Dacar aka Shire v Police

[2012] NZHC 1740

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-000028 [2012] NZHC 1740

BETWEEN  ISMAACIIL DACAR AKA ADAM LIBAN SHIRE

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         17 July 2012

Counsel:         J Murdoch for Appellant

S K Barr for Respondent

Judgment:      17 July 2012

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 4.30pm on the 17th day of July 2012.

RESERVED JUDGMENT OF COLLINS J

Introduction

[1]      Mr Dacar seeks:

(1)       leave to appeal out of time;

(2)       leave to admit further evidence on appeal;  and

(3)to have this Court quash his conviction and sentence in relation to a charge of dishonestly using a document.

[2]      The conviction and sentence which Mr Dacar wishes to have this Court quash relate to a charge that he pleaded guilty to on 2 May 2011 in the Wellington District

DACAR V NEW ZEALAND POLICE HC WN CRI-2012-485-000028 [17 July 2012]

Court.  At that time he was convicted and sentenced to 200 hours’ community work and ordered to pay reparation of $3,874.90.  Mr Dacar asks this Court to substitute his conviction and sentence with a discharge without conviction pursuant to s 106 of the Sentencing Act 2002.

Background

[3]      Mr Dacar was born in Somalia.  He came to New Zealand in 2002 as part of the UNHCR Refugee Quota Programme.  He had previously lived in a refugee camp in Kenya for nine years.  He had lived in that camp for part of that time with his wife and daughter, Fadumo.

[4]      After Mr Dacar left the Kenyan Refugee Camp his wife and daughter also left the camp.  Mr Dacar lost contact with them.

[5]      When he arrived in New Zealand Mr Dacar initially lived with his sister in

Wellington.  During this time he drove taxis.

[6]      In 2003 Mr Dacar moved to Hastings.  At that time he had an outstanding telephone account with Telecom.  When he moved to Hastings he wanted to obtain another telephone.  He was told he had to pay his existing account first.  Mr Dacar arranged for an associate to obtain a new telephone account with Telecom by using a false identity.   When this offending was discovered Mr Dacar was charged with obtaining a pecuniary advantage by deception.  He was ordered to perform 40 hours community work and to pay reparation of $2,083.71.  That conviction and sentence was imposed in the Wellington District Court on 28 November 2007.  The reparation was for the debt owed to Telecom plus an unpaid debt on another matter, which had been the subject of a charge which was withdrawn.

[7]      Mr Dacar subsequently sought to appeal that conviction and sentence out of time. At that time Mr Dacar pleaded:

(1)his  conviction  was  the  material  reason  he  had  been  declined citizenship;

(2)       his conviction was a barrier to gaining employment;  and

(3)       that he was at risk of being disqualified from holding a taxi driver’s

licence for ten years.

[8]      I note in passing that by this time Mr Darcar appears to have incurred a number of offences relating to the way he conducted himself as a taxi driver.  As a consequence, by the time he appeared in the Wellington District Court in May 2011 he had fines and court costs outstanding amounting to $1,090.72.

[9]      The High Court rejected Mr Dacar’s appeal.  Mallon J held that Mr Dacar’s circumstances did not reveal consequences serious enough to warrant a discharge without conviction.1

Current offending

[10]     The offending to which the current appeal relates took place as part of a pattern of offending that occurred in mid-2010.  The offending involved Mr Dacar and  an  associate,  Mr  Gabose  entering  stores  to  purchase  equipment  which Mr Gabose attempted to pay for using cheques which he knew were not able to be honoured. Thus:

(1)On 17 July 2010 Mr Gabose and Mr Dacar went to Harvey Norman in Tory Street, Wellington  where they purchased  $3,289.90 worth of electrical goods using a cheque in Mr Gabose’s name which bounced.

(2)On 7 August 2010 they went to Harvey Norman in Lower Hutt where they purchased $4,460 worth of electrical goods using a cheque in Mr Gabose’s name which bounced.

