Blay v Police [2014] NZHC 2923 (24 November 2014)

Last Updated: 24 March 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000213 [2014] NZHC 2923

BETWEEN	DYLAN FRANCESC KITE BLAY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	6 October 2014
Counsel:	S D Oliver for the Appellant T Hu for the Respondent
Judgment:	24 November 2014

JUDGMENT OF DUFFY J

_{[re Appeal Against Refusal to Discharge Without Conviction]}

This judgment was delivered by Justice Duffy on 24 November 2014 at 4.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors: Ministry of Justice (Public Defence Service), Auckland

_{Meredith Connell, Auckland}

BLAY v POLICE [2014] NZHC 2923 [24 November 2014]

[1] The appellant appeals against the refusal by the District Court to grant a discharge without conviction for the offence of assault with intent to injure. The maximum penalty is three years’ imprisonment under s 193 of the Crimes Act 1961. The appeal is opposed.

Background facts

[2] On 9 March 2013, the appellant and the victim attended the same party. At the time, the appellant was a year 13 high school student. During the course of the night, the appellant and the victim were involved in a verbal confrontation and exchanged verbal insults. At 11.30 pm when the party ended, the victim walked out of the front gate of the address and waited with friends for a taxi. The appellant, who was intoxicated, approached the victim and, without warning, punched the victim in the face with a closed fist. The force knocked the victim onto his back.

[3] The victim’s friends intervened, and the appellant walked away. The victim suffered a damaged retina, a swollen wrist, and abrasions and lacerations to his face.

[4] Since the offending, and before a complaint was made to the police, the victim’s family and the appellant’s family have met. The victim’s father sought reparation of $3,000. The appellant could not pay this, as he was still at school. Later there was a second meeting arranged by the victim’s father. At this meeting, the appellant signed a contract stating he would pay the victim $3,000. The appellant was working by then and so was in a position to pay reparation. He set up an automatic weekly payment of $60 to the bank account stipulated in the contract. At the time he was sentenced, he had paid $900 in reparation.

District Court decision

[5] On 17 June 2014, Judge J P Gittos sentenced the appellant after a plea of guilty. The Judge canvassed the background facts above and noted that there was the possibility of permanent eye injury resulting from the assault. The appellant sought a discharge without conviction. The Judge noted that he was only 17 years old at the time of the offending. The appellant submitted that a conviction may be an obstacle

for him to visit his father in Spain and may be detrimental to his employment prospects.

[6] The Judge noted that the appellant had paid some $900 to the victim as compensation, and had voluntarily taken some steps to seek counselling for alcohol and violence issues.

[7] The Judge was not persuaded that the threshold test under s 107 of the Sentencing Act 2002 was met. He said that for gratuitous violence against an unprepared and vulnerable victim, the hurdle was difficult to surmount. He then referred to “so called king hits amongst young people” and that this incident was an example of that kind of behaviour that is now a public concern.

[8] The Judge was persuaded that any disadvantages in a conviction for the appellant would be applicable to any other young person facing a conviction for this charge. Nothing specific about the appellant’s travel plans or his future work prospects were put forward.

[9] The Judge did not refer to an appropriate starting point in terms of sentence, but reached an end sentence of 60 hours’ community work. He noted that whilst the appellant had engaged voluntarily in rehabilitative interventions, a punitive sanction with supervision was still required. The appellant was placed on supervision for nine months.

Appellant’s submissions

[10] The appellant is 19 years of age and was 17 years old at the time of the offending. He has no previous convictions.

[11] The appellant submits that Judge Gittos erred in the exercise of his discretion under s 107 of the Sentencing Act and did not fully consider the test for a discharge without conviction.

[12] The appellant submits that whilst the assault had relatively serious consequences for the victim, this must not overwhelm the assessment of the gravity

of the offending and the fact that it was a one punch assault. The appellant submits that the Judge placed undue weight on the victim impact statement and the potential consequences of a “king hit”.

[13] The appellant submits further that the Judge failed to take into account all mitigating factors relating to the appellant personally in assessing the gravity of the offending. In addition, the Judge failed to consider that the appellant entered a guilty plea to the amended summary of facts at the earliest opportunity and conveyed genuine remorse. Further, the Judge failed to consider the appellant’s good character and his lack of previous convictions.

