Fraser v Police
[2014] NZHC 2437
•2 October 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2014-409-00037 [2014] NZHC 2437
BETWEEN SAMUEL JOSEPH FRASER
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 2 October 2014 Appearances:
M Starling for Appellant
M A Elliott for RespondentJudgment:
2 October 2014
ORAL JUDGMENT OF GENDALL J
Facts
[1] The appellant Mr Fraser, a first offender, appeals against a sentence imposing a $500 fine following a guilty plea on one charge of possession of cannabis.
Background facts
[2] I turn to the background facts. On 12 January 2014 Mr Fraser was at Cottonwood Reserve in Christchurch. When questioned by police, Mr Fraser admitted to smoking cannabis. As a result the officers asked him where the cannabis was, which led to the production of a tin containing 2.5 grams of cannabis. Mr Fraser admitted that the cannabis was his. He was subsequently charged with possession of cannabis, an offence against s 7 of the Misuse of Drugs Act 1975 for
which the maximum penalty is three months’ imprisonment and/or a $500 fine.
FRASER v NEW ZEALAND POLICE [2014] NZHC 2437 [2 October 2014]
[3] This matter came before Judge Crosbie in the District Court at Christchurch and was dealt with in two succinct paragraphs, which I replicate in full:1
[1] Maybe you should share with your boss that cannabis stays in your system for a long period of time. If you increase the use you have got a higher concentration of it and I am not sure I would want to be around you if I did not know how much cannabis you have in your system. It has a residual effect that alcohol does not have. Alcohol goes through your system pretty quickly. Cannabis stays there. So you need to think about cannabis use if you are going to be in a job that requires you to make decisions that are important in relation to the safety of other people [that] is the point.
[2] So you will be dealt with as a first offender. Convicted, fined, $500, Court Costs of $130. Thank you.
[4] Mr Fraser now appeals that sentence on the basis that it was manifestly excessive. For completeness, I record the notice of appeal also stated:
Further a guideline judgment from this Court is warranted due to the changing public attitudes towards personal possession of small amounts of cannabis and overseas jurisprudence supporting a revised approach to cannabis by the courts. Accordingly, a Full Court may be warranted. The agreed facts and non urgency make this suitable for a guideline judgment.
[5] That request for a Full Bench hearing was declined by Dunningham J in this
Court in an earlier decision on the discrete point.2
Legal principles governing an appeal
[6] Prior to the commencement of the Criminal Procedure Act 2011 appeals against sentence were governed by s 121 of the Summary Proceedings Act 1957. Section 250 of the Criminal Procedure Act now governs sentence appeals from the District Court to the High Court and provides:
(2) The first appeal court must allow the appeal if satisfied that—
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[7] The Court of Appeal has since confirmed that s 250(2) was not intended to change the previous approach taken to sentence appeals. Not every error in a sentence will provide the foundations for a successful appeal. The types of error that are contemplated by s 250(2)(a) were outlined by the Court of Appeal in Tutakangahau to include:3
(a) Section 250(2) reflects a synthesis or rationalisation of the previous Crimes Act and Summary Proceedings Act provisions to provide a single test for all sentence appeals.
(b)The previous approach similarly required both the identification of an error and a need for the appeal court to be satisfied that a different sentence “should” be imposed.
(c) The practical effect of preserving the previous approach is that the appeal court does not start afresh nor simply substitute its own opinion for that of the original sentencer. Rather, it must be shown that there was an error “whether intrinsically, or as a result of
additional material submitted” on appeal.4 If there is an error of the
requisite character, the court will then form its own view of the appropriate sentence.
(d)In assessing whether an alleged error is of the requisite character, it will be helpful to consider whether the error is material.
(e) Although s 250(2) makes no express reference to the concept of a manifestly excessive or inadequate sentence, those concepts are long- standing and should continue to be utilised when considering s 250(2).
(f) The focus in sentence appeals remains on whether the sentence imposed is within range rather than the process by which the sentence was reached. In exceptional cases, it may nonetheless be necessary to
correct a sentence that is within range (for example, where there has been an arithmetical error).
