Petersen v Police

[2019] NZHC 3091

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-386

[2019] NZHC 3091

BETWEEN

BJORN PAORA TE IWI PETERSEN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Date of hearing:	26 November 2019
Appearances:	P J Barrowclough for the appellant M J Mortimer for the respondent
Date of judgment:	26 November 2019

ORAL JUDGMENT OF JAGOSE J

Solicitors/Counsel:

Paul Barrowclough Barrister, Auckland Meredith Connell, Auckalnd

PETERSEN v NEW ZEALAND POLICE [2019] NZHC 3091 [26 November 2019]

[1]    Bjorn Petersen pleaded guilty to possessing cannabis for the purpose of sale on 21 January 2019.1 He was sentenced to 12 months’ supervision by Judge A M Manuel in the District Court at Auckland on 8 August 2019.2 Mr Petersen appeals against the Judge’s refusal to grant him a discharge without conviction, as he had sought.

Background

[2]    Mr Petersen is a 38-year-old sous chef. At about 8.30 pm on Thursday, 6 December 2018, he was stopped at a police checkpoint in Auckland’s Westmere. Police noted a strong smell of cannabis coming from his vehicle. Mr Petersen told them he had cannabis inside a backpack on the back seat. Police found 65 grams of cannabis plant in 11 clear ziplock bags categorised by weight and value in the backpack, and $1610 in cash in Mr Petersen’s wallet. He admitted he sold cannabis, and the cash was from his sales.

Judgment under appeal

[3]    Mr Petersen was entitled to be discharged without conviction only if the direct and indirect consequences of his conviction would be out of all proportion to the gravity of the offence.3 Only then may the sentencing judge decide if to exercise residual discretion. The proportionality test is a question of fact requiring judicial assessment. There must be a “real and appreciable” risk any given consequence will arise; this recognises the court is assessing future likelihood.4

[4]    Judge Manuel began by considering the gravity of the offending. She considered the offending was “at a moderate level”.5 There was a certain sophistication about the offending, and Mr Petersen admitted he had been dealing cannabis for the

1      Misuse of Drugs Act 1975, s 6(1)(e) and (f) and (2)(c). Maximum penalty is 8 years’ imprisonment. The charging document referred only to s 6(1)(f) and “possession for supply”, which is how the District Court Judge also refers to the offending. Paragraph (f) refers to “possession for any of the purposes set out in paragraphs (c), (d), or (e)”. ‘Supply’ in the applicable paragraph (d) is to people under 18 years of age. Supply otherwise is addressed in s 7. There is no allegation of supply to youth in the summary of facts or evidence. Mr Petersen admits he sold cannabis. Counsel agree that is the correct characterisation of the offending: possession under paragraph (f) for the purpose set out in paragraph (e): to “sell, or offer to sell, any Class C controlled drug to a person of or over 18 years of age”. Hence my description of Mr Petersen’s guilty plea.

2      New Zealand Police v Petersen [2019] NZDC 15388.

3      Sentencing Act 2002, s 107; and Scott v R [2019] NZCA 261 at [78]–[80].

4      DC (CA47/2013) v R [2013] NZCA 255 at [43].

5      New Zealand Police v Petersen, above n 2, at [9].

past eight months. Against that, the Judge acknowledged his constructive and supportive working and family history, and lack of previous convictions. He admitted guilt immediately, showed remorse, completed an alcohol and drug counselling programme, and stopped using cannabis and alcohol. He had been selling acquired cannabis at a small profit to finance its use in pain relief for his back.

[5]    As for consequences, the Judge said a conviction would “not necessarily mean that [Mr Petersen] would lose his job”.6 The letter from his employer only suggested he may face a formal process to evaluate the viability of his employment after conviction. Ultimately, Judge Manuel considered the consequences for Mr Petersen’s current or future employment were “moderate” and – as “the heart of [her] decision”

– not out of all proportion to the gravity of the offending.7 The Judge distinguished cases relied on by Mr Petersen, as offenders in those cases were much younger and the claimed consequences in sharper relief and built on a stronger evidential base.8

Issues on appeal

[6]    Mr Petersen’s counsel, Paul Barrowclough, says the Judge erred by understating the consequences of a conviction; her proportionality assessment therefore was wrong. In particular, he says there is a real and substantial risk he will lose his job if he is convicted, and he would have real difficulties securing another job.

