the Higher Ground programme.
[13] Taking all of these factors into account, the Judge considered the gravity of the offending was moderate.
[14] In terms of the consequences of the conviction, the Judge first noted the general consequences of shame, stigma and humiliation. She accepted that Mr Cropper had lost his job because of adverse publicity. She also accepted that a real and probable consequence of conviction would be that he would struggle to get work as an IT lawyer in New Zealand or abroad. She accepted that any role as an IT lawyer may well require travel to the US.
[15] However, the Judge noted that whether or not she convicted him, he would have to declare the fact that he had been arrested and charged with a crime. The Judge also noted that if disciplinary proceedings were commenced against Mr Cropper he would no doubt be required to disclose those to any overseas law society. She concluded that many of the adverse consequences for his employment would flow whether or not a conviction was entered.
[16] The Judge considered that a conviction would “not be the end” for Mr Cropper. She noted that overseas employers and immigration officials would be more interested in the rehabilitative steps taken by Mr Cropper, and his behaviour since pleading guilty. Those were matters for the officials, and not the Court, in the Judge’s view.
[17] In terms of the proportionality analysis, Judge Ryan considered that whilst the consequences were significant, they were not so disproportionate to the gravity of offending that a discharge without conviction should be granted.
Relevant law
[18] Section 106 of the Sentencing Act 2002 gives the Court the discretion to discharge an offender without conviction. Section 107 provides that this discretion cannot be exercised unless the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[19] Section 107 requires the Court to undertake a three-step analysis and consider:3
(a) The gravity of the offence;
(b) The direct and indirect consequences of a conviction; and
(c) Whether those consequences are out of all proportion to the gravity of the offence.
[20] If the offender meets the s 107 threshold, then the Court will go on to consider whether to exercise the residual discretion under s 106.4
[21] The proportionality test under s 107 is a question of fact requiring judicial assessment. General rights of appeal apply and the appellate court undertakes the evaluation of the s 107 factors afresh.5
Fresh evidence on appeal
[22] Mr Cropper seeks leave to adduce two affidavits for the purposes of the appeal that were not before the District Court Judge. The first is his own affidavit
3 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8].
4 At [9].
5 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11]; and H v R [2012] NZCA 198 at
[34]–[36].
sworn on 15 September 2016. The second is an affidavit from Mr Murphy sworn 22
September 2016.
[23] Section 335 of the Criminal Procedure Act 2011 allows the Court to receive evidence on appeal if it considers that it is “necessary or expedient in the interests of justice”. The principles relating to fresh evidence on appeal are well settled. Ordinarily if the evidence could have been called at first instance, it will not qualify as sufficiently fresh.6 However, even if evidence is not fresh, if there is a risk that there may be a miscarriage of justice if the evidence is excluded, it should be admitted.7
[24] Mr Cropper’s affidavit deals with his completion of the Higher Ground course, steps he has taken since sentencing to recover from his addictions and updating information on his personal circumstances, including additional evidence on the impact of a conviction on his employment prospects. This evidence is generally in the nature of updating evidence. In that sense it is fresh and also credible. I consider that it is in the interests of justice to admit that evidence.
[25] The evidence contained in Mr Murphy’s affidavit is directed to the impact of a conviction on Mr Cropper’s employment. That evidence is not fresh in the purest sense, as it expands on the letter which was before the District Court Judge. However, it does clarify the earlier statements and is directed to the key issue on appeal which concerns the consequences for Mr Cropper’s employment as an IT lawyer should a conviction be entered. There is no prejudice to the police in admitting it. Given that it is directly relevant to a central issue, I consider it to be in the interests of justice to admit that evidence also.
Gravity of the offending
[26] Mr Cropper challenges the Judge’s assessment of the gravity of the offending as moderate. He submits that when the maximum penalty of six months’
imprisonment is taken into account, the fact that the offending was driven by an
6 R v Bain [2004] 1 NZLR 638 (CA) at [22] approved in Bain v R UKPC 33, (2007) 23 CRNZ 71 at [34].
7 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
addiction, together with the significant mitigating features, then the gravity of the offending would be at the bottom end of the scale.
[27] I am not persuaded that the Judge erred in her assessment of the gravity of the offending. The maximum sentence imposed for the offending is not the only relevant marker of culpability. It is the particular features of Mr Cropper’s offending and all the factors relevant to him that determine the gravity of his offending.8
[28] In this case the Judge properly had regard to the aggravating features including the number of transactions, the total amount of methamphetamine purchased, and the fact that it was purchased by way of exchange of goods from Mr Vernon who was on home detention at the time. As Mr Cropper accepts, the fact that Mr Cropper is a lawyer was an aggravating feature of the offending.
[29] The Judge also had regard to the significant mitigating features of the offending including the fact he was a first time offender, his remorse, the steps taken to rehabilitate both prior to and following the arrest, and his personal circumstances. Although the Judge did not specifically mention Mr Cropper’s guilty plea or cooperation with the police in this context, they were mentioned in the summary of his submissions. In any event, in my assessment, they do not warrant a different view of the gravity of offending.
