DOYLE v R [2022] NZCA 307

DOYLE v R [2022] NZCA 307 [12 July 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA465/2021[2022] NZCA 307BETWEEN LEE ALEXANDER DOYLEAppellantAND THE QUEENRespondentHearing: 2 May 2022Court: French, Venning and Moore JJCounsel: M R Bott and R D Mulgan for AppellantD R Davies and E R Pairman for RespondentJudgment: 12 July 2022 at 11 amJUDGMENT OF THE COURTThe appeal is dismissed.___________________________________________________________________REASONS OF THE COURT(Given by Moore J)Background[1] Lee Doyle joined the New Zealand Defence Force ("NZDF") when he was17 years old. He served in the army for some seven years with the rank of private.Towards the end of that period Mr Doyle discovered that his long-term partner washaving an affair with his platoon commander. Her infidelity was common knowledgeamong others in his camp. Unsurprisingly this caused him significant distress.[2] To cope, Mr Doyle began drinking heavily on the weekends. He also usedMDMA. To fund his drug use, he began dealing the drug to friends, including othermembers of the military.[3] Mr Doyle pleaded guilty to one charge of possession of MDMA for the purposeof supply.1 He applied for a discharge without conviction.2 The Crown did not opposehis application.3 On 16 June 2021, Judge Northwood refused to discharge Mr Doyle.4He was convicted and sentenced to five months' community detention and ninemonths' supervision.5[4] Mr Doyle now appeals the Judge's refusal.The offending[5] On 19 June 2020, the police executed a search warrant at Mr Doyle's homeaddress in Palmerston North. A drug detection dog indicated the presence ofcontrolled drugs in two bedrooms.[6] The police first searched Mr Doyle's bedroom. There they located $2,070 incash (predominantly in $50 denominations), a tick list and a set of electronic scales.[7] The police then searched the second bedroom. They found two zip-lock plasticbags containing a total of 28.94 grams of MDMA; another seven zip-lock bagstogether containing 10.53 grams of MDMA; a number of empty zip-lock bags; a whitedinner plate with a rolled up $50 note and another set of electronic scales on it; and asmall white dish containing MDMA residue.[8] It was common ground the drugs and paraphernalia found at the addressbelonged to Mr Doyle.1 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(b). Maximum penalty of 14 years' imprisonment.2 Sentencing Act 2002, ss 106–107.3 In a memorandum dated 30 April 2021 the Crown Prosecutor considered that "without formallyconsenting to the application, the Crown considers Mr Doyle's application is properly made outon the merits".4 R v Doyle [2021] NZDC 9995.5 R v Doyle [2021] NZDC 22864.Legal principles — discharge without conviction[9] If a person pleads guilty to an offence, the court may, instead of imposing asentence, direct that the offender be discharged.6 The court must not discharge anoffender without conviction unless the court is satisfied that the direct and indirectconsequences of a conviction would be out of all proportion to the gravity of theoffence.7[10] In Z (CA447/2012) v R, this Court set out a three-stage test to be applied by thecourts when considering applications for a discharge without conviction:8That is: when considering the gravity of the offence, the court should considerall the aggravating and mitigating factors relating to the offending and theoffender; the court should then identify the direct and indirect consequencesof conviction for the offender and consider whether those consequences areout of all proportion to the gravity of the offence; if the court determines thatthey are out of all proportion, it must still consider whether it should exerciseits residual discretion to grant a discharge (although, as this Court said inBlythe, it will be a rare case where a court will refuse to grant a discharge insuch circumstances).(Footnote omitted.)District Court decision[11] Judge Northwood began by assessing the gravity of Mr Doyle's offending.9He considered that Mr Doyle's offending was commercial in nature.10 He furtherconsidered it an aggravating factor that he was selling MDMA to military personnel.11However, the seriousness of the offending was mitigated to some extent by Mr Doyle'searly guilty plea, youth, loss of career in the army, efforts to rehabilitate, and the effectof parallel, but independent, proceedings in the military jurisdiction.12 Taking thosefactors into account, the Judge assessed the gravity of Mr Doyle's offending asmoderate.136 Sentencing Act, s 106(1).7 Section 107.8 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27], citing A (CA747/2010) v R[2011] NZCA 328; and Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.9 R v Doyle, above n 4, at [9].10 At [13].11 At [13].12 At [11] and [14].13 At [14].