[14] Regarding the consequences of the offending, the appellant cites authorities that have discharged a young offender without conviction: see R v M [2014] NZHC

1848, and Rodrigo v New Zealand Police [2014] NZCA 68. The appellant also relies on Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 where the Court of Appeal referred to the relevance of youth on the question of intent, namely that adolescents are “less inclined to assign weight to consequences over the immediate risks and thrill of the current challenge”: [11] and [53]. Youth also have a diminished ability to control impulsitivity.

Respondent’s submissions

[15] The respondent submits that the Judge did not err in his approach to the s 107 analysis and that the appeal should be dismissed.

[16] The respondent submits that in light of the injuries suffered by the victim, the Judge placed the correct amount of weight on the victim impact statement. The respondent says that the reference to “king hits” amongst youth was a comment relevant to the need for deterrence and denunciation, and the Judge did not place undue weight on this factor.

[17] Regarding the gravity of the offending, the respondent submits that the Judge did not err in noting that there was a possibility of permanent eye injury, as it was a proper inference to draw from the victim impact statement. In terms of personal

mitigating factors, the respondent submits that even if the various mitigating factors are taken into account, the Judge’s assessment of the gravity of the offending still stands. Further, the Court should be cautious about placing too much weight on the appellant’s early guilty plea, as accepting a plea to an amended charge can be a concession in itself.

Discharge without conviction

[18] The relevant sections of the Sentencing Act 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.

...

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.

[19] It was established in R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11] that:

[10] ... the court must first consider whether the disproportionality test in s 107 has been met. If (and only if) the court is satisfied the s 107 threshold has been met, may the court proceed to consider exercise of the discretion to discharge without conviction under s 106.

[11] 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 para 5. The discretionary power of the Court to discharge without conviction under s 106 arises and exists only if the Court is satisfied that the s 107 threshold has been met.

[20] Therefore, the normal appellate principles set out under Rajamani v R [2007] NZSC 68, [2008] 1 NZLR 723 at [5] apply to the s 107 analysis.

[21] The approach to s 107 assessments was recently formulated by a Divisional Court of the Court of Appeal in A (CA747/10) v R [2011] NZCA 328; and later approved by the permanent Court of Appeal in Z (CA447/12) v R [2012] NZCA

599, [2013] NZAR 142 at [27]:

For our part, we consider that there is much to be said for the approach adopted by the Divisional Court in A(CA747/2010). That is: when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).

[22] I propose, therefore, to approach the present appeal by:

(a) Considering the gravity of the offending by reference to all aggravating and mitigating factors relating both to the offending and the offender;

(b) Identifying the direct and indirect consequences for the appellant, and considering if those consequences are out of all proportion to the gravity of the offence;

(c) Depending upon the answer to the above questions, I will then consider the exercise of the discretion under s 106.

Gravity of the offending

[23] With regards to the gravity of the offending, the appellant argues that Judge Gittos placed undue weight on the victim impact statement, and erred in noting that “there is a possibility of permanent eye injury resulting from this episode”, although this fact is not in the summary of facts.

[24] A judge should not refer to an aggravating or mitigating fact that is not in the agreed summary of facts. Ordinarily, a guilty plea entails the acknowledgement that the offending is as is disclosed in the summary of facts. Under s 24 of the Sentencing Act, if an aggravating fact is relevant, is asserted by the prosecution and disputed by the offender, a disputed facts hearing is required. That did not occur here. In this case, there is no doubt that the victim suffered a damaged left retina. This is in the summary of facts. In the victim impact statement, the victim expands on that damage by stating that “there is a long term chance the damaged retina [will] detach again”. The Judge drew the inference from this statement that there might be permanent eye damage.

[25] The Judge should not have drawn such an inference. The possibility of permanent eye injury seems to me to be an aggravating fact that is beyond the reference to a “damaged left retina” in the summary of facts. Since the appellant did not accept that there was this damage, if the prosecution wanted to maintain that there was, then there should have been a disputed facts hearing. On the other hand, I consider that it was open to the Judge to take from the summary of facts the understanding that the victim fears the possibility of permanent eye injury. This I think is the better way of looking at the information from the victim impact report.

