Dhamija v Police [2012] NZHC 1853 (27 July 2012)

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Dhamija v Police [2012] NZHC 1853 (27 July 2012)

Last Updated: 2 August 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-431 [2012] NZHC 1853

BETWEEN DEEPAK DHAMIJA Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 27 March and 24 July 2012

Appearances: T D Clee for appellant

K Chang for respondent

Judgment: 27 July 2012

JUDGMENT OF ALLAN J [Appeal against sentence and conviction]

This judgment was delivered by me on 27 July 2012 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar

Date: ......................

_{Counsel: T D Clee, Auckland: [e-mail]}

_{Solicitors: Crown Solicitor, Auckland: [e-mail]}

_{Copy: C Newton, Manukau, Auckland: [e-mail]}

DHAMIJA V NZ POLICE HC AK CRI 2011-404-431 [27 July 2012]

[1] Mr Dhamija was convicted on 22 November 2011, following a summary trial before Judge Doherty, on charges of assault on his then wife and of theft of $6,000 from her.1 On 24 November 2011, he was convicted and discharged on each charge but ordered to pay costs of $132.89 and directed to make reparation by payment of

_{$6,000 to the complainant within 28 days.}2

[2] The Judge rejected an application for a discharge without conviction.

[3] On this appeal, the appellant contends that there was a miscarriage of justice arising out of the circumstances in which the Judge decided to proceed with the trial on 22 November 2011, notwithstanding the belief of both parties that it would not proceed on that day. Mr Clee submits that there has been a breach of s 24(d) of the New Zealand Bill of Rights Act 1990 (NZBORA). In the alternative, the appellant argues that he should be discharged without conviction pursuant to s 106 of the Sentencing Act 2002.

Events preceding the trial

[4] The charges arose out of an incident on 1 July 2010. The appellant’s relationship with the complainant had by then become problematic. On that day, he was booked to fly to Sweden to deal with family business. His wife wanted to accompany him but he was unhappy about that. In order to finance the cost of the air ticket and related expenses for herself, the complainant obtained a total of $6,000 in cash from her mother and from ATM withdrawals. While the appellant and the complainant were in a motor vehicle together, an argument developed. The appellant pulled the complainant’s hair, punched her, and then forcibly pushed her head twice into the passenger door window before leaving the car. As he left, he snatched the

$6,000 from her.

[5] The complainant says that she suffered visible injuries as a result. The appellant denied both the assault and the taking of the cash, which he claimed never

_existed.

1 _{Police v Dhamija DC Manukau CRI-2011-092-4517, 22 November 2011.}

2 Police v Dhamija DC Manukau CRI-2011-092-4517, 24 November 2011.

[6] A hearing was initially set down for 25 August 2011, but an adjournment became necessary because the complainant was not available. She was in hospital. The adjourned hearing date was 18 January 2012 but Ms Newton, then counsel for the appellant, sought and obtained an earlier fixture date of 22 November 2011. That was because the delay was causing Mr Dhamija some distress, particularly with respect to his employment as a Senior Officer of the Immigration Service. His position there was potentially in jeopardy. Police witnesses were not told of the

22 November 2011 fixture until 12 November 2011. Unfortunately, they had by then organised an overseas family holiday which clashed with the fixture date. They accordingly told the Police that they would be unavailable to attend the hearing.

[7] On 17 November 2011, Ms Newton for the appellant was told by the Police that the prosecution witnesses would be unavailable for the 22 November hearing and that the Police intended to seek an adjournment on that basis. Ms Newton indicated that she would oppose any adjournment sought. The prosecution witnesses were told by the Police that any adjournment would be opposed by the defence.

[8] On 21 November 2011, Ms Newton filed an application for dismissal of the proceeding for want of prosecution on the basis that this was the second occasion upon which the complainant was unavailable. On that same day, the prosecution witnesses told Sergeant Griffin and a Detective Constable Broad that, in the light of Ms Newton’s refusal to consent to an adjournment, they had decided to cancel their travel plans in order to attend the 22 November hearing and give evidence. But that information was communicated neither to the Police prosecutor assigned to the hearing, Sergeant Adamson, nor to Ms Newton. Sergeant Adamson had intended to seek an adjournment on 22 November 2011 on the basis that the witnesses would be overseas and therefore not available.