[12] The Judge then turned to the consequences of conviction. He noted that whenconsidering loss of employment, it is typically "necessary to point to some acuterepercussion personal to the offender which may result in a consequence whollydisproportionate to the seriousness of the offence".14 While the Judge accepted thatMr Doyle's youth was a factor, he did not accept that Mr Doyle had no transferrableskills.15 There was no particular career choice which a conviction would impede.16The Judge continued that this was "not a case of issues with travel or knownrestrictions on professional registration".17[13] The Judge concluded that the generic risk on Mr Doyle's employmentprospects was not out of all proportion to the moderate gravity of his offending.18Mr Doyle was accordingly convicted19 and sentenced.20Approach on appeal[14] An appeal against the refusal to grant a discharge without conviction is anappeal against both conviction and sentence.21 In Jackson v R, this Court observedthat:22 the principled basis for determining an appeal against a discharge withoutconviction is to establish that a miscarriage of justice has occurred by virtueof a material error by the sentencing judge in entering a conviction. That isbecause a trial includes a proceeding in which the appellant has pleaded guilty.Alternatively, it can be said that a miscarriage of justice has occurred "for anyreason" if the Judge has erred in applying the principles for discharging anoffender without conviction found in s 107 of the Sentencing Act.[15] The threshold test in s 107 is not a matter of discretion, but rather a matter offact requiring judicial assessment, which can be subject to appeal on normal appellate14 At [15].15 At [25].16 At [15] and [27].17 At [27].18 At [28]–[29].19 At [30].20 R v Doyle, above n 5.21 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]–[9].22 At [12].principles.23 The court's discretion to discharge without conviction under s 106 arisesand exists only if the court is satisfied that the s 107 threshold has been met.24Did the Judge overstate the gravity of Mr Doyle's offending?[16] Mr Mulgan, for Mr Doyle, submitted that the Judge overstated the gravity ofMr Doyle's offending. He said that Mr Doyle offended in circumstances ofexceptional personal upheaval. The NZDF compounded his emotional distress infailing to appropriately manage the issue. Mr Mulgan submitted that thesecircumstances, in combination with Mr Doyle's youth, mitigate the seriousness of hisoffending.[17] Ms Davies, for the Crown, submitted that the Judge correctly categorisedMr Doyle's offending as of moderate gravity. She submitted that his offending wasnot at the lowest end of the possession for supply scale given the quantity of drugsfound in Mr Doyle's possession and the indicia of commerciality. She argued thatdrug dealing is serious offending as it is a conscious choice to offend rather than amomentary action.[18] The starting point in assessing the gravity of Mr Doyle's offending is thequantity of MDMA involved. The police found approximately 40 grams of MDMAat his address. As noted by the Judge, this indicates that there was a degree ofcommerciality to Mr Doyle's offending. While he is properly characterised as astreet-level dealer, his offending is more serious than that at the lowest end of the scale— for example, a person peddling a few grams of MDMA (quantities which are belowthe five-gram threshold of the presumption of supply).25 In contrast, his offending isconsiderably less serious than an organised commercial enterprise, which ofteninvolves multiple participants and significantly greater quantities of drugs. It is alsorelevant to the assessment that Mr Doyle was dealing a Class B drug rather thanClass A.23 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].24 At [11].25 Misuse of Drugs Act, sch 5.[19] There are some mitigating factors of Mr Doyle's offending relating to hispersonal circumstances. Mr Doyle provided an affidavit in which he set out how thosecircumstances catalysed his offending. His uncontradicted account is that in early2020, his partner of two years had an affair with his platoon commander. He hadinvested significantly in their relationship, particularly by providing financial support.Her infidelity left him distraught.[20] Mr Doyle's evidence was that this was common knowledge within his armycohort. He said that it was incredibly difficult enduring their gossip and laughter. Hesaid that his platoon commander had a reputation for behaving in this manner.[21] Mr Doyle explained that inferior ranks are powerless against and vulnerable totheir superior officers; they can exert total control over their subordinates. Hecommented that it was devastating to be forced daily to obey orders from his partner'slover and call him "sir".[22] Additionally, Mr Doyle claimed his emotional distress was significantlyexacerbated by the NZDF's callous and inappropriate management of the issue. Herequested an internal transfer. This was met by a direction to "harden up".