R v Smyth
[2017] NZCA 530
•22 November 2017 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA315/2017 [2017] NZCA 530 |
| BETWEEN | THE QUEEN |
| AND | DANIEL JOSEPH SMYTH |
| Hearing: | 25 October 2017 |
Court: | Kós P, Harrison and Gilbert JJ |
Counsel: | P D Marshall and J A Eng for Appellant |
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.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gilbert J)
Introduction
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 his overall culpability, although she said this was “not an easy decision to make”.[8] The Judge said that she had decided by a “very narrow margin” to grant Mr Smyth a discharge without conviction.[9]
[7]R v Smyth [2017] NZDC 10257 [Discharge decision].
[8]At [19] and [21].
[9]At [21]–[22].
The Crown seeks leave to appeal against the Judge’s decision to discharge Mr Smyth without conviction on the following questions of law:
(a)Did the Judge misstate the statutory threshold set by s 107 of the Sentencing Act 2002?
(b)Did the Judge err in her assessment of the gravity of the offending?
(c)Did the Judge err in her assessment of the consequences of a conviction?
(d)Did the Judge err in concluding she had jurisdiction to discharge Mr Smyth without conviction?
Leave jurisdiction
A discharge without conviction is not a sentence for the purposes of pt 6 of the Criminal Procedure Act 2011 because it is not a method of disposing of a case following conviction.[10] It is deemed to be an acquittal.[11] Accordingly, a prosecutor has no right of appeal under s 246 of the Criminal Procedure Act against a discharge without conviction. The only ability to appeal against such a determination is found in s 296. This section relevantly allows a prosecutor (with leave) to appeal on a question of law against a ruling by the trial court where this question of law arises either in proceedings that relate to or follow the determination of the charge, or in the determination of the charge (including an acquittal).
[10]Criminal Procedure Act 2011, s 212.
[11]Sentencing Act 2002, s 106(2).
What constitutes a question of law in this context is well settled. As this Court confirmed in Brown v R, there are three standard errors classified by modern authorities as creating a question of law:[12]
(a)A misdirection of law apparent in the decision (what Fisher J called “a conventional legal question on unchallenged facts”);[13]
(b) Oversight of a relevant matter, or consideration of an irrelevant matter;[14] 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.[15]
[12]Brown v R [2015] NZCA 325, (2015) 30 FRNZ 471 at [16] (footnotes in original).
[13]Auckland City Council v Wotherspoon [1990] 1 NZLR 76 (HC) at 86.
[14]Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [25]; Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [51].
[15]Bryson v Three Foot Six Ltd, above n 14, at [26]; Vodafone New Zealand Ltd v Telecom New Zealand Ltd, above n 14, at [52].
We accept that the proposed appeal raises questions of law falling within one or other of these categories. Mr Smyth does not oppose the grant of leave and simply abides the Court’s decision on that issue. We grant leave to appeal accordingly on each of the proposed questions.
Ground 1 — did the Judge misstate the statutory threshold set by s 107 of the Sentencing Act 2002?
Section 107 of the Sentencing Act sets the jurisdictional threshold that must be reached before the court can discharge an offender without conviction:
107 Guidance for discharge without conviction
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.
We are satisfied that the Judge misstated this test each time she referred to it, as set out below. She expressed the test as involving a simple balancing exercise: did the consequences of a conviction outweigh Mr Smyth’s culpability? Importantly, the Judge omitted reference to the crucial requirement that the consequences must be “out of all proportion” to the gravity of the offending:[16]
[14] I can only grant a discharge without conviction if I am satisfied that the consequences of a conviction outweigh Mr Smyth’s culpability. … I then need to balance those two competing factors and lastly determine whether or not I should exercise my discretion in favour of Mr Smyth.
…
[21] Does the consequence of a conviction … outweigh his culpability … Would that outweigh his overall culpability? …
[16]Discharge decision, above n 7.
It is not enough that the consequences of a conviction outweigh the gravity of the offending. Significantly more is required. The consequences must be out of all proportion to the gravity of the offending before the court has jurisdiction to grant a discharge without conviction.
We accept the Crown’s submission that the Judge misdirected herself as to the applicable law. The answer to this question of law is “yes”.
Our affirmative answer to this question is decisive of the appeal given the centrality of the Judge’s error to her reasoning. Nevertheless we shall address the remaining questions identified by the Crown because our answers to them will be directly relevant to the District Court’s reconsideration of Mr Smyth’s sentence.
Ground 2 — did the Judge err in her assessment of the gravity of the offending?
The Judge stated at the time she gave the sentence indication that she considered there was a commercial element to the offending because it involved growing “what was not an insubstantial amount of cannabis”.[17] This is why the Judge initially indicated a starting point of two and a half years’ imprisonment. However, having received further evidence for the purposes of sentencing, the Judge accepted that Mr Smyth was using cannabis to manage back pain caused by a slipped disc and his culpability was accordingly reassessed as “modest” rather than “moderate”.[18] The Judge also found that there was no evidence that Mr Smyth was selling the cannabis.[19]
[17]At [15]–[16].
[18]At [17].
[19]At [19].