(3)       On 21 September 2010 they went to Harvey Norman in Palmerston

North.   They tried to purchase $7,951.81 worth of electrical goods

using a cheque in Mr Gabose’s name. The transaction was declined.

1      Shire v Police HC Wellington CRI-2009-485-126, 5 November 2009 (Mr Dacar appears to have changed his surname to Shire in 2008).

(4)      On 22 September 2010 they went to Harvey Norman in Rotorua.

They purchased $9,504 worth of electrical goods using a cheque in Mr Gabose’s name. As they were leaving the store they were stopped by the police.

[11]     Mr  Dacar  was  charged  with  using  a  document  to  obtain  a  pecuniary advantage contrary to s 228(b) of the Crimes Act 1961.  He pleaded guilty and, as mentioned earlier was sentenced to 200 hours’ community work and ordered to pay reparation of $3,174.90.

[12]     The pre-sentence report prepared for the District Court reveals Mr Dacar was residing with his partner and their 20 month old child and one week old child.  He told the report writer that because he lacked financial security he was intending to leave his family home and find employment.   He said it was his responsibility to support his family.

Leave to appeal out of time

[13]     An application for leave to appeal out of time is governed by s 123(1) of the

Summary Proceedings Act 1957. That section provides:

123      Powers of Judge of High Court as to extension of time

(1)       Any  Judge  of  the  High  Court  may,  on  the  application  of  the appellant or intending appellant, extend any time prescribed or allowed under this Part of this Act for the filing of any notice or the stating of any case or the doing of any other thing in respect of any appeal or proposed appeal to the High Court.

[14]     In Ravelich v Police Allan J described the test to be applied when considering an application under s 123(1) of the Summary Proceedings Act 1957 in the following way:2

The Court’s jurisdiction to extend the time for the giving of notice of appeal is unaccompanied by statutory guidelines for the exercise of the discretion. In  that respect it is similar to s 388(2) of the Crimes Act 1961, which empowers the Court of Appeal to extend the time for giving notice of appeal.

2      Ravelich v Police HC Auckland CRI-2010-404-47, 21 July 2011 at [10] – [11].

The jurisdiction to extend time was extensively considered in R v Knight3 and R v Lee.4   In the latter case, the Court confirmed earlier observations in Knight to the effect that the over-arching consideration is the interests of justice, arrived at by balancing all relevant factors.5

Factors of relevance to the balancing test will include the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedy sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.6

Leave to admit further evidence on appeal

The proposed evidence

[15]     Mr Dacar seeks to admit:

(1)      an affidavit from himself dated 9 July 2012;  and

(2)an affidavit from Yvonne Dwight of the New Zealand Red Cross also dated 9 July 2012.

[16]     The focus of Mr Dacar’s affidavit is on his daughter, Fadumo.  He explains:

(1)How he unsuccessfully sought New Zealand citizenship in 2006 following his first conviction.

(2)How he went to Uganda in 2008 and 2009 to locate his daughter by trying to have her found and brought to the Uganda/Kenya border, but those attempts failed.

(3)How suggestions in a report from the Department of Internal Affairs referred  to  by  Mallon  J  in  her  judgment  were  not  correct.    In particular, Mr Dacar has now explained that he did not consciously

3      R v Knight [1998] 1 NZLR 438 (CA).

4      R v Lee [2006] 3 NZLR 42 (CA).

5 At [96].

6 At [99].

supply false information to immigration officials when he first sought

New Zealand citizenship in 2006.

(4)How he believes that having his conviction quashed will assist him in gaining New Zealand citizenship.

(5)That he needs New Zealand citizenship and a New Zealand passport for travel to Kenya.

(6)       That contact has now been made with Fadumo in Somalia.

(7)That the only hope he has of getting his daughter out of Somalia is if he is able to travel there on a New Zealand passport.

[17]     Ms Dwight’s affidavit explains:

(1)       Mr Dacar’s previous attempts to locate his daughter.

(2)       That contact with Fadumo was established in February 2012.

(3)That allowing Mr Dacar to obtain  a New  Zealand passport  is an essential precondition to Mr Dacar being able to get his daughter out of Somalia.

