M v Police HC Auckland CRI 2009-404-212
[2009] NZHC 2169
•8 October 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2009-404-212
M
Appellant
v
POLICE
Respondent
Hearing: 5 October 2009
Appearances: M Kennedy for appellant
D Dufty for respondent
Judgment: 8 October 2009
JUDGMENT OF ALLAN J
In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 3.30 pm on Thursday 8 October 2009
Solicitors:
M A Kennedy, Auckland [email protected]
Crown Solicitor Auckland [email protected]
M V POLICE HC AK CRI 2009-404-212 8 October 2009
[1] On 8 July 2009, the appellant appeared before Judge Bouchier in the Auckland District Court for sentence on a charge of possession of cannabis, to which she had earlier pleaded guilty.
[2] Ms Kennedy, for the appellant, submitted to Judge Bouchier that in all the circumstances the appellant ought to be discharged without conviction, pursuant to s 106 of the Sentencing Act 2002. Nevertheless the Judge declined to do so. She convicted the appellant and fined her $150 together with Court costs of $130.
[3] On appeal Ms Kennedy submits that the decision to convict the appellant was wrong, and that this Court ought now to quash the conviction and discharge the appellant.
Discharge without conviction
[4] The jurisdiction of the Court to discharge without conviction is conferred by ss
106 and 107 of the Sentencing Act 2002 which relevantly provide:
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. (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.
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.
[5] The application of these sections was recently discussed by the Court of Appeal in R v Hughes [2008] NZCA 546. There, the Court noted that despite the heading to s 107, “Guidance for discharge without conviction”, the provisions of the section are mandatory. In consequence, no Court may exercise its discretion under s 106 to discharge without conviction unless it is satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence. As was said in Hughes (at [8]):
… Section 107 thus provides a gateway through which any discharge without conviction must pass. It stipulates a pre-condition to exercise of the discretion under s 106.
[6] In Hughes, the Court of Appeal confirmed that the disproportionality test discussed in such cases as Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA) and Police v Roberts [1991] 1 NZLR 205 (CA) had not been departed from in s 107. The Court said in Hughes (at [41]):
In summary, the parameters within which the disproportionality principle operates have not been changed by s 107. 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. Having taken account of those factors, the Judge must determine whether the s 107 test is met and whether it is appropriate that he or she makes an order under s 106 to deal with the offender.
[7] The appellant does not carry an onus to establish that the disproportionality test has been met. Rather, in terms of s 107, the Court may discharge without conviction “… if satisfied” that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. As explained in R v Leitch [1998]
1 NZLR 420 at 428, the need to be “satisfied” simply involves the exercise of judgment by the Court; it is inapt to import notions of burden and standard of proof.
[8] In Hughes, the Court of Appeal confirmed the continuing applicability of the three-step approach suggested in Turner and in Roberts:
a) Identification of the gravity of the offending by reference to the facts of the particular case;
b) Identification of the direct and indirect consequences of a conviction;
c) Determination of whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending.
The present offending
[9] Ms Kennedy submits that this case meets the Hughes test, in that the offending itself was minor, there will be significant direct and indirect consequences of a conviction, and that in all the circumstances, those consequences are “ … out of all proportion to the gravity of the offending”.
[10] I deal first with the offence itself. The summary of facts upon which the appellant was convicted relevantly reads as follows:
On Thursday 3 July 2008, the defendant Kristina Ann M was in Mt
Albert, Auckland. At about 5.09 pm she was at her home address of
23 Renton Road, Mt Albert.
At this time police have been called to this address for a domestic matter between the defendant and her ex partner. Upon arrival the aroma of cannabis was detected and a search was invoked pursuant to the Misuse of Drugs Act 1975.
Located near the defendant was a sunglasses case which had drugs and instruments as listed in schedule A. A subsequent search of the defendant’s handbag revealed a small quantity of cannabis plant material as listed in schedule B.
When spoken to by police, the defendant admitted the facts as outlined stating the drugs in schedule A and B and instruments located was (sic) her property and for her own use.
[11] For present purposes the focus is upon the loose cannabis plant material found in the appellant’s handbag. It is common ground that it was sufficient to produce approximately five foils of cannabis.
[12] The appellant has sworn an affirmation for the purposes of the present appeal. In it she says:
I am very remorseful about the cannabis but it was a situation that developed very quickly under very stressful circumstances, in which I was the victim of a domestic violence incident. On the day that I was arrested and charged with the possession of cannabis I was the victim of a domestic violence incident, which resulted in the police being called to my address. The cannabis was my ex-partners and lay on the ground. As the police approached, I put it in my handbag, to conceal it from them. As there was a strong smell of cannabis, I was subsequently searched and arrested. The cannabis did not belong to me and I do not use drugs. However I pleaded guilty, as the cannabis was in my custody at the time my bag was searched.
