Police v Graham
[2017] NZHC 3299
•22 December 2017
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 RespondentJudgment:
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.
District Court Decision
[6] Judge Pidwell assessed the gravity of the offending at the outset as high because:
(a) the lead charge of offering to supply methamphetamine has a maximum penalty of life imprisonment, being the highest penalty in terms of sentencing levels. There were a significant number of calls over a short period of time. Judge Pidwell said the charge was at the lower end of seriousness for methamphetamine supply, because there was no evidence of actual commercial gain or sales. Mr Graham said he was essentially offering to give surplus drugs to other people. (The Judge said she assumed that Mr Graham’s involvement with methamphetamine was the underlying cause of his overall offending.)
(b) a global starting point of three to three-and-a-half years’
imprisonment would be appropriate.
(c) the offending involved a significant breach of trust against the RNZAF, in particular because Mr Graham used his security clearance at a significant level, given to him as an honourable member of the RNZAF, to commit the burglaries.
(d)of the number of burglaries and the high value of the stolen items, being over $200,000.
(e) there was a significant amount of planning by Mr Graham. He used his inside knowledge of the air base, targeted items to steal, and then placed them in a secure unit.
[7] Judge Pidwell considered that the gravity of the offending was “significantly” reduced by “exceptional and significant circumstances” relating to the offending, being the stress of Mr Graham’s deployment; a character reference from a superior; Mr Graham’s co-operation with the Police; and rehabilitative efforts. The Judge did not expressly reach a conclusion as to the gravity of the offending after taking account of those mitigating factors.
[8] The Judge then turned to the consequences of any convictions. She stated that Mr Graham would likely be dishonourably discharged from the armed forces if convictions were entered against him. She said it was not for the Court to make decisions regarding his employment or to interfere with decisions of the Armed Forces. She said that a conviction would have a significant adverse and ongoing effect on his ability to find any employment in the country because of the seriousness of the charges on the face of them. She also said it would be difficult for Mr Graham to find gainful employment given his specialist Army experience.
[9] Judge Pidwell then assessed whether the consequences of the convictions would be out of all proportion to the gravity of the offending. She considered that Mr Graham’s situation was highly fact specific, and stated:1
You have engaged in specific training and had an individual specific experience, sent on behalf of this country to a hostile environment, deployed for a specific purpose and have come back having to work your way through what happened, what you did, what your role was. I do not think anyone can underestimate the effects of war on an individual.
[10] Judge Pidwell then noted that Mr Graham had done everything he could to address his offending given he had addressed his drug dependency, fully co-operated
1 New Zealand Police v Graham [2017] NZDC 15179 at [16].
with police and had pleaded guilty at the earliest opportunity. He was remorseful, and the pre-sentence report assessed him as having a low risk of harm and a low risk of reoffending. Judge Pidwell considered that a discharge without conviction was appropriate on the basis that he should be given another opportunity to engage appropriately in society.
Leave to appeal
[11] The appellant seeks leave under s 296 of the Criminal Procedure Act 2011. That section permits a prosecutor, with leave of the appeal court, to appeal on a question of law against a ruling by the trial court.
[12] The Criminal Procedure Act does not identify the criteria that must be satisfied for leave to be granted. In practice, this Court has granted leave where there is a properly identified and arguable question of law.2
[13] The Court of Appeal in Brown v R confirmed that “questions of law” must raise one or more of the following errors:3
(a) A misdirection of law apparent in the decision;
(b) Oversight of a relevant matter, or consideration of an irrelevant matter;
or
(c) A factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence.
[14] If I conclude that leave should be granted, I should consider the case afresh. Section 300(1) of the Criminal Procedure Act provides that I must then:
(1) confirm the ruling appealed from;
(2) vary, substitute or remit the matter back to the District Court; or
(3) make any other order that I consider “justice requires”.
2 Police v Paki [2014] NZHC 3112 at [17]; Solicitor-General v Mohib [2016] NZHC 1908 at [35];
Police v Filipo [2016] NZHC 2573 at [48].
