Hopkins v Police
[2017] NZHC 2550
•19 October 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-152 [2017] NZHC 2550
BETWEEN TIMOTHY HOPKINS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 9 October 2017 Appearances:
J Y Yi for the Appellant
L J Fraser for the RespondentJudgment:
19 October 2017
JUDGMENT OF VAN BOHEMEN J
Thisjudgment was delivered by me on 19 October 2017 at 19 October 2017 at pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Counsel/Solicitors:
J Y Yi, Barrister, Auckland
L J Fraser, Crown Solicitor, Auckland
HOPKINS v NEW ZEALAND POLICE [2017] NZHC 2550 [19 October 2017]
Introduction
[1] On 10 April 2017, the appellant, Timothy Hopkins, was sentenced after pleading guilty to a single charge of possession of a methamphetamine pipe.1 Judge Thomas in the District Court declined Mr Hopkins’s application for a discharge without conviction. Mr Hopkins was sentenced to 12 months’ supervision.2
[2] Mr Hopkins appeals the refusal to discharge him without conviction. [3] The grounds of Mr Hopkins’s appeal are:
(a) The District Court Judge denied him an opportunity to file written submissions in support of his application for discharge without conviction; and
(b)The District Court Judge made errors in assessing the gravity of the offending and the consequences of conviction for Mr Hopkins.
[4] In support of his appeal, and following a pre-trial Minute of Lang J dated
1 September 2017 setting a timetable for the filing of new evidence and submissions, Mr Hopkins filed an affidavit dated 29 September 2017.
Background
[5] Mr Hopkins was stopped by police on 4 May 2016 on an unrelated traffic matter. The woman he was with was known to the police; there was an outstanding warrant for her arrest. The police searched the vehicle and both occupants. A glass pipe used for smoking methamphetamine was found in Mr Hopkins’s jacket pocket. No methamphetamine was found on Mr Hopkins or in the car but Mr Hopkins later acknowledged having used the pipe earlier.
[6] As already noted, Mr Hopkins pleaded guilty. His sentencing was delayed a number of times as he and his counsel were given opportunities to file submissions
1 Misuse of Drugs Act 1975, s 13(1)(a). The maximum penalty for this offence is one year of imprisonment and/or a fine not exceeding $500.
2 Police v Hopkins [2017] NZDC 7513 [Sentencing Judgment].
in support of Mr Hopkins’s application for discharge without conviction. In the event, no written submissions were filed by the day of sentencing and Mr Hopkins was represented at sentencing by new counsel assigned to him that day.
District Court decision
[7] Judge Thomas began by noting that Mr Hopkins had not filed evidence to support his application for a discharge without conviction, despite the time he had been given to do so and despite being represented by counsel during that time. The Judge acknowledged the difficult situation in which Mr Hopkins and his new counsel were placed but said it was sensible of them not to have applied for a further adjournment given how long it had taken to get to that point.
[8] While there was no formal evidence filed in support of the application for discharge without conviction, the Judge said he had heard enough from the bar from Mr Hopkins’s new counsel to enable him to give a decision based on the premise Mr Hopkins had been able to give that evidence.
[9] The Judge then stated the test for a discharge without conviction, namely that the direct and indirect consequences of a conviction must be out of all proportion to the gravity of the offending.
[10] The Judge considered the offending of “moderate” gravity because any involvement with methamphetamine had important consequences. However, he noted that Mr Hopkins was otherwise of good character, the offending came at a low point in his life and that Mr Hopkins had since taken rehabilitative steps.
[11] The Judge went on to consider the direct and indirect consequences of conviction. He noted that Mr Hopkins was a gifted musician and was well on his way to registering for a doctorate of music. He considered the consequences of a conviction insofar as it affected Mr Hopkins’s ability to obtain scholarships and teach at academic institutions in pursuit of his music career, and his ability to work as a musician on cruise ships as Mr Hopkins had in the past.
