Wildin v Police HC Auckland CRI-2010-404-000357 [2011] NZHC 276 (30 March 2011)

Last Updated: 31 May 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2010-404-000357}

BARRY IOBAA WILDIN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 6 December 2010

Counsel: V Letele for the Appellant

C P Merrick for the Respondent

Judgment: 30 March 2011

_{JUDGMENT OF DUFFY J}

This judgment was delivered by Justice Duffy on 30 March 2011 at 4.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Counsel: V Letele P O Box 76456 Manukau City Manukau 2241 for the Appellant

Solicitors: Meredith Connell P O Box 2213 (DX CP24063) Shortland Street

_{Auckland 1140 for the Respondent}

WILDIN v POLICE HC AK CRI-2010-404-000357 30 March 2011

[1] The appellant, Barry Wildin, pleaded guilty in the District Court at Manukau to one charge under s 6(1)(f) of the Misuse of Drugs Act 1975 of selling the class C controlled drug, cannabis. He sought a discharge without conviction, which the District Court Judge refused. Mr Wildin was convicted of the offence and sentenced to perform 200 hours of community work. Mr Wildin now appeals against the refusal to discharge him without conviction and against the sentence imposed on him.

[2] During the hearing of the appeal on 6 December 2010, Mr Wildin’s counsel, Ms Letele, advised me that she had not had contact with Mr Wildin since he filed the notice of appeal in July 2010. Accordingly, she was unable to advise as to whether he wanted to proceed with the appeal, and if there were matters which had arisen since he was convicted and sentenced that might have an impact on the appeals. In addition, the sentencing notes were not available from the Manukau District Court. In the circumstances, I allowed the appeals to proceed, but gave Ms Letele the opportunity to make further inquiries of Mr Wildin. I also directed that the sentencing notes were to be made available.

[3] Ms Letele has now informed me that she has not made contact with Mr Wildin. She has no further submissions to add to those she made at the hearing. The sentencing notes are now available. I propose to proceed to determine the appeals.

[4] For the reasons set out below, I have determined that the appeals should be dismissed.

Facts

[5] Mr Wildin is 40 years old. He has no previous convictions. The current offending came to light when the police searched the house in which he was living. The police discovered 21.38 grams of cannabis and a set of scales, together with other materials in Mr Wildin’s bedroom. When spoken to by police, he admitted selling cannabis to friends and family.

[6] The charge against him was laid summarily. Under s 6(3) of the Misuse of Drugs Act, where any person is summarily convicted of an offence against this section relating to a class C controlled drug, the District Court may sentence him to imprisonment for a term not exceeding one year, or to a fine not exceeding $1,000. This is a substantial reduction on the penalties that can be imposed when the offence is treated as an indictable one. There, the maximum sentence is one of seven years imprisonment.

[7] The submissions made to the District Court in support of a discharge without conviction were as follows:

(a) Mr Wildin was made redundant two years ago;

(b) Mr Wildin then became depressed and used illicit drugs;

(c) His arrest was a wake-up call and he has been drug free ever since; (d) He was employed by a company in January 2010; and

(e) In an affidavit Mr Wildin put before the Court, he said that he had been told that a conviction would most likely jeopardise his current employment and that he would definitely be unable to advance within the company. As matters turned out, his employer discovered the offending before Mr Wildin was dealt with in the District Court and he did lose his job. Thus one of the factors Mr Wildin relied on to support a discharge without conviction was removed from consideration. By the time the District Court Judge came to enter a conviction against him and sentence him, he was unemployed once again.

The approach taken in the District Court

[8] The District Court Judge was not convinced that a discharge without conviction would be in the interests of justice in the circumstances of the case. The reasons the District Court Judge gave were as follows:

(a) While the offending was not at the serious end of the scale, it was nonetheless a charge of selling a controlled drug to family and friends;

(b) There was no evidence that entering a conviction would result in an absolute bar to employment, or mean that Mr Wildin could not find employment;

(c) The relevant Sentencing Act 2002 principles, including the need for deterrence, denunciation, and to promote a sense of responsibility were against a discharge without conviction; and

(d) The cases that Mr Wildin relied on were not particularly analogous

with Mr Wildin’s case.

The legislation

[9] The relevant provisions in the Sentencing Act are ss 106 and 107:

106 Discharge without conviction

(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

(2) A discharge under this section is deemed to be an acquittal. (3) A court discharging an offender under this section may—

(a) make an order for payment of costs or the restitution of any property; or

(b) make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—

(i) loss of, or damage to, property; or

(ii) emotional harm; or

(iii) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:

(c) make any order that the court is required to make on conviction.

(3A) If the court is considering making an order under subsection 3(b), it may order a report to be prepared under section 33 as if the court were considering imposing a sentence of reparation.

(4) Despite subsection (3)(b), the court must not order the payment of compensation in respect of any emotional harm, or loss or damage consequential on emotional harm, unless the person who suffered the emotional harm is a person described in paragraph (a) of the definition of “victim” in section 4.

(5) Despite subsection (3)(b), the court must not order the payment of compensation in respect of any consequential loss or damage described in subsection (3)(b)(iii) for which the court believes that a person has entitlements under the [Accident Compensation Act

2001].

(6) When determining the amount of compensation to be paid, the court must take into account any offer, agreement, response, measure, or action as described in section 10.

(7) Nothing in section 320 of the [Accident Compensation Act 2001]

applies to sentencing proceedings.

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.

Appellate principles

[10] The leading authority on ss 106 and 107 is R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222. Hughes makes it clear that there is a two step approach: the first step is to consider whether the s 107 test is met; and if it is, there is an exercise of the discretion under s 106 (at [10]). The s 107 test was described as involving the determination of a question of fact that required judicial assessment, rather than the exercise of judicial discretion (at [11]). This characterisation of the s 107 test means that on appeal, a decision under s 107 is to be approached in accordance with normal appellate principles, and not as an appeal against the exercise of a discretion:

The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles: Rajamani at [5]. The discretionary power of the court to discharge without conviction under s 106 arises and exits only if the court is satisfied that the s 107 threshold has been met.