[8] Turning to the present case the submissions filed on behalf of Mr Fraser in this case seek a reduction in the fine imposed effectively by analogy to drink driving offending. The end result sought in these submissions is a reduction to a fine of somewhere between $50 and $100. On this aspect however I have reached a different view in this case than that advocated by Mr Starling, counsel for Mr Fraser.
[9] On this aspect today I have put to Mr Starling the broad proposition that the appeal before me might be reconstituted as an appeal both against conviction and sentence and that in terms of s 107 of the Sentencing Act 2002 a discharge without conviction might be sought. Mr Starling agreed that this course might be adopted if appropriate and there was no objection from Mr Elliott for the Crown. I proceed on that basis.
My decision
[10] At this point I record my decision here. I am satisfied that this is not a case where a fine of $500, which is a significant amount in terms of the maximum permissible fine, is necessary to achieve broad aims of sentencing nor is it appropriate in this case in my view. I therefore quash the fine and discharge
Mr Fraser without conviction pursuant to s 106 Sentencing Act 20025 on the basis
that the consequences of a conviction here would be out of all proportion to the gravity of this offence in terms of s 107.6 I have approached this issue in terms of the three stage test outlined in R v Hughes,7 as affirmed in Blythe v R.8 This requires
me to work through the following steps:
5 Which replaced the Criminal Justice Act 1985, s 19, which in turn replaced the Criminal Justice
Act 1954, s 42.
6 Sentencing Act 2002, s 107.
7 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222, affirming the tests set out in Fisheries
Inspector v Turner [1978] 2 NZR 233 (CA) and Police v Roberts [1991] 1 NZLR 205 (CA).
8 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.
(a) Considering the gravity of the offending which requires a consideration of all aggravating and mitigating features of the offending and the offender.9
(b)To ascertain the consequences of a conviction, both direct and indirect.
(c) To ascertain whether the consequences are out of all proportion to the offending
The gravity of the offending
[11] Turning first to the gravity of the offending, this is a situation where Mr Fraser, a young man, who was 18 at the time, with an otherwise unblemished record, was in possession of a small quantity of cannabis, admitted to be for his own personal use, in the context of an offence which can be described perhaps as a minor one. There was no element of cultivation, dealing or otherwise supplying, and there was no other offence committed alongside this one. Moreover, there is nothing to suggest that Mr Fraser was anything but compliant when questioned by the police.
Consequences of a conviction
[12] Turning to the consequences of a conviction, in terms of the consequences, both direct and indirect, I see these to be as follows:
(a) Other than this single offence, Mr Fraser has no convictions. The entry of the conviction would, of itself, be a significant consequence. In Hudson v Police10 in this Court, Duffy J said that discharge without conviction is:11
…usually applied to offenders with no criminal history who have committed a minor crime, rather than to offenders who have a short history of committing various minor charges.
In my view Mr Fraser meets this criterion by a significant margin.
9 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].
10 Hudson v Police [2012] NZHC 2769.
11 At [37].
(b)At such a relatively young age, when Mr Fraser as I see it is on the cusp of becoming a truly productive member of our society, a conviction has the potential to impact that productivity in the form of a significant impediment to employment. I consider the principles of rehabilitation and reintegration are best met by providing Mr Fraser the opportunity to live his life unencumbered by a conviction. The
point was put as well as it could be in Boonen v Police:12
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.
I see that as the situation prevailing here.
(c) If Mr Fraser wishes to elect to pursue a career with morality or character requirements, a conviction such as this has the potential to prevent or impede that election. In the context of a reasonably minor offence, with no aggravating features whatsoever, that Mr Fraser should be prevented from pursuing that course if he so choose that is to be avoided.
(d)Though travel is often disregarded as a basis for sustaining a discharge without conviction, I think that it adds weight to the other factors listed above. A drug conviction, however minor, can pose a substantial impediment to international travel. In the unique circumstances of this present case, I consider this to be a possible relevant factor.