We accept Mr Marshall’s submission for the Crown that there was a commercial element to the offending which was not reflected in the Judge’s assessment of Mr Smyth’s culpability as being modest. Even allowing for Mr Robinson’s share of the cannabis and accepting Mr Smyth’s evidence as to his cannabis use, this could not account for the quantity cultivated and harvested. Mr Smyth was firm in his evidence that he did not consume cannabis during the lengthy periods he is at sea, which was nine months the previous year. He claimed that he only consumed cannabis when he was on land and that his usage was modest: “I smoke a little bit of cannabis”; “I smoke a little bit for my back pain when I’m not in the boat”. Given that the cannabis that was cultivated and harvested was expected to yield around 13.6 kilograms of cannabis head valued at $136,000, Mr Smyth’s claim that his share was all for such limited personal use seems implausible.
Mr McKenzie for Mr Smyth submits that the leading tariff decision of this Court for cultivation of cannabis, R v Terewi, is no longer good law and should be revisited in the light of changing social attitudes towards cannabis cultivation and consumption.[20] We accept that Terewi, which was decided in 1999, may require reconsideration given changing social attitudes and the subsequent passage of the Sentencing Act in 2002. However, this is not an appropriate case in which to embark on a reconsideration of that tariff decision because we did not have the benefit of detailed submissions and fully developed argument. It is also not necessary to determine whether Terewi remains good law for the purposes of disposing of this appeal.
[20]R v Terewi [1999] 3 NZLR 62 (CA).
We are satisfied that the Judge erred in her assessment of the gravity of the offending by ignoring the inescapable inference that there was a commercial element to the offending given the quantity involved, even if there was no evidence of any actual sale. This was an important factor that had to be weighed in assessing the gravity of the offending.
The answer to this question of law is also “yes”.
Ground 3 — did the Judge err in her assessment of the consequences of a conviction?
The Judge accepted Mr Smyth’s evidence that as a result of changes to the law he would “undoubtedly” have to “resit or reapply” for his skipper’s certificate “within the next 18 months to two years” and would “then have to satisfy the fit and proper [person] test” under the Maritime Transport Act.[21] She also accepted that Mr Smyth had:[22]
… some problems satisfying the fit and proper [person] test at the beginning of 2010 and following some convictions in 2011 which were associated with a relationship breakdown, he very narrowly avoided losing his skipper’s certificate.
The Judge considered that a conviction for cultivating cannabis would “tip the balance against him” and would be “an insurmountable hurdle”.[23]
[21]Discharge decision, above n 7, at [9].
[22]At [9]. Mr Smyth has a number of historical convictions for offences including burglary, driving with excess breath alcohol, driving while disqualified and for possession of cannabis and utensils. His convictions in 2011 were for burglary, driving while disqualified, intentional damage and driving with excess breath alcohol.
[23]At [19].
We consider that there are problems with this analysis. First, Mr Smyth’s skipper’s certificate appears to be “ring-fenced” for life.[24] He accepts he will not have to reapply for it within the next 18 months to two years as the Judge thought.[25] Second and more importantly, Mr Smyth is required to notify the Director of Maritime New Zealand of any information relevant to whether he continues to satisfy the fit and proper person criteria. This means that Mr Smyth has an obligation to notify the Director of his conduct in cultivating this cannabis, whether or not he is convicted of doing so. Mr Smyth acknowledged in his evidence that he had an obligation to inform the Director that he had been charged. The Judge did not address how the fact of a conviction would make any material difference in view of this ongoing reporting obligation triggered by the underlying conduct.
[24]Maritime Rules, Part 32: Seafarer Certification, MNZ Consolidation (1 November 2016), r 32.206A.
[25]We do not overlook Mr Smyth’s evidence that he may wish to apply for a certificate as a skipper of a deep sea fishing boat.
It is for the Director to assess whether Mr Smyth remains a fit and proper person to hold a skipper’s certificate in view of his admitted conduct involving the cultivation and use of a controlled drug. Particularly having regard to the potential safety issues involved, the court must be careful not to lend its assistance to the potential concealment of offending by granting a discharge without conviction with the aim of preserving a person’s professional qualification in circumstances where Parliament has vested the vetting responsibility in a specialist person or body.[26]
[26]See this Court’s comments in Maraj v Police [2016] NZCA 279 at [28] adopting Roberts v Police (1989) 5 CRNZ 34 (HC) at 36.
We conclude that the answer to this question of law is also “yes”. The Judge failed to consider the likely consequences of a conviction in view of the obligation to report the underlying conduct to the relevant authority in any event. As a result she overstated the likely consequences.
Ground 4 — did the Judge err in concluding she had jurisdiction to discharge Mr Smyth without conviction?
It necessarily follows from our answers to the previous questions that the answer to this question is also “yes”. As noted, the Judge considered that it was “not an easy decision to make” to determine whether the consequences of a conviction outweighed Mr Smyth’s “modest” culpability. It is clear that, had she not made the errors of law identified, she would not have been persuaded that the consequences would be out of all proportion to the gravity of the offending. Because the consequences were overstated, the gravity of the offending understated, and a lower threshold applied, we are driven to the conclusion that the Judge would not have found the jurisdictional test satisfied had she not made these errors. We are satisfied that the consequences of a conviction could not be considered to be out of all proportion to the gravity of the offending.
Disposition
For the reasons we have given, there was no jurisdiction to discharge Mr Smyth without conviction. Accordingly, it is appropriate that we set that order aside and enter a conviction on the charge of cultivating cannabis. The matter should be remitted to the District Court for sentencing.
Result
The application for leave to appeal is granted.
The appeal is allowed.
The 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.
Solicitors:
Crown Law Office, Wellington for Appellant
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