Drake v R [2019] NZCA 56 (15 March 2019)

Last Updated: 22 March 2019

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA457/2018 [2019] NZCA 56

	BETWEEN	STEVEN DRAKE Appellant
	AND	THE QUEEN Respondent

Hearing:	12 February 2019
Court:	Miller, Simon France and Peters JJ
Counsel:	R B Keam for Appellant D G Johnstone and D R Green for Respondent
Judgment:	15 March 2019 at 11.00 am

JUDGMENT OF THE COURT

1. The appeal is allowed.
2. The conviction is quashed. Mr Drake is discharged without conviction.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Background

[1] Following a jury trial in the District Court, Mr Drake was convicted on a charge of injuring with intent to injure.^[1] He was initially charged with three charges arising from the same evening: threatening to kill, injuring with intent to injure, and assault with intent to injure. Judge Gibson discharged the assault charge,^[2] and the jury acquitted him on the threatening to kill charge. Mr Drake unsuccessfully sought a discharge without conviction for injury with intent to injure pursuant to s 106 of the Sentencing Act 2002 (the Act), ^[3] and he now appeals that decision.

Facts

[2] The Judge, when determining the discharge application, accepted the complainant’s evidence as representing what occurred.^[4]
[3] During the course of a family altercation, Mr Drake followed his brother, the complainant, into the kitchen. He punched him in the back of the head and a scuffle followed. During the course of this, Mr Drake bit his brother in the chest. He removed skin which has healed but which will leave permanent scarring. The defence was selfdefence, which the jury rejected. Judge Gibson rejected the proposition that the jury’s verdict reflected a conclusion of excessive selfdefence.^[5]

Applicable law

[4] The correct approach to s 106 of the Act is well settled. The Court must first assess the gravity of the offending, a task which includes having regard to aggravating and mitigating factors.^[6] Next, the direct and indirect consequences of conviction must be identified,^[7] and then the statutory test of consequences being out of all proportion to the gravity of the offending must be applied.^[8] Finally, if the statutory test is met, the Court has a discretion concerning whether a discharge without conviction should be the outcome.
[5] Concerning an appeal, the appellate court must be persuaded the court below was wrong, but reaching that decision based on its own view of the merits.^[9]

The gravity of the offence

[6] Judge Gibson assessed the offending itself as a relatively serious matter, albeit not at the top end of the scale for such a charge. He noted the removal of a “relatively large piece of skin”.^[10] As noted, the Judge rejected entirely the selfdefence argument.
[7] Looking at other matters, the Judge considered the fact that the matter had gone to a jury trial carried less weight here than might normally be the case because of the success Mr Drake had on two of the three charges.^[11] At 47 years of age, Mr Drake was a first offender who was unlikely to appear again in court.
[8] On appeal, Mr Keam urges the Court to revisit the assessment of the offending, but we see no basis to do so. There is nothing in the record that casts any doubt on the Judge’s assessment and we recognise of course the advantages he enjoyed as trial Judge. There was nothing to support Mr Drake’s viewpoint other than his own evidence.
[9] The Judge attached no label to his assessment of the gravity of the offending. We assess his conclusion on the offending itself as being one of moderate offending, and we accept that. However, in terms of overall gravity, there was much about Mr Drake that reduced that initial assessment. The context was a family dispute that got out of hand and led a 47-year-old to offend for the first time. By everyone’s assessment, it is likely to be the only time. Mr Drake has a solid work history and had written a letter of remorse which was presented at trial. Overall, we assess the gravity as above low, but considerably below moderate.