[9] But, as previously advised to other Police officers, the complainant and the other Police witness were in fact present in Court on 22 November. Both the prosecutor and Ms Newton were taken by surprise. Ms Newton nevertheless sought an order dismissing the proceeding for want of prosecution. Judge Doherty asked the prosecuting sergeant whether the Police were in a position to proceed. Sergeant Adamson indicated that the Police were in a position to proceed, despite the lack of

preparation. He took that course for the obvious reason that, in so doing, he avoided the risk of the dismissal of the proceeding for want of prosecution.

[10] Ms Newton endeavoured to pursue her application to strike out the proceeding but it rapidly became apparent (from the transcript provided to this Court) that Judge Doherty was determined to proceed. There is no suggestion in the transcript that Ms Newton sought a further adjournment of the trial.

The District Court trial

[11] The trial duly proceeded. Evidence for the prosecution was given by the complainant and her mother. The complainant’s evidence was to the effect that she wished to accompany the appellant to Sweden and that he would take her only if she could raise $10,000. He was to leave later that same day. She obtained $4,400 from her mother, and then accompanied the appellant to the Manukau Mall where she withdrew $1,700 from an automatic teller machine at the National Bank. She produced a bank transaction summary showing two withdrawals of $800 and $900 respectively on that day. But that did not satisfy the appellant. He said he would take her only if she could raise $10,000.

[12] At that point, according to the complainant, the appellant flew into a rage. He pulled her hair, punched her on the side of the face and pushed her head into a panel of the door. He then took the car keys, the house keys and his luggage and walked away, leaving her in the car at the Manukau Mall. As he left, he snatched the

$6,000 in cash from her hands. I infer that he subsequently made his way to the airport and left on a flight to Sweden.

[13] The appellant was the sole witness for the defence. His account was very different. He said that the couple did not have enough money to afford two airfares. He was going to Sweden for a family funeral, but there was not enough money to take the complainant as well. He accepted that there was a row in the car but said that he merely alighted from the vehicle and caught a bus to the airport. He denied any threats and, in particular, denied any knowledge of the existence of a substantial

cash sum. He denied that she had withdrawn any money from the ATM at the

Manukau Mall.

[14] On his version of events, it was the complainant who was driving the vehicle and it was she who declined to drive him to the airport unless he bought her a ticket for the flight. When he walked away from the car, he thought she would follow him but she did not. He accepts that he took the complainant’s house keys with him, but says he later posted them to her.

[15] A particular feature of his evidence was that, if he was correct in his contention that his wife was driving the car, then the injuries she said she had suffered could not have occurred as the result of his having pushed her against the door panel because the injuries were on the wrong side of her face.

[16] The Judge said that he was “... really left with a reasonable doubt as to the credibility of the [appellant]”. He regarded the story about posting the keys back to the complainant as highly implausible. Likewise, he considered the appellant’s theory of the case to have been very unlikely. The complainant produced ATM records which corroborated her evidence that she had withdrawn $1,700 from the ATM in Manukau Mall on 1 July 2010. The Judge said it would have been extraordinary had the complainant, after the event, hatched a plan to make withdrawals from the ATM on 1 July 2010 in order to obtain documentary support for her account.

[17] The Judge also had doubts about the appellant’s explanation of his own financial position and the amount of money he took with him or had available on his credit card.

[18] Despite those reservations, the Judge correctly directed himself to the effect that it remained necessary for the prosecution to establish beyond reasonable doubt that the alleged offences had been committed. For that purpose, the real focus had to be on the evidence of the complainant. He regarded her:3

...as a person who was telling me the truth about the salient issues. I do not think she was a person who had made up a relatively sophisticated allegation, and I refer back to my comments about the withdrawals from the ATM. Nor do I think that she was sophisticated enough to have been indicating under some stress where the injuries occurred with a view to the positioning of those injuries that she described as confirming that she is more likely to have been the passenger than the driver, and thus undermine the credibility of her husband.

