F v Police HC Wellington CRI 2007-485-61
[2007] NZHC 905
•13 September 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2007-485-61
F
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 11 September 2007
Counsel: M Appleby for Appellant
M Snape for Respondent
Judgment: 13 September 2007
JUDGMENT OF CLIFFORD J
Introduction
[1] In this case Mr F , who pleaded guilty to a single charge of cultivation of cannabis, appeals against the decision of the District Court declining to grant his application for a discharge without conviction on that charge.
Background
[2] On 7 December 2006 the police executed a search warrant at Mr F ’s home. In the basement area they located a small hydroponic cannabis growing operation. It had two separate areas, one consisted of 21 small seedling plants, and the second
F V NEW ZEALAND POLICE HC WN CRI 2007-485-61 13 September 2007
area had eight mature plants. Mr F admitted the facts and pleaded guilty at the earliest possible stage. In explanation, he stated that he could not afford to buy cannabis and so thought he would grow it instead.
[3] The appellant applied for a discharge without conviction under ss106 and 107 of the Sentencing Act 2002. A discharge without conviction is deemed to be an acquittal. Section 107 provides that the Court must not discharge an offender without conviction unless it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[4] The application was made on three grounds. First, the appellant said that he used cannabis for pain relief. He said he had suffered back pain since an accident in
2004 and had been prescribed medicine which had caused him bleeding in the bowels. Consequently, he said he had had to stop taking the medicine and turned to cannabis instead.
[5] Secondly, the appellant said he had a lucrative job opportunity in Australia.
[6] Thirdly, the appellant’s daughter, who lives in Australia, is turning 21 in October 2008. This is a significant event in the Samoan culture of the appellant, in which the young person is ceremonially brought into society as an adult. The appellant has a number of functions to fulfill at that event.
[7] The significance of the second and third grounds of application is that the appellant says Australian immigration restrictions mean that it will be difficult, maybe impossible, for him to enter Australia at the appropriate time if he has a criminal conviction acquired during the preceding two years.
[8] The District Court Judge applied the statutory test and considered that the appellant had failed to establish that the consequences of the conviction would outweigh the seriousness of the offence. The Judge noted that there was no affidavit evidence substantiating the appellant’s claim that he used cannabis only for medicinal purposes. There was nothing to establish the claim that the appellant’s treatment by legal means had been ineffective and, to the contrary, the suggestion
was that the appellant had not attended the physiotherapy that had been recommended.
[9] There was no evidence outside of counsel’s submissions substantiating the appellant’s claim to have a job opportunity in Australia.
[10] A brief email exchange between counsel and the Australian immigration authorities was adduced in evidence. However, that exchange established no more than that the appellant would have to go through the process of applying for a visa and might face some difficulties due to his conviction. In the Judge’s view, there was nothing definitive in the exchange.
[11] The Judge was not satisfied that the consequences of conviction would outweigh the seriousness of the charge. The Judge noted that cannabis is illegal and that the cultivation was reasonably substantial and sophisticated (in that it involved a hydroponic growing operation). The operation, moreover, was conducted in a house in which a child lived, notwithstanding the cultivation took place in the basement. The Judge considered the purposes and principles of sentencing and acknowledged the requirement to impose the least restrictive outcome available. The Judge took into account the sentencing indication provided earlier in the proceedings, as well as the numerous testimonials received by the court on the appellant’s behalf. Taking all of that into account, the Judge convicted the appellant and fined him $800.
Submissions on appeal
[12] The appellant submits that the Judge erred in principle in her approach to the discharge application. The appellant says that the Judge did not specifically advert to the various mitigating factors outlined in s 9 of the Sentencing Act and applicable in this case, namely the appellant’s guilty plea, his remorse and his good character. Furthermore, the Judge did not refer to the relevant principles of sentencing in ss8(a), (b), (e), (g) and (i). Lastly, the Judge failed to give sufficient weight to the need for rehabilitation.
