Maraj v Police
[2016] NZCA 279
•22 June 2016 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA18/2016 [2016] NZCA 279 |
| BETWEEN | JAMESON AJODHYA MARAJ |
| AND | NEW ZEALAND POLICE |
| Hearing: | 11 May 2016 |
Court: | Kós, Courtney and Gilbert JJ |
Counsel: | A F Pilditch for Applicant |
Judgment: | 22 June 2016 at 11.00 am |
JUDGMENT OF THE COURT
A The application for leave to adduce further evidence is granted.
B The application for leave to appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
Introduction
Jameson Maraj pleaded guilty to driving with excess blood alcohol and careless driving in the North Shore District Court in September 2015. Judge Hinton refused his application for a discharge without conviction under s 106 of the Sentencing Act 2002.[1] Whata J dismissed the appeal from that decision.[2] Mr Maraj seeks leave to bring a second appeal.
[1]New Zealand Police v Maraj [2015] NZDC 17515.
[2]Maraj v New Zealand Police [2015] NZHC 3055.
A second appeal is precluded unless the proposed appeal involves a matter of general or public importance or a miscarriage of justice may have occurred or may occur unless the appeal is heard.[3] Mr Maraj asserts that his proposed appeal does involve a question of general importance, namely the proper procedure for appeals of this kind against refusal to grant a discharge without conviction. Alternatively, he says that permitting the convictions to stand will result in a miscarriage of justice as a result of the Judge:
(a)applying the wrong threshold in considering the consequences of a conviction on Mr Maraj; and
(b)failing to recognise that the refusal to grant a discharge without conviction was inconsistent with other cases, particularly those involving sports people.
[3]Criminal Procedure Act 2011, s 237.
Mr Maraj sought to adduce further evidence in the form of an affidavit by his father for the purposes of the appeal. There was no opposition and we give leave for him to do so. At the conclusion of the hearing we sought additional evidence regarding Mr Maraj’s academic record, which has been provided. After the hearing we requested further submissions on one aspect of Canadian immigration law. Mr Maraj provided an affidavit from Mr Ryken, an immigration lawyer who had sworn an affidavit for the purposes of the s 106 application in the District Court. There was no objection and we accept that affidavit too.
Proper procedure for appeal against refusal to grant discharge without conviction
Because Mr Maraj’s prosecution was commenced by way of charging documents filed after the commencement of the second stage of the Criminal Procedure Act 2011 (CPA) the proposed appeal falls to be determined under pt 6 of that Act.[4] Under pt 6 there are separate provisions directed towards various types of appeals including appeals against conviction and appeals against sentence.[5] However, there is no specific provision addressing the manner in which an appeal against a refusal to grant a discharge without conviction should be approached.
[4]Criminal Procedure Act 2011, s 398.
[5]For appeals against conviction see sub-pt 3; for appeals against sentence see sub-pt 4.
Although Mr Maraj’s first appeal was brought as a sentence appeal under s 244(1) of the CPA, Whata J treated it as an appeal against conviction. The Crown considers that this approach is the correct one, given that a discharge under s 106 of the Sentencing Act is deemed to be an acquittal.
Mr Pilditch, however, identified the issue as one of general importance, pointing out that such an appeal could arguably be viewed as an appeal against either conviction or sentence. But, although that could make a difference in some cases, for example on an appeal by the prosecution, he acknowledged that there would be no material difference in the present case.
The application of the CPA to decisions made under s 106 may require consideration in another case and not by a Divisional Court. Because it would make no difference to the outcome in this case we proceed on the basis that the appeal is correctly treated as being an appeal against conviction without determining the point. Therefore, no question of general importance arises on this issue that would justify a second appeal.
The operation of s 107 of the Sentencing Act
Section 106(1) of the Sentencing Act confers a discretion to discharge without conviction any person found guilty or who has pleaded guilty to an offence unless the imposition of a minimum sentence is required by the relevant statute. Section 107 constrains the exercise of that discretion:
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.
The approach to be taken to the inquiry required by s 107 involves three discrete steps, as described by this Court in Z (CA447/2012) v R:[6]
[27] … 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 …
[6]Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142.
The threshold test for consequences that are to be taken into account and the operation of the proportionality test were explained in Iosefa v New Zealand Police:[7]
[34] … it is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient if the Court is satisfied there is a real and appreciable risk that such consequences would occur.
[35] However, the nature and seriousness of the consequences and the degree of likelihood of their occurring will be material to the Court’s assessment of whether those consequences would be out of all proportion to the gravity of the offence. In other words, the higher the likelihood and the more serious the consequences the more likely it is that the statutory test can be satisfied.
