Weerasinghe v Police - [2019] NZHC 139

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-395

[2019] NZHC 139

BETWEEN
REHAN WEERASINGHE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 February 2019

Counsel:

A J Holland for Appellant

B J Hamilton and H E Savage for Respondent

Judgment:

13 February 2019

JUDGMENT OF BREWER J

This judgment was delivered by me on 13 February 2019 at 2:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Meredith Connell (Auckland) for Respondent

WEERASINGHE v POLICE [2019] NZHC 139 [13 February 2019]

Introduction

[1] On 6 December 2018, Judge AC Roberts refused to discharge Mr Weerasinghe without conviction on one charge of possessing cannabis for the purpose of supply.1 Mr Weerasinghe now appeals that decision.

Approach on appeal

[2] I must allow the appeal if I am satisfied that, for any reason, Judge Roberts made an error such that Mr Weerasinghe should have been discharged without conviction.2

[3] The law recognises that sometimes the consequences for an offender of being convicted of their offending will be so harsh that justice is better served by not entering a conviction. The test is set out in s 107 of the Sentencing Act 2002:

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.

[4] It can be seen there is a high threshold between an offender and a discharge without conviction. It is not enough to satisfy the Judge that the consequences of a conviction would be disproportionate to the gravity of the offence. The Judge must be satisfied that the consequences would be out of all proportion to the gravity of the offence.

[5] To apply the test properly, a Judge must (as did Judge Roberts) conduct a three- step analysis:3

(a)Assess the gravity of the offending. That means first looking at all the relevant circumstances of the offending and of the offender, and then standing back and deciding how serious the offending is.

1      Police v Weerasinghe [2018] NZDC 25686.
2      See Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12]–[13].
3      Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8]–[9].

(b)Determine the direct and indirect consequences of a conviction for the offender.

(c)Determine whether those consequences are out of all proportion to the gravity of the offending.

[6] I will examine Judge Roberts’s reasoning against the circumstances before him and, in doing so, I will make my own assessment as to whether there is an error and, if so, whether there should be a different result.

[7] Before doing so I record that Mr Holland wished me to have regard to an affidavit which was not before Judge Roberts. At the sentencing, as I will come to, Judge Roberts had regard to an affidavit of Joanna Jane MacDonald, who gave her opinion on…

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 Weerasinghe v Police

Details

AGLC: Weerasinghe v Police [2019] NZHC 139
Case: [2019] NZHC 139
Decision Date: 13 February 2019

CaseChat Overview and Summary

In the High Court of New Zealand Auckland Registry, the case of Weerasinghe v Police involved an appeal by the appellant against a decision by Judge AC Roberts to refuse to discharge him without conviction on a charge of possessing cannabis for the purpose of supply. The appellant, Mr Weerasinghe, was charged with possessing cannabis with intent to supply after a drug search at his residence uncovered a cannabis packaging setup and related paraphernalia. The District Court Judge imposed a sentence of 12 months’ supervision plus 120 hours’ community work. Mr Weerasinghe appealed the decision not to discharge him without conviction, arguing that the consequences of a conviction would be out of all proportion to the gravity of his offending.

The legal issues before the court were whether the District Court Judge made an error in not discharging the appellant without conviction and, if so, whether the consequences of a conviction for the appellant were out of all proportion to the gravity of his offending. The threshold for discharging an offender without conviction is high, requiring the court to be satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence. The court must conduct a three-step analysis: assessing the gravity of the offending, determining the direct and indirect consequences of a conviction for the offender, and determining whether those consequences are out of all proportion to the gravity of the offending.

In assessing the gravity of the offending, the court found that the District Court Judge correctly characterised the offending as moderately serious and appropriately imposed a sentence of 12 months’ supervision plus 120 hours’ community work. The consequences of a conviction for the appellant were a real and appreciable risk that his ability to gain permanent employment, particularly in the construction and trade industry, would be blighted. The court found that the District Court Judge erred in not placing reliance on an affidavit by Joanna Jane MacDonald, a senior business manager with a recruiting company, who opined that the appellant would face significant difficulties in obtaining alternative employment due to his conviction. The court found that the risk to the appellant’s employment prospects was a consequence out of all proportion to the gravity of his offending. Accordingly, the appeal was allowed, the conviction and sentence were quashed, and the appellant was discharged without conviction.

Orders