Rodrigo v Police
[2014] NZCA 68
•13 March 2014 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA838/2013 [2014] NZCA 68 |
| BETWEEN | DRUVI PATRICK RODRIGO |
| AND | NEW ZEALAND POLICE |
| Hearing: | 11 February 2014 |
Court: | White, MacKenzie and Mallon JJ |
Counsel: | F E Guy-Kidd and J A T Ross for Appellant |
Judgment: | 13 March 2014 at 10.00 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BLeave to adduce new evidence is granted.
CThe appeals against conviction and sentence are allowed.
D The sentence of 10 months’ home detention and 200 hours’ community work is quashed.
EMr Rodrigo is discharged without conviction.
FThe application for name suppression for Mr Rodrigo’s family and for suppression of evidence is declined.
GOrder that access to court file to be only with the permission of a Judge of this Court.
____________________________________________________________________
REASONS OF THE COURT
(Given by Mallon J)
Introduction
Mr Rodrigo was charged with supplying Ritalin, a Class B drug, between February 2012 and September 2012.[1] He pleaded guilty to the charge and was sentenced to 10 months’ home detention (with standard and special conditions applying for 12 months’ post-detention) and 200 hours’ community work.[2] A co‑offender, Mr Korin, who faced the same charge, was subsequently discharged without conviction.[3] On learning of that outcome Mr Rodrigo appealed to this Court. He seeks a discharge without conviction on the basis that if this had been pursued at the time of his sentencing it ought to have been granted.[4] He says that Mr Korin’s discharge without conviction supports this as an appropriate outcome for him.
Background
The offending
[1]Ritalin is the commonly known name for the controlled drug methylphenidate. The charge was brought under the Misuse of Drugs Act 1975, s 6(1)(c).
[2]Police v Rodrigo DC Dunedin CRI-2012-012-3342, 26 April 2013. Mr Rodrigo’s sentence commenced on 29 April 2013. He has completed the community work element. He had served eight of the 10 months’ home detention at the time this Court suspended his sentence on 24 December 2013 pending the determination of this appeal.
[3]R v Korin DC Auckland CRI-2012-014-3314, 14 November 2013.
[4]Sentencing Act 2002, s 106.
Ritalin is legitimately prescribed for the treatment of Attention Deficit Hyperactivity Disorder (ADHD). It is sought illicitly for its “speed‑like” effects and because it can help keep students awake to study all night. In August 2012 the police became aware that Mr Korin, a student at the University of Otago, was supplying Ritalin to university students. Mr Korin was prescribed the Ritalin he was selling. He was also sourcing Ritalin from others to sell.
As part of its investigation the police obtained text message data. This identified Mr Rodrigo, also a student at the University of Otago and a friend of Mr Korin, as sourcing and on-selling Ritalin. On 27 September 2012 a search warrant was executed at Mr Rodrigo’s address. The police found 17 Ritalin (20 milligram) tablets in his bedroom. He admitted that he had been supplying Ritalin since February to three people. He would buy 20 milligram pills for $5 each and sell them for $10 each. He would buy 10 milligram pills for $2.50 each and sell them for $5 each. He would buy four trays (10 pills in a tray) at a time. In his statement to the police he said that of the three people he supplied he was selling to only one of them. He said he was not making any profit on his supplies to the other two, one of whom was Mr Korin.
Mr Rodrigo’s sentencing
Following Mr Rodrigo being charged with supplying Ritalin, he asked his then counsel whether he might get a discharge without conviction. His counsel advised him that he would not. This advice was given without counsel making enquiries of Mr Rodrigo’s circumstances. It was his counsel’s understanding that, because the charge involved the supply of a Class B drug, a discharge without conviction would not be available.[5] No application for a discharge without conviction was therefore made. Counsel’s focus was on achieving a sentence of home detention rather than imprisonment.
[5]His then counsel says in her affidavit that she was not aware of Bullock v Police [2012] NZHC 1374. In that case a young offender was found in possession of 56 tablets, 40 of which were Class C tablets and 16 of which were ecstasy tablets, which are Class B controlled drugs. Mr Bullock was granted a discharge without conviction. Counsel for Mr Korin relied on this case in seeking a discharge without conviction for Mr Korin. See also R v Hemard HC Christchurch T30/03, 11 April 2003 where a 25 year old French student was granted a discharge without conviction for importing 0.7 g of cocaine (a Class A drug) (which was mailed to him by a friend in France).
A sentencing indication hearing took place before Judge Fraser in the District Court in Dunedin on 30 January 2013.[6] For that hearing a drug and alcohol assessment report, a letter from Mr Rodrigo and letters of support from his father, a friend and a parish priest were submitted to the Judge. The District Court Judge indicated a sentence of 10 months’ home detention (with special conditions for 12 months’ post-detention) and 200 hours’ community work. The indication was accepted and a guilty plea was entered that day.
[6]R v Rodrigo DC Dunedin CRI-2012-012-3342, 30 January 2013.
Sentencing took place on 26 April 2013. At this time the only additional information before the Judge was a probation report which the Judge commented “does not take matters much further ... apart from indicating that a sentence of home detention is an appropriate one ... and there is an address available for that”.[7] The Judge sentenced Mr Rodrigo in accordance with the earlier indication that he had given.