[7]    Mr Barrowclough seeks to adduce a psychologist’s report Mr Petersen is at very low risk of reoffending. Counsel for the Police, Matthew Mortimer, is neutral on its admission, acknowledging its required ‘credibility’ but doubting Mr Petersen’s asserted financial inability to commission it at the time of sentencing crosses the ‘freshness’ threshold.9

6 At [13].

7 At [19].

8      At [16]–[18], citing Weerasinghe v Police [2019] NZHC 139 and R v Rakich [2014] NZHC 3287.

9      Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [25], approving R v Bain [2004] 1 NZLR 638 (CA) at [22]; and Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

Approach on appeal

[8]    An appeal against a refusal to grant a discharge without conviction is an appeal against conviction and sentence.10 If Mr Petersen can establish Judge Manuel was wrong, I will consider the matter afresh.11

Discussion

—gravity of offending

[9]    Although the gravity of Mr Petersen’s offending is not expressly relied on as a ground of appeal, Mr Barrowclough argues in written submission at some length it is “at the very low end of moderately serious offending”. He emphasises Mr Petersen’s involvement was primarily for his own use to alleviate chronic back pain, which his commercial dealing financed, and contrasts this with high-end commercial cannabis dealers who sell purely for profit. Mr Barrowclough reinforces Mr Petersen’s mitigating features and relies on the psychologist’s report as illustrating he is at low risk of reoffending.

[10]   The marginal difference in characterisation of gravity is not especially meaningful. Mr Petersen’s offending extended beyond the presumption possession is for supply to deemed (and, here, admitted) sale,12 albeit without being part of any wider network. It is telling he was selling reasonable quantities to finance his own use, rather than supplying some minor surplus from that use. Against this is his mitigating personal factors. Despite the pre-sentence report’s recommendation of a supervision and community work sentence, the Judge expressly considered conviction “to be a punishment in itself”, and sentenced him only to 12 months’ supervision.13 That is to acknowledge Mr Petersen’s low risk of reoffending. The offending rightly is characterised as moderate.

[11]   The psychologist’s report thus affirms the correctness of, rather than amplifies, the Judge’s assessment of mitigating factors.14 While credible, without a rather better

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

11     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].

12     Misuse of Drugs Act 1975, s 6(5) and (6).

13     New Zealand Police v Petersen, above n 2, at [21].

14     At [20]–[21].

foundation for Mr Petersen’s inability previously to obtain it, the psychologist’s report cannot properly be considered fresh; neither, more importantly, does it offer any foundation for an alternative to Mr Petersen’s conviction.

—consequences of conviction

[12]   Mr Barrowclough says the conviction labels Mr Petersen a criminal cannabis dealer, with “negative and sinister connotation” for his record without explanation for his offending. That is the consequence of a conviction, which may require explanation to determine its justifiable impact in any other environment. The offending is not comparable to a single minor assault, such as was found “should be left in the past”.15 Possession for presumed supply alone  may  have  been  comparable  here,  given  Mr Petersen’s disuse since, but there is more now in the admission of both historic and intended sale, deemed on proof of supply in any event.

[13]   Neither did the Judge err in her assessment of Mr Petersen’s employer’s letter as falling short of establishing a real and appreciable risk his employment will terminate. I appreciate the employer ought not to predetermine that outcome, but its letter should indicate why such may arise if it was in serious prospect. Instead the employer acknowledges Mr Petersen was “very upfront with us” and has complied with subsequent drug testing, the employer’s expressed but presently sated concerns for employee “safety” and brand “reputation” suggesting it is alive to the need to justify any impact on Mr Petersen’s ongoing employment,16 and points to none.

[14]   The employer only acknowledges a conviction “could give rise to a formal process around the ongoing viability of [Mr Petersen’s] employment”. That is a statement of the obvious. But Mr Petersen’s colleagues and former manager describe him as reliable, dedicated and hardworking; the latter, with management responsibilities in the hospitality industry, “would have no hesitation in employing him again”. Together, these do not disclose a real and appreciable risk he will lose his job. Doubtless, the conviction presents an additional hurdle in present and future

15     Summers v New Zealand Police HC Whangarei CRI-2008-488-36, 28 August 2008 at [35].

16     Employment Relations Act 2000, s 103A(2).

employment. The recruitment consultant’s advice is generic. But these employment consequences all are moderate, as the Judge found.

—proportionality analysis

[15]   Even if the offending and its consequences are not perfectly matched, they still cannot be said “out of all proportion” to each other, as the Judge also concluded.17 The possible employment consequences are  not out of all proportion to the gravity of  Mr Petersen’s offending. The Judge rightly distinguished discharges in industries and businesses where drug offending attracts institutionalised discrimination.18

Result

[16]Leave to adduce the further evidence is declined. The appeal is dismissed.

—Jagose J

17     New Zealand Police v Petersen, above n 2, at [19].

18     At [16]–[18], citing Weerasinghe v Police, above n 8; and R v Rakich, above n 8. See similarly

Vela v R [2010] NZCA 440.