[12] The Judge said Mr Hopkins had a high hurdle to cross if he was to satisfy the Judge that a conviction would stand in the way of Mr Hopkins being able to obtain scholarships or teach at academic institutions. The Judge observed:3
… You have to be able to satisfy me that there is a real and appreciable risk that these doors would be closed to you because of the conviction of possession of a methamphetamine pipe. All you have been able to advance, understandably, is a possibility without much more.
[13] On the possibility of Mr Hopkins working on a cruise ship, the Judge noted that Mr Hopkins had worked on cruise ships in the past and might seek to do so in the future. The Judge observed:4
… Again, you have a high hurdle to cross if you are to satisfy me that a conviction will prevent you receiving the necessary visas to do that or would stand in the way of receiving the necessary employment contracts. You have been able to raise this only as a possibility without any evidence to suggest that there is a real and substantial risk of that occurring.
[14] The Judge concluded that Mr Hopkins had not been able to satisfy him that the consequences of conviction would be out of all proportion to the offending.
[15] Judge Thomas convicted Mr Hopkins and sentenced him to 12 months’ supervision, on the special condition that he completed any assessment, treatment, counselling or programmes directed by probation services.
Mr Hopkins’ affidavit evidence
[16] As noted at [4] above, Mr Hopkins filed an affidavit in support of his appeal. Mr Fraser, counsel for the police, submitted that the information in the affidavit was not fresh evidence and could, with any degree of diligence, have been called at sentencing. However, he acknowledged that the evidence was filed after direction from Lang J and accepted it would be considered on appeal.
[17] While I acknowledge the force of some of Mr Fraser’s criticisms of the
affidavit, I have decided that in the interests of justice I should have regard to the material in the affidavit and its attachments to the extent that the material can assist
3 Sentencing Judgment, above n 2, at [6]
4 Sentencing Judgment, above n 2, at [7]
the Court, especially bearing in mind the fact that no affidavit was before the District Court when it sentenced Mr Hopkins and dismissed his application for discharge without conviction.
[18] The affidavit confirms Mr Hopkins is 49 years old and has no previous convictions. Mr Hopkins currently works as a kitchen hand but has previously been employed in various capacities as a musician. He also has been training to become a security officer.
[19] Mr Hopkins explains his offending against a background of significant developments in his life in the past few years. He says his father, a renowned jazz drummer with whom he was very close, passed away in January 20145 and after this event he had difficulty adjusting. He says his father’s death, coupled with the fact that all Mr Hopkins’s other immediate family had moved overseas, led him to feeling isolated and without direction.
[20] In addition, his hours of teaching at Victoria University were reduced from 12 hours per week to 2 hours per week because of poor enrolments. This meant Mr Hopkins could no longer support himself with that work, leading to his resignation. In September 2015 Mr Hopkins was diagnosed with a malignant tumour in his abdomen and underwent major surgery shortly afterwards, spending the next six months recovering.
[21] Mr Hopkins says this was a “dark and depressing” time for him and he found temporary relief and solace in the use of methamphetamine. He acknowledges that drugs have always been a part of the music industry’s sub-culture but says he has only ever used drugs for recreational use and he does not drink alcohol, smoke cigarettes or use marijuana, take prescription medicines or use other drugs.
[22] Mr Hopkins also says he has taken a number of steps to rehabilitate himself, including attendance at two Community Alcohol and Drugs Services (CADS)
courses and attendance at Narcotics Anonymous, and he no longer resorts to
5 Mr Hopkins may have incorrectly stated the date of his father’s death in his affidavit: a news article about his father’s death, which was attached to the affidavit, is dated January 2013.
methamphetamine as a coping mechanism. Attached to his affidavit are two certificates from CADS: a certificate for completion of the Getting Started Group (four weeks) and a certificate for completion of the Action Group (eight weeks). He believes that with continued diligence at his recovery programme he can stay away from methamphetamine for the rest of his life.
[23] In his affidavit, Mr Hopkins identifies the potential adverse consequences of a conviction on his prospects for international travel, becoming a security officer, and teaching at New Zealand tertiary institutions.
