Skelton v Police

[2013] NZHC 533

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-463-65 [2013] NZHC 533

BETWEEN  BRENDAN JOHN SKELTON Applicant

ANDNEW ZEALAND POLICE Respondent

Hearing:         On the papers

Appearances: R Vigor-Brown for the Applicant

S Simmers for the Respondent

Judgment:      19 March 2013

JUDGMENT OF PRIESTLEY J

(On application for leave to appeal to the Court of Appeal)

Solicitors:

R Vigor Brown, Moana Law, Rotorua. [email protected]

Crown Solicitor, Rotorua. [email protected]

SKELTON V NEW ZEALAND POLICE HC ROT CRI-2012-463-65 [19 March 2013]

[1]      The applicant, who is a young man afflicted with Attention Deficit Hyper- activity Disorder (ADHD), was convicted in the Rotorua District Court in October

2012 on a charge laid under s 45(1) of the Arms Act 1983.

[2]      His offending related to a somewhat opportunistic and spontaneous  theft carried out by a Mr Toon.   The firearm in question was placed in the applicant’s motor vehicle and driven away.  Unsuccessful efforts were made to sell the weapon as the applicant and his associates drove around the Rotorua region.

[3]      Although the applicant was initially jointly charged with Mr Toon with theft, that charge was withdrawn.  The District Court Judge imposed a reparation sentence of $375 (being half the value of the stolen shotgun) to be paid at the rate of $20 per week.

[4]      The Judge declined to discharge the applicant without conviction pursuant to ss 106 and 107 of the Sentencing Act 2000.   That decision was challenged by an

appeal to the High Court.

[5]      On 7 February 2013 I dismissed the appeal.1

follows:

Relevantly I commented as

[8]       The  nub  of  this  appeal  is  that  the  appellant  had  the  underlying condition of ADHD.   This problem was essentially detected by Mr Vigor- Brown when he was initially instructed.  Approximately six months elapsed between the date of the offending and the date of the sentence.  During that six month period it became apparent that the appellant, who had suffered some head trauma when aged three and had been a difficult child at school, met all the diagnostic criteria of ADHD.  This has been properly diagnosed by appropriate specialists.  The appellant and his family have sought help. He is currently on medication.  In all respects the appellant is a changed person.  Most, if not all of the ADHD symptoms appear to have disappeared or been appropriately mitigated.

[9]       This  ADHD  condition  was  clearly  operative  at  the  time  of  the offending.   It might not have been the only contributor.   However, the impulsivity which ADHD entails and also the “wiring” of the brain which makes ADHD sufferers more susceptible to rewards than to punishment, would have been operating.   Doubtless the ADHD condition would have made it more difficult for the appellant to appreciate the wrong he was committing and to stand up to and/or assess the importuning of his co- offender Mr Toon.

1      Skelton v New Zealand Police [2013] NZHC 100.

...

[13]      There is no question (and counsel did not submit to the contrary) that the Judge applied the appropriate law and in particular had regard to the three phase analysis mandated by the Court of Appeal in R v Hughes.

[14]      Thus the only possible basis on which I can interfere with the result in the District Court would be if I were satisfied the Judge had exercised what is essentially his discretion on flawed grounds, such as giving too much weight to some factors, insufficient weight to other factors, or had, in some other way, exercised the conferred discretion incorrectly.

[15]      Like Judge Thomas I have considerable sympathy for the appellant’s predicament.  I accept unreservedly that as a result of seeking medical help and, in particular, as a result of the medication he is currently taking, his personality and behaviour has changed.

[16]      Mr Vigor-Brown accepts that he is not able to present firm evidence pointing to direct and indirect consequences of the conviction which are “out of all proportion” to the gravity of the offence.  He does, however, mount an attractive argument.  First he says that, historically, as a result of suffering from ADHD the appellant has not until recently been able to get out of the starting blocks to race along life’s track.  I accept that had the diagnosis and treatment been available earlier to the appellant this offending might not have occurred.  Secondly he says the conviction has the potential effect of making it difficult for the appellant to obtain employment.  Any candid disclosure of the conviction (if requested) to a potential employer might well result in the appellant being overlooked for a position.  Thirdly, the appellant has an uncle who lives in Australia.  It is the family’s hope that at some stage the appellant might be able to travel to Australia to seek employment there under the general guidance of his uncle.

[17]     I deal with this last point first.  As is apparent from a number of authorities, courts usually take the view that immigration decisions on the part of a person who has a conviction are best left to the Immigration authorities of the relevant nation involved rather than to New Zealand’s domestic courts.

[18]      Dealing with the other matters raised by Mr Vigor-Brown, although I

accept that there are potential difficulties which might lie in the way of the appellant being employed, it is very difficult to construct any respectable

case  in  the  absence  of  direct  evidence  that  the  consequences  of  the

conviction are out of all proportion to the gravity of the offending.  The use by Parliament of the word “all” suggests that the disproportionality must be significant.  [Footnotes omitted]

[6]      I parted company with the District Court Judge in one minor area.  He had regarded the applicant’s offending as “serious” and with a high level of gravity.  I disagreed, pointing out that on the scale of offending under the Arms Act, this offending was close to the bottom (the theft charge, which was withdrawn, was more serious) and that the sole penalty of reparation imposed by the Judge was appropriate for offending at the lower end of the scale.  I did not see the Judge’s assessment of

the offending as leading to an incorrect exercise of his discretion.  Indeed the Judge had been sympathetic to the applicant’s position, but observed correctly the applicant was not able to point to any evidence that the consequences of a conviction would be out of all proportion to the gravity of the offending.

[7]      The  applicant  now  seeks  leave  to  appeal  to  the  Court  of Appeal.    The applicant has no automatic right of a second appeal.   In terms of R v Slater2  and other authorities, a question of law must be identified, which by reason of its general and public importance, or some other reason ought to be submitted to the Court of Appeal.   Normally the point of law must transcend the partisan interests of the

parties.

[8]      Mr Vigor-Brown in his submissions sets out the structure of my judgment. There is nothing there with which counsel disagrees.  He refers further to this Court’s

parens patriae jurisdiction and also to this Court’s inherent jurisdiction to make

decisions on behalf of mentally incapacitated individuals.3

Neither of these points

were submitted to me at the appeal hearing but, for leave purposes, that oversight has little relevance.

[9]      Counsel’s submissions conclude that this Court would take judicial notice of the direct and indirect consequences of a conviction “notwithstanding that those consequences are not set in concrete as the [applicant] faces employment difficulties

ab initio”.

[10]     The law relating to discharges without conviction under ss 106 and 107 is well settled.  Essentially a discretionary exercise is involved which includes the weighing of the consequences of a conviction and an assessment of whether or not those consequences are out of all proportion to the entry of a conviction.  Neither in the District Court judgment nor in my own judgment do I detect a discretionary

exercise or error which raises a question of law.

2      R v Slater [1997] 1 NZLR 211 (CA).

3      Counsel cites by way of example Re SA [2006] 1 FLR 867 (Family Division).

[11]     The fact that at the time of his offending the applicant was labouring under ADHD and did not know it was a matter to which both the District Court and I were alert.  It was highly relevant to the exercise of both the sentencing discretion and the discretion conferred by s 106.  There is no evidence that the applicant’s employment prospects would, because of his conviction, be fatally impeded.

[12]     I consider the leave application, carefully drawn as it is, is little more than an attempt to gain a second appeal. The relevant criteria are not met.

[13]     For these reasons leave is declined.

.......................................… Priestley J