M v NEW ZEALAND POLICE [2023] NZHC 995

M v NEW ZEALAND POLICE [2023] NZHC 995 [1 May 2023]NOTE: PUBLICATION OF NAME, ADDRESS OR IDENTIFYINGPARTICULARS OF APPELLANT PROHIBITED BY S 201 OF THECRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360347.htmlIN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-321[2023] NZHC 995BETWEEN MAppellantAND NEW ZEALAND POLICERespondentHearing: 4 October 2021 and 7 March 2023Appearances: 4 October 2021 hearing Appellant in personD McGivern7 March 2023 hearing Appellant in personY Fu for the RespondentS Wimsett, counsel assistingJudgment: 1 May 2023JUDGMENT OF DUFFY JThis judgment was delivered by me on 1 May 2023 at 2.15 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors/Counsel:S Wimsett, Barrister, AucklandMeredith Connell, AucklandAnd to:The Appellant[1] The appellant M was convicted and sentenced for a series of offences thatoccurred between 2013 and 2018. He has attention deficit hyperactivity disorder(ADHD) that at the time was untreated. After his ADHD was diagnosed andsuccessfully treated M went on to complete tertiary studies at Massey Universitywhere he gained a Bachelor of Business degree with a double major in accountancyand finance. However, since completing this degree he has found his convictions area barrier to gaining employment in his chosen field. Accordingly, he seeks leave toappeal out of time against the entry of the convictions by seeking discharges withoutconviction. The application for leave to appeal out of time and the substantive appealare opposed.FactsThe convictions[2] There is a total of 11 convictions. They are listed in chronological orderstarting with the earliest.[3] On 10 June 2013 M shoplifted from Smith and Caughey's Department store onQueen Street items over $1000 in value.1 These were two men's jackets with acombined value of $1450, which he secreted on his person and was detected by thestore's security as he left the store. He was convicted and sentenced on 12 November2013 to a fine of $250, with $130 costs and an order for destruction of the shoplifteditems.[4] There were two offences on 29 September 2013: namely, possession ofcannabis plant;2 and wilful damage/graffiti.3 The police summary of facts records thatM was seen by a member of the public around 12:54 am spray painting graffiti on abuilding wall on the corner of Fanshaw Street and Halsey Street. This witness reportedthe incident to police, who shortly thereafter located and stopped M. When searchedfollowing his arrest he was found to possess 5 grams of cannabis plant. On 23 October1 Crimes Act 1961, ss 219 and 223(b); maximum penalty seven years' imprisonment.2 Misuse of Drugs Act 1975, ss 7(1)(a) and (2); maximum penalty three months' imprisonment, fine$500.3 Summary Offences Act 1981, s 11(1)(a); maximum penalty three months' imprisonment, fine$2000.2013 M was convicted and sentenced. For each offence he received a fine of $200and costs of $130.[5] Between 24 August 2014 and 25 September 2014 on two occasions Mshoplifted items under $500,4 by failing to pay for petrol he had placed in the fuel tankof his car. On the first occasion (1 pm on Sunday, 24 August 2014) he filled his vehicleup with $70 worth of petrol at a petrol station. He went to pay, but his EFTPOS cardwas declined. He was directed to park his vehicle and wait for the petrol stationattendant. M parked for a short time but then drove off without paying for the petrol.On the second occasion (5.03 pm on Thursday, 25 September 2014) he was at a petrolstation where he filled his car with $142.13 of petrol, entered his car and drove awaywithout paying for the petrol. On 28 May 2015 he was convicted and ordered to payreparation of $70.00 for the first offence and $142.13 reparation for the secondoffence.[6] On 15 July 2015 M's driving licence was suspended for three months forexcessive demerit points. On 12 September 2015 he was seen driving a car by policewho stopped him.5 He said he had no idea his licence was suspended. He wasconvicted of this offence on 26 June 2018 and sentenced to pay a fine of $300 courtcosts of $130 and disqualified from driving for six months.