[19] In broad terms, the Judge accepted her evidence, notwithstanding as he put it: “... the odd bit of hyperbole”. The Judge was evidently impressed also by the complainant’s expressed desire to salvage the marriage in the face of what had occurred. He concluded that she was a credible and reliable witness. Ultimately, he held that the prosecution had established beyond reasonable doubt that the appellant had struck the complainant, broadly in the manner she described, and that the appellant had seized from her the $6,000 in cash before he left the vehicle.

[20] In essence, the case turned upon the Judge’s assessment of credibility. The Judge accepted the complainant’s evidence and to the extent that the appellant’s evidence differed, he rejected it.

Understand unfair trial?

[21] Section 24(d) of the NZBORA assures the right to everyone charged with an offence to have adequate time and facilities to prepare a defence. Section 25(f) assures to everyone charged with an offence the right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution. These provisions reflect the

earlier common law.4

[22] Mr Clee was initially inclined to argue that the Judge’s decision to proceed with the trial on 22 November 2011 gave rise, of itself, to a breach of the appellant’s right to a fair trial. He said that prejudice can be assumed where, as here, defence counsel arrived at court in the belief that the trial would not proceed and that the only question for determination on that day was whether the charges ought to be dismissed for want of prosecution.

[23] In my view, that states the law rather too broadly. A similar argument was rejected in R v Solomon.5 There, the appellant had been found guilty by a jury in the District Court of injuring with intent to injure. The trial before a judge and jury had occupied just a single day. The appellant and his counsel had understood that the fixture was not for the trial itself but rather for the determination of a preliminary question under s 344A of the Crimes Act 1961 as to the admission of challenged

evidence. The Court of Appeal noted that the appellant and his counsel were, as matters transpired, required to defend the charge unexpectedly and without having had the opportunity for such further preparation as might have occurred if they had had more notice of the trial. Nevertheless, the question for determination was whether that turn of events had given rise to a miscarriage of justice: a matter that required realistic examination in the light of how the case was actually conducted, what the issues were, what the result was and whether, in view of subsequent information, the appellant might have been acquitted if more preparation time had

been available.6

[24] Accordingly, whether or not there has been a miscarriage of justice, is a matter to be determined only following an evaluation of the features and circumstances of the individual case.

[25] As in Solomon, it is not suggested that Ms Newton, having been taken by surprise, was unable to run the defence case at all. Ms Newton had been instructed for some months and indeed, as appears below, she had appeared as counsel for the appellant’s mother who was also charged with assaulting the complainant. That trial, before Judge Inglis, resulted in an acquittal.7 That case related to events on the same day as those with which the present appeal is concerned.

[26] Rather, the appellant’s contention is that the Judge’s decision to proceed with the trial prevented Ms Newton from calling as defence witnesses two Police constables, who had seen the complainant later in the day following the alleged incident. These Police officers gave evidence at the trial of the appellant’s mother

_{that the complainant was carrying no visible injuries. That evidence tended to}

5 _{R v Solomon CA 422/97, 24 February 1998.}

6 _{At 7 and 8.}

7 Police v Kamlesh Dhamija DC Manukau CRI-2010-092-10079, 22 August 2011.

conflict with that of the complainant who said, not only did she sustain visible injuries, but that she went with the two Police constables to the Police station where she was inspected by the female constable, who wore gloves and checked a lump on the complainant’s head. The existence of visible injuries would not of course be determinative, but I accept that it would tend to corroborate the complaint’s evidence.

[27] The hearing of this appeal has been spread over two days, some four months apart. I adjourned the hearing in March, partly because there was nothing before the Court to indicate whether or not the appellant ever actually intended to call the Police constables. At the conclusion of the hearing on 27 March, I delivered a minute in which I asked that Ms Newton file a memorandum setting out in detail her conduct of the case with particular reference to the circumstances in which the hearing proceeded on 22 November 2011 over her objection. She was asked to explain the precise course of events and to annex all relevant documents to any such memorandum. It is implicit in the minute that I required further information about

the giving of additional defence evidence.8

[28] Mr Clee tells the Court that he duly notified Ms Newton of the Court’s requirements. Regrettably, and remarkably, Ms Newton has neglected to file anything, or to assist the Court in any way. It is routine in cases of this sort for trial counsel to furnish either a memorandum or an affidavit, setting in some detail the course of events surrounding a trial which is said to have miscarried. Indeed, trial counsel are under an obligation as officers of the court to assist in that way.