[7]Iosefa v New Zealand Police HC Christchurch CIV-2005-409-64, 21 April 2005.
The evaluative exercise required by the proportionality test that is the third step described in Z (CA447/2012) v R is subject to the Austin, Nichols approach on appeal: if the appellant can show that the first instance decision was wrong he or she is entitled to a fresh assessment by the appellate court.[8]
The claimed consequences of conviction
[8]Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16]; H (CA680/2011) v R [2012] NZCA 198 at [30]–[34]; R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [63]–[66].
The perceived consequences of conviction were twofold. First, that Mr Maraj’s aspirations to study medicine will be affected. Secondly, that he will be separated from his parents who are intending to settle in Canada.
Mr Maraj is 19 years old and comes from what, by all accounts, is a close‑knit family whose origins are in Trinidad and Tobago. Mr Maraj’s parents made a conscious decision to live in different parts of the world to ensure that their children (Mr Maraj has two brothers) are exposed to a variety of cultural and other experiences. The family still travels regularly back to the West Indies and to Canada. Mrs Maraj’s sister and her children live in Canada and Mr and Mrs Maraj senior have the equivalent of permanent residency and intend to move there to live. Mr Maraj senior has deposed to his belief that the best medical schools are to be found in North America. One of Mr Maraj’s brothers, Christopher, has already been offered a place at a university in San Francisco.
Mr Maraj was born in Melbourne and moved with his family to New Zealand in 2012. He has a strong desire to study medicine and is presently in the third year of a Bachelor of Science (Biomedical Science) degree at the University of Auckland, which he is undertaking as preparation for applying to medical school.
It is said that a conviction for driving with excess blood alcohol would seriously affect Mr Maraj’s advancement in terms of his medical studies and professional development. Specifically, it was said that, although he would not be precluded from applying for entry to Auckland Medical School, his conviction would be treated by that school as a fitness to practice issue and he would be required to declare the conviction. A prospective student with a conviction of this kind would be required to attend a fitness to practice committee meeting that would generally result in appropriate rehabilitative action.
Mr Maraj, however, has aspirations to study at what he regards as the best institutions internationally, especially in the United States and Canada. Mr Maraj provided examples of the approach taken by various US medical schools to criminal convictions. Any application to a course of study in the US would require a criminal background check, which could pose a major disadvantage in the highly competitive application process. It is not clear, however, that a conviction of the type Mr Maraj has would in fact preclude entry. For example, the University of Virginia criminal background check policy notes that for all criminal convictions consideration will be given to the nature and seriousness of the offence, the age of the applicant when the offence was committed, whether it was an isolated incident or a pattern, and the length of time that has elapsed since the offence was committed.
Mr Maraj’s application for a discharge was based, in part, on the fact that, in the very competitive process for admission to the most desirable institutions, a criminal conviction would either preclude him from consideration or place him at a significant disadvantage against students without any such conviction, the existence of any conviction essentially being used as a vetting tool. In essence Mr Maraj fears that the initial vetting process would see him effectively excluded as he would be competing with other students whose applications are otherwise comparable but who have unblemished criminal records. This effect would carry through to later plans in terms of scholarships, research grants and professional positions.
The second consequence that concerns Mr Maraj is that a conviction will hamper his ability to travel to Canada, at least in the next five years. That would mean being separated from his family who will travel there regularly and had plans to relocate permanently.
The first appeal
Before Whata J Mr Maraj argued, first, that Judge Hinton’s assessment of the gravity of the offending as moderately serious treated the offending as being more serious than it was. Whata J agreed, finding the offending sat at the lower end of the spectrum in terms of personal culpability, extent of harm and ongoing risk to the public. However, we agree with Ms Cooke, for the Crown, that Whata J’s view was lenient given that Mr Maraj’s blood alcohol level was three times that permitted for a person under 20 years, that he was driving outside the hours of his restricted licence and that his careless driving involved checking a text while driving, crossing three motorway lanes and crashing his car into a median barrier.
As to the consequences of conviction, Whata J said:[9]
[27] … based on the information available to me, I assess the overall probability of exclusion from advanced study in medicine in Mr Maraj’s case as low, provided he maintains his high academic and personal standards …
[9]Maraj v New Zealand Police, above n 2.
The reasons the Judge gave for that assessment were that Mr Maraj’s criminal history would not affect his eligibility for entry into medical school, that the discretionary fetter on full acceptance into education, practice or research appears to be tailored to the specific risk presented by those with drink driving convictions and that the screening process would take into account Mr Maraj’s youth, low culpability and ongoing risk, which would mitigate the prospect of unfair exclusion from study or practice.