[13] This explanation was not given to the police at the time; neither was it proffered at any stage of the proceedings in the District Court. It has emerged for the first time now in an affirmation sworn on 28 September 2009. It is therefore difficult to place significant weight upon it. The appellant must be taken to have pleaded guilty on the basis of the summary of facts produced to the District Court.
[14] Ms Kennedy urged upon me the proposition that this was relatively minor offending. In a sense it was when compared with other drug offending, but the offence itself cannot be effectively discounted. I endorse what was said by Randerson J in Wattam v Police HC AK CRI 2004-404-63 21 May 2004 at [8]:
There is a prevalence of the use and possession of cannabis in the community, and as the Judge observed, many such cases come before the court. There is public interest in dealing with persons charged with possession of cannabis in a way which will ensure that the use of the substance is deterred both in the case of the individual and generally.
[15] Moreover, in the present instance the offending was aggravated by the appellant’s prior record of offending. By no stretch of the imagination is she a first offender. On her own admission her early years were rather difficult, and she had a number of problems. Her list of prior convictions includes dishonesty offences, traffic offences (including an excess blood alcohol conviction), trespass, and importantly for present purposes, possession of cannabis. There were two cannabis
convictions in 1988 when the appellant was 17 years old. Further, she was before the Court again in 1998 on a similar charge, when she had the benefit of a discharge without conviction. She was also discharged without conviction on a charge of disorderly behaviour in 2000. So this is the fourth occasion upon which the appellant has appeared before the Court on a drug possession charge. Moreover, a previous discharge without conviction for offending of the same type must count against a discharge on a later occasion: Police v McCabe [1985] 1 NZLR 361 at
363-364.
[16] Very often, when this Court is disposed to discharge without conviction, it does so against a background of truly minor offending. Examples are the decision of Mallon J in Nash v Police HC WN CRI 2009-485-007 22 May 2009, and my own decision in Deeming v Police HC WHA CRI 2008-488-61 24 July 2009.
[17] This is not such a case. I accept Mr Dufty’s submission that the appellant’s cannabis offending must be regarded as of moderate gravity.
Consequences
[18] After an admittedly unpromising start, the appellant is now making significant progress in her personal and professional life. She is enrolled for a Bachelor of Commerce degree at the University of Auckland, and hopes to be admitted to the Honours degree course. Her ultimate ambition is to become a chartered accountant, which would require her to be admitted as a Member of the New Zealand Institute of Chartered Accountants. In order to achieve membership she would need to make an application for membership on a prescribed form, which includes the following question:
Have you ever been convicted of any crime or offence punishable by fine or imprisonment (which would be recorded on a criminal or traffic report issued by the Ministry of Justice) or are there any charges pending?
[19] However, the application form specifically provides:
Please note your rights under the Criminal Records (Clean Slate) Act 2004 before providing a copy of your criminal record.
[20] Until this present conviction, the appellant was entitled to conceal her previous convictions by reason of the provisions of the Criminal Records (Clean Slate) Act. If the present conviction is maintained she loses that eligibility.
[21] Section 14 of the Act provides:
14 Effect of clean slate scheme on eligible individual
(1) If an individual is an eligible individual, he or she is deemed to have no criminal record for the purposes of any question asked of him or her about his or her criminal record.
(2) An eligible individual may answer a question asked of him or her about his or her criminal record by stating that he or she has no criminal record.
(3) Nothing in subsection (1) or subsection (2)—
(a) prevents an eligible individual stating that he or she has a criminal record, disclosing his or her criminal record, or consenting to the disclosure of his or her criminal record; or
(b)authorises an individual to answer a question asked of him or her about his or her criminal record by stating that he or she has no criminal record if the question is asked—
(i)under the jurisdiction of the law of a foreign country while an eligible individual is outside New Zealand; or
(ii) while he or she is in New Zealand but relates to a matter dealt with by the law of a foreign country (for example, a question asked on an application form by the immigration or customs agency of a foreign country).
(4) Subsections (1) and (2) are subject to the exceptions in section 19.
[22] After the expiration of seven years from the date of this latest conviction, the appellant will be entitled once more to enjoy the benefits conferred by the Act, assuming she does not offend again, but in the meantime those benefits are denied her. It follows that for the time being she is not entitled to deny, for example, in the context of an application for employment, that she has a criminal record, or the detail of it.
[23] It is not suggested on her behalf that this latest conviction is of itself an impediment to employment as an accountant when the appellant attains her qualification. But she says that:
… several accountants have advised me informally that my historical convictions would be a bar to admission to the Institute and therefore I could never practice (sic) as a chartered accountant.