3 Brown v R [2015] NZCA 325, (2015) 30 FRNZ 471 at [16].
Grounds of appeal – alleged errors of law
[15] The appellant submits that Judge Pidwell erred in law by:
(a) failing to determine the seriousness of the offending once mitigating factors personal to Mr Graham were considered, and failing to acknowledge that the offending remained serious;
(b)failing to consider several matters relevant to the consequences of the conviction, such as:
(i) the importance of security in Mr Graham’s field of work; and
(ii)the lack of a basis to conclude that Mr Graham would find it materially difficult to find other gainful employment.
(c) finding that the consequences of conviction would be out of all proportion to the gravity of the offending.
[16] Mr Trotter, counsel for Mr Graham, opposes the application for leave to appeal, and says that there is no arguable case for an error of law.
Legal principles applying to discharges without conviction
[17] Section 106 of the Sentencing Act 2002 provides that a court may discharge an offender without conviction.
[18] Section 107 stipulates:
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.
[19] Section 107 requires consideration of three factors:4
(a) the gravity of the offence, having regard to both aggravating and mitigating factors, and the factors that apply to the offender;
(b)the direct and indirect consequences of a conviction, for which the Court must be satisfied that there is a real and appreciable risk of such consequences;5 and
(c) whether those consequences are out of all proportion to the gravity of the offence.
[20] This three-step approach (the same three steps considered by Judge Pidwell) has been firmly recognised as the correct approach to a discharge without conviction application. It is not the same approach as that taken in sentencing, where the aggravating and mitigating factors of the offending are considered separately to those of the offender.6
[21] Whether the s 107 test is met is not a matter of discretion but a matter of fact requiring judicial assessment.7 If the s 107 test is met, the Court then has a discretion to discharge under s 106.
Analysis
Gravity of the offending
4 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8] and [27]. See also G S M v Police
[2017] NZHC 896 at [28]-[32] and DC (CA47/2013) v R [2013] NZCA 255 at [35].
5 Davis v Police [2016] NZHC 1216 at [17]. See also DC (CA47/2013) v R [2013] NZCA 255
at [43].
6 DC (CA47/2013) v R [2013] NZCA 255 at [35].
7 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].
[22] The appellant submits that Judge Pidwell erred in law when she did not determine the level of seriousness to which the offending was reduced after she considered the mitigating factors. The appellant submits that as a result, there was an insufficient foundation for the Judge to undertake the subsequent proportionality exercise, which involves determining whether the consequences of conviction are out of all proportion to the gravity of the offending.
[23] The appellant says that the offending would still be at least a moderate to high degree of seriousness, because of the number, combination and severity of the aggravating features. The appellant says that to the extent the Judge considered the seriousness was at a lower level, she was wrong to do so.
[24] It is clear that Judge Pidwell no longer considered the gravity was high, given her conclusion that the offending was “significantly” reduced by “exceptional and significant circumstances”. I agree with the appellant that Judge Pidwell has erred by not determining the actual gravity of the offending as required by s 107. In the absence of a conclusion from the Judge on this point, I need to make my own assessment and reach my own conclusion.
[25] I agree with Judge Pidwell that the offending itself is serious, for the same reasons that she did, which I have outlined above.
[26] I also agree that the gravity of the offending is materially reduced by a number of mitigating factors, though I would not describe this as “seriously reduced”.
[27] Mr Graham has done everything he could to address his offending. He fully co-operated with Police, to the extent that an officer wrote an email to say that
Mr Graham had been very helpful in assisting the Police and that the officer was happy for that email to be raised in Court as evidence of that fact. The Police are not seeking any reparation from Mr Graham, which is further evidence of his full co-operation with them.
[28] Mr Graham also took clear steps to address his drug dependency, having become drug-free.
[29] He also pleaded guilty to the charges he faced at the earliest opportunity. Mr Graham was remorseful, and the pre-sentence report assessed him as being at a low risk of harm and a low risk of reoffending. Mr Graham had an unblemished record.
[30] The very negative effect on Mr Graham from his hostile deployment overseas, also mitigates the gravity of the offending. The affidavit from a superior of Mr Graham’s is of particular assistance in that regard, where I note that the superior recorded that, of the 13 individuals deployed along with Mr Graham, three had approached the superior officer expressing difficulty in re-assimilating back into normal life and the superior had noted significant behavioural changes in five others. It seems that Mr Graham has had a history of significant depressive symptoms and trauma-related symptoms, which no doubt flow in part from his earlier war-based deployment.
