E v Police HC Wellington CRI-2009-485-97
[2009] NZHC 2072
•6 November 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2009-485-97
E
v
NEW ZEALAND POLICE
Hearing: 27 October 2009
Appearances: Mr Nisbet for Mr E
Ms Grau for the New Zealand Police
Judgment: 6 November 2009 at 3.15 pm
JUDGMENT OF MALLON J
Introduction
[1] Mr E is now 21 years old. Up until events occurring in the early hours of the morning of 30 October 2008 he had no criminal convictions. That morning he was in a city bar. He says he was intoxicated. He approached a man he did not know and asked him whether he knew anybody who would want to buy L.S.D. or cannabis. The man indicated interest and Mr E entered his phone number into his cell phone. The man was an off-duty police officer. The officer left the bar and returned a short time later and told Mr E that he had $300 on him and they could complete the transaction downstairs. Mr E left the bar with the officer. Outside the bar were waiting police. Mr E spotted them and started walking quickly in the opposite direction. He was searched. He had $971 cash on him but no drugs of any kind. His mother’s house where he lives was also searched. No drugs were
found there either.
E V NEW ZEALAND POLICE HC WN CRI-2009-485-97 6 November 2009
[2] As a result of these events Mr E was charged with offering to sell cannabis and offering to supply L.S.D. The latter charge was withdrawn and on
23 January 2009 Mr E pleaded guilty to the offering to sell cannabis charge. He applied for a discharge without conviction. The District Court declined to grant that application. He was convicted and fined $500. He now appeals against the decision not to discharge him without conviction.
The test for a discharge without conviction
[3] A discharge without conviction cannot be granted unless the court is satisfied that the direct and indirect consequences of a conviction are out of all proportion to the gravity of the offending: s 107 of the Sentencing Act 2002. That is a matter of fact requiring judicial assessment which is subject to appeal on normal appellate principles: R v Hughes [2008] NZCA 546 at [11]. If that test is satisfied on the facts the discretion to discharge without conviction, which is permitted by s 106 of the Sentencing Act, will usually follow: R v Hughes at [12].
[4] Under the statutory test, it is first necessary to assess the gravity of the offending. That requires an assessment of all the aggravating and mitigating factors that are relevant to overall culpability: R v Hughes at [37] and [38]. The Court then needs to consider the direct and indirect consequences of the offending and whether they are out of all proportion to the gravity of the offending.
The District Court decision
[5] The Judge’s view of the circumstances of the offending was that they were “serious indeed”. He said the circumstances suggested that Mr E knew what he was doing even though he may have been drinking. He said “it was not just [a] passing comment and you were prepared to see it through”. He noted that he did not know what would have transpired had the police not been waiting outside.
[6] The Judge noted Mr E ’ travel and study aspirations and was prepared to accept that a conviction would have serious consequences for Mr E if he
pursued those aspirations. He noted that Mr E had not previously offended and had some supporting testimonials. He commented that it was a “difficult” decision to make. He concluded that “while I acknowledge that the consequences are indeed serious, so is the offending. I am afraid to say that I do not accept that they are out of all proportion to the offending”.
My assessment
[7] Mr E is a young man who was in a bar in the early hours. In an affidavit provided to the District Court he said he had been drinking heavily. No contrary evidence was submitted by the police. There was no reason not to accept Mr Evan’s account of this. The comment from the Judge that Mr E knew what he was doing seems to have been based on Mr E putting the officer’s number in his cell phone, his decision to go outside with the officer and his actions in walking away when he spotted the waiting police. Be that as it may, that does not take into account that Mr E ’ intoxication may have led him to act out of character and with some warped sense of bravado (that is to be “cool”).
[8] If that was the case it may also have been the case that Mr E had no fixed plan as to whether he would follow through with anything and, if he did, where he was going to get the cannabis from other than to wander down the street to other bars or places where cannabis might be available. That is consistent with what Mr E said in his affidavit, that is, that he had no idea why he did what he did, that he had no cannabis on him and no means of getting any. On the facts there was no reason not to accept Mr E ’ account. The Judge commented that Mr E was “prepared to see it through” but there is no evidence of that. It is true that by putting the officer’s number in his cell phone and walking outside with the officer Mr E had done more than make a passing remark, but Mr E ’ actions were all of a very preliminary nature.
[9] On Mr E ’ behalf, criticism is made of the Judge’s comments about the cash that was found in his jacket. Mr E had filed an affidavit in which he said that he had withdrawn the money prior to leaving Australia which was about a week before this offending. As to this, the Judge commented:
In your affidavit in support, you say you did have $971 on you, but this had been removed from your bank account prior to leaving Australia a week before this incident. That is your explanation for having the money on you a week later when you were out drinking and offering to sell cannabis to this off-duty policeman. There is no other evidence as to your banking or the withdrawal of the cash. I understand that the cash was in New Zealand currency, although you could have, of course, changed the currency on your way back in through to New Zealand.