[29] For unexplained reasons, that has simply not occurred here. During the course of the hearing on 24 July, Mr Clee consulted with the appellant (who was in Court) in an endeavour to ascertain whether he and Ms Newton had discussed the calling of the two Police constables. But, as might be expected, he simply indicated that he had left the conduct of the trial in Ms Newton’s hands. He had never been in

_{court on criminal charges before and was utterly reliant upon her.}

8 Dhamija v Police HC Auckland CRI-2011-404-431, 27 March 2012 at [9].

[30] In those circumstances, Mr Clee asks the Court to infer that the constables would have been called, had Ms Newton not been misled about the trial date. I consider that I would not be justified in drawing that inference. The constables may have assisted the appellant’s case in the District Court. They may not. They were certainly not essential witnesses for the defence.

[31] Where an appellant seeks to set aside a trial verdict on the grounds that there has been a miscarriage of justice, it is for the appellant to place before the Court sufficient factual evidence to serve as a proper foundation for the application. Here there is simply a vacuum. The Court just does not know or not whether it was ever intended to call the Police constables. Until 17 November 2011, Ms Newton understood the trial was to proceed on 22 November 2011. In those circumstances, preliminary steps would have been taken to ensure the availability of the Police constables if that had been Ms Newton’s intention.

[32] In any event, having regard to the reasons given by Judge Doherty for his decision to convict the appellant, I doubt that the evidence of the Police constable, if called, would have made any significant difference. The learned Judge took into account a number of matters in reaching his conclusion.9 The extent of the complainant’s injuries does not appear to have influenced him to any significant degree. When sentencing the appellant just two days after the trial, Judge Doherty noted that there were no lasting injuries.10 His reasons for verdict contain no reference to the question of whether injuries were visible or not. But he was influenced by the complainant’s account of the points on her body at which the injuries occurred. The Judge regarded that evidence as consistent with his finding that she was, as she contended, a passenger in the vehicle. The appellant was competently defended by Ms Newton at his trial.

[33] I am not persuaded that there has been a miscarriage of justice in all the

_{circumstances of this case and therefore reject the appellant’s first ground of appeal.}

9 _{See [16] – [19] above.}

10 Dhamija, 24 November 2011 at [8].

Discharge without conviction

[34] The jurisdiction of the Court to discharge without conviction is conferred by ss 106 and 107 of the Sentencing Act 2002 which respectively provide:

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) Sections 32 to 38A apply, with any necessary modifications, to an order under subsection (3)(b) as they apply to a sentence of reparation.

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.

[35] Section 106 confers upon the court a discretion to discharge an offender without conviction for an offence for which the court is not required to impose a minimum sentence. But it may not do so unless it is satisfied that the direct and

indirect consequences of a conviction would be out of all proportion to the gravity of the offence.11 As the Court of Appeal said in R v Hughes:12

... Section 107 thus provides a gateway through which any discharge without conviction must pass. It stipulates a pre-condition to exercise of the discretion under s 106.

[36] A decision as to whether the test under s 107 has been met is not a matter of discretion; rather it is a matter of fact requiring judicial assessment and so is subject to appeal on normal appellate principles.13 The Court’s jurisdiction under ss 106 and

107 involves a three step approach involving, first, consideration of the gravity of the offending, then the consequences of conviction, and finally whether those consequences are out of all proportion to the gravity of the offending. The general sentencing factors set out in ss 7, 8, 10 and 10B are not relevant to that assessment. They are, however, relevant to the residual discretion under s 106 which confers the jurisdiction to discharge without conviction. It will, nevertheless, be rare for a discharge not to be granted under s 106 where the requirements of s 107 are

satisfied.14

[37] The learned District Court Judge was asked to discharge the appellant without conviction. In considering that submission, he correctly considered first the gravity of the offending. As to the assault, he noted that the appellant pulled his wife’s hair and punched her face, resulting in a sore jaw. He accepted also in his sentencing remarks that she had a bruise on her head which had struck a panel of the door of the car in which she was sitting. He noted that the theft offence related to the snatching of the $6,000 in cash, which the Judge said had been raised by the complainant and her mother in an attempt to convince the appellant that he should buy the complainant an air ticket and take her to Sweden.