[24] On international travel, Mr Hopkins says he has worked as a musician all his life, including tutoring woodwind and saxophone in various schools in New Zealand and Australia and working as an orchestral musician for a cruise line, during which time he visited various countries in Europe, North America, the Caribbean and Africa. He also toured extensively with a jazz quartet, playing saxophone. He estimates that he has been on at least 12 international tours performing music in Australasia, North America, South East Asia, China, Korea and the Pacific. Mr Hopkins states:
I fear that a conviction for a class A drug will restrict my travels overseas and deny me the opportunity to perform overseas, especially on short notices [sic].
[25] Attached to Mr Hopkins’s affidavit are screenshots from a Canadian government website in which it is stated that those with criminal convictions (both minor and serious) may not be allowed into Canada.
[26] Mr Hopkins says he began work as a security officer in February 2017, but was suspended pending the outcome of the charge. He notes that to be eligible for this role he must go through a police check as part of a Certificate of Approval that must be obtained. He wishes to continue working as a security officer when he is not teaching, as it provides a necessary source of income. He says:
I am afraid that a conviction for drugs would make this very difficult for me.
[27] With regard to teaching, Mr Hopkins says that to be eligible to teach at any
tertiary institution in New Zealand, he is required to have a “Limited Authority to
Teach”, which includes a police background check. He acknowledges that having a conviction for a class A substance would not legally preclude him being employed but he considers it most unlikely any headmaster would appoint him. He says:
I believe I would be heavily disadvantaged in my applications if I am convicted.
[28] Mr Hopkins also says in his affidavit that his health has significantly deteriorated since his operation, that he has difficulty concentrating and has had more than fleeting thoughts of self-harm and suicide, and he has struggled to find real meaning and purpose to his life. He says:
My fear is that a conviction of this kind at my age, will not just hamper and disadvantage any efforts to re-enter the workforce, but compound my anxiety and depression, leaving the door open to severe relapse and likely much worse.
[29] At the hearing of this appeal, Mr Yi, counsel for Mr Hopkins, handed up a letter dated 8 October 2017 from Dr William Ferguson of the Kumeu Village Medical Centre in which Dr Ferguson states:
I understand this man [Timothy Hopkins], who is a patient of mine, is facing the prospect of a conviction for a minor drug related offence. I am concerned that the consequences of the conviction would be quite devastating for his ability to get his life back on track. His mental state has not been good since the death if his father in 2013, and his career as a very talented jazz musician came to a halt. His primary source of income in the future is likely to be derived from teaching, and I imagine at times overseas travel in order to perform. The effect of this conviction is likely to seriously harm his prospects of continuing with this vocation, which has been the very centre of his life and wellbeing.
Approach to appeal
[30] Under s 106(1) of the Sentencing Act 2002, the court has a discretion to discharge without conviction a person who has either been found guilty of, or has pleaded guilty to, an offence, unless the applicable statute requires the imposition of a minimum sentence. Section 106(2) provides that a discharge under s 106 is deemed to be an acquittal.
[31] Section 107 of the Sentencing Act 2002 provides that the discretion in s 106 cannot be exercised unless the court is satisfied that the test in s 107 has been met. Section 107 states:
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.
[32] The Court of Appeal has confirmed that “the decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter requiring judicial assessment, which can be subject to appeal on normal appellate principles”.6
Accordingly, the appellate court can come to its own view on the merits.7
[33] The approach required by s 107 is well understood and has been summarised as requiring consideration of three factors:8
(a) the gravity of the offence;
(b) the direct and indirect consequences of a conviction; and
(c) whether those consequences are out of all proportion to the gravity of the offence.
[34] As noted by the Court of Appeal in Z v R,9 the last requirement is key: the court must be satisfied that the consequences of the conviction would be out of all proportion to the gravity of the offending before it is entitled to consider whether the discretion conferred by s 106 should be exercised.