With those factors in mind the Judge reached the following conclusion regarding the effect on Mr Maraj’s educational opportunities:
[28] I accept however that I cannot discount the residual risk that some universities may use a conviction history as a vetting tool and that this is a factor to be weighed.
[29] I therefore proceed on the basis that there is a low risk overall that Mr Maraj’s advancement in medical study and practice will be precluded by convictions for drinking and driving and careless use. I accept that the convictions may be a disadvantage to him in some programmes. …
As to the effect on Mr Maraj’s ability to travel, at the outset of his judgment Whata J referred to that as a minor consideration.[10]
[10]At [2].
The Judge then turned to the proportionality assessment. He did not place great weight on the restrictions in terms of travel to Canada:[11]
I am not satisfied that the fetter on Mr Maraj’s travel overseas is out of all proportion to the gravity of the offending. … I acknowledge that [Mr Maraj’s] family regularly travel overseas, including to Canada and Trinidad to visit family. I also understand that with their second child likely to attend university in the United States in September 2016 the Maraj family intend dividing their time from mid-2016 between Canada/USA and the West Indies. But the evidence of a fetter on this family travel is opaque and over the medium to long-term (especially following the application of the “clean slate” legislation or on application under the Canadian rehabilitation programme) is unlikely to be a problem at all.
[11]At [32] (footnotes omitted).
The Judge placed greater weight on the implications for Mr Maraj’s career:[12]
Against a backdrop where his personal culpability is at the lower end of the spectrum and any ongoing risk to the public is negligible, exclusion from a programme in advanced medical study on the basis of his convictions alone would be disproportionate to the gravity of his offending.
[12]At [33].
However, the tipping point for the Judge was the legitimate interest of the medical profession in convictions of this kind:
[34] Balanced against that, medical professionals (including academics in medicine) are well placed to assess professional, academic and policy factors that might justify Mr Maraj’s exclusion from advanced study or practice because of his convictions. The medical profession is legitimately interested in whether convictions of this nature reflect a deeper problem or flaw that might place the public at risk. Ordinarily, due deference will be accorded to screening processes that are designed to secure public health and safety in a fair way to applicants. In this regard, the likelihood of exclusion from advanced medical study or practice in New Zealand (and it appears Virginia) will be commensurate with the risk posed by Mr Maraj to the public at the time he is to be assessed. I do not consider this outcome per se to be out of all proportion to the consequences of conviction.
[35] There is, as I have noted, the residual risk that Mr Maraj may not be able to maintain a place in a programme in some North American Universities because of his convictions. This is also relevant because his family plans to travel and reside in that part of the world, raising the prospect that Mr Maraj may be forced to live apart from his family in order to undertake his medical studies. But the scale of this disadvantage is difficult to quantify and in my view not so significant as to be out of all proportion to the gravity of the offending. …
[36] Overall therefore, while I am very sympathetic to Mr Maraj’s circumstances, I cannot say that the consequences of the conviction are likely to be out of all proportion to the gravity of his offending. There may be some disadvantage to him in terms of maintaining a placement in some North American universities, but I am satisfied overall that likelihood of exclusion from advanced medical study or practice will be proportionate to the risk presented by Mr Maraj at the time that he is to be assessed. If he maintains his current high academic and personal standards, acceptance into a medical programme should not be a problem for him.
(Footnote omitted).
Proposed appeal
Consequences and the proportionality assessment
Mr Pilditch advanced three arguments in relation to the Judge’s treatment of consequences of conviction when making the proportionality assessment. The first was that, having assessed Mr Maraj’s risk to the public as being negligible, any interest the medical profession had in convictions of this kind as reflecting a deeper problem that could put the public at risk was no longer a consideration.[13] Therefore the Judge’s view that such interest should be factored into the proportionality assessment was incorrect. Moreover, Mr Pilditch submitted that the Judge’s approach risked creating a category of cases that would be treated differently from others, which was not contemplated by the legislation.
[13]Maraj v New Zealand Police, above n 2, at [21] and [33].
