M v Police

[2023] NZHC 995

NOTE: PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF APPELLANT PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-321

[2023] NZHC 995

BETWEEN

M

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

4 October 2021 and 7 March 2023

Appearances:

4 October 2021 hearing Appellant in person D McGivern

7 March 2023 hearing Appellant in person Y Fu for the Respondent

S Wimsett, counsel assisting

Judgment:

1 May 2023

JUDGMENT OF DUFFY J

This judgment was delivered by me on 1 May 2023 at 2.15 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel:

S Wimsett, Barrister, Auckland Meredith Connell, Auckland

And to:
The Appellant

M v NEW ZEALAND POLICE [2023] NZHC 995 [1 May 2023]

[1]    The appellant M was convicted and sentenced for a series of offences that occurred between 2013 and 2018. He has attention deficit hyperactivity disorder (ADHD) that at the time was untreated. After his ADHD was diagnosed and successfully treated M went on to complete tertiary studies at Massey University where he gained a Bachelor of Business degree with a double major in accountancy and finance. However, since completing this degree he has found his convictions are a barrier to gaining employment in his chosen field. Accordingly, he seeks leave to appeal out of time against the entry of the convictions by seeking discharges without conviction. The application for leave to appeal out of time and the substantive appeal are opposed.

Facts

The convictions

[2]    There is a total of 11 convictions. They are listed in chronological order starting with the earliest.

[3]    On 10 June 2013 M shoplifted from Smith and Caughey’s Department store on Queen Street items over $1000 in value.1 These were two men’s jackets with a combined value of $1450, which he secreted on his person and was detected by the store’s security as he left the store. He was convicted and sentenced on 12 November 2013 to a fine of $250, with $130 costs and an order for destruction of the shoplifted items.

[4]    There were two offences on 29 September 2013: namely, possession of cannabis plant;2 and wilful damage/graffiti.3 The police summary of facts records that M was seen by a member of the public around 12:54 am spray painting graffiti on a building wall on the corner of Fanshaw Street and Halsey Street. This witness reported the incident to police, who shortly thereafter located and stopped M. When searched following his arrest he was found to possess 5 grams of cannabis plant. On 23 October

1      Crimes Act 1961, ss 219 and 223(b); maximum penalty seven years’ imprisonment.

2      Misuse of Drugs Act 1975, ss 7(1)(a) and (2); maximum penalty three months’ imprisonment, fine

$500.

3      Summary Offences Act 1981, s 11(1)(a); maximum penalty three months’ imprisonment, fine

$2000.

2013 M was convicted and sentenced. For each offence he received a fine of $200 and costs of $130.

[5]    Between 24 August 2014 and 25 September 2014 on two occasions M shoplifted items under $500,4 by failing to pay for petrol he had placed in the fuel tank of his car. On the first occasion (1 pm on Sunday, 24 August 2014) he filled his vehicle up with $70 worth of petrol at a petrol station. He went to pay, but his EFTPOS card was declined. He was directed to park his vehicle and wait for the petrol station attendant. M parked for a short time but then drove off without paying for the petrol. On the second occasion (5.03 pm on Thursday, 25 September 2014) he was at a petrol station where he filled his car with $142.13 of petrol, entered his car and drove away without paying for the petrol. On 28 May 2015 he was convicted and ordered to pay reparation of $70.00 for the first offence and $142.13 reparation for the second offence.

[6]    On 15 July 2015 M’s driving licence was suspended for three months for excessive demerit points. On 12 September 2015 he was seen driving a car by police who stopped him.5 He said he had no idea his licence was suspended. He was convicted of this offence on 26 June 2018 and sentenced to pay a fine of $300 court costs of $130 and disqualified from driving for six months.

[7]    On 22 August 2015 M shoplifted items under $500.6 On this occasion he took items of $230.54 from the Auckland Airport Countdown supermarket. These were placed in two supermarket bags and taken to the self-service checkout where he scanned and re-packed the items in the bags. When no one was watching he left the supermarket without paying for the items. He was detected and ordered to return to the supermarket but instead he ran from the store with the stolen items.

[8]    Then on 1 February 2016 M committed a common assault by spitting at a security guard who had stopped him from gaining entry to a festival for which he did

4      Crimes Act 1961 ss 219 and 223(d); maximum penalty three months’ imprisonment. .

5      Land Transport Act 1998, ss 32(1)(c) and 32(3); maximum penalty three months’ imprisonment, fine $4,500.

6      Crimes Act 1961, s 219; maximum penalty three months’ imprisonment.

not have a ticket.7 The saliva landed on the security guard’s right shoulder. M was restrained by a second security guard until police came. Convictions for this offending were entered against him on 13 February 2017. For the shoplifting offending he was sentenced to 80 hours community work and ordered to pay reparation of $150. For the common assault he was ordered to pay reparation of $200 and sentenced to 80 hours of community work.

[9]    On 30 August 2016 at about 9:50 am M was found in possession of an offensive weapon, a steel butterfly knife with a four-inch blade.8 This knife was in his purse.  M attempted to pass through the security at the Auckland District Court, which is located on the corner of Kingston Street and Albert Street. His purse went through the security x-ray machine where it was stopped, and the security guards asked to search the purse. M did not comply with this request; instead, he left the building and shortly afterwards he was detained by police in Kingston Street. When asked why he carried the knife he said it was for self-defence. On 19 April 2017 following a guilty verdict after a jury trial he was convicted of this offence and sentenced to 60 hours’ community work, cumulative on the earlier community work sentence and nine months’ supervision with special conditions.