[23] The NZDF transferred Mr Doyle only when pressed by the camp counsellor.Indeed the counsellor was Mr Doyle's sole source of support.[24] During the 2020 COVID-19 lockdown, Mr Doyle began drinking more heavilyto cope with this trauma. He also began using MDMA more frequently. He said thatdrugs gave him some respite from his distress. To fund his own use he then beganselling MDMA to his friends, some of whom were military staff.[25] While it is impossible not to feel some sympathy for Mr Doyle and theunenviable predicament he found himself in, we do not accept that these circumstancesmay be pressed into service as mitigating factors to the extent Mr Mulgan advances.As noted by the Judge, Mr Doyle is "not the first person" to use drugs to escapeemotional issues and descend into drug dealing.26 While we accept there may be some26 R v Doyle, above n 5, at [14].nexus between his emotional trauma and his drug and alcohol abuse, the additionalstep into dealing MDMA in the quantities and manner he did is, in our view, a gooddeal more remote.[26] On the other hand, we accept that before these events Mr Doyle demonstratedgood character. His NZDF Retention Review described him as an "intelligent soldier"who would likely have had a "bright career ahead of him". It recorded no significantlapses of service discipline. Nor does he have any history of offending. The indexoffending is properly characterised as out of character.[27] It is common ground that Mr Doyle's youth is also a mitigating factor.27Mr Doyle was 23 at the time of the offending. The neurological differences associatedwith youth of that age are recognised contributors towards offending. However, thereare two factors which limit the extent of that contribution. The first is that drug dealingnecessarily involves some degree of premeditation which may be inconsistent withnotions of impulsive youthful behaviour.28 Secondly, at 23, Mr Doyle sits close to orat the outer range of an age-related discount. Notwithstanding, we accept youthremains a relevant factor in this analysis.[28] Mr Doyle entered an early guilty plea. He is genuinely remorseful. He hastaken meaningful rehabilitative steps. These included attending drug and alcoholcounselling (on referral from his doctor) and engaging openly and honestly with hiscounsellor. It is said he now no longer drinks alcohol or uses illicit substances. Hiscounsellor's view is that Mr Doyle presents a low risk of reoffending.[29] Mr Mulgan submitted the Judge overstated the gravity of Mr Doyle'soffending. We cannot agree. Rodrigo v Police is of assistance.29 There Mr Rodrigopleaded guilty to supplying Ritalin, a Class B drug, to fellow University of Otagostudents.30 He appealed his sentence upon learning that his co-offender was27 See for example Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77(a)]; Grant v R[2017] NZCA 614 at [31]; and Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [69] forthis Court's comments that age-related neurological differences between young people and adultsmean that youth can mitigate an offender's culpability.28 Kolofale v R [2022] NZCA 74 at [14].29 Rodrigo v Police [2014] NZCA 68.30 At [1]–[3].discharged without conviction.31 This Court considered that Mr Rodrigo too shouldhave been discharged without conviction:32Here the offending was low-level drug dealing for minimal profit by a youngoffender who was otherwise of good character, whose ADHD wasundiagnosed and untreated, who has now taken steps to treat his condition,and who is unlikely to reoffend. These matters place the gravity of theoffending at the low end. We consider that the consequences of conviction areout of all proportion to that offending. We consider the proper outcome inthese circumstances is to discharge Mr Rodrigo without conviction.(Emphasis added.)[30] While Rodrigo shares some parallels with the present case including streetlevel Class B dealing and previous good character, the gravity of Mr Doyle's offendingis not mitigated by an untreated condition such as ADHD. Furthermore, the quantityof drugs involved and indicia of commerciality elevate the seriousness.Approximately 40 grams of MDMA is not an insignificant quantity. In combinationwith over $2,000 in cash, tick books, scales and zip-lock bags, the logical inference isthat Mr Doyle was profiting from his dealing beyond that necessary to fund his ownuse.[31] On the other hand, we accept Mr Doyle's offending is less serious than that inPolice v Graham.33 Mr Graham pleaded guilty to three charges of burglary, one chargeof offering to supply methamphetamine, one charge of possessing a non-approvedpsychoactive product with intent to supply, and one charge of possessing a controlleddrug.34 He was a serving member of the Royal New Zealand Air Force (RNZAF) whoused his security clearance to enter a RNZAF building and steal $200,000 worth ofequipment.35 When police investigated the burglaries, Mr Graham had in hispossession 10 BZP pills, 391 grams of NBOME, and two cell phones through whichhe facilitated the supply of methamphetamine.3631 At [1].32 At [18].33 Police v Graham [2017] NZHC 3299.34 At [5].35 At [2]–[3].36 At [4].