M v R HC Dunedin Cri-2006-412-37

[2006] NZHC 1099

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2006-412-000037

IN THE MATTER OF     an appeal against conviction and sentence

BETWEEN  M

Appellant

ANDTHE CROWN Respondent

Hearing:         20 September 2006

Counsel:         A Stevens for Appellant

M J Grills for Respondent

Judgment:      22 September 2006

JUDGMENT OF PANCKHURST J

The issue in this case

[1]      As at February 2006 Ms M   lived at Hills Road, Christchurch with her partner and two children.  Over the summer her partner grew cannabis in the back garden.  The police came with a search warrant and discovered the growing crop. The appellant’s partner was charged with cultivating cannabis.   She was charged with permitting premises to be used for the commission of an offence against the Misuse of Drugs Act 1975.

[2]      Ms M   was the tenant of the property.   She had signed the tenancy agreement.   However, at all times the Hills Road property was the family home, occupied by Ms M  , her partner and the children.  The rent was paid from the family’s income, an unemployment benefit.

[3]      The  appellant  is  a  graduate  of  the  University  of  Canterbury,  holding  a diploma in social work which she obtained in 2005.  She wishes to pursue a social

M V R HC DUN CRI-2006-412-000037  22 September 2006

work career, as soon as her responsibilities to her youngest child permit her to do so. Ms M   fears that a conviction for this offence will hinder her ability to obtain employment as a social worker.  Therefore, following a plea of guilty to the charge, she sought a discharge without conviction.   Judge MacDonald was not persuaded that the consequences of a conviction would be out of all proportion to the gravity of the offence: s107 of the Sentencing Act 2002.  Therefore, he entered a conviction.

[4]      The  issue  on  appeal  is  whether  the  Judge  erred  in  the  exercise  of  his discretion in declining to grant a discharge.  Was the entry of a conviction for this drug offence, in the particular circumstances of this case, out of all proportion to the criminality involved?

The facts in greater detail

[5]      Hills  Road  is  a  standard  suburban  property,  comprising  a  dwelling,  out- buildings and a garden.  At all relevant times it was occupied by the appellant, her partner and their two children, aged 8 years and 21 months.

[6]      The police located 25 mature plants in the garden plot.  These were about one and a half metres high.  The plants were screened, but nonetheless were visible to occupants of the property.  The plants were well-tended and near to fully mature.

[7]      In  a  locked  shed  the  police  located  a  plastic  shopping  bag  containing

790 grams of cannabis leaf (cabbage), a snaplock bag containing another four and a half grams of leaf and some further snaplock bags.   It is common ground that Ms M  ’ partner was the cultivator.  He has pleaded guilty to such a charge, and awaits a disputed fact hearing before he is sentenced.  The police consider this was a commercial crop, whereas he maintains the cannabis was grown for personal use.

[8]      The summary of facts recorded that the appellant “admitted knowing the cannabis plants were present and stated her partner sold it”.   Ms M   also acknowledged that she held the tenancy agreement for the address.

The Judge’s decision

[9]      The appellant’s plea of guilty was entered on 26 May 2006.   Twice the sentencing date was adjourned, essentially to enable the appellant to present better information concerning the likely consequences of entry of a conviction upon her career.  It is evident, therefore, that the Judge gave careful consideration to the case.

[10]     With reference to the seriousness of the underlying offence of cultivation the Judge observed that the police regarded the cannabis plot as on a commercial scale. He continued:

That was something that was still very much up in the air when you first appeared before me back in July.  However, it now seems to be established by the fact that your then partner has pleaded guilty to the charge  and accepted that there was a commercial element to that.

In fact, the partner does not accept this.

[11]     With reference to the appellant’s criminality the Judge observed that the property  “happened  to  be  in  (the  appellant’s)  name”,  which  was  why  she  was exposed to liability.  More directly, the Judge said:

[3]       As far as your culpability is concerned, you admitted knowing of the existence of the plants.  You also made some comment that your partner sold it.

Later the Judge added in paragraph [8] of his sentencing remarks:

You knew your partner was growing cannabis and you also made a comment that you knew he sold it.  Perhaps  you did not turn your mind to the fact that the property was in  your  name,  but again that  is  something for  you  in hindsight to think about.

[12]     With reference to the direct and indirect consequences of a conviction the

Judge said this:

[4]       You  are  aged  30.    You  have  one  prior  conviction  in  1993  for shoplifting.  Your concern at this point is to escape having a conviction for drug offending against your name.  That is pitched on the basis that you have spent a number of years to try and get qualified as a social worker and for that you are to be commended.  You have also contributed many hours on a voluntary basis to the community.   Again I accept that and that is commendable.