[10]   On 5 January 2017 M committed the offence of wilful damage/graffiti when he spray-painted the wall of a heritage building with the word “Tare”.9 He was convicted of this offence on 3 May 2018 and ordered to pay Court costs of $130 and reparation of $200.

[11]   On 2 November 2017 M breached the supervision he received for the possession of an offensive weapon offending by failing to report when ordered to do so.10 On 18 January 2018 he was convicted and discharged.

7      Section 196; maximum penalty one year imprisonment.

8      Section 202A(4)(c); maximum penalty three years’ imprisonment.

9      Summary Offences Act 1981, s 11(1)(a); maximum penalty two months’ imprisonment, fine

$2000.

10     Sentencing Act 2002, s 70(b); maximum penalty, three months’ imprisonment, fine $1000.

[12]   Analysis of the above reveals the majority of the offending is low level offending which carries a low maximum penalty and for which M received sentences at the lower end of the available sentencing range.

[13]   The last offence was committed on 2 November 2017 (the breach of supervision conditions) and the penultimate offence was committed on 5 January 2017 being the graffiti/wilful damage of the heritage building.

[14]   The most serious offence was the 2013 shoplifting of items over $1000 in value which carried a maximum sentence of seven years’ imprisonment. The penalty of a fine of $250 and $130 costs reflects the seriousness with which the Court viewed the offence.

Personal background

[15]   M was born on [redacted]. He is now 32 years old. In May 2017 he was first diagnosed, by Dr Simon Bainbridge a registered psychiatrist at Fillan Healthcare, with Adult ADHD.11 This is also when he began treatment for the condition.

[16]   M says that before he was first diagnosed with ADHD, he had struggled most of his life. At secondary school he never succeeded past the fourth form. In his first report (May 2017) Dr Bainbridge refers to M having a childhood where he was disruptive in class, regarded as the “class clown” and failed most of his school exams before leaving school aged 14. His school reports had stated “he could do better if he applies himself”.

[17]   M says he was never given the chance to see a psychiatrist during his adolescent years to see if there were any psychological or psychiatric issues underlying his poor scholastic performance. He says that throughout his younger 20s he started to find himself in trouble with the police, that he was never able to process right from wrong, or the consequences.

11     Dr Simon Bainbridge MBBS, BMedSci, MBA, FRANZCP, MRCPsych. M was referred to Dr Bainbridge by Dr Lowe of the Health and Counselling Centre, Massey University Albany campus.

[18]   M describes himself during the period he was undiagnosed and untreated as impulsive, lacking in concentration, with poor self-esteem, depression and anxiety due to his failures and never being able to succeed in life.

[19]   Despite the yet untreated ADHD, at the age of 23 M gained entry to Massey University, Auckland as an adult student and he enrolled in the Bachelor of Business degree. However, at the age of 25 he was stood down for one year by Massey University for poor grades. It was during this time that he came to suspect that he may have ADHD and obtained the referral to Dr Bainbridge.

[20]   M also has a physical illness in the form of a spinal arthritis disease which causes him pain and mobility issues. He takes regular pain relief medication for this illness as well as the ADHD medication. Previously he used cannabis for pain relief, both illegally and when he lived in Australia, on prescription. He says he does not have many options for a career that suits his physical disability, but he did not want to be a on a disability allowance for the rest of his life. Hence his attempt to enter a desk- based profession.

[21]   When Dr Bainbridge reviewed M in May 2019, he found much was improved. The May 2019 reports records M stating:

Things have been amazing; my whole life has changed since I saw you; after I started taking the medication, I could feel that my brain became more balanced and I am no longer getting in trouble with the Police; I have not been arrested for a while and at university, my grades have improved; I feel I have a lot more control over how I act and what I do and I am really pleased with how things have gone.

[22]   On review in May 2019 Dr Bainbridge noted that M had found that he was able to make better decisions and have better judgment and not act so impulsively while on the prescribed medication, Concerta.12 There were possible side-effects, but these were being managed. M was also still taking prescription drugs for arthritis.13 Dr Bainbridge renewed the required special authority for Concerta, on the basis the

12 Concerta requires a special authorisation; it appears to carry risks of side effects however Dr Bainbridge reported in his 2019 report that M was managing the medication well. There is nothing to suggest any change in this respect.

13 These drugs were Tramadol for pain relief, Quetiapine 200mg to 250mg each  day, Metoclopramide, and Finasteride.

ongoing prescriptions for this drug would be provided by M’s general practitioner doctor, who was to be responsible for his ongoing management.

[23]   M has provided the Court with the reports Dr Bainbridge prepared in May 2017 and May 2019. Dr Bainbridge has now retired from practice. For the purpose of the appeal M has obtained a report from Dr Hans Laven, a registered clinical psychologist,14 who also attended the appeal hearing and was cross-examined by the respondent. While the respondent through counsel questioned aspects of Dr Laven’s evidence, the respondent did not file its own expert evidence.

[24]   Mr Laven conducted his own assessment of M using a recognised diagnostic tool15 and stated that prior to treatment M had severe ADHD as a child and an adult. Mr Laven referred to research which he said showed ADHD was a factor that increased the chance of criminal offending by threefold. He opined that for M “the ADHD was a very significant and a primary contributor or cause of the offending”.

[25]   After the diagnosis and treatment with Dr Bainbridge, M was able to return to university to finish his degree. During his last two years at university, which were part time, he obtained two academic excellence awards. He also won three competitions in data analytics and represented Massey University in the global CFA equity research competition. Put shortly there was a significant improvement in his academic endeavours.

