Otis v Police - [2018] NZHC 1383

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2018-404-0032

[2018] NZHC 1383

BETWEEN
MARK OTIS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 12 June 2018

Appearances:

S M Buckley for Appellant R J Warren for Respondent

Judgment:

12 June 2018

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:
S M Buckley, Barrister, Auckland
Kayes Fletcher Walker Limited, Auckland

OTIS v NEW ZEALAND POLICE [2018] NZHC 1383 [12 June 2018]

[1] Marko Otis appeals against the District Court’s refusal to grant him a discharge without conviction.1

[2] On 16 January 2018, Mr Otis was convicted by Judge McGuire on charges of possessing methamphetamine,2 and possessing utensils.3 He was sentenced that same day to pay a fine of $500 and to pay costs of $260.4

[3] Mr Otis’ application for a discharge without conviction under s 106 of the Sentencing Act 2002 (the “Act”) was refused. Mr Otis now appeals that refusal on grounds the Judge erred by:

(a)assessing the offending as being moderate instead of at the low range; and
(b)finding there was nothing unusual with the consequences faced by Mr Otis.

[4] Mr Otis adduces new evidence on appeal, providing more details of Mr Otis’ personal and employment situation. The police accept the new evidence is “necessary or expedient in the interests of justice”, and at an appeal call-over on 23 March 2018, Lang J directed the evidence be accepted for consideration on appeal.5 The new evidence includes affidavits from Mr Otis, his wife, his sister, a report from specialist grief counsellor, Sarah Penwarden, and two letters of reference.

Approach on appeal

[5] Section 106 of the Sentencing Act 2002 gives a Court the discretion to discharge an offender without conviction. Section 107 provides that this discretion cannot be exercised unless the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

1      Police v Otis [2018] NZDC 587 at [21] [“District Court decision”].
2      Misuse of Drugs Act 1975, ss 7(1)(a) and 2. Maximum penalty is six months’ imprisonment, or a fine not exceeding $1,000, or both.
3      Section 13(1)(a) and (3). Maximum penalty is one year’s imprisonment, or a fine not exceeding
$5,000, or both.
4      The wording of the penalty is somewhat ambiguous. Judge McGuire held at [21] of the District Court decision “I was proposing a fine of $250 and Court costs in each case”. The particulars of conviction record this penalty as a fine of $500 and Court costs of $260.
5      Criminal Procedure Act 2011, s 335.

[6]Section 107 requires the Court to undertake a three-step analysis and consider:6

(a)the gravity of the offence;

(b)the direct and indirect consequences of a conviction; and

(c)whether those consequences are out of all proportion to the gravity of the offence.

If the offender meets the s 107 threshold, then the Court may go on to consider whether to exercise the residual discretion under s 106.7

[7] That…

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 [2018] NZHC 1383
Case: [2018] NZHC 1383
Decision Date: 12 June 2018

CaseChat Overview and Summary

Marko Otis appeals against the District Court's refusal to grant him a discharge without conviction. Otis was convicted of possessing methamphetamine and possessing utensils and was sentenced to pay a fine of $500 and costs of $260. Otis' application for a discharge without conviction was refused on the grounds that the Judge erred by assessing the offending as moderate instead of low and finding there was nothing unusual with the consequences faced by Otis. Otis adduces new evidence on appeal, including affidavits from his wife, sister, and counsellor, and letters of reference. The police accept the new evidence is necessary or expedient in the interests of justice.

The appeal raises questions about the proportionality of the consequences of a conviction to the gravity of the offending. The Court must undertake a three-step analysis, considering the gravity of the offence, the direct and indirect consequences of a conviction, and whether those consequences are out of all proportion to the gravity of the offence. If the offender meets the threshold, the Court may exercise its residual discretion under s 106. The proportionality test is a question of fact requiring judicial assessment, and the Court must undertake the evaluation of the s 107 factors afresh if the appellant can show that the first instance decision was wrong.

In assessing the gravity of Otis' offending, the Court found the amount of methamphetamine found was a significant factor, although not the only factor. The mitigating factors, such as Otis' pro-social background and his efforts to address the causes of his offending, were considered. However, the Court found that the consequences of Otis' conviction were not out of all proportion to the gravity of the offending. The Court found that there was no evidence to support Otis' claim that a managerial position was necessary to support his family, and that there was no evidence about his job prospects in the industries in which he might work. The appeal was dismissed.

The Court found that the consequences of Otis' conviction were not out of all proportion to the gravity of the offending. The Court found that the mitigating factors, such as Otis' pro-social background and his efforts to address the causes of his offending, were considered. However, the Court found that there was no evidence to support Otis' claim that a managerial position was necessary to support his family, and that there was no evidence about his job prospects in the industries in which he might work. The appeal was dismissed.

Orders