O v Police HC Wellington CRI-2005-485-108

[2005] NZHC 80

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2005-485-108

CRI-2005-485-109

L  O  C O           Appellants

v

NEW ZEALAND POLICE

Respondent

Hearing:         27 September 2005

Appearances: S Insley for Appellant L O 

R M Gould for Appellant C O 
M A O’Donoghue for Respondent

Judgment:      3 October 2005

JUDGMENT OF GODDARD J

Introduction

[1]      The appellants, who  are mother and daughter, were jointly charged with seven counts of dishonestly using a document.   Both sought a discharge without conviction.   In the Lower Hutt District Court, Judge Walker entered a conviction against each on all seven counts and sentenced each to 60 hours community work in respect of each count.  These appeals are against the Judge’s refusal to grant either

appellant a discharge without conviction.

O V POLICE HC WN CRI-2005-485-108  3 October 2005

Background facts

[2]      The brief facts are that C    O   obtained a prescription from her General Practitioner  for  20  Imovane  tablets  to  help  her  sleep.    Imovane  is  a  restricted medicine under the Medicines Act 1981.   She made several photocopies of the prescription and on seven occasions between 14 January 2005 and 31 January 2005 drove her mother to seven different pharmacies where, using the photocopied script and her community services card, Mrs L O   obtained seven lots of Imovane tablets.  When questioned by police, C O   said that she had been too scared to obtain the Imovane tablets herself but that she needed them in order to sleep properly.

The circumstances of the appellants

[3]      The  main  thrust  of  submission  before  Judge  Walker  was  directed  to  a discharge without conviction in the case of each appellant and the personal circumstances of each appellant, as outlined in their respective pre-sentence reports, were emphasised.

[4]      For Mrs L O  , Ms Gould emphasised that she is 57 years of age, is a sickness  beneficiary  and  a  first  offender.    She  has  suffered  from  episodes  of psychosis over a 20 year period and has been diagnosed as suffering from schizophrenia.  This illness is now controlled through the use of an anti-psychotic drug and is said not to have contributed to her offending.

[5]      The  motivation  and  basis  for  Mrs  O  ’s  offending  was  her  misguided perception that her daughter needed assistance because of the trouble she was experiencing in sleeping.   Mrs O   thought it was a victimless crime and she experienced an adrenaline rush before and during her offending.

[6]      She was assessed by the author of her pre-sentence report as being at low risk of re-offending and having a moderate motivation to change.   A sentence of community work was recommended.

[7]      The author of C   ’s pre-sentence report also assessed her as low risk of reoffending and recommended that she be sentenced to a term of supervision.

[8]      On her behalf, Ms Insley emphasised the delicate psychological, emotional and physical condition she was in at the time of offending.  She suffers from stress and depression as well as post traumatic stress disorder as the result of her daughter being taken into care by CYFS, and as the result of harassment from her former partner.  She suffers from sleep deprivation and it was this that led to her General Practitioner prescribing Imovane for her.

[9]      Ms Insley said that a contributing factor was that C    had developed a resistance to the quantity of Imovane prescribed to her by the General Practitioner, and that “like her mother, she considered her attempt to remedy this as a victimless crime”.  Also, because of her stress and anxiety, she was not thinking rationally at the time of the offending.

Sentencing judgment

[10]     In his sentencing remarks, Judge Walker acknowledged that neither of the appellants had any previous convictions, that the medication was intended for their own use and not for pecuniary gain, that both suffered from health difficulties, and that  both  had  pleaded  guilty at  an  early opportunity.    Nevertheless,  for  several reasons, he regarded their offending as serious.

[11]     The first reason was their fraudulent use of a prescription, which he viewed as an attack on the integrity of the prescription system which relies on patient’ honesty.  The second was the dangerous nature of the appellants’ actions:  in effect, they had obtained seven times the dosage recommended by their General Practitioner and some of the medication was to be used by Mrs O   for whom it had not been prescribed and who was already on anti-psychosis medication.  Third, the appellants had made a conscious and deliberate decision on seven separate occasions to offend in this way.  The Judge rightly characterised their offending as repeat offending.

[12]     On the basis of all of those factors (and notwithstanding their guilty pleas, previous good character and respective health difficulties) the Judge was satisfied that a conviction would not be out of all proportion to the gravity of the appellants’ offending.  He entered a conviction in each case and sentenced each appellant to 60 hours community work.