Work experience

[26]   In February 2020 while M was still at University he was “scouted” and offered work with a chartered accountant during his University studies.16 The Bachelor of Business degree was completed in June 2020 and M graduated in May 2021. It was at this time that he left employment with the chartered accountant and commenced looking for permanent work. The accountant provided him with a reference dated 3 May 2021 which recommends M as a candidate for employment and confirms he was

14     Hans Laven MSc Diploma of clinical psychology Auckland University, winner of Senior Prize in psychology.

15     The DIVA 22.0 (Diagnostic Interview for Attention Deficit Hyperactivity Disorder in Adults).

16     M was employed by [redacted], Chartered Accountants Ltd.

employed as an assistant accountant from March 2020 to April 2021. It describes his role as being responsible for preparing financial statements and taxation returns for companies, trusts and sole traders and other administration tasks as required. The reference describes M as having communication skills, being organised and having good computer skills. He is said to be able to work independently and able to follow through to ensure a job gets completed. He is also described as flexible and willing to work on any project that is assigned to him. He is described as someone who would be a beneficial team member for any employer.

[27]   In July 2021 M lodged this appeal. In August 2021 he was offered a position at the [redacted] as an analyst. He revealed his convictions and the appellate process he was going through to get his “clean slate”. He was advised that the [redacted] were not interested in employing him until he had a “clean slate”. His applications for other jobs in the financial services industry have resulted in potential employers seeking disclosure of any criminal history, which has led him to abandon further pursuit of those jobs.

[28]   When M first appeared before me he was unemployed. The appeal was adjourned part heard to enable him to obtain updating expert evidence. When the appeal was recalled before me M was working on a short-term contract for a [redacted] entity. The contract was related to [redacted] matters and had been renewed in circumstances where there was no long-term future. He advised me the contract was expected to run out within a matter of months. This contract had not required M to disclose his criminal history and he had not offered to do so.

[29]   M submits his employment prospects are blighted by a criminal history that was acquired at a time when the effects of his untreated ADHD made him more prone to criminal offending. His last criminal conviction was in 2018, however the matter had been in Court for four years. His last arrest was around 2015. He believes the absence of criminal activity for nearly six years confirms his statements and the expert opinion about why the offending and other early failures in his life have occurred. He further submits that had his ADHD been diagnosed and treated at the time the offending started then he may have avoided entry of conviction and further offending.

He contends that as matters now stand the entry of the convictions is disproportionate to the gravity of the offending, once explained by his expert evidence.

Law

Appeal rights

[30]   An appeal in which discharge without conviction sought is usually brought as an appeal against conviction and sentence.17 Here M has filed his appeal(s) as being against conviction. However, given a discharge without conviction is treated as an acquittal,18 it is the appeal against conviction that is essential.19 M does not seek to challenge the sentences imposed in the event he is not granted discharges without convictions.20 Thus that there is no appeal against sentence is not fatal to the appeal.

[31]   This Court has jurisdiction under the Criminal Procedure Act 2011 (CPA) to hear appeals against decisions of a District Court Judge made in criminal proceedings other than for a category three offence after the defendant has elected trial by jury or a category four offence.21

[32]   In the present case one of the convictions (the possession of an offensive weapon) is for a category three offence for which M elected trial by jury and pleaded not guilty. Accordingly, this Court has no jurisdiction to hear an appeal against that conviction nor the corresponding sentence.22

[33]   As for the remaining offences, apart from the 10 June 2013 convictions, they are either category one or category two offences for which jury trial was not elected. Their appellate pathway to this Court is provided in ss 229, 230 and 244 of the CPA.

17     Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12]; Ovtcharenko v Police [2017] NZCA 65 at [5]; and B v Police [2021] NZCA 16 at [61].

18     Sentencing Act 2002, s 106(2).

19     See Rutherford v Papakura District Council HC Auckland CRI 2005-404-162, 20 September 2005 at [11]–[13] and Jackson v R, above n 17, at [8].

20     Compare Jackson v R, above n 17, at [9].

21     Criminal Procedure Act 2011, ss 230(1)(b) and 247(1)(b).

22      Sections 230(1)(b) and (c) and 247(1)(c) and (d).

[34]   The exception are the convictions for offences committed on 10 June 2013; these pre-date the CPA. However, the criminal process for these offences was brought summarily under the now repealed Summary Proceedings Act 1957.23 This Act gave a right of appeal for conviction to this Court.24 Accordingly, other than the conviction for possession of an offensive weapon all convictions are within the appellate jurisdiction of this Court.

[35]   Finally, this Court has jurisdiction to hear an appeal against conviction where a discharge without conviction is sought despite it not having been sought at first instance.25

[36]   Section 231(2) of the CPA requires a first appeal against conviction to be brought within 20 working days after the date of sentence for the conviction appealed against. However, s 231(3) provides the first appeal court may, at any time, extend the time allowed for commencing an appeal against conviction.26

[37]   The principles relevant to such extensions of time are well established. They are to be found in the Court of Appeal’s decisions in R v Knight and R v Lee.27 The touchstone is the interests of justice with the appeal court being required to balance a number of factors including:28

… the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedies sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.

[38]   Subsequently in Smith v R the Court of Appeal said the reasons for the delay in bringing an appeal and the merits of the proposed appeal are of particular

23 Summary Proceedings Act 1957, s 13.

24 Section 115. Under the Criminal Procedure Act 2011, s 397 proceedings commenced before the commencement date and not finally determined (including any appeal) continue in accordance with the law as it was before the commencement date. Commencement includes an information being laid under the Summary Proceedings Act 1957. The commencement date is 1 July 2013 (Criminal Procedure Act 2011, ss 2(2) and 394). Mr M’s information was laid on 14 June 2013.

