Hudson v New Zealand Police

[2012] NZHC 2769

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000229 [2012] NZHC 2769

BETWEEN  BRIAN LESLIE HUDSON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         9 October 2012

Appearances: J D Pennick for Appellant

H Yiu for Respondent

Judgment:      23 October 2012

JUDGMENT OF DUFFY J [Re Appeal Against Sentence]

This judgment was delivered by Justice Duffy on

23 October 2012 at 10.00 a.m, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140 (DX CP 24063)

Copy to:

J D Pennick, PO Box 2372, Shortland Street, Auckland 1140

HUDSON V NEW ZEALAND POLICE HC AK CRI-2011-404-000229 [23 October 2012]

Summary

[1]      The appellant, Mr Hudson, appeared in the District Court on 16 July 2012 for sentence for one charge of cultivating cannabis under s 9(1) of the Misuse of Drugs Act 1975.  This carries a maximum penalty of two years’ imprisonment or a $2,000 fine.

[2]      Mr Hudson applied for a discharge without conviction under s 106 of the Sentencing Act 2002.   This was declined, and Mr Hudson was sentenced to 12 months’ supervision, fined $500, and ordered to pay $132.89 in Court costs.

[3]      Mr Hudson now appeals against the decision to decline the discharge without conviction application; and alternatively that the sentence of supervision was excessive and unnecessary.

Facts

[4]      Mr  Hudson  was  arrested  following  complaints  about  noise  (which  was disturbing his neighbours) emanating from his apartment at an early hour of the morning.  Mr Hudson was not co-operative with the noise enforcement officers and the Police were called to assist.  He refused to allow the Police to enter by locking the door to  his  apartment.   The Police heard  noises  that  indicated that  he was flushing material down the toilet.   They forced entry and searched Mr Hudson’s apartment.   They found a potted cannabis plant growing on the balcony of the apartment, as well as cannabis material in the apartment.

[5]      Mr  Hudson  was  subsequently  arrested.    He  acknowledged  that  he  used cannabis but said that he preferred to grow his own, rather than dealing with dealers.

[6]      Mr Hudson has prior convictions.   His previous offending falls within two separate time frames.  Between 1988 and 1991, he incurred convictions for driving-

related offences, disorderly behaviour and using insulting or offensive words, and trespass.  Between 2007 and 2009, he incurred a conviction for disorderly behaviour and three convictions for driving with excess breath alcohol.  All of this offending was dealt with in the District Court, where he received a range of penalties including fines, disqualification from driving, and short sentences of community work.

District Court decision

[7]      The  Judge  was  not  satisfied  that  the  consequences  of  a  conviction  for Mr Hudson were out of all proportion to the gravity of his offending.   The Judge noted that the amount of cannabis located exceeded the presumption for supply, but accepted that the total weight may be misleading as to the cannabis quality and the proportion of the plant that could actually be used.  She assessed the offending as to be at the lower end of the scale.   However, she considered that there were other countervailing factors indicating the gravity of the offending as well as Mr Hudson’s personal circumstances.

[8]      The Judge considered that Mr Hudson’s previous convictions meant that it could not be said that he posed little or no risk of re-offending.  The Judge accepted that Mr Hudson’s present line of work involved overseas travel and that  a conviction would make this more difficult for him.  In particular, she accepted that there was a real and substantial risk that he would be unable to travel to Australia, the United States, and the United Kingdom, if convicted.  However, she was not persuaded that this would be a disproportionate consequence as she considered that the curtailment of  Mr  Hudson’s  and  his  business  partner’s  earning  ability  was  “an  absolutely

predictable  and  normal  consequence  for  anyone  of  a  conviction”.1    She  also

concluded that a conviction would not make it impossible for Mr Hudson to make a living, so such adverse consequences that he might suffer from would not amount to significant or extreme hardship.

[9]      The Judge imposed 12 months’ supervision “solely on the special condition ... that [Mr Hudson] attend an assessment for alcohol and/or drug abuse or dependency and thereafter such counselling and/or treatment as directed”.2

Submissions

Appellant

[10]     Mr Hudson submitted that the Judge erred in her consideration of the s 107 test by taking Mr Hudson’s personal circumstances (i.e. his previous convictions and perceived risk of re-offending) into account when considering the s 107 test.  These have no connection to the gravity of the specific offence for which Mr Hudson was sentenced.

[11]     Mr Hudson’s essential concern is that a conviction for drug-related offending would “tip the scales” against him when he applies for visas so as to travel for work purposes.  He has been providing advice to foreign property investors and developers in several countries.  A demand has developed for him to travel so as to assess the properties in person.   Mr Hudson and his overseas business partners stand to gain significantly from these opportunities.

