Police v Graham - [2017] NZHC 3299

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000269 [2017] NZHC 3299

BETWEEN
NEW ZEALAND POLICE

Appellant

AND

RICHARD KEITH GRAHAM Respondent

Hearing: 18 October 2017

Appearances:

S McColgan for the Appellant
K Trotter for the Respondent

Judgment:

22 December 2017

JUDGMENT OF HINTON J

This judgment was delivered by me on 22 December 2017 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

NEW ZEALAND POLICE v GRAHAM [2017] NZHC 3299 [22 December 2017]

Counsel/Solicitors:
Meredith Connell, Auckland
Karl Trotter, Barrister, Auckland

Introduction

[1] The appellant, the New Zealand Police, seeks leave to appeal against a decision of Judge Pidwell in the District Court. Judge Pidwell discharged the respondent, Mr Richard Graham, without conviction under s 106 of the Sentencing Act 2002 on charges of burglary, offering to supply methamphetamine, possession of a psychoactive product and possession of a controlled drug.

Background

[2] Mr Graham is a Corporal in the Royal New Zealand Air Force (RNZAF). At the time of the offending in September 2016, he lived and worked at the RNZAF air base in Whenuapai and was a Communication Information Systems Technician. He has been stood down pending the outcome of these charges. Up until February
2015, Mr Graham had spent three years in a sensitive specialist intelligence role which carried individual risk and involved overseas deployment.

[3] The burglaries occurred on three separate occasions in August and September 2016 at the Whenuapai air base. Mr Graham used his security clearance to access two buildings. He took multiple items from the buildings, including electronics from a store room containing operationally sensitive equipment, and equipment and tools from construction sites at the base. The value of the items taken was in excess of $200,000.

[4] During the investigation of the burglaries, the Police searched Mr Graham’s home and a storage unit. The Police found 10 BZP pills in a safe in his home. In the storage unit, the Police located two containers containing 391 grams of NBOME, a psychoactive product with the intended effect of mimicking LSD. The Police also found two cellphones in Mr Graham’s possession. The phones were seized and examined, and the Police identified a large number of communications relating to the supply or trading of methamphetamine. There were approximately 700 calls to and from the cellphones over a three to four month period.

[5] Mr Graham pleaded guilty and was granted a discharge without conviction on the following six charges:

(a) three charges of burglary under s 231 of the Crimes Act 1961;

(b) one charge of offering to supply a class A controlled drug under

ss 6(1)(c) and 6(2) of the Misuse of Drugs Act 1975, namely methamphetamine;

(c) one charge of possessing a non-approved psychoactive product with intent to supply under s 70(1)(c) of the Psychoactive Substances Act
2013; and

(d) one charge of possessing a controlled drug under s 7(1)(a) of the

Misuse of Drugs Act.

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 Police v Graham

Details

AGLC: Police v Graham [2017] NZHC 3299
Case: [2017] NZHC 3299
Decision Date: 22 December 2017

CaseChat Overview and Summary

In this case, the New Zealand Police sought leave to appeal against a decision by Judge Pidwell in the District Court to discharge Richard Keith Graham without conviction on charges of burglary, offering to supply methamphetamine, possession of a psychoactive product and possession of a controlled drug. The appellant argued that Judge Pidwell had failed to determine the seriousness of the offending once mitigating factors were considered, failed to consider several matters relevant to the consequences of the conviction, and found that the consequences of conviction would be out of all proportion to the gravity of the offending.

The court considered whether the consequences of the conviction would be out of all proportion to the gravity of the offending. The court found that the consequences of conviction were not out of all proportion to the gravity of the offending and that convictions were an appropriate way to protect future employers' rights to know about offending, particularly of this nature, and the risks arising from that. The court also noted that there was the general desirability for consistency in sentencing offenders who have committed similar offences in similar circumstances. While the circumstances of this case were unusual, and the assessment of whether the consequences were out of all proportion to the gravity of the offending was highly fact specific, it was relevant that offending of this kind, or even remotely similar, had not previously been met with a discharge without conviction.

Leave to appeal was granted, and the appeal was allowed. Convictions were entered against Mr Graham in relation to all charges. The matter was to be remitted back to the District Court for sentencing.

Orders