Mr Otis seeks leave out of time to bring a second appeal against the District Court’s refusal to grant a discharge without conviction.[1] He pleaded guilty to possessing half a gram of methamphetamine — enough for five smokes.[2] His application for discharge was dismissed in the District Court.[3] Jagose J dismissed his first appeal.[4] Both Courts rejected his central claim that the impact of conviction was grossly disproportionate because, given his age (55), a conviction would ruin his prospects of securing suitable employment.
[1]Criminal Procedure Act 2011, ss 237(2) and 253(3).
[2]Police v Otis [2018] NZDC 587 [District Court judgment] at [1] and [7].
[3]At [18].
[4]Otis v Police [2018] NZHC 1383 [High Court judgment] at [31].
Mr Otis filed his application for leave to bring a second appeal out of time. As the Crown do not oppose an extension of time being granted and no prejudice arises from the delay, we grant leave to extend time.
Mr Otis also applies to adduce further evidence to assist his appeal. It is an updating affidavit addressing Mr Otis’ personal circumstances. The respondent raised no objection to our reading it, and the respondent in fact refers to it. We have therefore considered it for the purposes of this leave application.
An appeal against a refusal to grant a discharge without conviction is characterised as an appeal against both conviction and sentence.[5] The criteria for leave are that the appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.[6] In this case Mr Otis relies only on the second limb, asserting a miscarriage of justice. This is a high threshold: not every error in the court below will lead to a miscarriage of justice.[7]

Application for leave

[5]Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [8]–[9].

[6]Criminal Procedure Act, ss 237(2) and 253(3).

[7]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [38].

As provided in s 107 of the Sentencing Act 2002, a judge must not discharge an offender without conviction unless satisfied as to the two-stage threshold test:
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.
The leave application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Otis v Police

Details

AGLC: Otis v Police [2019] NZCA 231
Case: [2019] NZCA 231
Decision Date: 18 June 2019 at 3.30 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Marko Otis sought leave to bring a second appeal against the District Court's refusal to grant a discharge without conviction for possessing half a gram of methamphetamine. Otis had pleaded guilty and his application for discharge was dismissed by the District Court. Otis's first appeal was dismissed by the High Court. Otis sought leave to bring a second appeal out of time and to adduce further evidence, which the Court of Appeal considered. Otis argued that the High Court misapprehended the relevant facts and failed to properly consider his personal background and the direct and indirect consequences of conviction. The Court of Appeal found that there were no tenable arguments that the High Court had made an error leading to a miscarriage of justice. The application for leave to appeal was declined, and the applications for an extension of time and to adduce further evidence were granted.

The Court of Appeal held that the High Court Judge was not in error when assessing the gravity of the offending, as the amount of methamphetamine in a defendant’s possession is only one factor and the sentencing Judge was entitled to take into account the entire factual matrix in assessing Otis’ culpability. The Court of Appeal further held that the High Court Judge was entitled to find that there was no direct evidence linking the drug offending with Otis’ personal circumstances. The Court of Appeal also found that the High Court Judge had considered the direct and indirect consequences of conviction, and that the statement that it is “rare” for the courts to grant a discharge without conviction for Misuse of Drugs Act 1975 offending was simply an observation that relatively few such cases have that outcome. The Court of Appeal held that a further appeal would only afford Otis a further opportunity to relitigate the merits a third time.

Orders