[32] Hinton J considered that on its face the offending was serious.37 But this was"materially reduced" by a number of factors.38 Those included Mr Graham'sco-operation with police; his early guilty plea and remorse; his previouslyunblemished record; his rehabilitative progress in becoming drug free and low risk ofreoffending; and the effect of his hostile deployment overseas.39 Hinton J's view wasthat the combination of these factors reduced Mr Graham's culpability such that hisoffending was properly characterised as moderate.40[33] Mr Doyle's offending involved a significantly smaller quantity of controlledsubstances in a less serious class. He did not use his security clearance to facilitatethe burglary of high value equipment. Further, many of the mitigating factors whichapplied to Mr Graham also apply to Mr Doyle. Although Mr Doyle's emotionaltrauma may not be as scarring as hostile duty (albeit subjective), his youth is also afactor. For those reasons his offending may be assessed as sitting towards the lowerend of the moderate range.Did the Judge understate the consequences of a conviction?[34] The second stage requires the court to assess the direct and indirectconsequences of a conviction.[35] Here, the particular consequence advanced was that a conviction impedesMr Doyle's employment prospects.[36] Mr Mulgan submitted that Mr Doyle always aspired to serve his country in thearmed forces. He argued that the conviction resulted in him being administrativelydischarged with no specific transferrable skills. He submitted the Judge incorrectlyrequired Mr Doyle to present clear career plans, when the necessary standard is simplyto satisfy the Court that a conviction presents a real and appreciable risk to theindividual's career prospects. Mr Mulgan claimed that a conviction not only inhibits37 At [25].38 At [26].39 At [27]–[30].40 At [31]. In Graham v Police [2018] NZCA 172 at [24] this Court agreed with Hinton J'sassessment of the gravity of the offending.Mr Doyle's prospects of obtaining a job as a civilian, but also cost him his career inthe army.[37] In response, Ms Davies submitted that the Judge considered the possibleadverse impact of a conviction on Mr Doyle's employment prospects. She submittedthat he took into account the fact that Mr Doyle might have to explain his convictionto prospective employers.[38] In R v Taulapapa, this Court set out several principles relevant to assessing theconsequences of a conviction on a young offender's employment prospects:41(a) Conviction carries a social stigma which the law sustains by recordingand publishing convictions. It may affect a person's career, but thatconsequence must normally yield to the employer's right to know. Thisprinciple extends to independent bodies charged with assessing the characteror suitability for a particular career. It applies to all offenders for whomconvictions are recorded, including the young.(b) The consequence may be severe if employers are unwilling to lookbehind the conviction to consider the person's merits and that reaction is unfairto the offender in the sense that the conviction itself ought not exclude themfrom the career or job concerned. Such risk may arise where the convictionspeaks to character or records a serious offence but does not fairly reflect theoffender's character or culpability. Theft may be an example of an offencethat may lead employers to reject an applicant without further inquiry.(c) Some judges have reasoned that where youth, a transitory condition,explains offending, an employer may be willing to make allowances for it,especially where the offender is otherwise a person of good character. Othershave reasoned that youth is a disadvantage because the offender has noestablished skill or history of training or employment that might persuade anemployer to take a closer look.(d) The court may assume that applicants with convictions are likely to beexcluded without inquiry where employers must filter many applicationsbefore arriving at a shortlist for interview; this may apply particularly tounskilled or semi-skilled work.(e) The consequences of conviction may be severe where an offender pointsto a specific career or job to which conviction is likely to present a barrier;and that may be especially so where the offender has already spent some timetraining for that career.(f) Contrary to Mr Carruthers' submission, the consequences may also besevere where the offender points only to general consequences for a youngperson looking for any employment suited to his or her talents. That may be41 R v Taulapapa [2018] NZCA 414 at [42].so where, as noted above, employers are unwilling to consider the youngperson on their merits.(Footnotes omitted.)