Rogers v Police [2011] NZCA 320 (13 July 2011)

Last Updated: 20 July 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA237/2011 [2011] NZCA 320

BETWEEN ADELINE KATE ROGERS Applicant

AND NEW ZEALAND POLICE Respondent

Hearing: 11 July 2011

Court: Randerson, Potter and Ronald Young JJ

Counsel: A M McCormick for Applicant J E Mildenhall for Respondent

Judgment: 13 July 2011 at 10.30 a.m.

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

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REASONS OF THE COURT

(Given by Randerson J)

[1] Ms Rogers seeks leave to appeal under s 144(3) of the Summary Proceedings Act 1957 against a refusal to discharge her without conviction after she pleaded guilty to one charge of theft of controlled drugs under s 11(1)(a) of the Misuse of Drugs Act 1975.[1]
[2] The applicant’s appeal to the High Court against the refusal of the discharge was dismissed by Chisholm J who also subsequently dismissed an application for leave to appeal to this Court.[2]
[3] The brief background is that the applicant is a 28 year old Australian citizen. She became addicted to drugs at a young age. She has two children, both of whom have been removed from her care. She came to New Zealand in 2007 and has spent some time in rehabilitative care in this country. In 2009 the applicant was convicted on two counts of threatening to kill or do grievous bodily harm and sentenced to ten months imprisonment (leave to apply for home detention was granted but no home detention residence was available). An order was subsequently made for her deportation to Australia but this was successfully appealed to the Deportation Review Tribunal in July 2010.
[4] The offending now at issue occurred in March 2010, prior to her deportation appeal being heard. The applicant was invited to stay with an elderly couple. While she was staying with them, the applicant stole and used in excess of 400 tablets of the wife’s prescription pain medication. The applicant told police she had taken the drugs as a way of coping with abuse from the victim’s husband.
[5] In the District Court, the Judge described the offending as “despicable” and “very serious”. The Judge accepted that the applicant would face the prospect of deportation. However, he did not consider that the direct or indirect consequences of a conviction outweighed the seriousness of the offending and declined to discharge the applicant without conviction. A term of 12 months supervision was imposed.
[6] On appeal in the High Court, Chisholm J agreed that the offending was serious although he did not consider the level of culpability to be as high as the District Court Judge had. The Judge was satisfied there was a real and appreciable risk the applicant might be deported. He considered it “a finely balanced case”, but ultimately concluded that the consequences were not out of proportion to the gravity of the offending.
[7] The criteria for a second appeal under s 144(3) of the Summary Proceedings Act are well established. There must be:

• (a) A question of law;
• (b) The question must be one which, by reason of its general and public importance or for any other reason, ought to be submitted to the Court of Appeal; and
• (c) The Court must be of the opinion that it ought to be so submitted.[3]

[8] The question of law identified by Mr McCormick for the applicant is:

Did the High Court err by applying the wrong standard of proof to the assessment of the consequences of a conviction when undertaking the balancing test required by s 107 of the Sentencing Act 2002?

[9] In elaborating on this point, Mr McCormick submitted that Chisholm J had erred when assessing the direct and indirect consequences to the applicant of a conviction. He submitted that the Judge had gone beyond considering whether there was a real and appreciable risk of deportation[4] and instead applied a higher standard approach, namely an “inevitability or probability” that deportation would occur.
[10] Mr McCormick grounded his submission in this respect on the following passage from Chisholm J’s judgment:

[22] The next step is to assess the direct and indirect consequences of a conviction. In Mohammed v NZ Customs Service Potter J approached the matter on the basis that the test is whether there is a “real and appreciable risk that such consequences would occur”. In terms of s 161 of the Immigration Act 2009 a conviction would mean that the appellant would become “liable for deportation”. There is, however, a right of appeal to the Minister of Immigration or the Immigration and Protection Tribunal.

[11] We accept the submission made by Ms Mildenhall on behalf of the respondent that it is doubtful whether the question posed by the applicant is truly a question of law. In any event, we are satisfied that the point raised has no prospect of success. The proportionality test under s 107 of the Sentencing Act 2002 does not involve the application of a standard of proof. It is a matter requiring judicial assessment and is not regarded as a discretionary matter. To speak of an onus of proof in this context is inappropriate.[5]
[12] The reference by the Judge to the right of appeal in deportation matters was no more than a statement of fact which was relevant to the Judge’s assessment of the direct or indirect consequences for the applicant of a conviction.
[13] If there were an arguable point of law, we are not persuaded that the question is one of general or public importance or that, for any other reason, it ought to be submitted to this Court. The relevant principles are well settled and no novel or point of general importance arises.
[14] For these reasons, the application for leave to appeal is dismissed.

Solicitors:
Brandts-Giesen McCormick, Rangiora for Applicant
Crown Law Office, Wellington for Respondent

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[1] NZ Police v Rogers DC Christchurch CRI-2010-009-11893, 4 November 2010.
[2] Rogers v NZ Police HC Christchurch CRI-2010-409-228, 17 February 2011 and 1 April 2011.
[3] R v Slater [1997] 1 NZLR 211 at 215.

[4] See the observations of Potter J in Mohammed v NZ Customs Service HC Auckland CRI-2009-404-56, 29 May 2009.
[5] R v Hughes [2009] 3 NZLR 222 at [49]-[53].