[10] It is not clear to me that the Judge took his view about Mr E ’ explanation for the cash into account when assessing the seriousness of the offending. As the respondent submits Mr E was sentenced on the basis of the offer and not any previous transaction. However, I accept the submission for Mr E that the Judge appeared to have doubts about Mr E ’ explanation for the cash. Given that, there is at least a risk that this coloured the Judge’s assessment of the seriousness of the offending.
[11] Mr E has now provided this Court with an affidavit that supports his explanation. The affidavit attaches an Australian bank account in his name and a final withdrawal from that account of $1000 made on 24 October 2009. The respondent says the affidavit should not be admitted because it is not “fresh”. I agree that it could have been admitted at the hearing before the Judge in the sense that the information was then available to Mr E . His counsel submits that it was not foreseen that Mr E ’ explanation would be doubted in the absence of any other evidence and when possession of the cash did not constitute part of the offence. I have of course now seen the affidavit. It is relevant because an innocent explanation for the cash supports Mr E ’ slightly more innocuous account of his actions that night. It would be artificial for me now to ignore the affidavit. I am prepared to allow the evidence to be adduced on the basis advanced by his counsel.
[12] Criticism is also made on Mr E ’ behalf that the Judge did not take account of Mr E ’ personal circumstances. Here reference is made to his age, the recent death of his father and the disorienting effect that had on Mr E . These things are not specifically mentioned by the Judge although he does refer to the testimonials where mention of these matters is made. The Judge also refers generally to there being “a number of mitigating circumstances”. It can be assumed that the Judge was aware of these personal circumstances. However, it is not clear
that the Judge took them into account when assessing the overall culpability of the offending and offender. Rather it appears that the Judge has assessed the overall culpability by reference only to the circumstances of the offending which he viewed as serious. These personal circumstances are relevant because they indicate that the offending may have been one-off stupid offending, and arresting and charging Mr E may be sufficient deterrence to ensure there is no repetition of this behaviour.
[13] Overall therefore I consider that the gravity of the offending was at the low end and that the Judge overstated it. He overstated it because he did not take into account that drunkenness may have led Mr E to act out of character and without any plan to complete any transaction and that Mr E ’ reoffending risk may be low. As against overall culpability at the low end, the evidence of the direct and indirect consequences of a conviction needs to be assessed.
[14] The evidence of direct consequences is not particularly strong. The usual reference is made to travel difficulties but the evidence does not suggest that Mr E will not be able to gain visas to the countries he would like to travel to. Mr E has also said he has plans to study social ecology and to do this he will need to study overseas. Apart from any difficulty he may have in obtaining a visa Mr E says that he is concerned that his conviction may affect whether he can obtain a scholarship. This is all rather general because Mr E has not enrolled for any such degree nor sought any scholarship.
[15] However the Courts have been prepared to accept that adverse consequences can flow from convictions. In a variety of ways (eg. employment, immigration and insurance) people are asked to disclose whether they have criminal convictions. As is said in Boonen v Police HC WN CRI-2003-485-41 14 October 2003 at [14]:
The huge and lasting impact of a conviction in terms of overseas travel, but particularly job prospects, has persuaded a number of High Court Judges to allow appeals such as this. That is, appeals by basically decent young people with bright prospects who have committed aberrant offences blotting an otherwise clean copybook.
[16] Not dissimilarly, in Police v Henderson [2005] DCR 796 the District Court (which is the court where discharges without conviction are most frequently considered) said at [14]:
A close perusal of all those decisions establishes that where the applicant applying for a discharge without conviction is a person of youthful years, who is undertaking a course of academic study, who has no previous convictions and is generally of good character, he or she comes within the category of defendants who are more likely to receive the benefit of a s 106 discharge. However each individual application must be considered on its own merits from which no particular category of individuals can be excluded.
[17] I am conscious that not every instance of cannabis offending of a minor nature by a young person who has prospects will always warrant a discharge without conviction. Each case must be considered on its own merits. On balance, however, I am persuaded that the general consequences of a conviction here are out of all proportion to the offending. That is because I have reached a different view on the gravity of the offending to that reached by the District Court Judge who had viewed the decision not to discharge as a difficult one. I view the culpability of the offending as comparable to that in R v McAllister HC WN S No. 43/94 2 June 1994 where a discharge was granted.
Result
[18] The appeal is allowed. The conviction and fine are quashed. Mr E is discharged without conviction subject to the following condition. Mr E had said in his affidavit in the District Court that he was prepared to donate $300 of money held by the police to any charity if he were granted a discharge. It is a condition of this discharge that he make that donation and that he pay the court costs of $130 ordered by the District Court. The discharge will take effect upon confirmation provided to this court that the donation to charity and the court costs have been paid. I leave it to Mr E to decide upon an appropriate charity.
Mallon J
Solicitors:
V Nisbet, Wellington, ph: 04 472 0777, fax: 04 471 1660, email: [email protected]
K Grau, Luke Cunningham & Clere, Wellington, ph: 04 472 1050, fax: 04 471 2065, email: [email protected]
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