The Judge’s assessment of risk to the public was made in the context of the gravity of Mr Maraj’s offending. Self-evidently, the Judge was concerned with the prospect of re-offending. The Judge’s later comment was obviously a reference back to that earlier assessment. The Judge was clearly not intending (and not able) to express a view on the wider risks that concern professional bodies. Nor do we consider that the Judge was wrong to take into account the legitimate interest of those charged with the selection of students into medical school or doctors into professional practice. Parliament recognises that in some areas of endeavour it is in the public interest that those seeking to practise are subject to specific constraints in terms of selection and supervision. Recognising that fact does not risk creating categories of cases in which applications for discharge will be treated differently from other cases. We agree with Wylie J’s statement in Roberts v Police:[14]
I can well accept that if a conviction is going to result in an absolute bar to the offender gaining entry to some profession or career then it may well be appropriate to ameliorate that consequence in an appropriate case by declining to enter a conviction. Where, however, Parliament has seen fit to establish statutory authority with the task of selecting or screening applicants for admission to whatever trade or profession may be involved then clearly Parliament has contemplated that those bodies should exercise a discretion as to admission in the light of the expertise that those bodies will build up over a period of time and with the knowledge of the kind of qualities that are appropriate for the particular trade or profession and those which render admission to that trade or profession inappropriate. It seems to me, and in this respect I think I echo what Holland J has said, that it would be inappropriate, at any rate in all but the most exceptional case, for this Court to substitute its discretion as to what may or may not be relevant on the seeking of admission to a particular profession for the discretion which Parliament has seen fit to vest in a statutory body. Indeed it is not perhaps going too far to say that to do so the Court would be actively concealing from the statutory body information which ought properly to come before that body.
[14]Roberts v Police (1989) 5 CRNZ 34 (HC) at 36; followed in Graves v New Zealand Police HC Rotorua CRI-2010-463-57, 28 February 2011 at [26].
Mr Pilditch’s second argument was that, in concluding that the likelihood of exclusion from advanced medical study would be commensurate with the risk posed by Mr Maraj to the public at the time he is assessed, the Judge failed to weigh the residual risk he had previously acknowledged, that Mr Maraj could be “screened” out of the application process and therefore not even reach the point of being assessed. We do not accept that the Judge did this; his observations at [34], express reference to the residual risk at [35] and conclusion at [36] make it clear that the Judge was mindful of this risk and took it into account.
The third argument was that, having accepted the risk of exclusion on the basis of conviction alone, and having concluded that such an outcome would be disproportionate, discharge without conviction should have followed but the Judge wrongly went on to consider the likelihood of that risk materialising. Mr Pilditch argued that it was the risk alone that was the focus of the statutory criteria and that any attempt to determine the likelihood of the risk being realised had the effect of impermissibly elevating the threshold required by s 107. He relied on the statement by this Court in DC (CA47/2013) v R that:[15]
[44] A criminal conviction is of itself a black mark on a record especially for somebody with no previous history. That adversity is compounded for a person who works in an area where a security clearance is routinely requested with the necessary consequence that criminal convictions must be disclosed …
[45] In our judgment there was sufficient material before the Judge on which he could reach the necessary level of satisfaction about the consequences of the offending. It was, with respect, inevitable that [the appellant’s] convictions would have real consequences for his employment. He would have to disclose convictions when applying for any position. Disclosure would have an adverse effect on a prospective employer regardless of whether the convictions were directly relevant to the field of information technology. Its existence would of itself either operate as an immediately disqualifying factor or elicit inquiry, at the very least, with an attendant obligation to explain.
[15]DC (CA47/2013) v R [2013] NZCA 255.
We do not see any merit in this submission. The likelihood of a risk materialising is a legitimate consideration in the proportionality assessment.[16] The statement in DC (CA47/2013) v R is not inconsistent with that. To the contrary, in that case the Court recognised that there were actual consequences for the appellant. Whata J was doing no more than observing that the claimed consequences for Mr Maraj are inevitably connected to his future performance: that is, the risk of adverse consequences is low and can be expected to remain so but (as hardly needs to be said) if Mr Maraj were to offend again or his academic performance drop below its current level his prospects would be affected by those factors rather than the convictions. As things stand now, the low risk of Mr Maraj’s career aspirations being affected is not out of all proportion to the gravity of the offending. Like Whata J, we consider that Mr Maraj’s aspirations to study medicine at a reputable medical school either in New Zealand or overseas will not be unduly affected by his conviction.
Effect on travel
[16]Iosefa v New Zealand Police, above n 7, at [35]; R v Hughes, above n 8, at [82].
In terms of the effect on Mr Maraj’s ability to travel to Canada, Mr Pilditch pointed out that the evidence before both the District Court and the High Court showed that Mr Maraj’s family has made a habit of travelling to Canada regularly to maintain relationships with family members there. Their closest relatives, Mr Maraj’s maternal aunt and cousins, live in Toronto. Mr Maraj’s parents have always planned eventually to divide their time between Trinidad and Canada.
