KEARSE v NEW ZEALAND POLICE [2020] NZHC 3255

KEARSE v NEW ZEALAND POLICE [2020] NZHC 3255 [9 December 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2020-485-79[2020] NZHC 3255BETWEEN JESSE RYAN KEARSEAppellantAND NEW ZEALAND POLICERespondentHearing: 9 December 2020Counsel: C H Shade for AppellantK L Kensington for RespondentJudgment: 9 December 2020JUDGMENT OF ELLIS J[1] On 27 January 2012, when Mr Kearse was 21, he was convicted for possessing12 g of cannabis and fined $200.1 He now seeks leave to appeal that conviction outof time and, if leave is granted, submits that a discharge without conviction wasappropriate. The impetus for the proposed appeal is an academic and professionalopportunity for him that has arisen in the United States of America. It appears thatMr Kearse may be prevented from travelling there so long as his conviction remains.[2] The applicable legal principles are not in dispute and nor, I think, is theappropriate outcome.The application for leave to appeal out of time[3] Due to the age of Mr Kearse's conviction, his appeal rights are governed bys 115 of the Summary Proceedings Act 1957 (the SPA). Section 116(1) of the SPA1 Misuse of Drugs Act 1975, ss 7(1)(a) and (2).provides that such an appeal must be brought within 28 days after sentence.Jurisdiction to extend this time period was contained in s 123(1).[4] The exercise of the Court's discretion to extend time involves consideration of:(a) the length and reasons for the delay;(b) the merits of the proposed appeal;(c) whether the respondent has suffered any prejudice by the delay otherthan that inherent in the extension of time itself; and(d) whether the interests of justice favour granting leave, balancing thewider societal interests of finality against the individual applicant'sinterest in having a conviction reviewed.[5] In Mr Kearse's case the respondent does not oppose the application to extendtime, and I am satisfied that leave should be granted. The length of, and reasons for,the delay are explained by the unusual circumstances of his case. The proposed appealhas merit. There is no prejudice to the respondent and, while finality is important, theinterests of justice here point in Mr Kearse's favour. I grant leave accordingly.Facts[6] The facts of Mr Kearse's offending are simple. When Police attended hisresidence on an unrelated matter, they smelled cannabis, which Mr Kearse thenadmitted to smoking. On executing a search Police found 12 g of the drug in thepocket of his jacket, which was hanging in a wardrobe. Mr Kearse told Police it wasfor his personal use.[7] Mr Kearse says he appeared in Court only once. He immediately pleadedguilty and was sentenced that same day. He says he was unaware of the possibility ofa discharge without conviction and received no advice about it. I have no reason todoubt his evidence on that score.[8] Since 2012, Mr Kearse has enrolled at university and studied Earth Science.He completed his undergraduate degree in 2016 and a Masters in Geology in 2018,funded through a scholarship from the Earthquake Commission. Latterly, he hasworked part time at GNS as a research assistant, tutored in Geology and Geophysicsin 2015–2019, and led multiple field trips around New Zealand. He has had eightarticles published in reputable journals.[9] In 2019, Mr Kearse was awarded a scholarship through the Ministry ofBusiness, Innovation and Employment to do a PhD in geophysics, specialising inspace geodesy at Victoria University. He began work on it in September 2019. Hewas encouraged to apply for a Fulbright scholarship and was awarded one in 2020.Through the Fulbright programme, Mr Kearse has been given an opportunity to workat the National Aeronautics and Space Administration (NASA) in California. Thisopportunity has been put on hold because of COVID-19, but Mr Kearse is hopeful thatit will come to fruition in future.[10] Mr Kearse's concern is that his conviction will prevent him obtaining thenecessary visa to study in the United States. Although the Criminal Records (CleanSlate) Act 2004 operates to wipe Mr Kearse's record for domestic purposes, he is stillrequired to declare his conviction when applying for a visa application. Moreover,Mr Kearse has an evidential basis for this concern because, in 2019, he was given anopportunity to present at an earth and space science conference in San Francisco. Heapplied for a B class non-immigrant visa. When he attended the required interview atthe US consulate in Auckland, he was advised that his visa application was declinedbecause of his conviction. He had to cancel his tickets.[11] Mr Kearse has deposed that he was given the opportunity to appeal thedeclinature and in February 2020 he sought to do so, by writing to the US ConsulateGeneral requesting a waiver of his ineligibility. He says he has had no response to thisletter thus far. It seems a reasonable assumption that the prospect of a waiver wouldbe increased if his appeal is successful, notwithstanding that the US authorities wouldbe aware of the history of the matter.[12] I interpolate at this point to note that the position Mr Kearse finds himself in issimilar to that of Mr Clifford McNeil, whose appeal (brought 21 years out of time)resulted in a discharge without conviction.2 In that case Jagose J recorded thatMr McNeil:3 has obtained an opinion from Sherwin Noorian – a licensed US attorney,practising in immigration law as a foreign lawyer in Australia – under UnitedStates law Mr McNeil's conviction disentitled him to visa waiver, and madehim ineligible for a travel visa to the United States. Instead, Mr McNeilrequired a waiver of inadmissibility from the Consular Office, which isdiscretionary and can take up to six months.Approach on appeal[13] An appeal against a refusal to discharge without conviction is properlycharacterised as an appeal against conviction and sentence.4 It is brought unders 232(2) of the Criminal Procedure Act 2011: an appellant must show either that amiscarriage of justice has occurred by virtue of a material error by the sentencingJudge in entering a conviction, or that "for any reason" the judge has erred in applyingthe relevant s 107 (discharge without conviction) principles.5Sections 106 and 107[14] Again, the relevant principles are not in dispute. The power to order adischarge without conviction arises under s 106(1) of the Sentencing Act 2002 (theSA) and, pursuant to s 107, the Court must not discharge an offender unless "satisfiedthat the direct and indirect consequences