[31] On the basis of the seriousness of the charges and the mitigating factors, I consider that the offending overall is moderate.
The consequences of conviction
[32] The appellant submits that Judge Pidwell failed to take into account relevant factors in terms of consequences of conviction and that if these factors had been considered, the consequences of a conviction would properly be found to have a low degree of seriousness.
[33] I note the respondent’s submission that the points raised by the appellant are not mandatory relevant considerations, but that is not the test in Brown v R.8 An error of law may arise where a relevant factor is not considered. It does not matter whether it is mandatory.
[34] First, the appellant submits that Judge Pidwell did not consider the relevance that Mr Graham’s dishonesty and drug-related offending would have on his suitability for security clearance and the privileges that accompany it, or the potential inappropriateness of the Court’s “removing records of that offending” such that proper assessments by the RNZAF, and other [Defence Force] employers, of Mr Graham’s suitability could not be made. In the same vein, the appellant submits that the nature of the offending is a good reason why future employers should be entitled to know of Mr Graham’s offending.
[35] Judge Pidwell’s decision records that she was told Mr Graham would likely be dishonourably discharged from the armed forces if a conviction is entered against him. Her Honour then stated:9
An employer is entitled to have all the information before them to make whatever decision they consider appropriate and it is not for me to intervene with the decisions of the New Zealand Government, in particular the Armed Forces.
[36] The Judge did not contemplate interfering with the processes of the Armed Forces and I would have thought that details of the offending would remain on their files regardless of a discharge without conviction. I do not consider Judge Pidwell needed to expressly take that into account.
[37] In fact, while Judge Pidwell noted correctly that the Armed Forces will make its own decision regarding Mr Graham’s employment, it would have been appropriate for her to take into account the increased likelihood (or possibly inevitability) of a dishonourable discharge if Mr Graham is not granted a discharge without conviction. A dishonourable discharge would have an effect on Mr Graham’s ability to seek employment alongside having convictions for his actions and would be an added slur on his name. This is a factor that favours
Mr Graham on appeal when assessing the consequences of conviction. The relevance of this point was accepted by counsel during the hearing.
[38] Returning to the appellant’s submissions, I consider that Judge Pidwell failed to take into account the relevance of Mr Graham’s offending on his suitability for security clearance outside of the Armed Forces and the interest future employers have in knowing about offending such as this. Particularly in fields such as security, it would be a relevant and important consideration for employers that Mr Graham has committed dishonesty-related offending. In my view, this sort of offending is relevant in any field of employment. While Judge Pidwell recognised the difficulty convictions would pose for Mr Graham in obtaining employment, she failed to consider this point from the perspective of future employers and identify the importance or value that knowledge of such convictions would have for them.
[39] I consider that she therefore failed to take into account this relevant consideration.
[40] The appellant’s second submission at this stage of the assessment is that
Judge Pidwell did not consider the availability of other employment options for
Mr Graham. The appellant accepts that the convictions would limit Mr Graham’s employability in some fields, however the appellant submits that there was insufficient evidence before the Court to conclude that Mr Graham would find it difficult to find gainful employment generally with such convictions. The appellant refers to the pre-sentence report, which records Mr Graham’s participation in a building apprenticeship with Thor Construction, which may present a new career path for him. In fact, to his credit, Mr Graham spoke very positively of that work and its future prospects.
[41] Judge Pidwell considered that if Mr Graham has convictions for his offending, it would have a “significant adverse impact” on his ability to find any employment in this country. I take her to be referring to employment of any sort. While it is common-sense that obtaining employment with convictions for serious offending will be difficult, I consider Judge Pidwell erred in making a finding as extensive as she did, without an evidential basis. The Judge further erred in not taking into account the alternative employment which Mr Graham already had, which was clearly relevant.
[42] The appellant also submits that Judge Pidwell erred because she treated the right of future employers to know of Mr Graham’s offending, as outweighed by the personal implications for Mr Graham. This is really a matter of the final assessment.
[43] As I have already identified errors of law at this stage of Judge Pidwell’s decision, I turn to my own assessment.
