Vela v R - [2010] NZCA 440

IN THE COURT OF APPEAL OF NEW ZEALAND
CA478/2010
[2010] NZCA 440
BETWEENSTEPHEN ANTHONY VELA

Appellant

ANDTHE QUEEN

Respondent

Hearing:23 September 2010

Court:Harrison, Chisholm and Ronald Young JJ
Counsel:J Soondram for Appellant

T Singh for Respondent

Judgment:23 September 2010

ORAL JUDGMENT OF THE COURT

AThe applications for an extension of time to appeal against conviction and to produce fresh evidence are granted.
BThe appeal is allowed.
CThe appellant is discharged without conviction on the charge of possession of cannabis for supply upon payment of $1,000 within 21 days from 23 September 2010.

____________________________________________________________________
REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
[1]        In this appeal the appellant says, based on “new” evidence before this Court, that a conviction subsequent to his plea of guilty to a charge of possession of cannabis for supply would be out of all proportion to the gravity of the offending. Thus the appellant says he should be discharged without conviction.
[2]        The appellant’s application for a discharge without conviction was refused by Judge Harvey in the District Court.[1] Mistakenly the appellant filed an appeal against sentence when an appeal against conviction was required. This has now been remedied but the appeal is out of time. Without opposition we grant the application for an extension of time.
[1]R v Vela DC Auckland CRI-2008-090-7675, 26 February 2010.
[3]        At the District Court one of the issues discussed at sentencing was the effect of any conviction on the appellant’s ability to travel to America. The appellant has sought leave to file an affidavit relating to such ability. We grant leave to file the affidavit without opposition from the Crown.
[4]        We note the appellant accepts that Judge Harvey’s decision, based as it was on the information available to him at the time, was unimpeachable.
Facts
[5]        On 11 August 2008 subsequent to the execution of a search warrant at the appellant’s home in New Lynn, the police found approximately 30.39 grams of cannabis in the garage and in his bedroom. The appellant accepted that he had brought the cannabis plant for his own use and for the purpose of supplying others, particularly friends. On occasions he received small amounts of cash or alcohol in exchange for cannabis. Beyond that there is no suggestion of any commercial element.
[6]        The new evidence in this case relates to the ability of the appellant to travel to America. Because of this new evidence we must consider afresh the question of whether the accused should be discharged without conviction.
[7]        The test for a discharge without conviction is set out in s 107 of the Sentencing Act 2002 as follows:
107        Guidance for discharge without conviction
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.

[8] This Court has said[2] that all relevant circumstances of the offence, the offending and the offender along…

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 Vela v R

Details

AGLC: Vela v R [2010] NZCA 440
Case: [2010] NZCA 440
Decision Date: 23 September 2010

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Vela v R was heard and decided on 23 September 2010. The appellant, Stephen Anthony Vela, was appealing against his conviction for possession of cannabis for supply. The appeal was out of time and required an extension to produce fresh evidence. The primary issue before the court was whether a conviction would be disproportionate to the gravity of the offending, given the new evidence about the appellant's inability to travel to the United States due to his conviction.

The court noted that the offending involved the supply of cannabis to friends without any significant commercial element, classifying it in the lowest category of such offending. The court considered the new evidence, which showed that the appellant's visa application to the United States had been refused due to his conviction. This evidence highlighted the severe consequences of the conviction for the appellant, who had a strong attachment to his father living in the United States and a desire to live with him. The court concluded that the consequences of the conviction, given the new evidence, were out of all proportion to the gravity of the offence. Therefore, the court allowed the appeal and discharged the appellant without conviction on the condition of payment of costs within 21 days.

Orders