25 Bedford v R [2021] NZCA 395; and Kupriianova v New Zealand Police [2022] NZHC 1306.

26 And see Summary Proceedings Act 1957, s 123.

27 R v Knight [1998] 1 NZLR 583 (CA) at 587; and R v Lee [2006] 3 NZLR 42 (CA) at [95]–[99].

28 R v Knight, above n 27, at 587.

significance, with the latter likely being determinative of the interests of justice and therefore the application for leave.29

Discharge without conviction

[39]   The Court’s authority to discharge without conviction is provided for in the Sentencing Act 2002:

106Discharge 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.

(3)A court discharging an offender under this section may—

(a)make an order for payment of costs or the restitution of any property; or

(b)make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—

(i)loss of, or damage to, property; or

(ii)emotional harm; or

(iii)loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:

(c)make any order that the court is required to make on conviction.

…

107Guidance 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.

[40]It was established in R v Hughes :30

[10]      … the court must first consider whether the disproportionality test in s 107 has been met. If (and only if) the court is satisfied the s 107 threshold

29     Smith v R [2020] NZCA 221 at [3]–[4].

30     R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.

has been met, may the court proceed to consider exercise of the discretion to discharge without conviction under s 106.

[11]      The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles: Rajamani, at para 5. The discretionary power of the Court to discharge without conviction under s 106 arises and exists only if the Court is satisfied that the s 107 threshold has been met.

[41]   Accordingly, the normal appellate principles set out under Rajamani v R apply to the s 107 analysis.31

[42]   The considerations relevant to the s 107 analysis are set out in Z v R where Arnold J held:32

... 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.

[43]   On this approach the court first determines the seriousness of the offence, having regard to both the aggravating and mitigating factors of the offence and the aggravating and mitigating factors which apply to the offender.33 The court then determines the direct and indirect consequences of conviction and whether they are out of all proportion with the gravity of the offending.

Admission of new evidence

[44]   Finally, I note that where the appellate court is being invited to consider information relevant to the appeal’s outcome that post-dates the date of sentencing, it is usual for an appellant to apply to adduce fresh evidence on appeal.

31 Rajamani v R [2007] NZSC 68, [2008] 1 NZLR 723 at [5].

32 Z v R [2012] NZCA 599, [2013] NZAR 142 at [27].

33 In Sok v R [2021] NZCA 252 at n 3 the Court of Appeal recently confirmed that “it is settled law that ‘gravity of the offence’ in s 107 … takes into account the aggravating and mitigating circumstances of the offending and the offender” (emphasis added).

[45]   It is well settled since R v Little and R v Moriarty that events which have occurred after sentencing may be taken into account on appeal.34 The relevant authorities are helpfully summarised in Richardson v New Zealand Police.35 In general, evidence of such events must be sufficiently cogent and relevant and there must be exceptional circumstances warranting its admission.36

[46]   In Richardson v New Zealand Police, Gendall J referred to Soloman (aka Hanks) v R where the Court of Appeal stated that “R v Moriarty and the many subsequent decisions of this court that have applied it permit us to take into account that the appellant has not reoffended throughout the entire two years since she committed the offences with which this appeal is concerned.”37 Gendall J acknowledged this statement suggested the Court of Appeal may have resiled from the requirement of exceptionality, at least to some extent. However, his Honour recognised the otherwise consistent application in other appeals of a requirement for exceptional circumstances before the admission of evidence arising after sentence but before appeal to be admitted to court. In Gendall J’s view each case will require a holistic assessment of the entirety of the case along with the new evidence.

Discussion

[47]   The application for leave to appeal out of time and the proposed appeal rests on new evidence, in particular that given by Dr Laven, but also in the form of the reports from Dr Bainbridge and evidence that M has given from the bar.38

[48]   When M first appeared before me, I told him of the need for evidence to establish a causal link between his ADHD and the offending.39 He has provided this evidence from Dr Laven, however, there is no formal application to adduce it as fresh evidence.

34     R v Little CA 48/82 24 February 1983 and R v Moriarty CA109/84, 10 August 1984.

35     Richardson v New Zealand Police [2015] NZHC 1431.

36     R v Little, above n 34, and R v Moriarty, above n 34.

37     Richardson v New Zealand Police, above n 35, citing Soloman (aka Hanks) v R [2012] NZCA 300.

38     The respondent did not object to this evidence.

39     See M v New Zealand Police HC Auckland CRI-2021-404-321, 6 October 2021 (Minute of Duffy

J) which explains why the appeal was adjourned part heard. It did not resume before me until 7 March 2023.

[49]   It may be that as a self-represented appellant M does not know how to go about applying to adduce fresh evidence on appeal. Further, I note that in Smith v R where no affidavit to explain the delay in appealing was available the Court of Appeal put that procedural irregularity to the side and proceeded to consider the merits of the proposed appeal, given they underlaid the question of whether to grant leave or not.40 Also, in Richardson v New Zealand Police Gendall J noted the absence of any submissions regarding the new evidence, but went on to find the exceptionality of some of the evidence warranted its admission.41 Thus, whilst I decry in principle the failure to comply with proper procedure, I recognise there needs to be some laxity about the form in which a self-represented appellant presents his or her appeal, particularly where in substance the interests of justice weigh in favour of allowing the proposed appeal. Accordingly, I propose to consider the merits of the proposed appeal first, as this will be decisive of the other matters.