Relevant legislation

[18]     Mr Dacar seeks to admit this evidence pursuant to ss 119(3) and 121(3)(b) of the Summary Proceedings Act 1957. Those sections provide:

119     Procedure on appeal

...

(3)       The High Court shall have the same jurisdiction and authority as the District Court, including powers as to amendment, and shall have full discretionary power to hear and receive further evidence, if that further  evidence  could  not  in  the  circumstances  have  reasonably been adduced at the hearing, and for that purpose shall have the same jurisdiction and authority to make any order under section 31

or section 32 of this Act as the Court from whose decision the appeal is made, or a District Court Judge, had.

121     High Court to hear and determine appeal

...

(3)      In the case of an appeal against sentence, the [High Court] may—

(a)      Confirm the sentence;  or

(b)       If the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender’s character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—

(i)        Quash  the  sentence  and  either  pass  such other sentence warranted in law (whether more or less severe) in substitution therefor as the High Court thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence could have dealt with him on the conviction;  or

(ii)       Quash any invalid part of the sentence that is severable from the residue;  or

(iii)      Vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.

...

[19]     Mr  Dacar  submits  that  the  new  evidence  relating  to  the  location  of  his daughter and the circumstances around the alleged false information he is said to have  supplied  to  the  Department  of  Internal  Affairs  contains  “substantial  facts relating to the offender’s ... personal history” that were not before the District Court. It is submitted on behalf of Mr Dacar that had these matters been taken into account then those factors would have warranted a discharge without conviction.

[20]     I propose to grant Mr Dacar leave to appeal out of time and to admit the new evidence and then address the merits of his appeal.

Would this new information have resulted in a discharge without conviction?

[21]     In addressing this question the Court will proceed on the basis Mr Dacar is entitled to have his appeal considered by way of a rehearing and that the principles governing a rehearing, are those explained by the Supreme Court in Austin, Nichols

& Co Inc v Stichting Lodestar.7

[22]     Sections 106 and 107 of the Sentencing Act 2002 provide the legal test for imposing or declining to impose a discharge without conviction.   Those sections provide:

106      Discharge without conviction

(1)       If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless  by  any  enactment  applicable  to  the  offence  the  court  is required to impose a minimum sentence.

(2)       A discharge under this section is deemed to be an acquittal.

...

107      Guidance for discharge without conviction

The court must not discharge an offender without conviction 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.

[23]     The Court of Appeal has made clear in Blythe v R8 that the correct approach in deciding whether or not a Court should enter a discharge without conviction is to start with s 107.  That provides the threshold test.  The test set out in s 107 has three distinct steps:

(1)First, the Court must consider the direct and indirect consequences of conviction.

(2)      Second, the Court must consider the gravity of offending.

7      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

8      Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.

(3)      Third, the Court must consider whether the consequences, properly

weighed are “all out of proportion to the gravity of the offending”.9

All three steps involve assessments of fact.  They do not involve an exercise of discretion.

[24]     In assessing the seriousness of the offending the Court must evaluate the offending on an entirely objective basis.   If the consequences of conviction would not be out of proportion to the gravity of offending then a discharge without conviction should be declined.   If the consequences of conviction would outweigh the gravity of offending then the decision-maker must move to the next step, namely consider whether to exercise his or her discretion under s 106 to impose or not to impose a discharge without conviction.

[25]     In Blythe the Court of Appeal summarised the second step in the following terms:10

Only if [the s 107 test has been met] may the Court proceed to consider exercising its discretion to discharge without conviction under s 106.  It is at that stage – when exercising the residual discretion under s 106(1) and in deciding whether further orders are required under s 106(3) – that the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act, the aggravating and mitigating factors listed in ss 9 and 9A ... and the matters dealt with in ss 10 and 10B must all be taken into account.

