The 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.

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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.
[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 with the wider interests of the community must be considered. Those factors set out in ss 7, 8, 9 and 10 of the Sentencing Act will all be relevant.
[9] Turning firstly therefore to the gravity of the offending. The sentencing Judge accepted, as we do, that the offending involved the supply of cannabis to friends by the appellant and did not involve any significant commerciality. Accordingly Judge Harvey in the District Court classed the offending in Category 1 of R v Terewi.[3] We agree. This level of offending as this Court observed in Terewi is almost invariably dealt with by a fine or a non custodial sentence.[4] The appellant has no other convictions.
[10] In support of his application for discharge in the District Court the appellant filed an affidavit from himself and his father, Victor Vela, together with some material from the American Embassy in New Zealand.
[11] The appellant is 22 years of age. At three years of age his parents separated. Since 1996 the appellant’s father, Victor Vela, has lived in the United States. Over the years Mr Vela Senior has visited his son and daughter in New Zealand from time to time.
[12] In 2001 the appellant went to America to visit his father. Mr Vela Senior has remarried. He is a builder and the appellant is training in carpentry. While he was there in 2001 Mr Vela Senior and the appellant worked together.
[13] During his visit the appellant discussed the possibility of moving to America with his father. His father agreed to act as a sponsor for the appellant’s immigration visa application to America. Mr Vela Senior said his motivation was twofold. Firstly, he could spend more time with his son and secondly, he was concerned about his son’s use of cannabis. He believed that he could provide some guidance for his son. Eventually an application for a visa was made in February 2008 but was suspended pending the outcome of these Court proceedings.
[14] When the sentencing came before the District Court there was no certainty about what effect the conviction would have on the appellant’s ability to travel to the United States. In sentencing the Judge remarked:

[16] ... In the countries that I have mentioned, England, Australia and the United States, there is nothing that says that a person who has a conviction for any sort of offence is going to be refused entry, or is going to be refused a visa. It is a matter that the immigration authorities in various countries will take into account and place in the balance. ... But automatic exclusion for a jurisdiction has not been proven. ...

[17] It might be a different matter if one were travelling to a jurisdiction where the entry of a conviction would automatically exclude entry into that jurisdiction. But that is not the case here.

[15] The Judge therefore concluded that although there was potential inconvenience regarding entry to America, it could not be said that these uncertain consequences would be out of all proportion to a conviction.

New evidence

[16] The new evidence provided by the appellant relates to his unsuccessful application for an immigration visa to America. After his conviction the appellant made an application for the visa. In the application he provided a true copy of his criminal history. He then attended an interview at the Consulate General’s office of the American Embassy. At that interview he was given a document headed “The Foreign Service of the United States of America Refusal Worksheet”. That worksheet noted that there was no chance of a waiver of a refusal to grant a visa for any role in “trafficking in cannabis”. It seems clear, therefore, that while the appellant has a conviction for possession of cannabis for supply, he will be ineligible to enter the United States at all. The Refusal Worksheet notes that if the conviction is overturned or reduced then the appellant may be eligible for a waiver.
[17] The appellant says therefore that the consequences of a conviction, namely, his inability to travel to America and to live with his father, or indeed see his father in America, as they both desire, is out of all proportion to a conviction on this charge of possession of cannabis for supply.

Decision

[18] We agree with the Judge that this offending was in the lowest category of supplying cannabis offending. However, any supply of a drug is serious. As we have noted a non custodial sentence was appropriate although the actual sentence, a fine of $400, was modest. We therefore need to balance the consequences of the conviction against that level of seriousness of this offending.
[19] We accept that the inability to travel to America and thereby live with his father is a heavy burden for the appellant. We note that the appellant had made application for his immigration visa prior to the offending. It is clear that the appellant has developed a strong attachment to his father and has a strong desire to live with him and be part of a wider family that his father enjoys.
[20] As the Crown observed, this is not a case where there is an attempt to keep the appellant’s actions from the American authorities. They are already aware that the appellant has pleaded guilty to a charge of possession of cannabis for supply. And so if there is a discharge without conviction any decision the American authorities make will be based on a full knowledge of the appellant’s offending.
[21] We think, on balance, that in the special circumstances of this case we can grant the appellant a discharge without conviction based on the new evidence to the effect that while he has a conviction for this offending there is no prospect of him travelling to the United States. This, as we have said, is a very heavy burden in the particular circumstances of this case. Given that the offending, while serious, is at the lowest category of such offending, we have concluded that the consequences of a conviction would be out of all proportion to the gravity of the offence.
[22] The appeal is allowed. The appellant is discharged without conviction on the charge of possession of cannabis for supply on condition of payment of costs of $1,000 within 21 days from today.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Vela DC Auckland CRI-2008-090-7675, 26 February 2010.

[2] See R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [41].

[3] R v Terewi [1999] 3 NZLR 62.

[4] At [4].

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