[50]   The respondent describes the offending as moderately serious. I think it is less than that. It generally appears to be impulsive, opportunistic low range offending that is more of nuisance value than anything else. Certainly, the conduct involved cannot be condoned but there is nothing about the offending that suggests calculated intent and planning; nor did he profit from it. The penalties the offending attracted are consistent with this view.

[51]   The crux of this appeal is the causal link Mr Laven’s evidence draws between the offending and M’s ADHD. He saw M’s ADHD as being “a real factor” and a “significant contributor” of the offending. Further his view is consistent with the research to which he refereed.

[52]   Secondly, there is the fact that M has stopped offending since receiving the ADHD diagnosis and treatment. Generally, it is wrong to reason that because something follows another thing the former causes the latter.42 However, here there is Dr Laven’s expert evidence to establish a causative link. There is no expert evidence to contradict this view and the respondent’s cross-examination of Dr Laven did not

40     Smith v R, above n 29, at [4].

41     Richardson v New Zealand Police, above n 35, at [28].

42     The post hoc ergo propter hoc fallacy.

diminish my impression that Dr Laven had given both a credible and a reliable expert testimony.

[53]   I asked Dr Laven whether he had given any thought to the possibility that M was using the ADHD diagnosis as a crutch to avoid the consequences of the convictions. Dr Laven’s response was as follows:

A. Well,  of course. That was in my mind from the  outset.  But I  really found no evidence to suggest that and basically everything I came across [seemed] a genuine, genuine on his part in terms of looking back on his behaviour and one of the things, also, is that since he’s been treated, you know, he’s seen those things more clearly. That seemed evidence to me, and also, he hasn’t been offending as far as I know. So all those things really point to, yes, point to the ADHD being a real factor, and, in fact, you know, according to research and according to the assessment there is no reason for me to doubt that the ADHD was a significant contributor [and] his attempt, or current request regarding his convictions, is not sort of making that up or just using it…

[54]   I was impressed with Dr Laven’s evidence. His report and his oral evidence outline his extensive experience in giving evidence for courts, which was also apparent to me from how he conducted himself in Court. His answers were clear and the explanations he gave were intelligible and reasonable. His evidence was not undermined in any way by the cross-examination. The earlier reports from 2017 and 2019 by Dr Bainbridge are consistent with Dr Laven’s evidence.

[55]   Put simply the expert evidence from Dr Bainbridge and Dr Laven consistently shows that M has ADHD. I find the expert evidence provided by M to be helpful and persuasive. This evidence strongly supports M’ unmedicated ADHD symptoms being a significant contributing factor in his offending. The respondent provided no contradictory expert evidence.

[56]   I consider it highly probable that had M received his diagnosis of ADHD and been treated before the offending started he may never have offended. At the time of the first offending, had there been a diagnosis then and treatment started M may have received a discharge without conviction given the significant contribution of untreated ADHD symptoms to the offending and the probable effect of a conviction on him as a young person.

[57]   Dr Bainbridge’s report shows that M has little in the way of family support. Yet through his own personal effort he has recognised there was something amiss with himself, sought professional help and following diagnosis he has then complied with a treatment regime, which from what Dr Bainbridge outlines in his report, requires careful management to balance side effects against therapeutic effect. These efforts, which are much to M’s credit, have allowed him to avoid further offending, achieve academic success in his chosen field and impress the persons who have engaged his services.43

[58]   I am satisfied the expert evidence from Dr Laven and Dr Bainbridge is relevant and cogent. I consider that were it not for M’s untreated ADHD, the offending may not have happened. Accordingly, the contribution M’s untreated ADHD has played is a mitigating factor that further attenuates the seriousness of what I have already found to be low level nuisance type offending.

[59]   The next consideration is the effect of the convictions on M. The appeal was prompted by the difficulties he has experienced obtaining employment. This is understandable. The dishonesty offending and the recklessness that underlies much of the other offending would clearly not attract potential employers in the financial services industry. The inference I draw here is consistent with the comments of Gendall J in Richardson v New Zealand Police regarding “the general difficulties a conviction can create (particularly for dishonesty)”.44 Here, Gendall J recognised the consequences of a dishonesty conviction however minor “can have severe consequences for a person’s job prospects”.45

[60]   In Richardson the appellant as a young adult had stolen $250 worth of make-up from a department store. It was her only dishonesty conviction. It would have been expunged by the “Clean Slate” legislation46 but for a subsequent driving conviction which kept her entire criminal history alive until the last such conviction entered against her satisfied the statutory period. The effect was that the dishonesty conviction

43 I refer here to the charted accountant who “scouted” M, employed him until graduation and provided him with a very good reference as well as the health entity which has renewed its short term contracts with him.

44 Richardson v New Zealand Police, above n 35, at [61].
45 At [55].

46 Criminal Records (Clean Slate) Act 2004.

would not be expunged until 10 years after that offending. The dishonesty conviction precluded the appellant from entry into her chosen profession as a real estate agent. The appeal out of time for a discharge without conviction was brought only in relation to the dishonesty conviction, given its effect on her.

[61]   Gendall J said that but for the presence of two driving convictions, which did not form part of the appeal, he would have had no hesitation in allowing the appeal and discharging without conviction on the dishonesty offending. Further that given the presence of the driving convictions he must put to the side the “general consequences” of the appellant having a conviction.47 Instead, the Judge focussed on the consequences of the dishonesty conviction, which he found to be out of all proportion to the gravity of the dishonesty offending. Accordingly, he allowed the appeal and the appellant was discharged without conviction.

