Shukar v Police HC Auckland CRI-2011-404-109

[2011] NZHC 1140

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-109

HARES SHUKAR

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         19 September 2011

Counsel:         S Magnussen for the Appellant

K Patterson for the Respondent

Judgment:      19 September 2011

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors:

Ms S Magnussen, Barrister, Auckland

Mr K Patterson, Meredith Connell, Office of the Crown Solicitor, Auckland

SHUKAR V NEW ZEALAND POLICE HC AK CRI-2011-404-109 19 September 2011

[1]      Mr Shukar pleaded guilty to one charge of possessing utensils for the purpose of consuming methamphetamine.   The maximum penalty is imprisonment for one year or a fine of $500.

[2]      Mr Shukar was sentenced in the District Court on 14 March 2011.   He applied for discharge without conviction under s 106 of the Sentencing Act 2002. The  application  was  declined.    He  was  convicted  and  directed  to  come  up  for sentence if called upon within six months.  Mr Shukar appeals against the decision under s 106.

[3]      The essential facts are that Mr Shukar was found in his car with a friend in the early morning of 28 February 2010.  There was part of a methamphetamine pipe in the car together with other items, indicating that methamphetamine may have recently been consumed.

[4]      Mr Shukar said that the pipe was not his.  On this appeal Mr Shukar attended with his counsel.  For reasons I will come to I took the slightly unusual course of questioning Mr Shukar directly.  He assured me that he had not himself consumed methamphetamine and has never consumed methamphetamine.   He said that his friend had consumed some.  He said that this is confirmed by the CCTV images that were in fact taken of the scene.  I note that this would appear to be information that was not – at least all of it – put before the District Court Judge.

[5]      The Judge, with respect, correctly identified the three-stage test outlined by the Court of Appeal in R v Hughes.[1]   However, the subsequent decision of the Court of Appeal in Blythe v R[2]  had not, at the date of the District Court decision, been delivered.  This has some relevance.  This is because in the assessment under s 107 the Judge does seem to have had regard to some matters which the Court of Appeal

has indicated in Blythe would only be relevant if the Court got to the point of considering exercise of the discretion under s 106.  To that extent, at least, there may

be a degree of inadvertent error.

[1] R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 (CA).

[2] Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 (CA).

[6]      More significantly the Judge said:

[3]       The power to discharge is one which must be considered having regard to the level of culpability and any mitigation.  Before exercising my discretion under this section I must balance all relevant public interest considerations as they apply in this particular case.  The public interest in this case is that methamphetamine use is an absolute scourge on our society and the Court must deter and denounce the use of that drug and send a very clear message to those who use it that it is illegal, it is dangerous and it is to be discouraged.

With respect I do consider that this is an erroneous approach.   Mr Patterson responsibly recognised that undue emphasis may have been placed on the need to deter methamphetamine use in general.   This aspect of the matter does appear to have, to a reasonable extent, underpinned the Judge’s approach.

[7]      The Judge also said:

[4]       There was nothing in respect of the facts of this case to distinguish or mitigate against the offending and in essence what you are asking the Court to do is to conceal the fact that you have used that drug from both the authorities here and the authorities overseas because you are saying that you have potential opportunities in the kickboxing sport that would require you to travel to places, other countries that have even more stringent views on the use of illicit drugs.   You are asking this Court to conceal from the regulating authorities of that sport the fact that you have illegally used drugs.

The Judge’s observations are understandable up to a point in the light of numbers of

authorities. And as the Judge subsequently observed, at [6]:

There is a long line of authority which says that it is not the job of this Court to be determining or otherwise what the Immigration authorities consider appropriate by virtue of convictions.

[8]      However,  the  Court,  of  course,  has  the  power  not  to  convict  and  the consequence of discharge without conviction will be that some entities that might have an interest in the fact that an offence was committed will simply not know of that fact.   It is a consequence of the legislation itself and, to an extent, undue emphasis may also have been placed on the consequences of discharge without conviction.

[9]      On an appeal I am bound to come to my own conclusion under s 107.  And if that conclusion is favourable to the appellant then I need to consider whether to

exercise a discretion in favour of the appellant under s 106.  Approaching the matter afresh I have come to the conclusion that the consequences of conviction for Mr Shukar will be out of all proportion to the direct and indirect consequences of conviction.

[10]     There is clear evidence that a conviction at the least will have a marked adverse effect on Mr Shukar’s potential career as a kickboxer.  The Judge accepted that there is adequate evidence to that general effect.

[11]     Coupled with this is a matter not adverted to by the Judge and probably not brought to her attention.   This is that at present Mr Shukar travels on an Afghani passport.   He has lived in New Zealand for 10 years having come here with his family when he was aged 16.  To further his career in kickboxing it is clear from the evidence that he will need to travel.  It is also clear that entry of a conviction for this offence will almost certainly result in an inability to travel to many countries.  The fact  that  he  travels  on  an Afghani  passport  at  present  will  in  fact  add  to  that difficulty, if it is not an insurmountable difficulty in itself.   As Mr Patterson acknowledged that is an additional factor which in many cases would be not present.

[12]     The offence itself is not an insignificant one but it is not a particularly grave offence.  In assessing the gravity of this offence under s 107 I am entitled to have regard to the particular facts of the offending.  Those facts have been set out earlier. As I have already indicated it is apparent that important aspects of those facts were not before the Judge.  The technical offence of possession occurred, but there is no evidence of consumption of methamphetamine.

[13]     When  I  assess  the  matter  under  s 107,  and  assessing  it  afresh  with  the assistance  of  some  important  information  not  before  the  learned  District  Court Judge, I am satisfied that the consequence of conviction for Mr Shukar will be out of all proportion to the gravity of his particular offence.

[14]     Having  come  to  that  conclusion  I  need  to  consider  the  exercise  of  the discretion under s 106.   In Blythe the Court of Appeal said that if s 107 has been applied in favour of the applicant it will be a rare case where the discretion would

not be exercised in favour of the applicant.  Nevertheless, exercise of the discretion must  be  separately  considered.    The  matters  I  have  already  referred  to  favour exercise of the discretion.

[15]     There is a further important consideration in relation to Mr Shukar. All of the information available to this Court, and some of which was not it seems available to the District Court, indicates that Mr Shukar is making real efforts to lead a constructive and productive life following some degree of difficulty when he was younger.  I am satisfied that when coming to exercise the discretion the Court must consider matters such as rehabilitation and the desirability of taking any steps reasonably open to the Court to assist in ensuring that the person in question will continue to pursue efforts to lead  a constructive life.   Although  expressed in  a different way Mr Patterson, on behalf of the respondent, responsibly acknowledge that these are considerations that may very well apply in this case.

[16]     For  these  reasons  I  am  satisfied  that  the  appeal  should  be  allowed.    I emphasise that some of the matters that I consider should be taken into account are matters that were not clearly put before the Judge or were not before her at all.

[17]     The appeal is therefore allowed.  The conviction is set aside and there is an order that Mr Shukar is discharged without conviction.

Peter Woodhouse J