[44] It is almost inevitable that Mr Graham will be dishonourably discharged from the New Zealand Defence Force if he receives convictions for his offending. There is a strong stigma that attaches to such a discharge. This is in addition to the stigma associated with convictions of this kind, to which Mr Graham will also be subject, but which is an ordinary consequence of offending. I note that, whether convicted or not, Mr Graham may still be subject to an administrative discharge.
[45] Mr Graham will also find it more difficult to obtain employment if he is out of the Armed Forces, with convictions and a dishonourable discharge, and it is unlikely that he would be able to obtain employment in his field, given his specialist experience and the nature of his offending. He will therefore at the least, likely have to change occupations.
[46] Mr Graham is very capable and skilled, and there is no evidence that he would not be employable in a number of alternative roles, given all of the circumstances of this case. I accept they will be less gainful, at least for a period. As recorded earlier, Mr Graham entered into a building apprenticeship with Thor Construction after his arrest. Mr Graham reported to the pre-sentence report-writer that he hoped to continue with that apprenticeship to start a new career path and in fact to become a project manager. (I note that in his latest affidavit he records his desire to remain with the New Zealand Defence Force which is understandable, but the sort of consequences we are talking about here cannot come down to a matter of a defendant’s preference.) No evidence has been offered to suggest that Mr Graham would be unable to obtain work as a builder. He is therefore not without employment options if unable to work for the Defence Force, or in similar fields. It is a realistic possibility, given Mr Graham’s obvious ability and remarkable rehabilitation, that he might have a career in the rehabilitation field.
[47] For these reasons, I consider that the consequences of the conviction are moderate.
Are the consequences out of all proportion to the gravity of the offending?
[48] The appellant says Judge Pidwell’s finding that the consequences of conviction were out of all proportion to the gravity of the offending was in error. Specifically, it was in error because it was consequent on the other alleged errors the appellant has proposed, and second because it was plainly wrong.
[49] Taking into account my conclusion as to the gravity of the offending and the consequences for Mr Graham, including the matters Judge Pidwell did not consider in relation to the consequences, I agree with the appellant’s submission. I consider that Judge Pidwell erred when she found that the consequences of conviction were out of all proportion to the gravity of the offending.
[50] A dishonourable discharge, if it happens, will be a consequence of the rules of the Armed Forces. I accept that is a serious matter, but I am not satisfied that would leave someone as resourceful as Mr Graham without reasonable employment. Convictions in these circumstances are an appropriate way to protect future employers’ rights to know about offending, particularly of this nature, and the risks arising from that. I agree that Mr Graham has done everything that he can to address his offending, but employers ought to be able to make their own assessment, with full knowledge, of whether to employ individuals who have committed serious offences. There is also a need to denounce conduct like Mr Graham’s, even in the reduced circumstances that apply. Furthermore, there is the general desirability for consistency in sentencing offenders who have committed similar offences in similar circumstances. While these circumstances are unusual, and the assessment of whether the consequences are out of all proportion to the gravity of the offending is highly fact specific, it is relevant that offending of this kind, or even remotely similar, has not previously been met with a discharge without conviction.
[51] The overall gravity of the offending is moderate. The consequences of any conviction are moderate. In light of the points raised above, I do not consider they are out of all proportion to the gravity of the offending.
Result
[52] Leave to appeal is granted.
[53] The appeal is allowed, and convictions are entered against Mr Graham in relation to all charges. The matter is to be remitted back to the District Court for sentencing.
Addendum
While I have concluded that the consequences of a conviction are not out of all proportion to the gravity of the offending, I acknowledge that this is a highly unusual case. I am sympathetic to Mr Graham’s situation. I accept Judge Pidwell’s comments about the difficulties of being sent by the Armed Forces to a hostile environment and receiving no proper treatment on return. I am impressed by the way Mr Graham has responded to the charges, and I hope that he will be an example to others who get into similar difficulties. Mr Graham has clearly accepted responsibility for his actions, and it is no small feat to have successfully undergone rehabilitative treatment and become drug-free. On the basis of the information that is before me, there is good reason to consider that Mr Graham will be a valued employee and future citizen.
----------------------------------------------- Hinton J
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