[62]   To like effect are the comments of Woolford J in Police v Paki which were made in the context of an appeal by the Police against a District Court Judge’s decision to discharge without conviction on offences of drink driving and theft and burglary. Woolford J allowed the appeal in relation to the drink driving offending, but otherwise dismissed the appeal based on the negative impact the dishonesty convictions would have on the defendant’s future prospects:48

[36] Without minimising the seriousness of drink driving offending, it is clear that convictions for burglary and theft would have a greater impact on Mr Paki. Dishonesty convictions of this nature can have serious and permanent consequences on a person’s potential and future career, especially when accrued at a young age. That real and appreciable risk does not follow as a matter of course for a conviction of drink driving. I am satisfied that, considered alone, a conviction for drink driving is a black mark but one that cannot be realistically compared to multiple dishonesty convictions for offences as serious as burglary.

[63]   M is presently working as a contractor on a short-term contract for a health entity with COVID-19 responsibilities. To this extent his circumstances have improved since he was before me in October 2021. However, there is no guarantee of continued employment beyond the present contract term. It cannot be assumed that COVID-19 is something that will continue to require the attention it has done to date.

47 At [47].

48     Police v Paki [2014] NZHC 3112.

It is common knowledge the health entity concerned is going through a period of re-structuring, which is a further factor that could see someone who is working on a short-term temporary contract finding it will not be renewed. Any opportunities of permanent employment with this health entity could generate the type of enquiries about personal history (including presence of criminal convictions) that employers seeking to employ persons for indefinite terms typically make. There is no reason to doubt any future attempts M makes to find employment in the financial services industry will be met with the same need to provide information on criminal history as have happened in the past.

[64]   The present case is comparable to that in Richardson v New Zealand Police. There the appeal was filed six years after conviction. Here the appeal was filed eight years after the first convictions (June 2013) and three years after the last conviction (June 2018). As in Richardson the sentences imposed by the District Court at the time were acceptable ones. Just as in Richardson here it is subsequent events which have overtaken the initial sentencing exercise.

[65]   Here the offending occurred between the ages of 23 and 28 years which is older than Ms Richardson who was 20 years at the time of her offending. However, she did not have ADHD and the delay in its diagnosis and treatment that M has experienced.

[66]   Like Ms Richardson, M’ conviction history is eligible for release in accordance with the Criminal Records (Clean Slate) Act 2004. That will take effect after seven years from entry of the last conviction, which was on 26 June 2018 for offending that occurred on 12 September 2015. As matters stand M will be eligible for removal of his convictions under the “Clean Slate” Act on 25 June 2025. He presently meets the Act’s full requirements namely: he has not been convicted of an offence within seven years; he has never been sentenced to a fulltime custodial sentence; he has not been convicted of a specified offence; and he has no outstanding fines, costs or compensation orders.

[67]   The circumstances of this case satisfy me that the convictions are a significant obstacle to M obtaining long-term steady employment. This is demonstrated by the difficulties M has experienced since acquiring his degree, the type of work he seeks

(based on his academic qualifications) and the fact he has obtained and held a temporary contract allowing him to work in financial services when he was not required to disclose whether he had a criminal history. Moreover, the Court need not be satisfied that the consequences complained of will necessarily result, only that there is a “real and appreciable risk” that they will.49 I am satisfied there is such risk here.

[68]   It follows that I find the evidence of the adverse impact of the convictions on M’s employment prospects to be relevant and cogent.

[69]   I am satisfied that the new evidence, both in relation to his ADHD and the consequences of the convictions on employment prospects, goes to show the consequences of the convictions are out of all proportion to the offending, once seen from this new perspective.

[70]   The next question is whether the circumstances of this case are so exceptional that the new evidence should be admitted in the appeal and whether leave to appeal out of time is granted. I am satisfied the answer is yes.

[71]   M’ life has essentially been blighted by this period of time where his ADHD symptoms were not recognised and appropriately managed. Through his own efforts he has obtained a diagnosis and treatment which has turned his life around. Nonetheless, he is still coated with the remnants of this time in the form of the convictions which are holding him back from attaining his true potential. By 25 June 2025 the “clean slate” legislation will remove the convictions. Based on his recent past performance there is no reason to think M will fail to maintain his present good record and jeopardise the application of this legislation. So, the issue comes down to whether matters should be left where they are until the “clean slate” legislation takes its effect or whether the removal of the convictions should be considered by admitting the new evidence and granting leave to appeal against the convictions out of time.

[72]   I find the answer to this question is finely balanced. On one view a delay of around two years four months may seem tolerable. On the other hand, after all his hard work at university and persistently managing his ADHD medication to address

49     Alshamsi v Police HC Auckland CRI 2007-404-62, 15 June 2007.

symptoms M has faced unemployment and still faces the real risk of further unemployment until June 2025 when the “clean slate” legislation will take effect. I note that in Strickland v New Zealand Police Panckhurst J found that although the appellant’s convictions would not necessarily bar him from enrolling in the New Zealand Army there would be a 12 month stand-down which even by itself would be a consequence out of all proportion to the offending (a disorder conviction and possession of cannabis conviction).50 For M the risk of unemployment after everything else he has faced is enough to place his case in the category of an exceptional circumstance that warrants admission of the new evidence and the granting of leave to appeal out of time. Further the new evidence shows the merits of the substantive appeal are strong which is a further factor for allowing admission of the new evidence and granting leave to appeal out of time.