[24] Membership of the Institute would be a prerequisite to the appellant’s entitlement to hold herself out as a chartered accountant, and therefore to undertake some aspects of accountancy work.
[25] Ms Kennedy submits that there is a risk that if the appellant is not now discharged, she will be unable to practise as a chartered accountant in the future, and so will suffer consequences that are disproportionate to the gravity of the offending.
[26] That submission raises several considerations. First, the Institute of Chartered Accountants of New Zealand is a statutory body, constituted under s 4(2) of the Institute of Chartered Accountants of New Zealand Act 1996. In Roberts v Police (1989) 5 CRNZ 34, Wylie J suggested that a risk to a professional career would be unlikely to be sufficient in itself to justify a discharge where the gatekeeper was a statutory body (there the Nursing Council of New Zealand), because there is a public interest in that body knowing about the conviction and exercising its discretion accordingly.
[27] Ms Kennedy submits that there is a significant difference between that case (also involving cannabis offending) and the present one. The appellant in Roberts sought to embark upon a career in nursing, an occupation which is plainly incompatible with illicit drug use. Here, Ms Kennedy argues, there is not the same obvious impediment in that a conviction for possession of cannabis does not immediately suggest that the appellant might be unfit to practise as a chartered accountant.
[28] In my view that submission can be accorded only limited weight. The principle enunciated in Roberts is of at least some relevance here.
[29] A further concern is the limited extent of the supporting material made available to the Court on appeal. No inquiries have been made of the Institute as to the approach normally adopted to persons who apply for membership in the context of an existing criminal record. It might be thought that written materials exist which would provide a degree of assistance to those contemplating an application for membership. No doubt there will also be a body of rulings of the Institute which will provide significant guidance for those contemplating making such an application. It is unsatisfactory for the Court to be asked now to act upon the basis of mere anecdotal material proffered on a hearsay basis by the appellant.
[30] There must be a “real and appreciable risk” that the claimed consequences will occur: Iosefa v Police HC CHCH CIV 2005-409-64 21 April 2005 at [34]. It is difficult for the Court to measure that risk in the present case in the absence of firm evidence about the approach of the Institute to applications by those with criminal records.
[31] There is a further point. If the appellant does not offend again then she will be entitled to disregard her criminal record when making an application to the Institute at the expiration of seven years from the date of this latest conviction. It is a proper inference from her affirmation that it will be some years yet before she is in a position to contemplate an application to the Institute. She must complete her studies and then undertake a period of practical training during employment. At worst, it appears that she may be delayed in applying for admission to the Institute by a year or two, if she desires not to disclose her convictions. So any detriment to the appellant is likely to be limited
[32] Ms Kennedy properly points out that the adverse consequences faced by those against whom conviction has been entered will not necessarily be confined to situations specifically identified by an appellant. A submission to that effect was accepted by Mallon J in Nash v Police at [19], where Her Honour said:
Nevertheless I accept the submission for Mr Nash that there are general consequences that follow from a conviction. In a variety of ways (eg employment, insurance, immigration) people are asked to disclose whether they have criminal convictions. For those that are remorseful there can be a loss of pride and self-esteem or at least embarrassment in having to answer
that question honestly. It may also materially disadvantage him – as his counsel says it may count against him when he is competing for a position against someone who does not have a conviction.
[33] I agree therefore that the Court is entitled to take into account, in a general way, the risk of adverse consequences of entry of a conviction. Having said that, those more general consequences can be accorded only limited weight if inconsistency of approach to s 106 applications is to be avoided.
Balancing
[34] Ultimately, it is necessary to stand back and determine whether the direct and indirect consequences of conviction would be out of all proportion with the gravity of the offending. Here, I consider the offending to have been of moderate seriousness. It is certainly not of the relatively trivial character that underpins many s 106 applications. Moreover, the direct and indirect consequences identified on behalf of the appellant are in my view limited and contingent, in the sense that there is little evidence that they are likely to arise in practice.
[35] The appellant’s primary concern, which relates to her ability to apply for membership of the New Zealand Institute of Chartered Accountants, will dissipate at the expiration of seven years from the date of her latest conviction. At that point she will once more be able to take advantage of the provisions of the Clean Slate legislation. On the evidence, it is unlikely that she would be in a position to apply for membership much before the expiration of seven years in any event.
[36] In my opinion, to allow this appeal would be to adopt a more lenient approach than is evident in the cases. There is general judicial acceptance that discharges without conviction will be relatively rare, and the test is not easy of achievement: McDowell v Police HC CHCH A133/02 11 March 2003 and Daniels v Police HC WN CRI 2008-485-19 22 May 2008.
Result
[37] For the foregoing reasons I am not satisfied that the direct and indirect consequences of the conviction would be out of all proportion to the gravity of the offence. The appeal is accordingly dismissed.
C J Allan J
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