P D Marshall and J A Eng for Appellant A J McKenzie for Respondent
Judgment:
22 November 2017 at 10 am
JUDGMENT OF THE COURT
AThe application for leave to appeal is granted.
BThe appeal is allowed.
CThe order made in the District Court discharging the respondent without conviction is set aside and a conviction is entered on the charge of cultivation of cannabis. The matter is remitted to the District Court for sentencing.
Daniel Smyth, aged 38, is the skipper of a commercial fishing boat and holds a skipper’s certificate issued by the Director of Maritime New Zealand under the Maritime Transport Act 1994. Before issuing such a certificate, the Director must be satisfied that the person is fit and proper to hold it.[1] In determining this, the Director is required to have regard to various matters including any conviction for an offence relating to controlled drugs as defined in the Misuse of Drugs Act 1975.[2] It is a condition of every current maritime document (including a skipper’s certificate) that the holder continues to satisfy the fit and proper person criteria specified in the Maritime Transport Act.[3] The holder commits an offence if he fails without reasonable excuse to provide to the Director any information known to be relevant to this condition.[4]
[1]Maritime Transport Act 1994, s 41(1)(b)(ii).
[2]Section 50(1)(e).
[3]Section 41(5).
[4]Section 406(c).
Mr Smyth pleaded guilty to a representative charge of cultivating cannabis together with Nicholas Robinson. The two of them harvested 30 mature cannabis plants which they had cultivated on five plots. The harvest would have yielded 13.6 kilograms of cannabis head with a street value of approximately $136,000. Mr Smyth said that his share of the cannabis was for his own use to alleviate chronic back pain while he is on land. He claimed that he does not use cannabis when he is at sea, which was nine months in the previous year.
Both men entered guilty pleas after receiving a sentencing indication from Judge Farish in the District Court at Christchurch that she would adopt a starting point of “about two and a half years [imprisonment]”.[5] The Judge indicated that a non‑custodial sentence might be possible after taking into account any personal mitigating factors and allowing an appropriate credit for a guilty plea.
[5]R v Smyth DC Christchurch CRI-2015-086-118, 21 October 2016 (Sentencing Indication) at [1].
Mr Robinson was subsequently convicted and sentenced by Judge Farish to 380 hours of community work and supervision for a period of 12 months.[6]
[6]R v Robinson [2016] NZDC 26941 at [5].
Mr Smyth was later discharged without conviction and ordered to pay $1,500 to charity.[7] The Judge considered that Mr Smyth was likely to lose his employment if convicted and this outweighed…
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 R v Smyth
Sign in free to access the full text
Details
AGLC
R v Smyth [2017] NZCA 530
Case
[2017] NZCA 530
Decision Date
CaseChat Overview and Summary
The case of R v Smyth involved the defendant, Daniel Joseph Smyth, who had been discharged without conviction by Judge Farish in the District Court at Christchurch for cultivating cannabis. The Crown sought leave to appeal the decision. The appeal raised questions regarding the statutory threshold for discharging an offender without conviction, the assessment of the gravity of the offence, the assessment of the consequences of a conviction, and the jurisdiction of the court to discharge Smyth without conviction. The Court of Appeal granted leave to appeal and allowed the appeal, setting aside the order made in the District Court discharging Smyth without conviction and entering a conviction on the charge of cultivating cannabis. The matter was remitted to the District Court for sentencing.
The Court of Appeal found that the Judge misstated the statutory threshold set by s 107 of the Sentencing Act 2002, which requires that the consequences of a conviction must be out of all proportion to the gravity of the offence before the court can discharge an offender without conviction. The Court also found that the Judge erred in her assessment of the gravity of the offending by ignoring the commercial element of the offence and that she erred in her assessment of the consequences of a conviction by overstating the likely consequences and failing to consider the obligation to report the underlying conduct to the relevant authority. Finally, the Court found that the Judge erred in concluding she had jurisdiction to discharge Smyth without conviction, as the jurisdictional test was not satisfied due to the misstated threshold, understated gravity of the offence, and overstated consequences.