[11] Later, at [63], the Court of Appeal in Hughes referred to the Supreme Court’s

judgment in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008]

2 NZLR 141 at [16] where the Supreme Court describes how normal appellate principles are to be applied:

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptibility and weight to be accorded to the evidence, other than forming its own opinion.

[12] The Court of Appeal in Hughes found that an appellate court hearing an appeal against a decision to discharge without conviction must approach the assessment of the disproportionality test in s 107 “afresh” (at [64]).

[13] Since Hughes, the Supreme Court has given further guidance on appeal principles. In Kacem v Bashir [2010] NZSC 112, at [31], Tipping J referred to Austin, Nichols and went on to say that whilst an appellate court is required to reach its own conclusion, that does not mean it should disregard the judgment of the lower court. The weight or influence it allows the lower court’s judgment is a matter of assessment for the appellate court. Then Tipping J reaffirmed the key point of Austin, Nichols at [32]:

But, for present purposes, the important point arising from Austin, Nichols is that those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion involves an assessment of fact and degree and entails a value judgment. In this context a general appeal is to be distinguished from an appeal against a decision made in the exercise of a discreiton. In that kind of case the criteria for a successful appeal are stricter: (1) error of law or principle; (2) taking account of irrelevant consideraitons; failing to take account of a relevant consdieration; or (4) the decision is plainly wrong. The distinction between a general appeal and an appeal from a discretion is not altogether easy to describe in the abstract.

[14] Thus, the first step for an appellate court is often to determine whether the appeal before it is a general appeal or an appeal from the exercise of a discretion. However, when it comes to an appeal against a decision on whether or not to order a discharge without conviction, Hughes makes it clear that the appellate court should

start by assessing the sentencing judge’s decision on disproportionality under s 107

afresh.

[15] Hughes also makes it clear that it is only when the Court is satisfied that the disproportionality test is met that the discretionary power under s 106 should be considered, at [22]. Then, the appellate principles relating to an appeal against the exercise of a discretion are to be applied.

The disproportionality test

[16] I now turn to consider whether the direct and indirect consequences of the entry of a conviction against Mr Wildin would be out of all proportion to the gravity of the offence he committed. In making this assessment, I bear in mind that the District Court’s assessment was that the disproportionality of a conviction had not been made out.

[17] There is no onus on Mr Wildin to establish that the disproportionality test has been met: see Hughes at [49]. Nor does he carry any onus to prove the factors he relies on to support his application for a discharge without conviction: see Hughes at [53]. The requirement under s 107 is for the Court to be satisfied, taking into account all relevant material before it, that the disproportionality test has been met: see Hughes at [50]-[53].

[18] The District Court found that the offending was not at the most serious end of the scale. I agree with this assessment. Furthermore, Parliament has recognised that there can be low level dealing in class C controlled drugs through the provision to lay a charge for this offence summarily which results in a significant reduction in the maximum sentence. The police decision to lay the charge summarily is an indication that the police do not consider the offence to be at the serious end of the scale.

[19] Mr Wildin is a first offender. I regard this factor as neutral.

[20] The other factors Mr Wildin relies on do not show that a conviction would be disproportionate. He lost his employment as a result of the charge but before the

conviction was entered. This is not a case, therefore, where a conviction would lead to the loss of employment. There is nothing to suggest that the difficulty Mr Wildin may now encounter in finding new employment will be any worse for him than it would be for other persons with a criminal conviction. This is not a case where the potential loss of employment and the harm that will bring is disproportinately damaging when weighed against the offending. Here the loss has already been sustained; a discharge without conviction could not cure this loss.

[21] There is nothing about Mr Wildin’s other circumstances that would make the entry of a conviction against him disproportionately severe. In this regard, I agree entirely with the District Court Judge who was unable to find anything of substance to support a finding that favoured a discharge without conviction. Her analysis of the legal tests, the case law and the circumstances was careful and conscientous. She could find nothing that distinguished him in a way that made the entry of a conviction disproportionate to his offending. I find myself in the same position. It follows that the grounds for an appeal against the refusal to discharge without conviction have not been made out. The appeal is dismissed.

[22] Regarding the appeal against the sentence, the sentencing notes that are now available do not indicate why the Judge considered that community work was a more appropriate sentence than a fine. Whilst reasons to support a judicial decision are desirable, this is not a case where the absence of reasons is sufficient on its own to vitiate the judgment under appeal: see Lewis v Wilson & Horton Ltd [2000] 3 NZLR

546 at [84].

[23] Section 121 of the Summary Proceedings Act 1957 sets out the grounds for an appeal against sentence. The only ground that may apply here is that the sentence was clearly excessive. None of the other grounds of appeal in s 121 are relevant to this appeal.

[24] Ms Letele argues for a fine. However, she has failed to persuade me that in the circumstances of this offending, the imposition of 200 hours community work is clearly excessive. Whilst a sentence of 200 hours community work on a first offender may be at the upper end of the available sentences for this type of

offending, the sentence does not seem to be clearly excessive. Furthermore, since the loss of his job last year, Mr Wildin may not have the financial resources to pay a fine. One of the consequences of Ms Letele being unable to contact Mr Wildin is that nothing is known about his current circumstances. He must take responsibility for this state of affairs as, having filed a notice of appeal, he should have remained in contact with his counsel. It follows that there is no basis for the appeal against sentence and, therefore, it is dismissed.

Result

[25] The appeals are dismissed.

Duffy J