Fraser v Police - [2014] NZHC 2437

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 Respondent

Judgment:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fraser v Police

Details

AGLC: Fraser v Police [2014] NZHC 2437
Case: [2014] NZHC 2437
Decision Date: 2 October 2014

CaseChat Overview and Summary

Samuel Joseph Fraser appeals against a sentence imposing a $500 fine following a guilty plea on one charge of possession of cannabis. The case was heard in the High Court of New Zealand, Christchurch Registry. The legal issue before the court was whether the sentence imposed was manifestly excessive. The court held that the sentence was excessive and quashed the conviction and fine. The court discharged Fraser without conviction, subject to him paying court costs and donating the amount of the fine to a charity of his choice. The court reasoned that the consequences of a conviction would be out of all proportion to the gravity of the offence. The court noted that Fraser was a first offender with no criminal history, and that a conviction would have a significant impact on his future prospects, particularly in terms of employment and travel. The court also considered the principles of rehabilitation and reintegration, and the need to avoid the lifelong stigma associated with a conviction, particularly for drug offending, albeit minor. The court concluded that Fraser should be given a chance to avoid a conviction, and that this was an appropriate case for a discharge without conviction.

The final orders of the court were that the appeal was allowed, the conviction and fine were quashed, and Fraser was discharged without conviction, subject to the conditions mentioned above.

Orders