[26]     The Court of Appeal also acknowledged that whilst this step is essentially discretionary, it will be a “rare” case in which that discretion would be exercised against the applicant (given they must already have shown the consequences of conviction would outweigh the gravity of the offending).11

Consequences of conviction

[27]     The consequences of conviction are that Mr Dacar is unable to apply for citizenship  for three  years from  the date of his  conviction  unless  he  can  show

“exceptional circumstances” relating to his conviction. The reasons for this are:

9 At [12].

10 At [12].

11 At [13].

(1)Section 8 of the Citizenship Act 1977 sets out the criteria the Minister of Immigration must be satisfied of before a person can be granted New Zealand citizenship.  Those criteria include the requirement that the applicant be “of good character”.

(2)Section 9 of the Citizenship Act 1977 allows the Minister to grant citizenship in other circumstances.   However, s 9A(1)(c) of the Act does not allow the Minister to grant citizenship to a person convicted of an offence within the preceding three years.

(3)Section 9A(2) provides an exception to s 9A(1) of the Citizenship Act where the applicant meets all of the ss 8 and 9 criteria (including the “good character” requirement) and the Minister is satisfied that there are exceptional circumstances relating to the conviction that mean the applicant should be granted citizenship.

[28]     It would therefore appear that the existence of the conviction is that Mr Dacar is likely to lose an immediate chance of being able to persuade the authorities that he is worthy of New Zealand citizenship.   That loss of chance will in turn adversely affect his ability to travel to Kenya from where he hopes he will be able to enter Somalia to be able to locate his daughter and bring her to safety.

Gravity of offending

[29]     Mr Dacar has pleaded guilty to a serious offence.  The maximum penalty that

could be imposed for offences of this kind is seven years’ imprisonment.

[30]    In addition to the offence being serious, the offending in this case was premeditated  and  part  of a pattern of offending on  three other occasions.   The District Court Judge described Mr Dacar’s offending as being “wilful”, “intentional” and “silly”.

[31]     Counterbalancing these concerns is the fact that the penalty imposed (200 hours’ community  work  and  reparation)  suggests  the  offending  was  moderately serious.

Assessment

[32]     In my assessment the “loss of immediate chance” which Mr Dacar relies upon  is  a very slim  “loss  of chance”.   Without  in  any way trespassing on  the functions of the Executive, this Court observes that by any realistic assessment, Mr Dacar faces considerable hurdles in convincing authorities that he meets the “good character” requirement, even if he is discharged without conviction in relation to the matter before this Court.

[33]     Furthermore, in my assessment, Mr Dacar’s circumstances do not overcome the hurdle that he faces of establishing that the consequences of his offending outweigh the gravity of the offending.  I accept that he appears to be deprived of the slim opportunity to be able to persuade authorities there that he is worthy of New Zealand citizenship. That opportunity by itself does not, in my assessment, outweigh my concerns about the seriousness of the offending on this occasion.

Section 106

[34]     Even if this assessment is wrong, then in my assessment this would be one of those rare cases in which the discretion conferred upon the Court under s 106 should be exercised against a discharge without conviction.

[35]     My primary concern in reaching this conclusion is that Mr Dacar already has a previous conviction for dishonesty which this Court refused to quash on appeal.

[36]     Those who have incurred a previous conviction for dishonesty are very rarely likely to be able to persuade a Court on a subsequent occasion that a second and arguably more serious incident of offending merits a discharge without conviction.

Conclusion

[37]     I have made this decision on the basis that:

(1)       the leave to appeal out of time should be granted;  and

(2)       the additional evidence ought to be considered

in order to properly assess the merits of Mr Dacar’s appeal.

[38]     Having  granted  leave  to  appeal  out  of  time  and  having  considered  the additional evidence which Mr Dacar wishes to adduce I am nevertheless left in the position  where  I  cannot  accede  to  the  request  to  have  Mr  Dacar’s  conviction quashed.     His  circumstances  do  not  justify  a  sentence  of  discharge  without conviction.

[39]     The appeal is dismissed.

D B Collins J

Solicitors:

Public Defence Service, Wellington for Appellant
Crown Solicitor, Wellington for Respondent