Rodrigo v Police - [2014] NZCA 68

IN THE COURT OF APPEAL OF NEW ZEALAND

CA838/2013
[2014] NZCA 68

BETWEEN	DRUVI PATRICK RODRIGO Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	11 February 2014
Court:	White, MacKenzie and Mallon JJ
Counsel:	F E Guy-Kidd and J A T Ross for Appellant J E Mildenhall for Respondent
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.

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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…

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 Rodrigo v Police

Details

AGLC: Rodrigo v Police [2014] NZCA 68
Case: [2014] NZCA 68
Decision Date: 13 March 2014 at 10.00 am

CaseChat Overview and Summary

The case of Rodrigo v Police was heard by the Court of Appeal of New Zealand. Druvi Patrick Rodrigo, the appellant, challenged his conviction and sentence for supplying Ritalin, a Class B drug. Rodrigo had been sentenced to 10 months' home detention and 200 hours of community work after pleading guilty. He sought a discharge without conviction, arguing that such an outcome would have been appropriate if it had been pursued at the time of his sentencing. Rodrigo's co-offender, Mr Korin, was discharged without conviction, which he argued supported his claim for the same outcome.

The primary legal issue was whether Rodrigo should be granted a discharge without conviction in light of the new evidence presented and the outcome for Mr Korin. The Court had to consider the gravity of Rodrigo's offending, the consequences of a conviction, and whether those consequences were out of proportion to the gravity of the offending. Additionally, the Court had to assess whether the discharge without conviction for Mr Korin justified a similar outcome for Rodrigo.

The Court of Appeal allowed Rodrigo's appeal against conviction and sentence. It found that Rodrigo's offending was at the lower end of seriousness, given that he supplied only three associates and made minimal profit. Rodrigo's young age, contribution to the University, immediate admission of guilt, remorse, and low likelihood of reoffending were factors that reduced the gravity of the offending. Furthermore, the Court accepted the evidence that Rodrigo's ADHD, which was undiagnosed and untreated at the time of sentencing, contributed to his offending. The consequences of a conviction, such as the impact on Rodrigo's ability to travel and study overseas, cultural shame, and potential impact on employment prospects, were deemed to be out of proportion to the gravity of the offending. The Court also noted the parity between Rodrigo and Mr Korin, who received a discharge without conviction.

In light of these findings, the Court of Appeal quashed Rodrigo's sentence of 10 months' home detention and 200 hours of community work and discharged him without conviction. The Court declined the application for name suppression for Rodrigo's family and suppression of evidence, but ordered that access to the court file should be only with the permission of a Judge of this Court, to ensure Rodrigo's and his father's privacy interests are taken into account.

Orders