T v Police HC Invercargill CRI 2008-425-20

[2008] NZHC 1229

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2008-425-20

BETWEEN  T

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         5 August 2008

Counsel:         S Vidal for Appellant

M Mika for Respondent

Judgment:      5 August 2008

ORAL JUDGMENT OF PRIESTLEY J

Solicitors:          Sonia  Vidal,  Queenstown  Legal  Chambers,  P  O  Box  1832,  Queenstown  for

Appellant

Preston Russell Law, P O Box 355, Invercargill 9515 for Respondent

T V  POLICE HC INV CRI 2008-425-20  5 August 2008

[1]      On 3 June 2008 Judge Flatley convicted the appellant in the District Court at Queenstown of possession of the Class C controlled drug cannabis.   The Judge imposed a $1,000 fine and ordered the appellant to pay court costs of $130.   He declined to discharge the appellant without conviction under s 106 of the Sentencing Act 2002.

[2]      This appeal is solely directed to the Judge’s refusal to exercise the s 106 discretion.   Counsel submissions, in large measure, focused on the parliamentary guidance provided by s 107.

Background

[3]      The appellant is an Italian.  As such he is entitled to an EC passport and is able to travel without restriction throughout the European Community.  He has been in New Zealand since October 2006 and is gainfully employed as  a barman in Queenstown.  His employer regards him highly.  He is currently in New Zealand on a working visa and has been sponsored by his employer who operates a number of bars in the Central Otago region.

[4]      The offending can be briefly described.  At 9.00 a.m. on a Sunday morning the police were informed about a somewhat loud and large party at the appellant’s home.  The attention of the public had been attracted by a female guest exposing her breasts to the street below.  When a police party arrived, they detected a strong smell of cannabis.   Up to 17 people at the party were spoken to and searched.   As this search was being carried out, the appellant voluntarily gave to the police cannabis plant totalling approximately 23 grams, which he stated had been for his own use. As Mr Mika rightly observes, that quantity of cannabis is only 5 grams, or thereabouts, below the trigger of the presumption for supply.

[5]      The  appellant  pleaded  guilty.    He  filed  two  affidavits.    His  employer, Mr ND Kerr, also filed a supporting affidavit.

[6]      The appellant in his affidavit stated, amongst other things, he was unaware of the consequences of having cannabis in New Zealand and, particularly, the consequences of a conviction.  He deposed that in Europe if a person was found in possession of cannabis, it would frequently be taken from them and maybe a instant fine would be imposed, but there was no criminal conviction.

[7]      Ignorance of the law, of course, is no excuse.   However, I am prepared to accept that, particularly given the milieu in which he was working in New Zealand and given his exposure to different cultures in Europe, the appellant might not have been personally aware of the consequences of a cannabis conviction.

Judge’s decision

[8]      There  was  an  extensive  dialogue  between  the  Judge  and  the  appellant’s former counsel before the luncheon adjournment on 3 June.  I have a transcript of that dialogue.   I am reluctant, however, to set out any portion of it since I do not consider dialogue between counsel and the Bench is a matter this Court should properly consider.   Nonetheless, certain themes are apparent from that dialogue which are replicated in the Judge’s actual sentencing notes.

[9]      The police opposed the s 106 request.  The Judge correctly turned his mind to ss 106 and 107 and stated there were no hard and fast rules.   He stated that the offending was “serious” and not a minor matter.   He referred to the maximum penalty although, as will shortly be apparent, he misdirected himself there, because the monetary fine he imposed was double the prescribed maximum.

[10]     The Judge then referred to various matters arising out of the appellant’s affidavits and counsel’s submissions.  He said that he had not been “provided with any real evidence to suggest that you will not be able to continue with whatever training it is you want to do”.  He made the same comment about a lack of evidence so far as possible travel restrictions were concerned and the ability of the appellant to work in his “chosen industry”.  He referred, and correctly so, to the offending as it applied to someone who had a bar manager’s licence.  He then returned to the issue of consequences and said that he had “not been provided with any evidence to

suggest that you are not going to be able to do the sort of things that you want to do”. He described the matter before him as a criminal matter and that he was not going to undermine the role of the New Zealand Immigration Service or other immigration authorities around the globe.