[5]       The real concern now is that if there is a conviction, it will make it difficult for you to be your registered as a social worker, and I have just been handed a letter about that.  I accept that might be the case.  However, as I commented to Mrs Stevens before, that is one of the functions of the Board. It is there to decide who should be registered, and I do not see why I should necessarily deprive the Board of that sort of information.

[6]       The  other  aspect  I  am  asked  to  consider  is  that  if  you  have  a conviction like this, then it could jeopardise your chances in obtaining employment, particularly if you are competing against others who have no previous convictions.  I accept that but it may not necessarily be the case. You may still come through as being the best candidate.  As I have said, that is something for the future.

[13]     The  Judge  then  expressed  his  conclusion,  that  he  was  not  persuaded  to discharge without conviction because although “there may potentially be some difficulties … in the future, … that is not necessarily the case”.  On this basis the Judge was not satisfied that the consequences of a conviction were out of all proportion to the gravity of the offence.

[14]     The sentence imposed was characterised as “relatively lenient”.   In light of the voluntary community work which the appellant had undertaken, and recognising that she had made a voluntary donation to a charity ($300), an order was made that the appellant come up for sentence if called upon within nine months.

Arguments for the appellant

[15]     Mrs  Stevens  recognised  that  this  is  an  appeal  against  the  exercise  of  a discretion.  It follows that the appellant must demonstrate that the Judge’s decision was wrong in principle, ignored relevant factors or brought to account irrelevant ones, or that the decision was otherwise plainly wrong.

[16]     Although counsel’s arguments were not marshalled with direct reference to these heads, I think that Mrs Stevens’ submissions involved two propositions:

[a]     that  the  Judge  overstated  the  appellant’s  criminality  by  not recognising relevant factors,  and

[b]that  once  the  true  degree  of  criminality  was  analysed,  the decision   reached   was   plainly   wrong,   in   relation   to   the

conclusion  that  entry  of  a  conviction  was  not  out  of  all proportion to the gravity of the offence.

What level of criminality?

[17]     There are two aspects to this question.  The first concerns the very basis of the appellant’s liability, the circumstance that she was the signatory to the tenancy agreement.   The second factor is the intrinsic seriousness of the cultivation and permitting offences.

[18]     The Judge was alive to the fact that Ms M  ’ liability for permitting the use of premises hinged on her being the signatory to the tenancy agreement.  At the outset of his sentencing remarks he noted that the agreement happened to be in her name.  And in the penultimate paragraph he suggested that perhaps the appellant had not turned her mind to the significance of her being the legal tenant, but it was something for Ms M   to think about in hindsight.

[19]     But  was  this  an  adequate  evaluation  of  the  appellant’s  offence?    This impresses me as a case towards the fringes of the permitting spectrum.  The test of permitting appears from R v Sweeney [1982] 2 NZLR 229 (CA) at 230:

We think that it is enough in this country to show that the defendant had control or  a share  of  control  over the  premises  in  fact  and  deliberately refrained from steps which he knew that he could reasonably have taken to prevent the unlawful use. (emphasis added)

[20]     Hence in George v Police (1989) 5 CRNZ 411 (HC) Anderson J held that the principal tenant of a flat, who knew that a sub-tenant was growing cannabis in a bedroom and acquiesced in that, permitted the commission of the offence.   But at

413 the Judge noted:

The degree of culpability in this particular case is not great.   The circumstances faced by the appellant were difficult in terms of relationships and interaction between young people sharing accommodation.

It is noteworthy, in my view, that there is no similar analysis in the present decision.

[21]     Although the Judge twice averted to the circumstance that Ms M   simply happened to be the signatory to the tenancy agreement, he did not address the significance of that aspect.  Seemingly the Judge accepted Mrs Stevens’ submission that it was essentially by chance that Ms M   signed the tenancy agreement. At the time both she and her partner attended at the office of the letting agent.  One, rather than both, signed the agreement.  Thereafter the property became the family home.   Rent was paid from the family’s resources.   While the appellant was the tenant at law, in the context of her domestic circumstances her ability to exercise control over the premises, at least in relation to her power, was more theoretical than real.   As in the case of George I consider there was a real need in this case to confront the realities of the tenancy situation.

[22]     The  intrinsic  seriousness  of  the  cultivation  offence  has  also  become problematic.  Not unnaturally the Judge supposed that, Ms M  ’ partner having pleaded guilty, the commerciality of the cultivation was no longer in dispute. However, subsequent to the decision in this case, he has disputed the element of commerciality, and there is to be a disputed fact hearing.  Whatever the outcome of that hearing, the fact remains that this was a significant growing operation.  There is a marked difference between growing a few plants in the back garden and growing

25 plants, as occurred here.