[26] I propose to assess the gravity of the offending without considering the possibility of permanent eye injury, as this was not explicitly stated in the summary of facts or the victim impact statement. Though I will treat the offending as something that has left the victim with a fear of permanent eye injury.

[27] The appellant is correct in pointing out that Judge Gittos referred to the summary of facts incorrectly by stating that “the defendant was challenging the other party to a fight”. The summary of facts is clear that the appellant and the victim had “exchanged verbal insults after the victim had prevented a fight between their friends”. Without knowing more about the nature of the verbal insults exchanged, it is difficult to take them into consideration, other than as background to the offence.

[28] The offending involved a single unexpected punch to the victim’s face that caused significant injuries. The victim and the appellant knew each other. They had both been guests at a private house that night. There is nothing to suggest that the victim provoked the appellant in any way before the assault.

[29] There are some similarities here with the offending in R v M where Winkelmann J discharged M without conviction for the offence of assault with intent to injure. First, the offences are the same. Secondly, in that case, the offender struck one blow with a fist to the victim’s neck, which, like the face, is a vulnerable part of the body. The victim in R v M did not see the blow coming. Then M and his brother delivered several other punches to the victim’s torso. However, in contrast to the present case, the punches that were delivered in R v M did not cause injury in and of themselves: see [27] of the sentencing notes. The punches that were thrown in that case are described as being “thrown in the context of a schoolyard fight”: also at [27]. Here, the one punch that the appellant delivered to the victim’s face did result in a moderately serious injury that has left the victim fearful of the possibility of more damage to come.

[30] I consider that the greater number of punches and the number of assailants that were involved in R v M balances the fact that here, the one punch resulted in more serious injuries than in R v M. However, there is another factor of R v M that is distinguishable from the current facts. It was noted at [28] that M’s actions were in defence of his brother. M was not “maliciously” involved in the events; he acted reactively and there was no pre-meditation: [28]. In the appellant’s case here, there is no evidence to suggest that he acted in defence, or that his actions were a reaction to the events surrounding him. Therefore, I consider the seriousness of the offending in this case to be very slightly more serious than in R v M.

[31] I acknowledge that ordinarily, offending of this nature can attract a starting point of imprisonment.

[32] Turning to aggravating and mitigating factors of the offender, the appellant has no criminal history, so there are no aggravating factors personal to him.

[33] In terms of personal mitigating factors, there is the appellant’s remorse, which he has expressed through voluntary payment of reparation of $900 to date, with the prospect of a payment up to the sum of $3,000. He is a first time offender, which points towards his previous good character. There is also the appellant’s self- referral to rehabilitative programmes, which is to his credit.

[34] Then there is the appellant’s guilty plea. I note the Crown’s reservations of the weight to be awarded to a guilty plea that came after a concession in the seriousness of the charge. However, I do not see matters that way. The denial of the more serious charge can simply be attributed to the fact that the charge was pitched too highly and once the prosecution laid a charge that properly reflected the appellant’s culpability, he admitted to it.

[35] A further mitigating factor is his youth. He was 17 years of age at the time of the offending. He is now 19 years old. In R v M at [29], Winkelmann J treated the offender’s age (17 years old) as being very relevant to assessing his culpability:

I regard your age as very relevant in assessing your culpability. Youth is a relevant factor in sentencing. As I have said, it is relevant because of the particular interest society has in ensuring that young offenders can be rehabilitated to be contributing members of society. But it is also relevant because the law recognises that young people may in some circumstances be less culpable for their offending. This is because young people are less able than adults to make good choices as to their actions and to control impulses. In her report, Dr Blackwell says something of the reasons for this. Adolescents, especially boys, do not reach full development of their brain functioning until their early to mid-20s. The part of the brain which governs planning, appreciation of consequences and impulse control, is not fully developed for many boys prior to the age of 19. When this fact is combined with the higher levels of testosterone in young men, it often if not frequently produces flawed decision making.