[12]     The   entry   of   a   drug   conviction   would   trigger   provisions   in   the United Kingdom and United States which would not otherwise be triggered by his conviction history.

[13]     Alternatively, Mr Hudson submitted that the sentence of supervision was manifestly excessive in the circumstances of the case.   Prior to this offending, Mr Hudson did not have any drug convictions.   While he acknowledges an ongoing problem with alcohol abuse, he contends that he has no dependency on cannabis and does not demonstrate a need for rehabilitation or reintegration that would justify the imposition of a sentence of supervision.   Section 46 of the Sentencing Act 2002 states that a sentence of supervision may only be imposed if the Court is satisfied

that it would reduce the likelihood of further offending through rehabilitation and reintegration.

Respondent

[14]     The respondent submitted that whilst the Judge may have made a minor error in her approach to the discharge without conviction, this did not affect the overall balancing exercise; and that the Judge’s conclusion that the direct and indirect consequences of a conviction in this case are not out of all proportion to the gravity of the offending was correct.  In this regard the respondent submitted that the Judge correctly  addressed  the  gravity  of  the  offending  and  was  entitled  to  take  Mr Hudson’s  previous  convictions  into  account  in  considering  the  gravity  of  the

offending.3    The respondent contended that whilst the Judge technically should not

have considered Mr Hudson’s risk of reoffending in assessing the consequences of conviction (this being the second limb of the s 107 test), this error did not affect the balancing exercise overall.  Had the Judge not considered the risk of reoffending at that stage, she would have done so later in when assessing the direct and indirect consequences of a conviction.

[15]     Regarding the challenge to the sentence of supervision the respondent argued that the imposition of this sentence was appropriate as given Mr Hudson’s alcohol abuse problem s 46 was properly engaged.  The respondent also submitted that this sentence was not excessive when considered alongside the relatively small fine.

Principles

Appellate jurisdiction – discharge without conviction

[16]     Section 11 of the Sentencing Act 2002 requires a Court to consider discharge without conviction before imposing a sentence.  This power is defined by ss 106 and

107 of the Sentencing Act 2002:

3      Citing Blythe v R [2011] NZCA 190; [2011] 2 NZLR 620 at [11] and the Sentencing Act 2002, s 9.

106      Discharge without conviction

(1)       If a person who is charged with an offence is found guilty or pleads guilty, the court may      discharge the offender without conviction, unless  by  any  enactment  applicable  to  the  offence  the  court  is required to impose a minimum sentence.

(2)       A discharge under this section is deemed to be an acquittal.

…

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.

[17]     The  leading  authority  on  ss  106  and  107  of  the  Sentencing Act  is  R  v Hughes.4  The views expressed in Hughes on the nature of an appeal against a refusal to discharge without conviction were affirmed, with a slight modification, in Blythe v R.5

[18]     At [10], the Court in Hughes held that a sentencing Judge must first consider whether the s 107 test is met, before considering the discretion conferred by s 106. In this way s 107 was seen as “a gateway through which any discharge without conviction must pass.   It stipulates a pre-condition to exercise of the power under

s 106.”6

[19]     At [11], the Court in Hughes held that the decision under s 107 is a matter of fact  requiring  judicial  assessment,  and  not  a  matter  of  exercising  a  judicial discretion.   Accordingly, when it comes to an appellate court’s assessment of a decision under s 107 the normal appellate principles as prescribed in Austin Nichols

& Co Inc v Stitching Lodestar apply:7

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the

4      R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222.

5      Blythe v R  [2011] NZCA 190; [2011] 2 NZLR 620.

6 At [8].

7      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2007] 2 NZLR 141 at [16].

appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[20]      Blythe makes it clear once the s 107 “gateway” is passed, the next decision involves the exercise of a residual discretion under s 106 (at [13]):

Our description of the discretion under s 106(1) as residual is deliberate. That is because it will be a rare case where an offender has passed through the s 107 “gateway” but is not then discharged under s 106(1).  Nevertheless, there is a discretion in those rare cases in light of the statutory wording.

[21]      It follows, therefore, that once the focus of an appellate court moves on to the sentencing judge’s decision under s 106(1) the appellate consideration will need to be in accordance with the principles for appeals against the exercise of a discretion.

Appellate jurisdiction – general

[22]     When it comes to the challenge to the sentence of supervision under s 121(3) of the Summary Proceedings Act 1957, Mr Hudson must show that the imposition of a sentence of supervision together with a fine is manifestly excessive or in some other way met the threshold requirements of that provision.   If so, the Court may quash the sentence and pass another sentence or otherwise deal with him, sever and quash an invalid part of the sentence, or vary the sentence.