A weighted balancing exercise
[13] Next I turn to the issue of this being a weighted balancing exercise. These
cumulative consequences of the entry of a conviction on Mr Fraser’s record seem to
me to point to the irresistible conclusion that they would be out of all proportion to
12 Boonen v Police HC Wellington CRI-2003-485-41, 14 October 2003 at [14]. See too Police v
Henderson [2005] DCR 796 at [14].
the gravity of the present offence. I am supported in this view by the decision of Panckhurst J in Strickland v Police,13 where the learned Judge granted a discharge without conviction in similar circumstances, though in the context of slightly more serious offending.
[14] A discharge without conviction was also granted in Evans v Police in the High Court in Wellington in 2009,14 where Mr Evans had offered to sell cannabis and LSD, but had no drugs on him at all. He pleaded guilty to offering to sell cannabis, the charge of offering to sell LSD was dropped, and he applied for a discharge without conviction. In that case Mallon J there stated:15
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.
(emphasis added)
Other decisions are further supportive of this view and I refer to Christison, Doland, and Trisciuzzi,16 some of these for much more grave drug offending.17 I also bear in
mind other similar cases where discharges without convictions were not granted,18
13 Strickland v Police [2013] NZHC 2704.
14 Evans v Police HC Wellington CRI-2009-485-97, 6 November 2009.
15 At [17].
16 Christison v Police HC Auckland CRI-2009-404-77, 2 June 2009 (discharge granted where Mr
Christison pleaded guilty to selling cannabis); Doland v Police HC Auckland CRI-2004-404-91,
21 May 2004; Trisciuzzi v Police HC Invercargill CRI-2008-425-20, 5 August 2008.
17 Bullock v Police [2012] NZHC 1374; R v Hernard HC Christchurch T30/03, 11 April 2003.
18 Synnott v Police [2013] NZHC 486 at [23] (unsuccessful application in the context of possession
of cannabis for supply was “finely balanced”, but dismissed); Hudson v Police [2012] NZHC
2769 (unsuccessful application in the context of cultivation of cannabis); Kamo v Police HC Auckland CRI-2011-404-44, 13 July 2011 (unsuccessful application in the context of possession of cannabis for supply); Wildin v Police HC Auckland CRI-2010-404-357, 30 March 2011 (unsuccessful application in the context of selling cannabis); Grimshaw v Police HC Hamilton CRI-2010-419-78, 4 February 2011 (unsuccessful application in the context of two counts of cultivating cannabis); Morgan v Police HC Auckland CRI-2009-404-212, 8 October 2009 (unsuccessful application where Ms Morgan pleaded guilty to possession of cannabis – but not her first offence and had previously received a discharge without conviction); Filo v Police HC Wellington CRI-2007-485-61, 13 September 2007; Cole v Police HC Hamilton AP30/03, 4 June
2003.
although I see the unique combination of features in the present case taking it outside the bounds of those authorities.
The discretionary component
[15] Lastly I turn to the discretionary component. While I am cognisant that discharge without conviction should be exercised “sparingly” and I refer to Halligan and Fisheries Inspector v Turner,19 in appropriate cases young people in circumstances such as Mr Fraser now finds himself should be permitted one chance to avoid the lifelong stigma associated with a conviction, particularly for drug offending, albeit minor. This is Mr Fraser’s chance. Although it might be said he has already had that chance with the police diversion decision given to him when he then by failing to comply with its conditions here. Nevertheless I am prepared to
give Mr Fraser this chance. He may not get another one like it and he would be well advised needless to say to make the most of it.
[16] I have found the test under s 107 of the Sentencing Act 2002 to be met. I
therefore exercise my discretion and grant Mr Fraser a discharge without conviction.
Result
[17] As a result the appeal is allowed. The conviction and fine are quashed. Mr Fraser is discharged without conviction, however this is to be subject to the following two conditions:
(a) Mr Fraser is to pay the $130 court costs; and
(b)Mr Fraser is to donate the $500 that he was originally fined to a charity of his choosing. A receipt is to be provided to the Registrar within 20 working days of the date of this judgment.
...................................................
Gendall J
19 Halligan v Police [1955] NZLR 1185 (SC) at 1188; Fisheries Inspector v Turner [1978] 2 NZLR
233 (CA).
Solicitors:
Andrew McKenzie, Christchurch
Raymond Donnelly & Co, Christchurch
3
6
0