[36] Similar views on the impact of youth on the appreciation of consequences and impulse control are stated by the Court of Appeal in Churchward, though that

case does not involve a discharge without conviction. At [50] to [55], the Court of

Appeal referred to expert opinion on this topic stating:

[50] As we mentioned above, Dr Chaplow’s report also summarises the leading literature on adolescent brain development. He points to several key

characteristics of adolescence that are recognised by developmental psychology research: deficiencies in decision-making ability, greater vulnerability to external coercion, and the relatively unformed nature of the adolescent character.

[51] He notes that diminished decision-making ability amongst adolescents is exhibited with regard to “hot” processing (that is, in real life, coercive situations), and can be attributed to the fact that adolescents are less efficient than adults in processing information and lack life experience.

[52] Further, psychosocial and emotional influences can contribute to immature judgements and, therefore, bad choices. During adolescence, the developing brain is very much influenced by social factors such as family stability and the use of substances, including alcohol and drugs. Substantial research also supports the view that adolescents are more orientated towards peers and responsive to peer influence than adults and have a diminished ability to control impulsive behaviour.

[53] Dr Chaplow also points to research suggesting that adolescents have

^{less future orientation than adults, tending to focus on the “here and now‟}

^{rather than long-term consequences. Research findings suggest that}

adolescents discount risks and calculate rewards quite differently from adults, tending to assign less weight to consequences over the immediate risk

and thrill of the current challenge. This is not because adolescents are less

knowledgeable about risks, but because they attach different values to rewards that risk-taking provides.

[54] Further, according to developmental psychology research, the task of adolescence is primarily concerned with the formation of personal identity and, where that process is disrupted, problems often result. Identity formation concerns values, plans, attitudes, beliefs, work choices, sexual orientation and partner choices. The process of “finding oneself” tends to lend itself to experimentation which, for some adolescents in unstable environments, means engaging in risky activities.

[55] Finally, Dr Chaplow distinguishes between two primary groups of offenders: those dubbed “Adolescents-Limited”, typical delinquents whose involvement in crime begins and ends in adolescence; and a much smaller

^{group of youths labelled “Life-Course-Persistent Offenders”. This group’s}

^{anti-social conduct begins in childhood and continues into adulthood.}

[37] Whilst Ms Churchward had a more troubled background and personal issues than the appellant has, much of what is said in those references to Dr Chaplow’s opinion can be applied to youth in general.

[38] The sudden unprovoked and unexpected attack by someone with an unblemished history, as has happened here, is consistent with the description given in R v M and in Churchward of impulsive, youthful conduct that is activated by poor choices. Whilst the appellant has not presented expert reports along the lines of those provided in R v M and in Churchward, I consider that I can take judicial notice of what has been said by the experts in those cases, and where it appears to be of general application to apply the ideas to the present case.

[39] There is no evidence to suggest that the appellant set out to injure the victim’s eye. The assault has all the hallmarks of an impulsive spur of the moment attack by one adolescent on another.

[40] The personal mitigating factors that I have identified go a significant way to diminish the gravity of the offending.

Direct and indirect consequences of a conviction

[41] Randerson J’s comments in Iosefa v Police HC Christchurch CIV-2005-409-

64, 21 April 2005, are often cited under this consideration:

[34] ... [I]t is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient if the Court is satisfied that there is a real and appreciable risk that such consequences would occur.

[35] However, the nature and seriousness of the consequences and the degree of likelihood of their occurring will be material to the Court's assessment of whether those consequences would be out of all proportion to the gravity of the offence. In other words, the higher the likelihood and the more serious the consequences, the more likely it is that the statutory test can be satisfied.

[42] The Court in Police v M [2013] NZHC 1101, (2013) 26 CRNZ 308 also cautioned against granting a discharge when the consequences are unclear and where there is insufficient evidence to support counsel’s assertion as to the consequences. In that case, Allan J held there was insufficient material to support a finding that the consequence of a conviction was out of proportion to the gravity of the offence. There was nothing to support the assertion that a conviction would ruin the

appellant’s chances to travel to England, and that she would not be able to obtain an employment position that she had accepted.