[38] The Judge next took into account the absence of any previous convictions and a number of references from persons in the community which indicated that the

_{appellant was generally a law-abiding citizen of good character. However, as he was}

11 _{Sentencing Act 2002, s 107.}

12 _{R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].}

13 Hughes at [11]; Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR

_141.

14 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.

entitled to do, the Judge observed that those references must be considered in the light of his factual findings. As to overall culpability, he noted that the complainant suffered no lasting injuries and that the assault involved quite “a lashing out and not some continuing assault”.15 But he thought overall culpability was relatively high when he took into account both the assault and the theft.

[39] He then turned to the potential consequences of any conviction. He identified a potential difficulty with citizenship or residency, although this is not advanced on appeal as a significant factor. But, importantly, he considered the possibility of dismissal from or demotion in, his employment. The Judge said “I do not think that

it can be put any higher than the fact that there is a possibility”.16

[40] The appellant was employed by the Immigration Service in a position senior enough to require him to have a security certificate. Letters produced to the Judge from the Manager of Border Operation Immigration New Zealand indicated that the appellant’s employment was under review and that, even if he was acquitted, there would be no automatic guarantee that his security clearance would be continued or renewed. One of the letters referred to the Department of Labour’s Code of Conduct which provides:

Criminal offending outside your role as an employee will be treated on its merits as part of your fitness for continued employment, but as a general rule, if you are convicted of a criminal offence that would attract a prison terms, you may be dismissed.

[41] The Judge found that there was nothing to suggest that the appellant would actually be sacked, and that in any event, if he was sacked, that would be just as much referable to the appellant’s overall behaviour as to the fact of a conviction. The Judge concluded by accepting the Police submission that the appellant’s behaviour was of the sort that ought to be assessed by an employer:17

... particularly for those who are in important positions or seeking to remain or be admitted to this country. Those who make such assessments will do so under their own criteria ...

15 _{Dhamija, 24 November 2011 at [8].}

16 _{At [8].}

17 At [12].

[42] The Judge found that the uncertain consequences of a conviction did not outweigh the appellant’s overall culpability. He therefore convicted and discharged the appellant and made orders for the payment of costs and reparation.

[43] Following sentencing, the appellant was suspended on full pay on

21 December 2011 for a period of two months. The letter from the Department of Labour informing the appellant of the suspension decision, advised that a conviction for theft “raises concerns with us about your honesty and integrity”, while an assault conviction “raises questions about whether you may be volatile in the work environment”.

[44] On 29 February 2012, following a disciplinary hearing, the appellant was dismissed from his employment in the Immigration Service. Although there is no updating affidavit, Mr Clee advises the Court from the Bar that Mr Dhamija has failed to obtain alternative employment. He is seeking a job at the same high level as his former employment and is finding that the conviction is a barrier. Mr Clee submits that this Court on appeal ought to put to one side Judge Doherty’s refusal to discharge the appellant without conviction, and engage in a fresh assessment.

[45] That contention rests on two grounds. The first is that the Judge was wrong to conclude that the appellant might not lose his employment. He did ultimately lose it. The second is that the Judge may have been influenced by advice conveyed to him by the prosecuting sergeant, to the effect that the appellant had recently drained a family bank account of some $47,000. Mr Clee says that there was no truth in that contention but that the Judge may have been coloured in his view of the appellant by that contention. But it is plain from the transcript that the Judge was not influenced at all by that consideration, which he regarded as a matter for the Family Court.

[46] I accept that the actual loss of employment is a fresh factor to be taken into account but, in any event, given the proper approach to the exercise of this Court’s appellate jurisdiction, it is unnecessary for Mr Clee to establish that the Judge made a reviewable error. The question of whether the test under s 107 has been met is a

matter to be considered afresh by the appellate court in accordance with normal principles.18

[47] I turn to a brief consideration of the gravity of the offending. Mr Clee submits that, judged against the spectrum of family violence cases, this case falls towards the lower end of culpability. There is substance in that submission if, at the higher end, one includes cases of serious violence over a prolonged period.