[13] The appellant has also placed additional material before the Court, consisting of:
• a declaration by the appellant outlining the circumstances of his claim to medicinal use of cannabis, and the nature of the job opportunity in Australia; and
• a declaration provided by a Mr Hunkin, who is a senior lecturer in Samoan studies at Victoria University, confirming the contents of a letter he had addressed in June to the District Court.
[14] This, material was, I take it, intended to answer the Judge’s comments that the appellant’s claims were not substantiated by evidence, particularly as regards the allegedly medical nature of the use of cannabis in this instance.
[15] At the hearing of this appeal before me, Mr Appleby placed considerable reliance on significance of the appellant’s daughter’s 21st birthday as a family event, and therefore on the adverse effect, both on the appellant and his immediate and wider family, if he is unable to attend that event. As regards the difficulties that might eventuate for the appellant, in terms of travelling to Australia, by reason of the conviction now appealed, Mr Appleby submitted that these were matters on which
the court had only to be satisfied to the balance of probabilities, and that the email exchange he had had with relevant Australian officials was able to establish those difficulties to that standard.
[16] The submissions for the police were essentially that the Judge properly considered the relevant legal principles, and did not err in her reasoning. In particular, the fact that she had not explicitly referred to various provisions of the Sentencing Act was not, in and of itself, a ground for granting this appeal.
Discussion
[17] The decision granting or declining an application for discharge without conviction is an exercise of the court’s discretion. Therefore, this Court on appeal will only interfere if the District Court Judge erred in principle, took into account irrelevant considerations, failed to take into account relevant considerations or was plainly wrong.
[18] The submissions counsel has advanced do not, in my view, address those criteria. Whilst Mr Appleby acknowledged relevant authority which states a Judge need not refer explicitly to every applicable legal proposition in her reasonings, nevertheless in my view the submissions for the appellant did concentrate on the details of the Judge’s sentencing notes, and the perceived inadequacies of the Judge’s approach with reference to the statutory framework. In answer to these criticisms, I first refer to the Privy Council decision in Christian & Ors v R [2006] UKPC 47 at [28], adopted by MacKenzie J in Corrin v Police HC WN CRI 2006-
404-342 1 December 2006, in which the Board held that a Judge need not state explicitly every applicable legal proposition in her reasons. To at least some extent she may be presumed to have taken basic legal propositions into account unless the contrary appears from the judgment.
[19] In my view, that answers the criticism that the Judge did not make express reference to each of the sentencing purposes and principles identified by the appellant.
[20] Furthermore, the Judge did in fact identify the sentencing purpose she considered most applicable, namely the need to denounce the appellant’s conduct and deter others.. The Judge also referred explicitly to the sentencing principle most advantageous to the appellant’s case – the requirement to impose the least restrictive outcome possible. Insofar as the Judge did not refer to other sentencing purposes or principles, which the appellant says were relevant, I do not think her sentencing notes betray any error of principle. The Judge was entitled to identify and refer only to the most directly relevant principles and can be presumed to have been aware of the remaining principles.
[21] Secondly, it is said that the Judge failed to consider the appellant’s guilty plea, his remorse and his good character. The last of these was expressly taken into account at [6].
[22] The Judge noted at the beginning of her sentencing notes that the appellant had pleaded guilty. She did not give an explicit discount for that but, given that the sentence was by way of a fine only and in accordance with an earlier sentence
indication, I do not think issue can be taken with that. I think the same applies with reference to the appellant’s remorse. This was a lenient sentence on any assessment.
[23] The appellant’s submissions did not, moreover, adequately address the central issue before the District Court at first instance and now before this Court on appeal – the statutory test in s 107 and the insufficiency of the evidence to substantiate the grounds argued in support of that test.
[24] In terms of the requirements of s107, it can be seen that the various factors set out in ss7, 8 and 9 of the Sentencing Act, and in particular the aggravating and mitigating factors set out in s9, reflect ways in which a Court, when sentencing, is required to have regard to the gravity of the offending for which sentence is being passed. Even considering Mr Appleby’s criticisms of the District Court Judge’s approach in that light, namely as reflecting a submission that she may have erred in her assessment of the gravity of the offending for the purposes of the s107 test, I do not think Mr Appleby was able to point to any error that would support the upholding of his appeal. In particular, and with reference to a submission on which Mr Appleby placed considerable reliance, namely that the District Court Judge had failed to consider the particular circumstances of the offender in assessing the gravity of his offending, it is apparent from the decision that the District Court Judge had ample regard to the circumstances of the appellant. Her Honour had before her the written submissions of counsel, a number of letters from family and friends in support, and an alcohol and drug assessment. Reference was made by her to matters arising from all of those documents.