[43] The appellant submits that a conviction may preclude him from visiting his father, who resides in Spain, though he supplied nothing to support the idea that a conviction would preclude entry into Spain. At the time that he appeared in the District Court, he had not informed his employer of the offending. He had by the time of the appeal and he had sought supporting evidence from the employer regarding the consequences of a conviction, but this was not forthcoming.

[44] Following Police v M, I consider there is insufficient material put forward to support the consequences that the conviction may prevent the appellant from travelling to Spain, or to prevent him from taking up an apprenticeship in Spain.

[45] For the appeal, the appellant provided a reference from his stepfather. The reference confirms that the appellant’s father lives in Spain and that the appellant has hopes of obtaining employment in Spain as an apprentice chef. The Crown opposed the introduction of the reference as new evidence on appeal, which it contended did not meet the settled tests for admission. I do not propose to deal with the reference in a formal way, as I am of the opinion that it does not provide sufficient material to support the view that a conviction would be an obstacle to the appellant living and working in Spain. Insofar as the reference describes the offending as out of character, that is already apparent to me.

[46] In the end, all that there is available to me is the obvious point that a conviction will have a detrimental impact on the appellant and may be a hindrance to him in the future.

Proportionally

[47] I now have to assess whether the consequences are out of proportion to the gravity of the offending.

[48] The respondent cites the case Vaipo v Police HC Auckland CRI-2011-404-

141, 29 July 2011, where Gendall J said:

[18] What then can be identified as the consequences of these convictions? They are only those of general prejudice or possible difficulty when it comes to future employment. But they are no more than would usually arise whenever a person has a prior conviction. The evidence was that the appellant was on a benefit and cares for her daughter and is concerned that convictions might jeopardise her employment opportunities in the future. Naturally, any conviction may have some impact upon employment and carry some difficulty in obtaining a certain type of employment. But much will depend upon what that is. Nothing specific was tendered to this Court about employment opportunities or how the consequences of convictions might impinge upon them. It is entirely speculative and no more than the general consequences would inevitably flow from convictions for family or “domestic” assaults.

These comments were made in the context of two charges of assault where the appellant was sentenced to 80 hours’ community work.

[49] On this approach, it could be argued that the consequences of the appellant’s conviction in this case are no more than what would usually arise when a person has a conviction. All convictions have some adverse impact upon employment prospects, but this consequence fulfils the deterrence function of convictions.

[50] On the other hand, the appellant cites successful discharge without conviction cases that involved youth. In R v M, Winkelmann J stressed that:

[38] ... I consider that there is a real and appreciable risk that your transition into adulthood, given your current prospects and educational ambitions, will be significantly prejudiced should a conviction for violence be entered against you. The fact of a criminal conviction can significantly damage a young person's employment and educational opportunities and have an exaggerated impact upon their development. Such convictions can have a disproportionate impact on the ability of a young person to gain meaningful employment and to play a worthwhile role in society.

[51] In that case, Winkelmann J had the advantage of assessing a report prepared by a clinical psychologist, and various testimonials that referred to M as a hardworking and decent young man. There are also the special circumstances of that case in that the victim had died following the assault, although the assault could not be said to be responsible for the victim’s death. Nonetheless, the Judge considered that M had already faced consequences for his offending, namely that he had to deal

with the stress of a charge of manslaughter, he was unable to complete secondary school and he was socially isolated from his school peers. Further, he will have to live his life knowing that he played a role in the events that ended the victim’s life. I consider that the totality of these factors in R v M make the case distinguishable from the present.

[52] The appellant also cites Rodrigo v Police where the appellant was charged with supplying a class B drug and was sentenced to 10 months’ home detention. The Court of Appeal noted the appellant’s diagnosis of ADHD, which the appellant’s doctor opined that if the appellant had been receiving treatment prior to the offending, it was likely that such offending would not have taken place. The Court assessed the appellant’s likelihood of reoffending as low. The Court discharged the appellant without conviction, noting that the gravity of the offending was at the low end of the spectrum. The Court in Rodrigo was heavily influenced by the diagnosis of ADHD, which lowered the gravity of the offending. Therefore, I consider that case to be of limited utility to the appellant’s appeal.

