PETERSEN v NEW ZEALAND POLICE [2019] NZHC 3091

PETERSEN v NEW ZEALAND POLICE [2019] NZHC 3091 [26 November 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-386[2019] NZHC 3091BETWEEN BJORN PAORA TE IWI PETERSENAppellantAND NEW ZEALAND POLICERespondentDate of hearing: 26 November 2019Appearances: P J Barrowclough for the appellantM J Mortimer for the respondentDate of judgment: 26 November 2019ORAL JUDGMENT OF JAGOSE JSolicitors/Counsel:Paul Barrowclough Barrister, AucklandMeredith Connell, Auckalnd[1] Bjorn Petersen pleaded guilty to possessing cannabis for the purpose of sale on21 January 2019.1 He was sentenced to 12 months' supervision by Judge A M Manuelin the District Court at Auckland on 8 August 2019.2 Mr Petersen appeals against theJudge's refusal to grant him a discharge without conviction, as he had sought.Background[2] Mr Petersen is a 38-year-old sous chef. At about 8.30 pm on Thursday, 6December 2018, he was stopped at a police checkpoint in Auckland's Westmere.Police noted a strong smell of cannabis coming from his vehicle. Mr Petersen toldthem he had cannabis inside a backpack on the back seat. Police found 65 grams ofcannabis plant in 11 clear ziplock bags categorised by weight and value in thebackpack, and $1610 in cash in Mr Petersen's wallet. He admitted he sold cannabis,and the cash was from his sales.Judgment under appeal[3] Mr Petersen was entitled to be discharged without conviction only if the directand indirect consequences of his conviction would be out of all proportion to thegravity of the offence.3 Only then may the sentencing judge decide if to exerciseresidual discretion. The proportionality test is a question of fact requiring judicialassessment. There must be a "real and appreciable" risk any given consequence willarise; this recognises the court is assessing future likelihood.4[4] Judge Manuel began by considering the gravity of the offending. Sheconsidered the offending was "at a moderate level".5 There was a certain sophisticationabout the offending, and Mr Petersen admitted he had been dealing cannabis for the1 Misuse of Drugs Act 1975, s 6(1)(e) and (f) and (2)(c). Maximum penalty is 8 years' imprisonment.The charging document referred only to s 6(1)(f) and "possession for supply", which is how theDistrict Court Judge also refers to the offending. Paragraph (f) refers to "possession for any of thepurposes set out in paragraphs (c), (d), or (e)". 'Supply' in the applicable paragraph (d) is to peopleunder 18 years of age. Supply otherwise is addressed in s 7. There is no allegation of supply toyouth in the summary of facts or evidence. Mr Petersen admits he sold cannabis. Counsel agreethat is the correct characterisation of the offending: possession under paragraph (f) for the purposeset out in paragraph (e): to "sell, or offer to sell, any Class C controlled drug to a person of or over18 years of age". Hence my description of Mr Petersen's guilty plea.2 New Zealand Police v Petersen [2019] NZDC 15388.3 Sentencing Act 2002, s 107; and Scott v R [2019] NZCA 261 at [78]–[80].4 DC (CA47/2013) v R [2013] NZCA 255 at [43].5 New Zealand Police v Petersen, above n 2, at [9].past eight months. Against that, the Judge acknowledged his constructive andsupportive working and family history, and lack of previous convictions. He admittedguilt immediately, showed remorse, completed an alcohol and drug counsellingprogramme, and stopped using cannabis and alcohol. He had been selling acquiredcannabis at a small profit to finance its use in pain relief for his back.[5] As for consequences, the Judge said a conviction would "not necessarily meanthat [Mr Petersen] would lose his job".6 The letter from his employer only suggestedhe may face a formal process to evaluate the viability of his employment afterconviction. Ultimately, Judge Manuel considered the consequences for Mr Petersen'scurrent or future employment were "moderate" and – as "the heart of [her] decision"– not out of all proportion to the gravity of the offending.7 The Judge distinguishedcases relied on by Mr Petersen, as offenders in those cases were much younger andthe claimed consequences in sharper relief and built on a stronger evidential base.8Issues on appeal[6] Mr Petersen's counsel, Paul Barrowclough, says the Judge erred byunderstating the consequences of a conviction; her proportionality assessmenttherefore was wrong. In particular, he says there is a real and substantial risk he willlose his job if he is convicted, and he would have real difficulties securing another job.