The courts below had an affidavit from a New Zealand immigration lawyer, Mr Ryken, which annexed an opinion obtained from a specialist Canadian immigration lawyer, Mr Meurrens. That opinion explained that under s 36(2)(b) of the Immigration and Refugee Protection Act SC 2001 c 27 Mr Maraj would be precluded from entering Canada as a result of having being convicted outside Canada of an offence that, if committed inside Canada, would constitute an indictable offence under Canadian law. The effect of s 36(2)(b) would prevail for five years after the completion of any sentence imposed for the offence.[17] Mr Maraj could apply for rehabilitation at the end of that period. In the meantime he could seek a Temporary Resident Permit (TRP) but this would not afford any real benefit because it is available only under exceptional circumstances and allows only a single entry for short duration.
[17]We requested further information as to whether the effect of s 36(2)(c) would require disclosure of the conduct even if a discharge without conviction was granted. We are satisfied from the further evidence that it does not. On this point it appears that the position described in Mullany v Police [2013] NZHC 3546 at [20] and Edwards v R [2015] NZCA 583 at [21] is incorrect.
We accept that it was clear on the material before Whata J that Mr Maraj’s family travels frequently and plans to relocate to Canada at some stage. The new evidence confirmed that Mr Maraj’s brother, Christopher, has been offered a place at a university in San Francisco. There is also new evidence that Mrs Maraj’s health will make long-haul flying difficult and that Canada would be a safer place to reside in terms of being able to return to Trinidad. However, the evidence falls short of a clear plan to move to Canada in the short-term. To the contrary, in his affidavit filed for the appeal Mr Maraj senior said that as a result of Mr Maraj’s conviction the family has had to contemplate arrangements other than relocating to Canada.
Although the Judge was correct that Mr Maraj could ultimately apply for rehabilitation, that could not happen for a period of at least five years, which is an important time in the life of a young man. There is, therefore, a real consequence for Mr Maraj in terms of travel. However, these factors have to be balanced against the fact that if Mr Maraj’s parents do move in the short-term Mr Maraj will be at least 20 years old. He will have completed his undergraduate degree. He is already living away from home and, through the nature of his upbringing, can be expected to have a degree of resilience in terms of managing alone.
In these circumstances we are not persuaded that there is any risk of a miscarriage of justice if Mr Maraj’s convictions were to stand. Mr Maraj’s offending was moderately serious. There is a low risk that as a result of his convictions he will be affected in terms of selection for the most sought-after places but his academic record may well mean that he would find such places difficult to secure in any event. There is no appreciable risk that he will be precluded from being able to study medicine at all. Further, his conviction for drinking and driving is of a type that would be relevant to his fitness to practice as a doctor and that assessment is properly made by the appropriate institutions in terms of training and practice. Finally, although Mr Maraj will be affected in terms of travel to Canada, that situation is a temporary one. We accept that it will be inconvenient and may cause tension within Mr Maraj’s family. But we do not see it as a consequence that is, either alone or together with the effect on his education, out of all proportion to the gravity of the offending.
Inconsistency with other cases
Mr Pilditch argued that the refusal to grant a discharge without conviction was inconsistent with other cases, particularly those involving sports people. Mr Pilditch argued that, in these cases, the courts had recognised a generic risk to the prospect of advancement without considering the likelihood of the negative consequences occurring.[18] This ground overlaps somewhat with the earlier submission that, having accepted that there were real and appreciable risks to Mr Maraj from a conviction, the Judge erred by going on to consider the low probability of those risks materialising. It also raises the issue of whether the threshold for establishing disproportionate consequences is being applied with sufficient consistency in these various cases.
[18]See for example Police v Birtwistle [2015] NZDC 5008; R v Bell [2015] NZHC 779; Police v McDowell DC Dunedin CRI-2014-012-1355, 9 December 2014.
Some of the cases on which Mr Pilditch relied were put before us only in the form of media reports. Without sentencing notes it is impossible to make any judgment as to the similarities between those cases and the present case. Nor do we accept, in relation to the other cases on which Mr Pilditch relied, that there was any consistent practice of granting applications for discharge merely on the basis that the applicant had demonstrated sporting promise, aspiration to higher educational achievements or that their prospects would be affected by travel restrictions and the stigma of conviction.
As we have already said, the Judge did not make any error in assessing the likelihood of negative consequences materialising.[19] That is a legitimate part of the proportionality exercise. It is true that in some of the cases Mr Pilditch relied on an assessment of the likelihood of consequences materialising was not made but that fact does not mean that the Judge in this case was wrong to consider that factor. The particular circumstances are to be carefully weighed in each case.
Result
[19]Above at [31].
The application for leave to adduce further evidence is granted.
The application for leave to appeal is declined.
Solicitors:
Minter Ellison Rudd Watts, Auckland for Applicant
Crown Law Office, Wellington for Respondent
47
4
0