[35] The Court of Appeal in R v Hughes said that the application of what is termed the disproportionality test:10
6 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11];
7 See Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
8 Z v R [2012] NZCA 599, [2013] NZAR 142 at [8].
9 At [9].
10 R v Hughes, above n 6, at 41.
… requires consideration of all of the relevant circumstances of the offence, the offending and the offender and the wider interests of the community, including the factors required by the Sentencing Act to be taken into account under ss 7, 8, 9 and 10.
[36] There has been subsequent discussion by the Court of Appeal in Blythe v R11 and Z v R12 about the appropriateness of taking into account the factors in ss 8 and 9 in the context of the disproportionality test and, in Z v R about whether mitigating and aggravating factors should be considered in the context of the gravity of the
offence or elsewhere in the s 107 analysis. While the Court in Z v R concluded that, provided all relevant factors are considered in the s 107 context, the precise point at which they are considered is unlikely to be material,13 I adopt the approach recommended in that case:14
… when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then 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; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).
(Footnote omitted)
Gravity of the offence
[37] As noted above, the District Court Judge assessed the offending as moderate. However, he went on to state that “… there are a number of features here which greatly reduce your blameworthiness”.15 These were: Mr Hopkins’s good character, clean record, early guilty plea, steps taken to get clean and the offence occurring at a low point in Mr Hopkins’s life. Having identified those matters, however, the Judge did make any overall conclusion about the gravity of the offence. That is a task I
must now undertake.
11 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [11].
12 Z v R, above n 8, at [10] and [24]-[28].
13 At [28]
14 At [27]
15 Sentencing Judgment, above n 2, at [5].
[38] Mr Yi for Mr Hopkins submitted that the gravity of the offending should be identified as low for reasons relating to the personal circumstances of Mr Hopkins including his early guilty plea, remorse, previous good character and lack of criminal record, attendance at CAD courses and Narcotics Anonymous and the low point in Mr Hopkins’s life when the offending took place. These are largely the same matters identified by the Judge, albeit in more elaborated form. I note for completeness that Mr Yi also submitted that another factor that should be considered is that there were no traces of methamphetamine in the pipe. Given Mr Hopkins’s own admission that he had used the pipe earlier, I cannot see how that factor can be relevant — at least not as a mitigating factor.
[39] Mr Fraser for the police submitted that offending regarding class A drugs should as a starting point be regarded as serious “…particularly in light of the havoc it wreaks on those who take it and those who are subsequently affected by it.” He then stated that the police were not aware of any aggravating or mitigating features of the offending. Nor were the police aware of any aggravating features personal to Mr Hopkins. The police acknowledged the mitigating factors concerning Mr Hopkins considered by the Judge.
[40] I consider Mr Fraser rather overstates matters when he submits that a starting point must be that all Class A offending should be regarded as serious. This risks making the same error as the trial Judge in Shakur v Police, of whose judgment Woodhouse J said:16
… undue emphasis may have been placed on the need to deter methamphetamine use in general. This aspect of the matter does appear to have, to a reasonable extent, underpinned the Judge’s approach.
[41] In any event, any starting point is just that. I also consider that the factors identified by the District Court Judge and reiterated by Mr Yi are mitigating factors that should be considered when assessing the gravity of the offence.
[42] Shakur also involved possession of a methamphetamine pipe, although the defendant in that case was able to satisfy Woodhouse J that he had never himself
16 Shakur v Police HC Auckland CRI-2011-404-109, 19 September 2011 at [6]
used methamphetamine. Woodhouse J began his assessment of the gravity of the offending in that case by describing the offending as follows:17
[12] The offence itself is not an insignificant one but it is not a particularly grave offence.
[43] I agree with that characterisation. While it might seem that possession of a pipe is a relatively insignificant matter, Parliament has determined that the sentence for possession of a methamphetamine pipe warrants a maximum sentence of imprisonment of one year, double that for the offence of possession of methamphetamine as provided for in s 7 of the Misuse of Drugs Act 1975. That must be weighed in the balance.