[7] Mr Barrowclough seeks to adduce a psychologist's report Mr Petersen is atvery low risk of reoffending. Counsel for the Police, Matthew Mortimer, is neutral onits admission, acknowledging its required 'credibility' but doubting Mr Petersen'sasserted financial inability to commission it at the time of sentencing crosses the'freshness' threshold.96 At [13].7 At [19].8 At [16]–[18], citing Weerasinghe v Police [2019] NZHC 139 and R v Rakich [2014] NZHC 3287.9 Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [25], approving R v Bain [2004] 1 NZLR638 (CA) at [22]; and Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].Approach on appeal[8] An appeal against a refusal to grant a discharge without conviction is an appealagainst conviction and sentence.10 If Mr Petersen can establish Judge Manuel waswrong, I will consider the matter afresh.11Discussion—gravity of offending[9] Although the gravity of Mr Petersen's offending is not expressly relied on as aground of appeal, Mr Barrowclough argues in written submission at some length it is"at the very low end of moderately serious offending". He emphasises Mr Petersen'sinvolvement was primarily for his own use to alleviate chronic back pain, which hiscommercial dealing financed, and contrasts this with high-end commercial cannabisdealers who sell purely for profit. Mr Barrowclough reinforces Mr Petersen'smitigating features and relies on the psychologist's report as illustrating he is at lowrisk of reoffending.[10] The marginal difference in characterisation of gravity is not especiallymeaningful. Mr Petersen's offending extended beyond the presumption possession isfor supply to deemed (and, here, admitted) sale,12 albeit without being part of anywider network. It is telling he was selling reasonable quantities to finance his own use,rather than supplying some minor surplus from that use. Against this is his mitigatingpersonal factors. Despite the pre-sentence report's recommendation of a supervisionand community work sentence, the Judge expressly considered conviction "to be apunishment in itself", and sentenced him only to 12 months' supervision.13 That is toacknowledge Mr Petersen's low risk of reoffending. The offending rightly ischaracterised as moderate.[11] The psychologist's report thus affirms the correctness of, rather than amplifies,the Judge's assessment of mitigating factors.14 While credible, without a rather better10 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [9].11 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].12 Misuse of Drugs Act 1975, s 6(5) and (6).13 New Zealand Police v Petersen, above n 2, at [21].14 At [20]–[21].foundation for Mr Petersen's inability previously to obtain it, the psychologist's reportcannot properly be considered fresh; neither, more importantly, does it offer anyfoundation for an alternative to Mr Petersen's conviction.—consequences of conviction[12] Mr Barrowclough says the conviction labels Mr Petersen a criminal cannabisdealer, with "negative and sinister connotation" for his record without explanation forhis offending. That is the consequence of a conviction, which may require explanationto determine its justifiable impact in any other environment. The offending is notcomparable to a single minor assault, such as was found "should be left in the past".15Possession for presumed supply alone may have been comparable here, givenMr Petersen's disuse since, but there is more now in the admission of both historic andintended sale, deemed on proof of supply in any event.[13] Neither did the Judge err in her assessment of Mr Petersen's employer's letteras falling short of establishing a real and appreciable risk his employment willterminate. I appreciate the employer ought not to predetermine that outcome, but itsletter should indicate why such may arise if it was in serious prospect. Instead theemployer acknowledges Mr Petersen was "very upfront with us" and has compliedwith subsequent drug testing, the employer's expressed but presently sated concernsfor employee "safety" and brand "reputation" suggesting it is alive to the need tojustify any impact on Mr Petersen's ongoing employment,16 and points to none.[14] The employer only acknowledges a conviction "could give rise to a formalprocess around the ongoing viability of [Mr Petersen's] employment". That is astatement of the obvious. But Mr Petersen's colleagues and former manager describehim as reliable, dedicated and hardworking; the latter, with managementresponsibilities in the hospitality industry, "would have no hesitation in employinghim again". Together, these do not disclose a real and appreciable risk he will lose hisjob. Doubtless, the conviction presents an additional hurdle in present and future15 Summers v New Zealand Police HC Whangarei CRI-2008-488-36, 28 August 2008 at [35].16 Employment Relations Act 2000, s 103A(2).employment. The recruitment consultant's advice is generic. But these employmentconsequences all are moderate, as the Judge found.—proportionality analysis[15] Even if the offending and its consequences are not perfectly matched, they stillcannot be said "out of all proportion" to each other, as the Judge also concluded.17 Thepossible employment consequences are not out of all proportion to the gravity ofMr Petersen's offending. The Judge rightly distinguished discharges in industries andbusinesses where drug offending attracts institutionalised discrimination.18Result[16] Leave to adduce the further evidence is declined. The appeal is dismissed.—Jagose J17 New Zealand Police v Petersen, above n 2, at [19].18 At [16]–[18], citing Weerasinghe v Police, above n 8; and R v Rakich, above n 8. See similarlyVela v R [2010] NZCA 440.