[39] When determining the effects of conviction on employment, the court mustidentify the consequence, assess the evidence offered for it, evaluate the risk that theconsequence will happen to the particular applicant, and form an overall assessmentof seriousness.42 The question is whether there exists a real and appreciable risk thatthe relevant consequence will happen.43 The stated consequence of a conviction maybe a question of fact that is capable of proof in the ordinary way.44 Evidence ofemployers' attitudes may not be available however, in which case the court must usewhat evidence is available and take judicial notice of facts where appropriate.45[40] An inability to join or continue serving in the NZDF has been cited as aconsequence of a conviction in many cases.46 However, this ground is of limitedassistance to Mr Doyle. He has already been discharged from the NZDF. Counseladvised us that the discharge is final. It followed a parallel investigation by the NZDF.It will not be reversed. His NZDF Retention Review, which recommendedadministrative discharge, records that:PTE Doyle has eroded the trust of the service and is likely not able to bedeployed as a soldier in the NZDF. If retained, PTE Doyle would face a careerof working in garrison or training settings in limited roles due to his convictionand inability to hold a security clearance.[41] The review concluded that Mr Doyle had committed offences which were "notconducive to good order and discipline" and in doing so he had "irreparably damagedthe ability of the organisation to trust him".[42] Mr Doyle's discharge from the NZDF did not flow from the fact of hisconviction but, rather, the offending which underlies it. This position is quite different42 At [46].43 At [45].44 At [46(a)].45 At [46(c)].46 See for example R v Taulapapa, above n 41; Amstad v Police HC Auckland CRI-2011-404-161, 6September 2011; Police v Graham, above n 33; Weng v Police [2014] NZHC 2586; Strickland vPolice [2013] NZHC 2704; and Police v Payne [2020] NZDC 17815.from someone intending to pursue a career path in the NZDF where a convictionwould operate as a bar, as was the case in Amstad v Police.47[43] The real focus in this appeal must be on Mr Doyle's ability to find employmentoutside the NZDF. His evidence is that he has obtained employment at a localtransport company.[44] Experiencing some difficulties in obtaining employment and advancing acareer while a conviction is fresh is not an extraordinary consequence of theconviction. In Graham v Police, this Court commented that:48[28] While we accept that Mr Graham will face difficulties in furtheringhis current apprenticeship, we consider his overall skill level and aptitude issuch that he will be able to find employment in the future. Difficultiesexperienced in the meantime would not be out of all proportion to the gravityof the offending. On the contrary, they will be the kinds of difficulties thatnaturally flow from convictions for the offences in question.[45] We accept that Mr Doyle's training in the NZDF is somewhat specific to thatcareer path, but nevertheless consider that Mr Doyle has developed transferrable skillswhich will assist him in obtaining and maintaining employment. He has alreadyovercome a significant obstacle in obtaining employment in a different field. Anyremaining consequences are those which naturally flow from convictions foroffending of this nature.[46] For these reasons, we do not accept that the Judge can be criticised for findingthat the consequence of a conviction for Mr Doyle was a generic risk to employmentprospects. Taking that and the other matters discussed above, our view is that theconsequences of a conviction on Mr Doyle are properly characterised as relativelyminor.Did the Judge err by finding that the consequences of Mr Doyle's conviction werenot out of all proportion to the gravity of the offending?[47] Ordinarily, offending involving dealing in drugs is considered too serious topermit granting a discharge without conviction. That is not to say that the legal test47 Amstad v Police, above n 46, at [24].48 Graham v Police, above n 40.can never be met.49 This is not one of those cases. The indicia of commerciality,particularly the quantity of MDMA possessed, and the finality of Mr Doyle's dischargefrom the NZDF, operate against a discharge without conviction.[48] While we accept Mr Doyle's seven years of commendable service to the NZDF,his offending breached his employer's trust and revealed a lack of discipline. Giventhe moderate gravity of his offending and the relatively minor consequences to hiscareer prospects, we are not satisfied that the consequences of a conviction are out ofall proportion to the gravity of his offending. It follows we conclude the Judge did noterr by refusing to discharge Mr Doyle without conviction.Result[49] The appeal is dismissed.Solicitors:Langford Law, Wellington for AppellantCrown Solicitor, Palmerston North for Respondent49 Rodrigo v Police, above n 29, at [18].