[30] I consider Mr Cropper’s offending to be broadly comparable to, although marginally less serious than, the offending in Jefferies v Police.9 That case involved two charges of possession of methamphetamine, possession of a class C controlled drug, possession of utensils and possession of a non-approved psychoactive substance by a lawyer. The amount of methamphetamine found was 0.38 grams. Brown J considered that offending was moderately serious.
[31] It follows from the above that I agree with the Judge’s assessment of the
gravity of offending as moderate in this case.
Consequences of conviction
[32] Mr Cropper submits that the Judge made inconsistent comments about the consequences of the offending, substituted her own views as to what employers would do rather than relying on the evidence of the two legal consultants, and failed to accord proper weight to the need for Mr Cropper to earn income to support his family.
[33] Those challenges have little merit in my view. There is no dispute that even without a conviction, Mr Cropper will find it very difficult to find work. The comparison of the consequences which would flow without a conviction, and those which would flow with a conviction, was a correct comparison in my view. Nor is it disputed that potential employers will take an interest in efforts made to rehabilitate. Mr Murphy says as much in his affidavit. That is also a relevant consideration to take into account when considering the consequences of conviction. Finally, Mr Cropper’s need to support both himself and his family is implicit in any enquiry as to the consequences of conviction for future employment.
[34] In any respect, the crux of this appeal concerns the impact of conviction on Mr Cropper’s future employment as an IT lawyer. Mr Murphy’s evidence is that Mr Cropper’s employment application will “invariably fail” at either the initial vetting stage, or the final approval stage, of the job application process. On that basis, Mr Murphy’s evidence is that securing employment in Mr Cropper’s chosen field if he is convicted will be “virtually impossible”.
[35] There is no evidence contradicting Mr Murphy’s opinion. I accordingly accept his evidence as establishing a real and appreciable risk that a conviction will pose an insurmountable hurdle to Mr Cropper securing employment as an IT lawyer in the future.
[36] The central issue is whether such a consequence is out of all proportion to the gravity of the offending.
Proportionality analysis
[37] The assessment of proportionality requires the consequences of conviction to be considered in context, and measured against the gravity of the offending.
[38] As already noted, the evidence in this case establishes that it will be very difficult for Mr Cropper to get a job in his specialist field even without a conviction. That is because disclosure of the offending will be required by legal regulatory bodies or employers, and by immigration authorities. The media attention his case has attracted will compound those difficulties. But in any respect, Mr Cropper has indicated that he intends to make full disclosure to future employers whether or not it is a formal requirement. Although I accept that there is a difference between “very difficult” and “virtually impossible”, in practice, the margin may not be all that wide.
[39] Further, it is not contended that Mr Cropper will not be able to secure any employment at all if a conviction is entered. Mr Murphy’s affidavit is specifically directed to the role of an IT lawyer. The additional travel requirements associated with such a role compounds the difficulties arising out of conviction. But it is not clear from Mr Murphy’s affidavit whether the insurmountable hurdle posed by conviction extends to other legal fields outside Mr Cropper’s area of expertise. In any event, there is no evidence that it will form an absolute bar to other forms of non-legal employment. I accept that alternative forms of employment may well lead to a drop in income, but that is an ordinary and foreseeable consequence which flows from conviction, and is not disproportionate to the gravity of Mr Cropper’s offending in my view.
[40] Mr Cropper relies on DC v R.10 Mr DC was an information technology consultant by occupation. He pleaded guilty to charges that he would on occasion smack his sons on the bottom for the purposes of correction. The Court of Appeal considered his offending to be relatively minor.11 Conviction had a real and appreciable consequence on Mr DC’s employment prospects. That is because he worked in a field where security clearance was routinely requested with the
necessary consequence that criminal convictions must be disclosed.12 The Court also had evidence that showed Mr DC had applied for over 100 positions including with past employers, recruitment agencies, and temporary agencies. He had failed to obtain even low level employment with chain retailers and food suppliers. The consequences were held to be disproportionate to the gravity of his offending, and a discharge was granted accordingly.
[41] There are a number of features of Mr Cropper’s case that distinguish it from DC v R. First, Mr Cropper’s occupation as a lawyer is an aggravating feature of his offending which is absent from DC v R. Second, the gravity of the offending in this case is moderate, whereas it was considered relatively minor in DC v R. Third, there was evidence that a conviction had a real and appreciable consequence for all forms of employment for Mr DC. That is not alleged in this case. Finally, Mr DC had also faced the ordeal of a trial for allegations involving serious offending by his own sons which were eventually withdrawn. That factor was influential in the Court’s decision
to exercise its discretion in favour of a discharge.13 That is not a feature of Mr
Cropper’s case. In any event, each case must be considered on its own facts.
[42] Weighing all these factors together, I am not persuaded that the threshold in s
107 has been established. An insurmountable hurdle to securing future employment as an IT lawyer is a serious consequence flowing from conviction which gives reason to pause. But, when those consequences are seen in context, they cannot be said to be out of all proportion to the gravity of Mr Cropper’s offending. A discharge without conviction cannot be granted in those circumstances. For these reasons, the appeal must be dismissed.
Result
[43] The appeal is dismissed.
Edwards J