Consequences

[10] It is in the area of consequences that we differ from the District Court. The Judge had identified that there were no direct consequences and only speculative indirect work consequences.^[12] The Court also picked up on a comment in the presentence report of “ambivalence” about Mr Drake’s current situation and future plans.^[13] On this latter point we read the ambivalence as merely being a product of understandable uncertainty caused by his current situation.
[11] Mr Drake is a gasfitter and plumber. He is experienced and accomplished, and the evidence filed suggests his level of skill would be much in demand overseas. There are two aspects of this to develop: the reality of Mr Drake’s intentions to work overseas and the consequences of a conviction to those plans.
[12] Mr Drake has considerable debt due to a failed business, and then an inability to work for a period following a motor cycling accident. Mr Drake deposes he was intending to work in the Middle East, probably Dubai, for a period of five years in order to be able to address his debt.
[13] Evidence is filed from Mr Ravi Appavu who has worked with Mr Drake, and has more than 15 years’ experience working in the Middle East. Prior to the offending, Mr Drake had discussed with Mr Appavu the idea of him obtaining employment there. Mr Appavu believes Mr Drake would be in high demand and could earn in the range of USD 100,000 to 150,000. He considers, however, based on his experience, that a conviction will be fatal to those prospects.
[14] Concerning the domestic situation, evidence was filed from two sources: Mr Craig Spicer who has been working in the plumbing and gas industry, in both New Zealand and Australia, for 33 years; and Advanced Personnel, a recruitment agency with experience in the industry.
[15] Mr Spicer deposes both to Mr Drake’s skills, and the impact of a conviction. He considers that Mr Drake’s skill level and knowledge (based on knowing Mr Drake for 18 years) are hard to find in the gas industry, making him a sought-after employee. Mr Spicer’s experience, including important positions he has held, make him well qualified to advance the opinion that a conviction will “severely limit” the types of roles Mr Drake could seek.
[16] Advanced Personnel carried out a survey amongst their industry clients. Their conclusion was that if convicted Mr Drake would face serious difficulties in the future in securing relevant employment. It was noted that Mr Drake was at an age where the physical demands of the job saw the more skilled people transition to management type work. Some of this work is overseas and a conviction will have impacts. We note that all three deponents attest to Mr Drake’s positive prospects as a manager.
[17] This evidence leads us to conclude the Judge incorrectly assessed the consequences. We are satisfied there was a genuine intention on Mr Drake’s part to seek overseas work; there were real prospects that he would obtain such work and that it would be very well remunerated; and that a conviction would significantly reduce if not remove these prospects. We base that on industry factors, not immigration issues; that is what both Mr Appavu and Mr Spicer focus on.

The balancing exercise

[18] Mr Drake is a 47-year-old first offender with highly marketable skills. However, he faces a significant debt issue which can only be addressed by obtaining well-remunerated work abroad. This was his intention. It is apparent the offending was out of character and is very unlikely to be repeated.
[19] We do not wish to devalue the assault or its impact on the complainant and his family, but fortunately the long-term consequences of it are minimal. Having assessed the consequences differently from the District Court, we have reached the view that the statutory test is met. A conviction will seriously impede Mr Drake’s prospects, at an age when it is necessary for him to take advantage now of opportunities. This in turn will remove any real prospects of him discharging his debts. We consider these consequences are out of all proportion to the gravity of the offending. Further, the statutory test being met, for the same reasons we consider the offending is not so serious as to make a discharge without conviction inappropriate.

Result

[20] The appeal is allowed.
[21] The conviction is quashed, and we make an order discharging Mr Drake without conviction.

Solicitors:
Crown Solicitor, Auckland for Respondent

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^[1] Crimes Act 1961, s 189(2).

^[2] R v Drake [2018] NZDC 8232.

^[3] R v Drake [2018] NZDC 20394.

^[4] At [5].

^[5] At [5].

^[6] R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]–[17] and [22]; DC (CA47/2013) v R [2013] NZCA 255 at [35] citing Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142.

^[7] DC (CA47/2013) v R, above n 6, at [43].

^[8] Sentencing Act 2002, s 107; and Z (CA447/12) v R, above n 6, at [9].

^[9] R v Taulapapa [2018] NZCA 414 at [18] citing H (CA680/2011) v R [2012] NZCA 198 at
[35]–[36].

^[10] Above n 3, at [4].

^[11] Above n 3, at [6].

^[12] At [12]–[16].

^[13] At [15].