The appeal

[13]     The major ground of appeal was that Judge Walker had failed to exercise his discretion correctly under s 106 of the Sentencing Act 2002 in declining to discharge either appellant without conviction.   Both submitted that the Judge had given insufficient or no weight at all to the consequences of a conviction for the appellants and given too much weight to his perception of the seriousness of the offending.

[14]     In relation to the former, both counsel pointed to the absence of express reference to the consequences of conviction for the appellants in the Judge’s sentencing remarks, despite the content of the pleas in mitigation emphasising those consequences.  Ms Gould submitted that s 106 has not limited the judicial discretion to discharge without conviction but has broadened it; and submitted that a consideration of the consequences of conviction is not confined to professional or public consequences but encompasses employment prospects at every level and also the prospects of rehabilitation.  Ms Insley endorsed these submissions.

[15]     In relation to the gravity of the offending, both counsel submitted that the degree of culpability was not as high as Judge Walker thought.  They suggested that it was medical offending rather than criminal offending, and that it had its genesis in the health problems experienced by C    O   at the time.

Discussion

[16]     Section 106(1) of the Sentencing Act 2002 confers a discretion on sentencing Judges to discharge an offender without conviction.   The guidance for sentencing Judges is set out in s107, which provides:

107     Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[17]     As I have already noted, since the decision whether to grant a discharge without conviction involves the exercise of a discretion, an appellate court must not simply substitute its view for that of the sentencing court on the basis that the appellate court would have exercised the discretion differently: Halligan v Police [1955] NZLR 1185, 1188. An appellate court can only interfere if there has been a wrongful or improper exercise of the discretion, for instance, by giving insufficient weight to relevant considerations, or giving weight to irrelevant considerations.

[18]     As  stated,  the  issue  is  whether  Judge  Walker  exercised  his  discretion wrongfully or improperly.

[19]     The statutory test for discharging an accused without conviction (set out above) is whether the conviction would be out of all proportion to the gravity of the offence.

[20]     It is well settled that the s106 discretion to discharge must be used sparingly and  that  there  must  be  something  exceptional  about  either  the  offender  or  the offence.  It is also trite that each case must be considered on its own merits.  The Court of Appeal in Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA) stated that, in each instance, the court must consider the nature of the offence, the seriousness of the particular offending, and how a conviction will affect the particular offender in the light of his or her personal circumstances.

[21]      Accordingly, in exercising his s106 discretion, Judge Walker was required to give consideration to the nature and gravity of the offence, to the consequences of conviction for the appellants, and to whether those consequences would be out of all proportion to the gravity of the offence.  This he did at paragraphs 6 and 7 of his decision, explaining why he considered the fraudulent use of a doctor’s prescription to be a serious offence.   Specifically, he noted that the appellants’ behaviour undermined the integrity of the prescription system, which relies on the honesty of

patients and that it is dangerous to obtain seven times the dosage of medication recommended by a medical professional and to then provide it to a person for whom it has not been prescribed (and in this case one who is using anti-psychotic medication).

[22]     Although Judge Walker did not expressly refer to the consequences for the appellants of having a conviction entered against them, it is evident that he found the consequences would not be out of all proportion to the gravity of their offending. He was fully aware of counsels’ emphatic submissions on that point and of the consequences of loss of self esteem, reputation and employment opportunities.  It is implicit in his exercise of discretion that he took these into account.

[23]     Since the s 106 discretion to discharge without conviction must be exercised sparingly, there must be something special about the offender’s circumstances to justify the exercise of that discretion.   As both Ms Gould and Ms Insley acknowledged in their submissions at sentencing, the consequences of a conviction for   each   appellant   are   simply   the   “inevitable”   consequences;   that   is,   the consequences that occur in each and every case following conviction.  Accordingly, they cannot be characterised as a “special” or “exceptional”.

[24]     Having  determined  that  this  was  serious  and  deliberate  offending  which required deterrence, and that there were no special consequences flowing from conviction, it was open to Judge Walker to refuse to discharge the appellants without conviction.  He did not err in exercising his discretion thus.

Conclusion

[25]     The appeal is dismissed.

Solicitors:

Luke, Cunningham & Clere, Wellington, for Respondent

Delivered at 4.15 pm on Monday 3 October 2005.