[23]     With reference to Ms M  ’ appreciation of the nature of the growing operation the Judge twice referred to her saying to the police that her partner sold it. However, Mrs Stevens contested this on the basis that the appellant simply made a comment to that effect at interview, being supposition in the face of the interviewer’s view as to the scale of the growing operation.  Moreover, in the pre-sentence report Ms M   asserted that she learnt of the cannabis plot a few weeks before it was discovered, argued with her partner about this and told him to remove the plants. Nothing occurred at sentencing to clarify what weight was to be given to these claims.

[24]     In my view s24 of the Sentencing Act applied.   The appellant’s assertions that she had only belatedly learnt of the crop and had taken steps to get rid of it, were mitigating  facts  in  terms  of  s24(3),  which  should  have  been  the  subject  of  an

indication from the Judge as to their significance to sentence (s24(2)(a)), giving rise to an onus upon the appellant to establish such matters on balance (s24(2)(d)).  But, this did not occur.

[25]     In the final result the decision does not contain an express finding as to the level  of  the  appellant’s  culpability.    The  end  sentence  suggests  that  the  Judge assessed the appellant’s level of culpability as low.   In terms of  “permitting” I consider that the appellant’s culpability was low.  In real terms she and her partner were co-tenants of the property.  He enjoyed about as much control over the property as she did.   From this point the assessment of culpability becomes complicated. What the Judge treated as an acknowledgement of commerciality on the appellant’s part, is disputed, and her claim that she took active steps to have the crop destroyed, remains unresolved.

Was the proportionality finding plainly wrong?

[26]     It is apparent from the history of the case that the Judge was sympathetic to the appellant’s position and concerned that she have every opportunity to provide evidence as to the direct and indirect consequences of a conviction.  But in the end result he was unpersuaded that such consequences were out of all proportion to the gravity of the offence (although the level of gravity remained largely unarticulated).

[27]     In   essence   I  am  not  persuaded  that  the  Judge’s   assessment   of   the consequences of a conviction was misplaced.  I agree with him that it is preferable that the Board responsible for the registration of social workers be appraised of a matter such as this, when determining Ms M  ’ application for registration. But I would add the proviso that the Board should also have the benefit of some judicial  guidance  as  to  the  circumstances  and  gravity  of  the  offence,  given  its unusual nature.

[28]     However, the focus of Mrs Stevens’ argument under this head was that the Judge   was   wrong   in   concluding   that   the   appellant’s   chances   of   obtaining employment would not necessarily be jeopardised, in the event of a conviction being entered.    As  to  this  counsel  produced  further  evidence  from  the  manager  of  a

community services trust that had previously employed Ms M  .   The manager’s letter contained the opinions that registration “could well be declined”, but, moreover, that a “recent conviction (of this nature) would be a bar to employment”.  The letter writer, himself a registered social worker, added that only after a time lapse of some years, coupled with an absence of offending in the interim, would he be inclined to offer employment to a social worker having a conviction of this nature.

[29]     On the basis of this further evidence I was invited to reconsider the Judge’s assessment of the consequences of a conviction, afresh.

[30]     I think it is necessary to refer to the appellant’s background in a little more detail.  She is aged 31 years.  She left school aged 17 and worked initially in retail positions.   Ms M   also undertook voluntary work for Lifeline and the City Mission.  She completed various courses at the Christchurch Polytechnic.  Then, in

2001, she commenced study towards a diploma in social work from the University of Canterbury.  She graduated in 2005, by which time she was also the mother of two children, one still a baby.

[31]   Counsel placed before the District Court a number of references from organisations for which Ms M   had performed voluntary, or paid, work while she was studying.  This material confirmed that the appellant had dedicated herself over a significant period to gaining her qualification, a point which the Judge acknowledged.

[32]     In my view there is a very significant risk that Ms M   will be unable to obtain employment as a social worker in the foreseeable future, on account of this conviction.  Is that an outcome which is out of all proportion to the gravity of her offence?  This question is to be answered in light of an articulated assessment of her criminality, which I have endeavoured to make.

Conclusion

[33]     In my view the likely consequences of the entry of a conviction in this case are out of all proportion to the gravity of the offence.  On the one hand I consider that the evidence does establish there is a high likelihood Ms M   will be denied employment opportunities as a social worker on account of the conviction. As to this aspect my view is probably different from that of the Judge only in emphasis.  But, with reference to the gravity of the offence, I consider that matters relevant  to  that  issue  were  not  brought  to  account  and  that  in  the  result  the criminality of Ms M  ’ actions was overstated.   The circumstance that she happened to be the signatory to the tenancy agreement indicates, in my view, the narrow, if not artificial, basis upon which her liability hinged.

[34]     For these reasons I allow the appeal and substitute for the sentence imposed in the District Court a discharge without conviction pursuant to s106 of the Act.

Solicitors:

Anne Stevens Barrister, Dunedin for Appellant

Wilkinson Adams, Dunedin for Respondent