[11]     Referring particularly to evidence from the appellant that at some stage he might want to  go to New  York  to  undertake  a  course  as  a  mixologist  (what  I understand to be a cocktail mixer), the Judge again was of the view the evidence in that area was insufficient.   He was not going to be a party to covering up the appellant’s offending.

[12]     The Judge also said:

[10]     What bothers me is that I am being asked to effectively protect somebody who is not even a New Zealand citizen.  You have come to this country.  It is a privilege to be here on a work permit.  You have broken the law.  You have done something wrong and I am being asked to discharge you without conviction.   It is the sort of offending that could impact detrimentally on others.   I know people say there is nothing wrong with having cannabis and that it does not do any harm.  That is not true.  It can be addictive and those sorts of amounts of cannabis bother me, because as I have said, it seems to me that you would have cannabis available for others to use.

Discussion

[13]     Rarely will a court’s power to discharge without conviction be exercised in the context of the Misuse of Drugs Act 1975.  However, offending under that statute is not an automatic bar to the exercise of the discretion in appropriate cases.  I note it was exercised in different circumstances by Panckhurst J in R v Hemard HC CHCH T30/03 11 April 2003.  The discretion was exercised more recently by Winkelmann J in  the  context  of  a  disqualification  where  that  disqualification  would  have  had adverse effects on an appellant’s career, Waight v Police HC AK CRI 2006-404-465

24 May 2007.

[14]     My concern in this case is that the Judge has not given sufficient weight to the evidence before him.  There were a number of matters which he had to weigh,

which were apparent from both the affidavit material before him and from counsel’s submissions.  These were:

a)        The appellant’s excellent work record whilst in New Zealand.

b)The adverse effect which a conviction might have on his relationship with his employer and, in particular, his general manager’s certificate.

c)        Possible adverse consequences on the appellant’s work visa.

d)The possible inability of the appellant to travel as of right to the United States of America.  (I note, although his affidavits infer there may be some difficulties travelling inside the European Community, this was not asserted outright and would, in any event, be incorrect.)

e)       The ability to pursue further training in his trade in New York and other places in the United States of America.

f)        His possible desire to remain in New Zealand on a permanent basis.

[15]     Ms Vital mentioned all these matters in her submissions to me.  Mr Mika, for his part and quite properly so, submitted that the Judge had exercised a discretion in terms of s 106 and had not demonstrably erred.

[16]     I have some unease, however, about the manner in which the Judge exercised the discretion.   He has described the offending as “serious” whereas, in terms of Misuse of Drugs offending, it is probably at the lower end.   He seems to have factored into the exercise of his discretion a certain reluctance to exercise the discretion for the benefit of someone who was not a New Zealand citizen.  I see no bar on the discretion not being available to such a person.  He also, as I have said, seems to have downplayed or ignored the evidence which was before him.

[17]     Section 107 is absolutely clear:

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.

[18]     The  legislative  scheme  is  directed  against  a  discharge  unless  a  Court  is satisfied that the conviction and its consequences are out of all proportion to the gravity of the offence.

[19]     I would not, in the normal course of events, be inclined to interfere with a District Court Judge’s discretion.  However, the reasons which the Judge advanced, with respect, are not sufficiently in accord with the matters he had before him and which he was obliged to consider to exercise his discretion in a fair and appropriate way.   I consider that the various adverse consequences advanced by counsel and before the Court are, by a small margin, disproportionate to the offending.

[20]     I see the case as finely balanced in the s 106 area.  The appeal, in any event, would have to be allowed, given that the Judge imposed a fine which he was not authorised to do under the statute.

Result

[21]     Accordingly, I quash the conviction.  The appellant is discharged in terms of s 106 of the Sentencing Act 2002.  As a condition of that discharge, the $1,000 fine, which the appellant has already paid, and the $130 court costs are to be applied towards the costs of the prosecution.

[22]     This  result  does  not,  for  precedent  purposes,  indicate  any  relaxation  or change to the approach courts should adopt to cannabis-related convictions under the Misuse of Drugs Act 1975.  The s 107 policy is clear and context-specific.  If raised, the section must be applied on a case-by-case basis.

…………………………………

Priestley J