Mr Korin’s sentencing
[7]Police v Rodrigo, above n 2, at [4].
Mr Korin, who was also charged following the police investigation, entered his guilty plea on 1 March 2013. He applied for a discharge without conviction. The information in support of the application included the following. He was born in Egypt, raised initially in the United Arab Emirates and came to live in New Zealand when he was nine. He was from a conservative Muslim family. He was diagnosed as having ADHD (for which the Ritalin had been prescribed). He did well in his university studies and wished to do post-graduate study in psychology, possibly in Canada, where his sister lived, or in the United Arab Emirates. His community involvements included helping students with impairments, contributing time to the local mosque and involvement with Habitat for Humanity and the New Zealand Blood Foundation. Mr Korin was 22 or 23 at the time of the offending. He was a first offender.
His application for a discharge without conviction was heard in the District Court at Auckland by Judge Claire Ryan on 14 November 2013.[8] In granting the application:
(a)The Judge noted that selling drugs was a “very serious matter” and Mr Korin’s offending was premeditated and calculated to provide a profit to Mr Korin although the profit derived was not great.[9] She described the offending as “moderately serious”.[10] As against that she noted that Mr Korin had been under parental pressure which was at times intolerable, that he had made a huge contribution to the community and he suffered from ADHD and other trauma associated difficulties. These things were seen as differentiating Mr Korin from other young people who came before the courts having sold drugs.[11]
(b)The Judge found the general consequences of conviction to be the stigma and shame to Mr Korin’s family here and abroad. She found the specific consequences to be the difficulty Mr Korin would have in studying overseas and becoming a psychologist.[12]
(c)The Judge concluded that these consequences were out of all proportion to the gravity of the offending because of the potential to contribute that Mr Korin had shown, his plans for the future and because the offending was completely out of character.[13]
Procedural matters
[8]R v Korin, above n 3. A number of adjournments were granted after the guilty plea was entered to allow Mr Korin to properly advance his application for a discharge without conviction.
[9]At [76].
[10]At [79].
[11]At [77].
[12]At [75].
[13]At [79].
The Crown accepts that this is an unusual case because of how matters developed. It does not take issue with Mr Rodrigo’s application for an extension of time to appeal (the delay is explained by Mr Rodrigo learning of the later and very different outcome for Mr Korin). Nor does it take issue with this Court receiving new evidence which is tendered on Mr Rodrigo’s behalf. As well as affidavit evidence concerning the advice from Mr Rodrigo’s counsel in the District Court, affidavit evidence from Mr Rodrigo, his mother, a medical expert and from office‑holders of ethnic student associations at Otago University was submitted in support of a discharge without conviction. We grant the application for an extension of time to appeal and to adduce the new evidence. We proceed to consider whether a discharge of conviction should be granted taking into account all the material that is before us.[14]
Our assessment
Gravity of offending
[14]Because Mr Rodrigo was convicted on the basis of his guilty plea submissions were made that there was a miscarriage of justice within the category of case discussed in R v Merrilees [2009] NZCA 59 at [34] where “trial counsel errs in his or her advice to an accused as to the non‑availability of certain ... outcomes”. However, because Mr Rodrigo does not wish to vacate his guilty plea, that is not the relevant test. Rather this is an appeal against conviction and sentence on the basis that, in light of all the evidence now before this Court, that should have been the outcome in the District Court.
The first matter to be assessed is the gravity of the offending. In common with Mr Korin, the offending involved supplying over a period of months a Class B drug. However it was not a sophisticated operation, Mr Rodrigo supplied just three associates (one of whom was Mr Korin), of these three associates he received a profit from sales to only one of them, and his profit was not more than $300. Mr Rodrigo says he used that money to pay for Ritalin for himself to help him study. This was therefore drug dealing at the lower end of seriousness.
There were also personal circumstances that reduced the gravity of the offending.[15] At 22 years he was relatively young. He was essentially a first offender.[16] He had contributed to the University through his voluntary involvement in the University’s ethnic associations. He immediately admitted his offending to the police and indicated at an early stage that a guilty plea would be entered. He was remorseful, had family support and his likelihood of reoffending was assessed as low.
[15]Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].
[16]He had one conviction for urinating in a public place.
He is assessed as having ADHD. This diagnosis was made by Dr Taylor in January 2014 (that is, after his sentencing). Dr Taylor refers to recent studies about rates of reoffending in people who are known to have ADHD. These studies indicate that reoffending rates are greatly reduced for those who receive appropriate medical treatment compared with those who do not receive such treatment. Dr Taylor says that this “is highly likely to be the case for Mr Rodrigo”. His view is that “the balance of probability strongly indicates that no offending would have taken place if Mr Rodrigo had received the diagnosis of ADHD and was receiving appropriate medical treatment prior to and throughout 2012”. He goes on to recommend medical treatment for Mr Rodrigo. Mr Rodrigo’s counsel informed this Court that Mr Rodrigo was about to commence medical treatment.