[48] But, as Ms Chang submits, this offending cannot simply be dismissed as minor. There was actual violence involving the pulling of the complainant’s hair, the throwing of a punch to the face and the pushing of the complainant’s head against a door panel with a resulting injury (although it appears not to have been particularly significant). The fact that the appellant chose to attack the complainant’s head is an aggravating factor. The violence becomes no less serious simply because it occurred in a domestic context. I accept, however, as Judge Doherty found, that the injuries were not of a lasting character.

[49] The theft involved a substantial sum, but the gravity of that offence is perhaps ameliorated somewhat by reference to the fact that it occurred in a family setting. Having said that, the evidence indicates that most of the money belonged to the complainant’s mother and so involved the taking of property that was not relationship property. The Judge considered the gravity of the offending to have

been “relatively high”.19 If by that, he meant that it was not trivial offending, then

the Judge’s assessment was, in my view, correct.

[50] I turn to the consequences of a conviction. In the District Court the argument for a discharge was advanced on the following grounds:

(a) A conviction would preclude the appellant from obtaining the necessary security clearance required for him to continue in his

_{existing position as an immigration officer’}

18 _{Summary Proceeding Act 1957, s 119(1); Hughes at [11].}

19 Dhamija, 24 November 2011 at [8].

(b) He could lose his employment with Immigration New Zealand altogether;

(c) The appellant is the sole provider for his mother who is in New Zealand on a temporary visa. A conviction on his record would affect her application for residency;

(d) The loss of his employment would make it more difficult for him to support his mother and to meet his reparation obligations to the complainant.

[51] The appellant has now lost his employment. There is nothing before this Court about the consequences for the appellant’s mother of the fact that the appellant is unemployed. I accept Ms Chang’s submission that the indirect consequences of a conviction relied upon by the appellant are largely speculative.

[52] The Court is told from the Bar that the appellant is having trouble finding another job and that the conviction is causing difficulties in that respect. Putting aside the inherent problem of accepting general assertions from the Bar, I accept that the Court is entitled to assume in a general way that the existence of a conviction may make the task of job hunting more difficult.20 But that is simply a general consideration which will seldom be determinative in cases where the offending is anything but very minor.

[53] Two matters require separate attention: first, it seems from Mr Clee’s submission that the appellant has been looking for work at the same level of seniority and responsibility as he undertook in his former employment. The court tends, where employment depends upon the decision of a licensing body, to refuse a discharge without conviction on the grounds that it is for the body concerned to make the relevant decision in the light of all the available material, including the

_{offending and the fact of the conviction.}21

20 Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007; Tahitahi v Police [2012] NZHC

_{663 at [28].}

21 R v Foox [2000] 1 NZLR 641 (CA) at [39].

[54] By analogy, where an offender proposes to seek high level employment, there is much to be said for the view that the offending ought not to be concealed from a prospective employer. Of course, that consideration will carry less weight where the offending is relatively minor and so likely to be of little account in the making of an employment decision.

[55] The second consideration is allied to the first. Mr Clee told the Court from the Bar that Mr Dhamija is experiencing particular difficulty in obtaining alternative employment because major employers are requiring information, not only of convictions, but in a number of instances, about criminal charges, including cases where diversion is granted. In such circumstances, a discharge without conviction will provide no assistance to the appellant because he will have to disclose the offending in any event.

[56] On the material available to this Court, it is clear that the principal consequence of a conviction is employment-related. The appellant lost his job with the Immigration Service after he was convicted, but it seems that his employers’ concern went to the appellant’s underlying behaviour just as much as to the fact of the conviction itself. The appellant is now experiencing problems in obtaining alternative employment at an equivalent level, but the information provided by Mr Clee, suggests that some major employers are requiring the disclosure of criminal charges as well as convictions. A discharge without conviction will not assist in that respect.

[57] The next step is to consider whether the direct and indirect consequences of the convictions would be out of all proportion to the gravity of the offending. In my view, they would not. The offending cannot be dismissed as minor. On the other hand, the consequences of a conviction, while tangible, are not so serious as to be out of all proportion to the gravity of the offending. Accordingly, the question of the exercise of the Court’s discretion does not arise.

Result

[58] I am satisfied that there are no grounds upon which it would be proper to quash the appellant’s convictions. Likewise, the pre-requisites to a discharge without conviction have not been met.

_{[59] Accordingly the appeal is dismissed.}

C J Allan J