[53] I have also found the case C v Police HC Auckland CRI-2009-404-23, 2 June

2009, to be useful. In that case, the appellant successfully obtained a discharge without conviction for a charge of injuring his then 14 year old sister with reckless disregard for her safety. The appellant was 18 years of age when the offence was committed. The appellant’s sister was in his care and he was concerned that she had been smoking marijuana. He gave her the option of giving rise to the offence, or to accept having her tongue cut out. The appellant then took her tongue with a pair of pliers. This frightened his sister and caused a cut to the tongue as she drew back out of fear. The appellant never intended to carry out his threat.

[54] Keane J took into account the appellant’s employment as a carer for intellectually disabled children, and the exemplary references from a former employer and co-worker. The Judge concluded that the natural consequence of the appellant’s conviction outweighed the gravity of his offending, especially as the appellant had displayed real aptitude in his chosen field of work.

[55] Unlike C v Police, the offending here is not intimately linked with the

appellant’s perceived ability to perform in his chosen field of work.

[56] Other cases that take a similar approach to R v M in giving weight to the ordinary consequences of a conviction are Evans v Police HC Wellington CRI-2009-

485-97, 27 October 2009, and Nash v Police HC Wellington CRI-2009-485-07,

18 May 2009. Both were successful discharge without conviction cases. In Evans v Police, the offender was 20 years of age when he was charged with offering to sell cannabis. Mallon J considered the gravity of the offending to be low. In terms of consequences, the Judge said:

[14] The evidence of direct consequences is not particular strong. The usual reference is made to travel difficulties but the evidence does not suggest that Mr Evans will not be able to gain visas to the countries he would like to travel to. ...

[15] However the Courts have been prepared to accept that adverse consequences can flow from convictions. In a variety of ways (eg. Employment, immigration and insurance) people are asked to disclose whether they have criminal convictions.

[57] After noting these consequences, Mallon J stressed that (emphasis added):

[17] I am conscious that not every instance of cannabis offending of a minor nature by a young person who has prospects will always warrant a discharge without conviction. Each case must be considered on its own merits.

[58] Likewise in Nash v Police, where the offender was charged with assault against his partner, Mallon J adopted similar reasoning. Despite the lack of specific consequences to employment or other prospects, the Judge was satisfied that the “general consequences of conviction which may operate to Mr Nash’s disadvantage are out of all proportion to the gravity of the offending”: [20].

[59] There are floodgate concerns here because of the statutory requirement to sentence consistently. The principle in s 8(e) in the Sentencing Act provides:

8 Principles of sentencing or otherwise dealing with offenders

In sentencing or otherwise dealing with an offender the court—

...

(e) must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances;

...

[60] If a discharge without conviction were granted here, it could induce a flood of similar applications to the Court in circumstances where a young offender does not want to face the general consequences of a conviction. Regrettably, the appellant presents as one of many young offenders who, owing to the factors identified in R v M and Churchward, have, through their immaturity, impulsitivity and poor choices, found themselves before the Courts. I consider that where the only consequences put forward are general, something extra is needed to reduce the gravity of the offence before a discharge without conviction can be granted.

[61] On the evidence before me, I am unwilling to discharge the appellant without conviction. Unlike the offenders in the cases that I have referred to, the appellant has been unable to point to any factors that enable me to see the consequences of the offending as being out of proportion to the gravity of the offence. In all the cases cited above, there were unique factors of the offending present. In Evans v Police, drunkenness led the offender to act out of character, and the offender had no plan to complete any transaction to sell cannabis. In Nash v Police, the offender’s partner supported the discharge without conviction application, and the couple had completed relationship counselling. In R v M, there were factors that reduced the gravity of what, in principle, was a serious offence. I have already explained how R v M and Rodrigo are distinguishable. I give weight to Mallon J’s statement in Evans v Police that each case must be considered on its own merits. For the reasons above, I am not satisfied that the s 107 threshold is met.

Result

[62] The appeal is dismissed.

Duffy J