[73]   The final question is the assessment under s 107 of whether the consequences of the relevant convictions, as they are now understood, are out of all proportion to the gravity of the offending. This involves consideration of the fact the conviction for possession of an offensive weapon will remain on M’s record and whether, if discharge without conviction is granted it should apply to all relevant convictions or only some of them, in particular the convictions for dishonesty.

[74]    If the appeal is allowed the conviction for possession of an offensive weapon will remain on M’s record because it is beyond the jurisdiction of this Court to deal with it. However, M has the charge notice and police summary of facts to explain that conviction. Possession of a four-inch clasp knife in the circumstances in which it was found on M should not be the same deterrent to potential employers as would the other convictions. Thus, I do not see the remaining presence of this conviction as a reason for dismissing the appeal.

[75]   The final question is whether the appeal should be allowed in respect of all relevant convictions or only some of them. This requires assessing whether the consequences of all relevant convictions are out of proportion to the gravity of the offending or whether only some convictions satisfy this test.

50     Strickland v New Zealand Police [2013] NZHC 2704 at [13].

[76]   Dr Laven’s evidence is relevant to M’s culpability in his offending prior to being diagnosed with ADHD and receiving medication and thus is relevant globally to the gravity of M’s offending. Dr Laven referred to four theoretical models for why ADHD is linked to criminal offending, all of which he considered were present in M’ case. The first theory is that ADHD symptoms create criminogenic factors that, in combination with lack of foresight and consideration of consequences, increase the risk of criminal behaviour. Frequent experiences of failure, inferior performance, relationship conflict and punishment can result in beliefs that success through normal means is not available and the person has been “short-changed” in life and is thus entitled to obtain desired outcomes by whatever means.

[77]   Dr Laven’s evidence continues with the explanation that the second and third theories stem from the discovery that individuals with ADHD have low activity in the prefrontal cortex part of the brain. The second theory states that low prefrontal cortex activity results in subjective boredom that individuals with ADHD feel compelled to remedy by seeking excitement. The prefrontal cortex is also responsible for foresight (awareness and consideration of long-term consequences) and moral judgment. The third theory focusses on disinhibition. There is an impaired ability for conscious control of behaviour and emotions in awareness of social rules, and the inhibition of instinctive emotional reactions is impaired. Individuals with ADHD may struggle to control an emotional reaction when required to by social or legal rules.

[78]   Finally Dr Laven’s evidence refers offending involving the use of illicit drugs. He states that this is often self-medication to try to relax, sleep better (that is, address symptoms of ADHD) or to manage anxiety about failure and social maladjustment.

[79]   This evidence persuades me that M’s ADHD is a factor relating to the offender that affects the gravity of his offending as a whole.

[80]   First, in relation to the convictions for dishonesty, I am satisfied the appeal passes the test under s 107 of the Sentencing Act.

[81]   The gravity of this offending is prima facie minimal as evidenced by the sentences M received. The gravity is further reduced by M’s reduced culpability.

Dr Laven’s evidence discussed M’s shoplifting offending in relation to the second theoretical model. He stated that M was likely motivated to offend to relieve the “intolerable boredom” sensation caused by ADHD. It also involved disinhibition of emotional urge and a lack of foresight, according to Dr Laven, all direct symptoms of ADHD. In relation to the petrol theft offending Dr Laven stated that this also highlighted ADHD symptoms of impatience, poor moral reasoning, poor foresight and poor problem-solving. Dr Laven also stated that his criminal attitude appeared to involve some self-entitlement to equity (as explained in the first theoretical model). Further Dr Laven explained that the decision to drive knowing he had insufficient funds would have involved disinhibition of the “urge” to travel to whatever goal or activity he sought; this urge would be stronger than for the average person who would find it easier to overcome through moral reasoning and consequences. Although M is undoubtedly responsible for his offending, Dr Laven’s evidence gives insight into factors beyond Mr M’s control (because he was unaware of his symptoms and therefore unable to control them) which contributed to his offending.

[82]   The consequences of the dishonesty offending are severe. M will suffer an adverse impact on employment in his chosen field of employment. This field of employment is important to him because of his arthritis which prevents him from working in a physical field. Additionally, M has invested great time and effort into the field to notable success. My analysis at [59]–[68] supports this conclusion.

[83]   Also supporting this conclusion are the requirements of the Financial Service Providers Registration and Dispute Resolution Act 2008. M informed me that he wishes to practice as a financial analyst, which requires (apart from in some cases a license such as the United States qualification) registration under this Act.51 To this end he obtained the necessary tertiary qualifications from Massey University. Without registration he would not be able to provide financial advice to retail clients52 which would mean he could not advance in his chosen field and would limit his earning potential. Under s 14(e) a person is disqualified from registration if they have been convicted of a crime involving dishonesty in the past five years. Although M’s convictions are not captured by this provision it indicates the weight the regulatory

51     Financial Service Providers Registration and Dispute Resolution Act 2008, ss 11 and 12.

52     See section 22C.

body places on dishonesty convictions. This is important because the regulatory body retains a discretion under s 15B to reject an applicant. Dishonesty convictions would plainly be relevant to its assessment.

[84]   Therefore I consider there is a real and appreciable risk that M’s dishonesty convictions prevent him from obtaining registration. Although that is not a dire consequence, in light of the work M has put towards his rehabilitation and reintegration as a productive member of society and his commendable academic achievements, it is a consequence which lays on the balance sheet in favour of a discharge without conviction. Additionally, this Court has recognised that the fact a conviction has the potential to restrict the appellant’s choice of what type of career they wish to enter into is a relevant consequence.53

[85]   Accordingly, the consequences of the dishonesty convictions are out of all proportion to the gravity of the offending.