The District Court Judge did not have the information from Dr Taylor when he sentenced Mr Rodrigo. The information is material to the assessment of the gravity of Mr Rodrigo’s offending. It helped explain Mr Rodrigo’s involvement in the offending, showed that Mr Rodrigo was taking steps to ensure he did not offend again and supported the pre-sentence report writer’s view that Mr Rodrigo was at a low risk of reoffending.
Consequences of a conviction
The second matter to be assessed is the direct and indirect consequences of a conviction. It is submitted for Mr Rodrigo that his conviction will affect his ability to enter the United States of America and Canada. Counsel for Mr Rodrigo submits that impact on Mr Rodrigo’s ability to travel overseas has a greater impact on him than others who come before the courts. Mr Rodrigo is an only child. He and his parents came to New Zealand from Sri Lanka when he was nine years old. He has no other family in New Zealand. Mr Rodrigo has an uncle in the United States who is willing to provide him with financial and emotional support if he goes to study or work there as he would like to do. His aunt (and godmother) lives in Canada.
It is also submitted that a particular consequence of a conviction is cultural shame for Mr Rodrigo and his parents. Mr Rodrigo’s grandmother is a conservative Buddhist. His mother fears that if she learns of Mr Rodrigo’s conviction he will be disowned. His mother feels personal shame and embarrassment.
A further consequence is the potential impact on Mr Rodrigo’s employment prospects. At the time of his offending he was working towards a Bachelor of Commerce. He hoped to go on to a career in the finance industry (potentially something his uncle in the United States could help with). He is concerned that a conviction will make it difficult to compete for a position. Because of this he is contemplating changing his study plans to qualify as a quantity surveyor.
Consequences out of all proportion to the gravity of the offending
It is submitted that the consequences of conviction will dramatically alter Mr Rodrigo’s future. That may be putting it too high. We nevertheless accept that the likely consequences of a conviction are not insignificant. His career and travel aspirations are likely to be impacted. This has the prospect of affecting him more than some others who appear before the courts because his relatives are all overseas. His family suffers from shame which is accentuated by cultural beliefs.
Ordinarily drug dealing is too serious to grant a discharge without conviction but that is not to say that the test for granting one can never be met. Here the offending was low‑level drug dealing for minimal profit by a young offender who was otherwise of good character, whose ADHD was undiagnosed and untreated, who has now taken steps to treat his condition, and who is unlikely to reoffend. These matters place the gravity of the offending at the low end. We consider that the consequences of conviction are out of all proportion to that offending. We consider the proper outcome in these circumstances is to discharge Mr Rodrigo without conviction.
Comparison with Mr Korin
There was no Crown appeal in respect of Mr Korin’s discharge without conviction and the Crown does not say that the discharge without conviction for Mr Korin was unduly lenient. On a parity basis with Mr Korin a discharge without conviction for Mr Rodrigo is also an appropriate outcome.[17] As counsel for the respondent accepts, to the extent that Mr Korin’s contribution to the community was more significant than Mr Rodrigo’s, this was balanced out by Mr Korin’s greater culpability in the offending.[18] In all other respects the two offenders were materially the same.
Alternative submission
[17]Sentencing Act, s 8(e).
[18]Mr Korin was selling Ritalin at twice the price at which Mr Rodrigo was selling it and was making greater profits.
As we have concluded that a discharge without conviction should be granted it is not necessary to consider the alternative submission that the sentence imposed was manifestly excessive.
Name suppression and suppression of evidence
After the hearing we received a memorandum from counsel for Mr Rodrigo seeking name suppression for Mr Rodrigo’s parents and his uncle in the United States. Suppression was sought on the grounds of undue hardship to them because publication of their names will bring shame and stigma to them. As will be apparent from this judgment we have not found it necessary to name Mr Rodrigo’s parents. Their names are irrelevant to our decision and we would not normally name those caught up in another’s offending unless it were relevant to do so. That said, we formally decline the name suppression application. It is in the interests of open justice that Mr Rodrigo does not have name suppression (and it is not sought for him in any event). If Mr Rodrigo is named, then his parents, and possibly his uncle in the United States, are identifiable. Formal name suppression for them would therefore be pointless. To the extent that they will suffer shame from this incident, that may now be ameliorated by the outcome of this appeal.
The memorandum filed after the hearing also sought suppression of personal matters contained in affidavits from Mr Rodrigo and his father. Again we have not found it necessary to set out the detail of this evidence. It is therefore not necessary to make a formal suppression order. We are prepared to order that access to the Court file should in this case be only with the permission of a Judge of this Court, to ensure that Mr Rodrigo’s and his father’s privacy interests are taken into account.
Result
The application for an extension of time to appeal is granted. Leave to adduce the new evidence is granted. The appeals against conviction and sentence are allowed. The sentence of 10 months’ home detention and 200 hours’ community work is quashed. Mr Rodrigo is discharged without conviction. The application for name suppression for Mr Rodrigo’s family and suppression of evidence is declined. For privacy reasons, we order that access to the court file is to be only with the permission of a Judge of this Court.
Solicitors:
AWS Legal, Invercargill for Appellant
Crown Law Office, Wellington for Respondent
10