of a conviction would be out of all proportionto the gravity of the offence". When considering the gravity of the offence, the Courtshould consider all the aggravating and mitigating factors relating to the offending andthe offender.6 If the s 107 threshold is met, the Court must then decide whether or notto exercise its discretion to order a discharge under s 106.2 McNeil v Police [2018] NZHC 1685. Mr McNeil also had a single, historic cannabis conviction,for which (like Mr Kearse) he had been fined $200.3 At [6].4 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.5 Jackson at [12]; Gaunt v Police [2017] NZCA 590 at [9].6 The Court of Appeal has noted that it would be "wrong in principle" to leave the consideration ofpersonal aggravating and mitigating features out of the s 107 analysis, although it was "not ofgreat significance" if this consideration happened at the first or third (weighing) stage of the s 107analysis.Discussion[15] There is no written decision convicting and sentencing Mr Kearse. I thereforeproceed on the assumption (which I think is both reasonable and most favourable toMr Kearse) that the sentencing Judge did not consider the possibility of a dischargewithout conviction, contrary to the requirements of s 11(1)(a) of the SA. On the basisof this assumed error, I am prepared to consider the matter afresh, albeit through therequired lens of the circumstances as they existed in 2012.Gravity of the offending[16] My not uninformed instinct is that possession of cannabis charges wereregarded and dealt with by the courts in 2012 much as they are now.7 Moreover, I noteJagose J's survey (in McNeil) of similar cases from the mid 1980s demonstrates thatsimilar offending could, then, result in a discharge without conviction and also that thelong-term consequences for a young, first time, low-level offender were regarded as aparticularly relevant and mitigating matter—just as it is now.[17] While I acknowledge that the cases referred to in McNeil were decided someconsiderable time before Mr Kearse's conviction, it would be unexpected if the courts'approach to cannabis offending (or to young offenders) was more illiberal in 2012.But by way of final cross-check, I need only refer to the Court of Appeal's decision inVela v R, where (on appeal) the 22-year-old Mr Vela was discharged withoutconviction on a charge of possession of (around 30 g) of cannabis for supply, becausefresh evidence—in the form of a decision declining to grant Mr Vela a visa—established that the conviction would prevent Mr Vela from travelling to theUnited States.8[18] So, even viewed through an eight-year-old lens, the gravity of Mr Kearse'soffending is rightly regarded as low. The offence itself (which carries a maximumpenalty of three months' imprisonment) can fairly be described as minor, and thesentence imposed on Mr Kearse—a $200 fine and an order to pay court costs—indicates that the Judge regarded it at the lower end of that minor scale. The summary7 I say "not uninformed" because I was a Judge in 2012.8 Vela v R [2010] NZCA 440.of facts certainly discloses nothing aggravating in relation to the offending; Mr Kearsewas cooperative with Police and immediately took responsibility for his actions.[19] Personal factors also plainly weigh in Mr Kearse's favour here. Mr Kearse hadno prior convictions and was still young. The leading authority on the mitigating effectof youth in sentencing had been decided just the year before.9 His youth is also ofsome relevance here.Consequences of conviction[20] While it is true that when Mr Kearse was dealt with in the District Court, hiscurrent difficulty in obtaining entry to the United States had not materialised and wasnot specifically in contemplation, I do not think that this is a fundamental impedimenthere. A review of the discharge without conviction decisions suggests that, inappropriate cases, the Courts are prepared to take account of as yet uncrystallisedramifications of a conviction on an offender's future travel and employment prospects,particularly where he or she is young. As the Court of Appeal said in Churchward:10 offending by a young person is frequently a phase which passes fairlyrapidly and thus a well-balanced reaction is required in order to avoidalienating the young person from society; and criminal convictions at thisstage of a person's life may have a disproportionate impact on the ability ofthe young person to gain meaningful employment and play a worthwhile rolein society.[21] Moreover, the potential impediments to overseas travel presented by aconviction (particularly in relation to some countries) have been recognised for someconsiderable time now. Again, to channel Jagose J in McNeil:11While the issues regarding the impact of a conviction on Mr McNeil's travelopportunities to the US, and the corresponding impact on his work, could nothave been as salient as they are now, the general consequences of convictionswere then known to be substantial.[22] And here, the respondent accepts that, in a generic way, there were seriousinchoate consequences of a conviction for Mr Kearse, albeit that they had notmanifested at the time.9 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.10 At [78].11 McNeil, above n 2, at [44].Is s 107 the threshold passed?[23] The seriousness of Mr Kearse's offending was low. His youth and all the innatepotential that goes with it means that the potential consequences of a conviction weresevere. Both his potential and those consequences have since been borne out. I amtherefore satisfied that those consequences are out of all proportion to the gravity ofthe offence.Residual discretion[24] Where the Court considers that the consequences of conviction are out of allproportion to the seriousness of the offending, it still retains a residual discretion as towhether to discharge an offender without conviction. In Z (CA447/12) v R, the Courtof Appeal said that "it will be a rare case where the court will refuse to grant adischarge" after reaching the discretionary step of the assessment.12 In this case, thereis no conceivable reason why I would not exercise my discretion to grant a discharge,and I do so accordingly.Result[25] Leave to extend the time for bringing the appeal is granted.[26] The appeal is allowed. Mr Kearse's 2012 conviction for possession of cannabisis quashed. He is discharged without conviction._____________________Rebecca Ellis JSolicitors:Crown Solicitor, Wellington12 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142.