[23]     A sentence is manifestly excessive when it is “substantially or significantly more severe” than required in light of the offence and culpability of the offender.8

[24]     The approach to be taken to appeals under s 121 was set out in Yorston v

Police9 where the Court said that:10

(a)       There   must  be   an   error  vitiating  the  lower  Court’s   original sentencing discretion: the appeal must proceed on an “error of principle.”

8      Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [SAB15].

9      Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010.

10     At [13]-[15] (citations omitted).

(b)       To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c)       It is only if an error of that character is involved that the appeal

Court should re-exercise the sentencing discretion.

Discussion

Discharge without conviction

[25]     The Court of Appeal in Hughes applied a three stage approach to making a decision under s 107, which involved:

(i)Identifying the gravity of the offending by reference to the facts of the individual case;

(ii)Identifying   the   direct   and   indirect   consequences   of   a conviction; and

(iii)Determining whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.

[26]     Blythe  affirmed  this  three  stage  approach;  the  three-step  approach  was described  as  “a  helpful  and  practical  way  to  approach  the  test  under  s  107,11

However, when it came to the consideration of certain aspects of the Sentencing Act the Court of Appeal in Blythe (at [10]-[12]) considered that the reference in Hughes to this being done as part of the assessment under  s 107 was perhaps an “inadvertent misstatement”:12

[10]     Later in the judgment in Hughes, the Court said:

Application of the disproportionality test under s 107 requires consideration of all 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. …

11 At [14].

12     Citations omitted.

[11] That appears partly to misstate the requirements of the s 107 disproportionality test. The aggravating and mitigating factors set out in s 9 of the Sentencing Act, and those listed in s 9A which deals with cases of violence against and neglect of children under 14 years, are obviously relevant to “the gravity of the offence”. But the content of ss 7, 8 and 9 is not. For two reasons, we wonder whether the passage we have set out at [10] is an inadvertent misstatement. First, it cannot be reconciled with the correct statement of the position in the excerpt we cite at [9]. Secondly, it does not reflect the Court’s approach in reviewing the way in which Gendall J applied the s 107 disproportionality test.

[12]      As was pointed out in Hughes, the Court must first consider whether the disproportionality test in s 107 has been met. Only if it has been may the Court proceed to consider exercising its discretion to discharge without conviction under s 106. It is at that stage – when exercising the residual discretion under s 106(1) and in deciding whether further orders are required under s 106(3) – that the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act, the aggravating and mitigating factors listed in ss 9 and 9A (as we have pointed out these were relevant to the s 107 disproportionality test), and the matters dealt with in ss 10 and 10B must all be taken into account. That is because all those sections apply, not only in sentencing, but also in “otherwise dealing” with an offender. In that respect, we agree with Hughes.

[27]     In the present case the Judge included as part of the consideration under s 107 matters that Blythe says should have formed part of the consideration under s 106.  I therefore agree with both parties that the Judge erred when she applied the test under s 107.

[28]     The respondent has argued that the outcome would have been the same as any consideration of the purposes and principles of sentencing as well as aggravating and mitigating factors at the s 106 stage would have led the Judge to reach the same conclusion.  The difficulty I have with this proposition is that at the s 106 stage the sentencing judge is exercising a residual discretion, with the result that, as was recognised in Blythe, a favourable exercise of the s 106 discretion is likely to follow from a decision that the s 107 test is met.  Thus, I accept that in principle there might well have been a difference in the outcome if Mr Hudson’s previous history had been considered in the context of s 106 rather than as a relevant factor to take into account in the assessment under s 107.  It is necessary, therefore, for me to go through the exercise required by Hughes and Bythe.

[29]     The first step is to assess the gravity of the offence.  I concur with the Judge’s

view that the gravity of the offending was low.

[30]     The  next  step  is  to  consider  the  direct  and  indirect  consequences  of  a conviction.    Here,  the  offender’s  future  employment  or  career  prospects  are  a relevant consideration.

[31]   The Judge considered that while there would undoubtedly be some consequences  in  terms  of  travel,  these  consequences  were  “predictable”  and “normal”, in that it would make things more difficult, but not impossible, for Mr Hudson and his business associates.

[32]     For the appeal Mr Hudson has provided a number of references from his business associates that outline their business activities and the need for Mr Hudson to be able to travel overseas.  It appears that Mr Hudson has a particularly unique skill of being able to spot potential property developments.  His referees inform me that the Auckland residential market has taken a turn for the worse and that “many property investors and developers going bankrupt.”   The referees contend that prospects for residential property development are more promising in the United States of America (USA).  The referees believe that given Mr Hudson’s aptitude for acquiring property at the best possible value and maximising the return for a minimum capital outlay there are extensive opportunities awaiting him and them in the USA and other countries with similar residential property markets.