[44] However, that is not the end of the matter. When the other factors identified by the Judge and by Mr Yi in his submissions are taken into account, I consider that the overall gravity of the offending in the particular circumstances of Mr Hopkins’s situation is mild to low. While, unlike the defendant in Shakur, Mr Hopkins admits to having used methamphetamine, he has also explained that was a mechanism to cope with a difficult time in his life. He has also stopped using methamphetamine and is taking active steps to try to ensure he does not use methamphetamine again. Mr Hopkins was present at the hearing of the appeal and informed the Court that he is continuing to attend further CADS courses as well as continuing his attendance at Narcotics Anonymous.
[45] As Mr Fraser noted, Edwards J in Cropper v Police concluded that the gravity of offending in that case, involving three counts of possession of methamphetamine, was “moderate” having regard to various mitigating and aggravating factors.18 Some of the mitigating factors in that case — remorse, guilty plea, efforts at rehabilitation — are present in Mr Hopkins’s case. But Mr Hopkins’s case has none of the aggravating factors present in Cropper: the amount of
methamphetamine purchased, the number of transactions, the fact the methamphetamine was acquired from a person on home detention at the time, and
the fact the defendant was a lawyer and officer of the Court. These differences
17 At [12].
18 Cropper v Police [2016] NZHC 2779.
confirm my view that Mr Hopkins’s offending is lower down the scale by some
margin.
Direct and indirect consequences of conviction
[46] In his affidavit, Mr Hopkins addresses both the economic and emotional consequences of a conviction. On the economic side, Mr Hopkins identifies potential adverse consequences of a conviction on his prospects for international travel in connection with his vocation as a musician, becoming a security officer, and teaching at New Zealand tertiary institutions.
[47] Mr Hopkins’s current employment is as a kitchen hand and there is no suggestion that a conviction would impact adversely on that position. Rather, as Mr Yi put it in his submissions, the apprehended adverse consequences are principally to Mr Hopkins’s ability to find future employment:
It is submitted that a drug-related conviction [at] his age of 49, soon to be 50, would significantly disadvantage the appellant in finding future employment.
[48] The difficulty for this Court and for Mr Hopkins is that, as Mr Sharp said in his submissions, Mr Hopkins’s affidavit and its attachments provide little probative evidence to corroborate the personal views he articulates in the affidavit. His affidavit states his concerns, beliefs and fears about the impact of a conviction on his ability to travel overseas — whether as part of a touring jazz group or as an orchestral musician on a cruise ship — on his ability to obtain registration as a security officer, and on his ability to teach at a tertiary institution. But the affidavit does not go much higher than that. In that sense, the affidavit does not add significantly to the information that was put before the District Court Judge from the bar at the sentencing on 10 April 2017.
[49] With regard to travel, the only hard information that Mr Hopkins provided was a screenshot of the Canadian Government website which indicates that possession of a controlled substance may be a bar to entry to that country. However, the material in the screenshot also indicates that the barrier to entry can be overcome depending on the circumstances, including the passage of time.
[50] With regard to Mr Hopkins’s wish to become a security officer, Mr Yi acknowledged from the bar that Mr Hopkins’s conviction for possession of a methamphetamine pipe would not of itself be a barrier to registration as a security officer. And, as is acknowledged in the affidavit, the conviction would not, of itself, prevent Mr Hopkins from obtaining a Limited Authority to Teach in a tertiary institution. This is confirmed by the information annexed to Mr Hopkins’s affidavit concerning the criteria for obtaining a Limited Authority to Teach. In terms of convictions, the only barriers to obtaining a Limited Authority to Teach are convictions for offences in sch 2 of the Vulnerable Children Act 2011. Convictions under the Misuse of Drugs Act 1975 are not included in that Schedule.
[51] The reality is that two of the employment possibilities that Mr Hopkins put before the Court are simply that — possibilities. He might be asked to join a cruise or an overseas tour at short notice; he might apply to take up a position as a tutor or some other role at a tertiary institution. And even if these opportunities do come up, a conviction would not necessarily preclude Mr Hopkins pursuing them, even if a conviction might make such pursuit more difficult.