[86]   Regarding the conviction for possession of cannabis I am satisfied the appeal should be allowed here as well. The gravity of this offence is minimal as is evident from the summary of facts set out above. Dr Laven’s evidence is relevant here, namely that M used cannabis to deal with pain from his arthritis, but also to help with calming and sleep which was him dealing with ADHD symptoms that were unrecognised at the time. Under cross-examination Dr Laven further explained that:

His choice to break the law would have been contributed to by ADHD in terms of his ability to think through the implications, the degree of focus he had on: “Oh, I’ve got this pain and I need to get rid of it” without really thinking of the longer term risks and consequences of what he was doing. So I believe that it’s very likely the ADHD contributed to, was one causal factor in his choice to break the law in that particular way.

Possession of a small amount of cannabis in this context of reduced culpability must be regarded as very low seriousness. The Court has previously recognised that a possession of cannabis conviction may stand in the way of pursuing a career “with morality or character requirements”.54

53     Fraser v Police [2014] NZHC 2437 at [12(c)].

54     At [12(c)].

[87]   Thus, I am satisfied the appeal in relation to these convictions also satisfies the s 107 test.

[88]   I next turn to deal with the convictions for wilful damage (x 2) and common assault. In relation to the gravity of the offending, again they are of prima facie low seriousness based on the summaries of facts and the penalties imposed. Dr Laven in his evidence linked the graffiti offending to excitement-seeking motivation associated with ADHD. With the assault offending, Dr Laven explained this was likely to reflect ADHD effects regarding disinhibition of emotional arousal when feeling mistreated as well as poor conscious judgement and foresight. Once again for the reasons I have already explained this reduces M’s culpability and thus the seriousness of his offending in relation to these convictions.

[89]   In relation to the consequences of the convictions, the Court has previously recognised that an assault conviction means employment “is more likely to be more difficult to secure”.55 Convictions for these offences can also be a disincentive for employers to engage Mr M’s services, particularly given the unavoidable presence of the possession of an offensive weapon conviction. To an employer the overall image may be of a man with anti-social tendencies, who is best avoided. For the reasons already explained regarding the other convictions, I consider adverse career impacts are out of all proportion to the gravity of the offending for these convictions.

[90]   The remaining convictions are the conviction for driving whilst driving licence was suspended (2013) and the breach of the supervision conditions (being the penalty imposed for the possession of an offensive weapon offending). M said at the time the former conviction came from a lapse of memory. The latter conviction was imposed after M had begun treatment for ADHD, albeit in the early stages. Mr Laven said in evidence that in the early stages of treatment breakthrough misbehaviour can occur. In general, such offending is of minimal gravity, as is shown by the penalties imposed. Here there is the underlying effect of the undiagnosed and untreated ADHD symptoms which Mr Laven linked to the offending, which minimises the gravity even further. I consider employers looking to employ financial services advisers would be looking

55     Goggin v Police [2013] NZHC 2710 at [14].

for persons who appear responsible and reliable. Such persons generally do not acquire convictions because they realise the detrimental impact these can have on career opportunities. The presence of these two convictions coupled with the conviction for possession of an offensive weapon may well deter employers from employing M. In which case he will be in the same possession as if the appeal were not allowed for all relevant convictions. Accordingly, I am satisfied that here as well the consequences of the convictions are out of all proportion to the gravity of the offending.

[91]   It follows that in relation to all relevant convictions M passes the s 107 test for allowing discharges without convictions. The Crown submitted that I needed to take Mr M’s offending as a whole, and that the total seriousness of the offending was more than the sum of its parts because each conviction was entered in the context of the previous offending. I do not accept this reasoning, but even if that were the case, I would still be satisfied the s 107 test is met.

[92]   I am also satisfied that with M having passed the tests for the admission of the new evidence the granting of leave to appeal out of time and the assessment under s 107, it is therefore appropriate for me to exercise the discretion available to me under s 106 of the Sentencing Act to discharge him without conviction in relation to all convictions that fall within the appellate jurisdiction of this Court. Many decisions of the courts determining discharge without conviction cases record that an attempt to rehabilitate and reintegrate, whether by pursuing higher education or productive work, should be encouraged.56 M clearly falls into the category of “basically decent young people with bright prospects who have committed aberrant offences blotting an otherwise clean copybook”.57 As I have already explained, while Mr M’s convictions are more numerous than the typical candidate his convictions are aberrant in that the cause can be traced to his untreated and undiagnosed ADHD symptoms which have now been addressed.

56     See for example Fraser v Police, above n 53, at [12(b)]; Goggin v Police, above n 55, at [15]; and

Latimer v R [2013] NZCA 562 at [12].

57     Boonen v Police HC Wellington CRI-2003-485-41, 14 October 2003 at [14].

[93]   For completeness I note that M also sought to advance his appeal based on the adverse effect the convictions had on him obtaining membership of a financial services professional body in the United States of America. I have found it unnecessary to consider this issue as I am satisfied for the reasons set out above that all tests for allowing this appeal are met.

Result

[94]Leave to appeal out of time is granted.

[95]Leave to adduce fresh evidence is granted.

[96]   The appeal against the entry of the convictions identified at [3]–[8]; [10]–[11] herein is allowed. The convictions on those offences are set aside.

[97]M is discharged without conviction on the above offences.

[98]   Publication of name, address or identifying particulars of appellant prohibited by s 201 of the Criminal Procedure Act 2011.

Duffy J