[33]     Another  referee  has  referred  to  prior  instances  of  him  and  Mr  Hudson working  on  property  development  opportunities  in  Australia,  South  Africa,  the United Kingdom and the USA.   This referee also believes that there are currently property development opportunities for Mr Hudson to exploit in those countries.

[34]     Courts have granted discharges in situations where an offender would be barred from gaining entry to a profession or would face heavy consequences.  For example, in Waight v Police,13 it was held that a lengthy stand down period on top of the loss of the offender’s existing position was a disproportionate consequence to a conviction for driving with an excess breath alcohol.   However, where a statutory body screens applicants for admission to an occupation, the risk to a person’s career

is unlikely to justify a discharge, as there is a public interest in the statutory body

13     Waight v Police HC Auckland CRI-2006-404-465, 24 May 2007.

knowing about the conviction and exercising its discretion accordingly: see Roberts v Police;14     Dillon v Police;15     DSW v Patea;16     R v Foox;17     and Vermeulen v Police.18   Similarly it could be said that foreign countries should be entitled to screen persons seeking admission to their shores and to be able to make a properly informed choice on the character of the persons to whom they grant entry.

[35]     There is no evidence that a conviction  would be an outright prohibition on Mr Hudson entering the USA or any other country in which intends to operate as a property  developer.    Furthermore,  the  plans  for  him  to  operate  as  a  developer overseas are ephemeral.   This is not a case where his actual livelihood might be jeopardised by a conviction.  Mr Hudson  is not at risk of being barred from or stood down from working.   Until recently, he has been able to conduct his work from New Zealand.  The only curtailment on his business operations in this country of which I am aware is the present economic climate, which will be subject to change in the future.  When matters are looked at in the most favourable light for Mr Hudson all I can conclude is that the consequences for him of a conviction on a drugs charge are unclear.   In such circumstances I cannot be satisfied that the consequences of a conviction are disproportionate to the gravity of his offending under s 107.

[36]     It follows that  I have reached the same conclusion as the District Court Judge, though for different reasons.  Since Mr Hudson has failed to pass through the s 107 “gateway” there is no need for me to go on to consider matters under s 106.

[37]     However, I do note that had I been persuaded that the consequences of a conviction were disproportionate to the gravity of the offending when it came to a decision  under  s 106,  I  would  still  have  considered  that  Mr  Hudson’s  previous convictions counted against the exercise of the discretionary power in s 106.  The power to discharge without conviction is to be exercised “sparingly”,19 and is usually

applied to offenders with no criminal history who have committed a minor crime,

14     Roberts v Police (1989) 5 CRNZ 34.

15     Dillon v Police (1993) 10 CRNZ 504.

16     DSW v Patea (1994) 12 CRNZ 212.

17     R v Foox [2000] 1 NZLR 641 at 649-650.

18     Vermeulen v Police HC Wellington CRI 2010-485-141, 11 March 2011.

19     Halligan v Police [1955] NZLR 1185 at 1188 and Fisheries Inspector v Turner [1978] 2 NZLR

233.

rather than to  offenders  who have a short  history of committing various  minor crimes.

The sentence of supervision

[38]     The sentence of supervision was imposed under s 46 of the Sentencing Act:

46       Guidance on use of sentence of supervision

A court may impose a sentence of supervision only if the court is satisfied that  a  sentence  of  supervision  would  reduce  the  likelihood  of  further offending by the offender through the rehabilitation and reintegration of the offender.

[39]     The imposition of a term of supervision under s 46 appears to have been driven by the Judge’s assessment of Mr Hudson as an intelligent man who struggles with addiction.  It is specifically noted that the sole reason for the imposition was to address those issues.

[40]     I agree with counsel for Mr Hudson that this sentence may have responded to Mr Hudson’s alcohol addiction.  However, absent evidence of a causal link between alcohol addiction and his use of cannabis, I consider that a lengthy enforced rehabilitative measure was unnecessary, particularly given that this is Mr Hudson’s first drug-related offence.   I agree that the factual basis which led the Judge to impose this sentence is non-existent.  The fine that was imposed appears to me to be an adequate sentence for this type of offending.   However, absent any need for a sentence of supervision, this sentence in addition to the fine is manifestly excessive.

Result

[41]     The appeal against the refusal to discharge without conviction is dismissed. [42]     The appeal against the sentence of supervision is allowed; that sentence is

quashed.

Duffy J