[25] In my judgment, the District Court Judge gave careful attention to the gravity of the offending, not only in terms of the sentence actually imposed but also as regards her decision to decline to grant the appellant’s application for a s106/107 discharge.
[26] As regards the District Court’s assessment of the inadequacy of the material before it, in my view the additional material provided to this Court does not remedy the situation for two reasons.
[27] First, it is not relevantly fresh evidence. It does not describe a change in circumstances subsequent to the sentencing that should move the Court to depart from the District Court Judge’s assessment. It also does not represent fresh evidence that was not available at the sentencing.
[28] Secondly, the additional material does not remedy the evidential insufficiencies.
[29] The appellant has sworn an affidavit in which he states he suffered bleeding in the bowels as a result of taking his medication and therefore resorted to cannabis. However, there is no doctor’s certificate or letter or anything of that kind which establishes to my satisfaction that the appellant’s treatment course had in fact failed, and that cannabis was his only resort.
[30] In Panckhurst J’s decision in the Jackson case, on which Mr Appleby also placed considerable reliance, the Judge expressly referred to the independent medical evidence provided in support of Mr Jackson’s own evidence. No such medical evidence was provided to the District Court Judge or to this Court. In those circumstances, to the extent that Mr Appleby argued that the Judged erred in her decision under s107 by reference to the assertion that the cannabis here was used for medicinal purposes, I do not think that challenge can be sustained.
[31] I turn now to the question on which, as I understood Mr Appleby’s submissions, considerable reliance was placed, namely the significance of the daughter’s 21st birthday, “coming out”, celebration in Samoan culture and the difficulties that could be caused for the appellant, in terms of his ability to travel to Australia to attend that important event, by reason of this conviction.
[32] Mr Hunkin’s original letter, confirmed by his declaration, was evidence as to the significance of that event for the appellant and his family. I note that the District Court Judge had, in my view, seen it likewise, as reflected by the reference in her decision to the significant 21st birthday of the appellant’s daughter that had been referred to in the context of travel restrictions as between New Zealand and Australia.
[33] On the question of travel difficulty, the appellant’s declaration now reveals that he does not have a job offer as such; rather he has been advised that someone with his skill set would be able to find a job in the forestry sector in short order. On the crucial question of whether the appellant’s conviction would make it harder for him to travel to Australia, the declaration adds nothing.
[34] I accept that it may be difficult to provide firm evidence of the immigration policy of relevant overseas governments, given what would appear to be essentially the “case by case” approach taken by immigration authorities in such cases. Having said that, and taking at face value the email exchange attached by Mr Appleby to his submissions - which I note the District Court Judge would appear to have considered, all that email exchange establishes is that the appellant will need to apply to the Australian authorities for a visa. The central element of that exchange was advice from an Australian official:
“New Zealand citizens with offences need to complete the attached form and return it to our office with a note stating that they want to know if they require a Visa to enter Australia. A police clearance is initiated on their behalf. On receipt of the clearance our office would be in a position to advise them if a Visa is required or not.
Non New Zealand passport holder [sic] have to lodge an application for a visa at our office. If they have offences they go through the same process.”
[35] Taken overall, therefore, in terms of the statutory test, namely that the consequences of conviction “would be out of all proportion to the gravity of the offence”, in my judgment the District Court Judge cannot be criticised for having concluded that the material placed before her did not satisfy her as required.
[36] In these circumstances, I see no reason to depart from the District Court
Judge’s assessment. This appeal is dismissed.
Clifford J
In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of
4.00pm on the 13th day of September 2007.
Solicitors:
M Appleby for the Appellant
Crown Solicitor’s Office, Wellington for the Respondent
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