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 the likely consequences of a conviction for Mr Weerasinghe’s present and future employment. Judge Roberts did not rely on the affidavit. Mr Holland wished me to have regard to a supplementary affidavit by Ms MacDonald in which she strengthens the opinions given in the first affidavit. The Crown opposed me receiving the supplementary affidavit. At the hearing, I ruled in favour of the Crown. The supplementary affidavit does not traverse fresh matters. More importantly, I did not find it added anything cogent to the first affidavit such that I should have regard to it in the interests of justice.

Did the Judge make an error such that Mr Weerasinghe should be discharged without conviction?

The gravity of the offending

[8]The offending itself is succinctly summarised by Judge Roberts:

[2]        On 22 February, the Auckland City Police and Counties Manukau Police executed a drug search at 16 Hawera Road, Kohimarama. You were not there present. Inside the ground floor bedroom on top of a desk was a cannabis packaging setup consisting of a roll of foil, scissors, pre-cut foils, digital scales and a sealed top plastic jar containing 29 tinnies. Tinnies currently sell on the street for $20. Each of the tinnies contained one gram each of cannabis. Within a wooden monkey ornament $200 broken down into five $20 notes and two

$50 notes. Inside the bedroom beneath a double bed a blue ice cream container with two snap lock bags containing seeds. One bag 32 seeds, the other 42 seeds.

[3]        A  search  of  Vodafone  records  as  between  10  November  and   21 February indicated the extent of your operation. The summary refers to phone numbers attributed to a large group of people including 12 that have been specifically identified as belonging to individuals aged from 17 to 41 years. The phone content revealed that you would personally deliver cannabis to ensure payment was made.

[9]                   As to Mr Weerasinghe’s personal characteristics, he was 22 years old and had no previous record of criminal offending of any sort. He entered a plea of guilty at the earliest reasonable opportunity. He said, and this is not disputed, he sold cannabis to finance his own addiction to cannabis. Mr Weerasinghe took steps to address that addiction. He completed an eight-week course with Community Alcohol and Drug Services. He has never failed a workplace drugs test and it is submitted he now no longer uses cannabis. At the hearing of this case I received from Mr Holland, without opposition from the Crown, a letter dated 29 January 2019 from Mr Grant Foster, a psychologist with Augustus Clinic, who is a specialist in providing alcohol and drug treatment. He says Mr Weerasinghe has had three sessions at the Augustus Clinic this year and concludes:

If Mr Weerasinghe requires any further support I would be happy to work with him again.

[10]               Mr Weerasinghe has done some voluntary work with the Salvation Army, although little emphasis was put on this.

[11]               Judge Roberts characterised the offending as “a low-end indicator of moderately serious offending”.4

[12]               I note that Judge Roberts, in a discussion of R v Terewi, put the case within band two and said a starting point of two years’ imprisonment would be available, reduced by personal circumstances to 18 months’ imprisonment.5 However, whether or not that is correct, this very experienced District Court Judge decided the end point, in all the circumstances, should be  a  sentence  of  12  months’  supervision  plus 120 hours’ community work. Neither Crown counsel nor Mr Holland contends there is any error with this sentence if a conviction is to be maintained. I agree. Regardless

4      Police v Weerasinghe [2018] NZDC 25686 at [16].

5      R v Terewi [1999] 3 NZLR 62 (CA).

of whether the offending is described in the way the Judge described it, or whether the description might be expressed using words such as “lower level retail dealing to a limited extent not involving others”, the gravity of the offending is reflected by the sentence imposed by Judge Roberts.

Consequences of a conviction

[13]               The real contest in this appeal is whether the Judge properly appreciated the consequences to Mr Weerasinghe of this conviction.

[14]               Judge Roberts heard submissions that, based on Ms MacDonald’s affidavit, there was a real risk that a conviction would result in Mr Weerasinghe losing the employment he had at the time and a real risk he would not be able to gain further employment in the  construction  and  trade  industries.  Judge  Roberts  regarded  Ms MacDonald’s opinion as to the risk to current employment as “speculative”. The Judge does not address the risk to future employment.

[15]               To an extent, events subsequent to the sentencing have proved Judge Roberts to be correct. Mr Weerasinghe did not lose his job and Ms MacDonald has since placed him in another job. But, Ms MacDonald is a senior business manager with a recruiting company and, from the uncontested advice I was given by Mr Holland, has been actively assisting Mr Weerasinghe in the knowledge that his conviction is being contested.  Further, the job he had when sentenced was a temporary contract and   Mr Weerasinghe’s employment with that employer ended when the contract ended. Likewise, his current employment is temporary.

[16]               In my view, Judge Roberts erred in placing no reliance on Ms MacDonald’s affidavit.    For  one  thing,  her  opinions  are  consistent  with  common  sense.     Mr Weerasinghe is a young man with no real qualifications. He has been working under temporary contracts with various employers since March 2017. He works in the construction and trade sector. He would like to get permanent employment and aspires to gaining an apprenticeship. Ms MacDonald deposed:

11.In order to apply for other jobs, [Mr Weerasinghe] would need to disclose his conviction and given the strict anti-drug approach in the

construction and trade industries, it would be  very  difficult  for  [Mr Weerasinghe] to obtain alternative employment.

And:

15.In   my   experience,   it   will   also   be   very   difficult   to   place   [Mr Weerasinghe] in alternative employment roles with a cannabis supply conviction on his record.

[17]               I find that a consequence of conviction for Mr Weerasinghe is a real and appreciable risk that his ability to advance in life by securing permanent employment would be “blighted” (seriously compromised).6

Consequences out of all proportion to gravity?

[18]               Mr Weerasinghe dealt in cannabis. The gravity of the offending was reflected in the sentence of 12 months’ supervision plus 120 hours’ community work. The identified consequence for him of his conviction is a real and appreciable risk that his ability to gain permanent employment, particularly in the construction and trade industry, would be blighted.

[19]               I bear in mind that in assessing proportionality the Court should not respond to an identified consequence by hiding the underlying offending from those who have a legitimate interest in knowing about it. Employers in an industry with a necessary intolerance of drugs – which can affect performance – have a legitimate interest in knowing about a prospective employee’s drugs convictions. But, in this case the offending was dealing in cannabis. Mr Weerasinghe has never failed a drugs test and has reported, credibly given the steps he has taken, that he no longer uses cannabis. The industry in which he works regularly administers drugs tests. I do not see in those circumstances that future employers would be prejudiced by Mr Weerasinghe not having a conviction which he would have to disclose.

[20]               I find that the identified risk to Mr Weerasinghe’s prospects of employment is a consequence out of all proportion to the gravity of his offending.

6      R v Taulapapa [2018] NZCA 414.

Decision

[21]               The   appeal is  allowed.     Mr Weerasinghe’s conviction and sentence are quashed. Mr Weerasinghe is discharged without conviction.

Brewer J