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…

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 Petersen v Police

Details

AGLC: Petersen v Police [2019] NZHC 3091
Case: [2019] NZHC 3091
Decision Date: 26 November 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Bjorn Paora Te Iwi Petersen appealed against the District Court's refusal to grant him a discharge without conviction, which he had sought. Mr Petersen was sentenced to 12 months' supervision by Judge A M Manuel in the District Court at Auckland for possessing cannabis for the purpose of sale. The appellant's counsel argued that the Judge erred by understating the consequences of a conviction, and that the proportionality assessment was wrong. The central issue was whether the consequences of conviction were out of all proportion to the gravity of the offence. The court assessed the gravity of the offence and the consequences of conviction in relation to Mr Petersen's employment and future prospects. The court found that the possible employment consequences were not out of all proportion to the gravity of Mr Petersen's offending, and that the Judge rightly distinguished discharges in industries and businesses where drug offending attracts institutionalised discrimination.

The appeal was dismissed, and leave to adduce the further evidence was declined. The court found that the consequences of conviction were not out of all proportion to the gravity of the offence, and that the Judge rightly distinguished discharges in industries and businesses where drug offending attracts institutionalised discrimination. The court concluded that the Judge's assessment of the proportionality of the consequences of conviction was correct, and that the appeal was dismissed. The court found that the possible employment consequences were not out of all proportion to the gravity of Mr Petersen's offending, and that the Judge rightly distinguished discharges in industries and businesses where drug offending attracts institutionalised discrimination.

Orders