[52] I accept that the prospects of becoming a security officer are more concrete in the sense that Mr Hopkins was actually employed in the role before he was charged with the offence. But, as noted, his counsel acknowledged that a conviction would not be a bar to Mr Hopkins continuing to pursue that option.
[53] In terms of the evidence before the Court, therefore, the most that can be said about the impact of a conviction on Mr Hopkins’s future employment prospects is that a conviction might well make it more difficult for him to travel because immigration authorities might bar him from entry, and more difficult to become a security officer or to be employed in a tertiary institution because prospective employers might choose not to employ someone with such a conviction. I can certainly accept that there is a real and appreciable risk of those consequences. But they are not consequences that can be said to have major negative implications for Mr Hopkins’s ability to earn a livelihood, bearing in mind that Mr Hopkins’s career to date has involved a wide variety of roles outside teaching and the music industry, as is apparent from the curriculum vitae attached to his affidavit.
[54] There is also the question of the impact of conviction on Mr Hopkins’s emotional state or, as Mr Yi put it in his submissions, on Mr Hopkins’s loss of self- pride and self-esteem. As Mr Yi noted, these are matters that were recognised as relevant by Mallon J in Nash v Police.19 I accept that Mr Hopkins is deeply embarrassed about the conviction and, at least in his view, considers that if the conviction stands, that in itself will compound his anxiety and depression. In this
regard, I also take note of the letter written by Dr Ferguson, although the question at issue is a legal and not a medical one.
Application of disproportionality test
[55] The question for decision, therefore, is whether the consequences of conviction as I have identified them are out of all proportion to the gravity of the offence as I have identified that. That is, can I be satisfied that the additional difficulties that Mr Hopkins is likely to face in travelling overseas and in obtaining employment in the music, security and education sectors, and the impact on his pride and self esteem, are out of all proportion to the mild to low gravity of the offending as I have assessed it to be? This is a question on which the Court has to be
satisfied;20 it is not something on which Mr Hopkins bears any onus as was
suggested by the District Court Judge.21
[56] I cannot be satisfied that Mr Hopkins’s situation meets the disproportionality test, bearing in mind that the test is not whether, on balance, the consequences outweigh the gravity of the offending but whether the consequences are out of all proportion to the gravity of the offending. Even though I have assessed the gravity of the offence as mild to low, I do not consider these consequences are out of all proportion to that offending bearing in mind that they are not consequences that flow from Mr Hopkins’s current employment and my earlier conclusion that they are not consequences that have major negative implications for Mr Hopkins’s ability to earn
a livelihood.
19 Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009.
20 R v Hughes, above n 6, at [42].
21 Sentencing Judgment, above n 2, at [6], [7] and [9].
[57] Given my conclusion on the application of the disproportionality test, I am required under s 107 of the Sentencing Act 2002 to dismiss the appeal.
[58] With regard to the emotional consequences identified by Mr Hopkins and commented on by Dr Ferguson, I accept those are real and, for Mr Hopkins, significant. But they are consequences that anyone convicted of a criminal offence has to face. I would hope Mr Hopkins can come to see matters with the perspective that others might take of his situation. It is unfortunate and perhaps unlucky that Mr Hopkins was caught carrying a methamphetamine pipe when stopped by the police for a wholly unrelated activity. But having a conviction for carrying a methamphetamine pipe is unlikely to affect significantly how people see and relate to him, especially if they know the circumstances.
[59] As I said to Mr Hopkins in Court, the efforts he is making to rehabilitate himself and to try to ensure he never uses methamphetamine again are highly commendable and I encourage him to persevere in that direction. Part of the process of rehabilitation, of course, is accepting the consequences of one’s actions, even if they are uncomfortable to confront. I hope Mr Hopkins will consider this decision in that light. Further, I hope that any future employers to whom Mr Hopkins discloses his conviction will also consider the conviction in that light, and take note of the mitigating features of the offending in this case and the mild to low gravity of offending that I have assessed.
Result
[60] The appeal is dismissed.
van Bohemen J
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