Doolan v Police

[2014] NZHC 420

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-000004 [2014] NZHC 420

BETWEEN  CRAIG THOMAS DOOLAN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   10 March 2014

Counsel:                  S J Fraser for Appellant

M J Ferrier for Respondent

Judgment:                10 March 2014

JUDGMENT OF COLLINS J

Introduction

[1]      The question I have to consider is whether Mr Doolan should be granted leave to appeal out of time a conviction and sentence imposed in the Wellington District Court on 7 December 2012, and if so, whether his appeal should be allowed.

[2]      Mr  Doolan  wishes  to  appeal  a  decision  of  Judge  Gaskell  in  which  she declined his application to be discharged without conviction in relation to a charge of obtaining by deception.1   Judge Gaskell convicted Mr Doolan and sentenced him to

40 hours’ community work.

Background

[3]      In March 2012 Mr Doolan was living in Dunedin.  He placed numerous items for sale on TradeMe, including a cell phone.  On 27 March 2012 the cell phone was

sold for $61.

1      Crimes Act 1961, s 240(1)(a).

DOOLAN v NEW ZEALAND POLICE [2014] NZHC 420 [10 March 2014]

[4]      On 29 March Mr Doolan told the purchaser that he would courier the cell phone to them and asked the purchaser to pay the purchase price and courier charges (totalling $69) into his bank account.  The purchaser complied with this request on

30 March.

[5]      Mr Doolan never sent the cell phone to the purchaser despite requests being made to him to complete his obligations.

[6]      When spoken to by the police Mr Doolan admitted he still had the cell phone, that he had used the purchase money to pay his rent and meet living expenses and that he had been too busy to send the cell phone to the purchaser.

Judge Gaskell’s decision

[7]      Judge Gaskell considered discharging Mr Doolan without conviction under s 106 of the Sentencing Act 2002, but declined his application for the following reasons:

(1)       Mr    Doolan’s    offending   involved    “planned”   and    “continuing”

dishonesty.

(2)       Mr Doolan showed no concern for the victim of his offending.

(3)The possible adverse consequences of a conviction would only arise after Mr Doolan had finished a three year degree specialising in Early Childhood Education.

(4)       The potential adverse consequences of a conviction were remote and

did not outweigh the gravity of Mr Doolan’s offending.

Application for leave to appeal out of time

[8]      Mr Doolan has sought leave to appeal his conviction and sentence almost one year out of time.  The reasons for his very long delay in pursuing an appeal have been helpfully distilled by his counsel to the following three points:

(1)It   has   “taken   time   for   the   insidious   effects   of   the   adverse consequences of his conviction to become evident”.

(2)       There were delays in lodging the appeal arising from “backlogs” in

legal aid and the District Court Registry.

(3)He   has   had   to   deal   with   traumatising   and   unsettling   family circumstances.

[9]      I am far from convinced that the criteria for allowing an appeal out of time have been satisfied.  In particular:

(1)Mr Doolan knew the consequences of a conviction when he appeared before Judge Gaskell.   He sought to avoid those consequences by applying for a discharge without conviction.  It is not plausible that it has “taken time for the insidious effects of the adverse consequences” of a conviction to become evident.

(2)While there may well have been delays in administering legal aid and in the District Court, those delays would not have accounted for the

13 months’ time lapse between Judge Gaskell’s decision and the filing

of the appeal.

[10]     Notwithstanding the fact that I am not satisfied leave should be granted to appeal out of time, I will be briefly explain why there is no merit to Mr Doolan’s appeal.

A discharge without conviction

[11]     Under  s  106(1)  of  the  Sentencing Act  2002  a  court  has  a  discretion  to discharge an offender without conviction when they have either been found guilty or pleaded guilty to an offence.

[12]     Section 107 of the Sentencing Act 2002 provides:

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.

[13]     The correct approach to applying ss 106 and 107 of the Sentencing Act 2002 is:

(1)first,  to  assess  the  gravity  of  the  offending.  In  undertaking  this exercise  the  court  should  consider  all  of  the  aggravating  and mitigating factors relating to the offending and the offender;

(2)second, the Court should identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence;

(3)third, the Court must ultimately decide whether it should exercise its residual discretion to grant a discharge without conviction, although it will be a rare case where a Court will refuse to grant a discharge where the offender has passed the first two thresholds in the process followed when applying ss 106 and 107 of the Sentencing Act 2002.2

[14]     I will now apply this methodology to the circumstances of this case.

Gravity of the offending

[15]     In  my  assessment,  Mr  Doolan’s  offending  was  at  the  lower  end  of  the spectrum of criminal offending.  I have reached this conclusion because Mr Doolan obtained only $69 and did advise the police that he was willing to send the cell

phone to the purchaser when the police spoke to him.

2      Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27] and Blythe v R [2011] NZCA

190, [2011] 2 NZLR 620.

Consequences of a conviction

[16]     During his submissions Mr Fraser said Mr Doolan’s convictions would be a “hindrance” to him obtaining registration as an Early Childhood teacher and other employment.  Even if there were evidence to support this submission, I do not think that a conviction that is merely a “hindrance” meets the threshold for adverse consequences contemplated by s 107 of the Sentencing Act 2002.

[17]     The evidence before me does not satisfactorily explain what the adverse consequences  of  a  conviction  will  be  for  Mr  Doolan.    He  has  provided  some evidence that shows that he has had difficulty in gaining part-time employment, but there is no independent evidence that I can rely upon that enables me to conclude that  Mr  Doolan  would  be  precluded  from  entering  his  chosen  vocation  if  he completes his degree and obtains registration as an Early Childhood teacher.

Overall assessment

[18]     I am not satisfied that the consequences of a conviction in this case are out of all proportion to the gravity of Mr Doolan’s offending.   Mr Doolan did behave dishonestly but absent independent evidence that shows that he will suffer adverse consequences I would not be prepared to exercise my overall discretion to grant him a discharge without conviction.

Conclusion

[19]     Mr Doolan’s application for leave to appeal out of time is declined.

[20]     If Mr Doolan’s appeal had been brought within time I would nevertheless have dismissed it.

D B Collins J

Solicitors:

John Dean Law Office, Wellington for Appellant
Crown Solicitor, Wellington for Respondent