[7] On 22 August 2015 M shoplifted items under $500.6 On this occasion he tookitems of $230.54 from the Auckland Airport Countdown supermarket. These wereplaced in two supermarket bags and taken to the self-service checkout where hescanned and re-packed the items in the bags. When no one was watching he left thesupermarket without paying for the items. He was detected and ordered to return tothe supermarket but instead he ran from the store with the stolen items.[8] Then on 1 February 2016 M committed a common assault by spitting at asecurity guard who had stopped him from gaining entry to a festival for which he did4 Crimes Act 1961 ss 219 and 223(d); maximum penalty three months' imprisonment. .5 Land Transport Act 1998, ss 32(1)(c) and 32(3); maximum penalty three months' imprisonment,fine $4,500.6 Crimes Act 1961, s 219; maximum penalty three months' imprisonment.not have a ticket.7 The saliva landed on the security guard's right shoulder. M wasrestrained by a second security guard until police came. Convictions for this offendingwere entered against him on 13 February 2017. For the shoplifting offending he wassentenced to 80 hours community work and ordered to pay reparation of $150. Forthe common assault he was ordered to pay reparation of $200 and sentenced to 80hours of community work.[9] On 30 August 2016 at about 9:50 am M was found in possession of an offensiveweapon, a steel butterfly knife with a four-inch blade.8 This knife was in his purse.M attempted to pass through the security at the Auckland District Court, which islocated on the corner of Kingston Street and Albert Street. His purse went through thesecurity x-ray machine where it was stopped, and the security guards asked to searchthe purse. M did not comply with this request; instead, he left the building and shortlyafterwards he was detained by police in Kingston Street. When asked why he carriedthe knife he said it was for self-defence. On 19 April 2017 following a guilty verdictafter a jury trial he was convicted of this offence and sentenced to 60 hours' communitywork, cumulative on the earlier community work sentence and nine months'supervision with special conditions.[10] On 5 January 2017 M committed the offence of wilful damage/graffiti whenhe spray-painted the wall of a heritage building with the word "Tare".9 He wasconvicted of this offence on 3 May 2018 and ordered to pay Court costs of $130 andreparation of $200.[11] On 2 November 2017 M breached the supervision he received for thepossession of an offensive weapon offending by failing to report when ordered to doso.10 On 18 January 2018 he was convicted and discharged.7 Section 196; maximum penalty one year imprisonment.8 Section 202A(4)(c); maximum penalty three years' imprisonment.9 Summary Offences Act 1981, s 11(1)(a); maximum penalty two months' imprisonment, fine$2000.10 Sentencing Act 2002, s 70(b); maximum penalty, three months' imprisonment, fine $1000.[12] Analysis of the above reveals the majority of the offending is low leveloffending which carries a low maximum penalty and for which M received sentencesat the lower end of the available sentencing range.[13] The last offence was committed on 2 November 2017 (the breach ofsupervision conditions) and the penultimate offence was committed on 5 January 2017being the graffiti/wilful damage of the heritage building.[14] The most serious offence was the 2013 shoplifting of items over $1000 in valuewhich carried a maximum sentence of seven years' imprisonment. The penalty of afine of $250 and $130 costs reflects the seriousness with which the Court viewed theoffence.Personal background[15] M was born on [redacted]. He is now 32 years old. In May 2017 he was firstdiagnosed, by Dr Simon Bainbridge a registered psychiatrist at Fillan Healthcare, withAdult ADHD.11 This is also when he began treatment for the condition.[16] M says that before he was first diagnosed with ADHD, he had struggled mostof his life. At secondary school he never succeeded past the fourth form. In his firstreport (May 2017) Dr Bainbridge refers to M having a childhood where he wasdisruptive in class, regarded as the "class clown" and failed most of his school examsbefore leaving school aged 14. His school reports had stated "he could do better if heapplies himself".[17] M says he was never given the chance to see a psychiatrist during hisadolescent years to see if there were any psychological or psychiatric issues underlyinghis poor scholastic performance. He says that throughout his younger 20s he startedto find himself in trouble with the police, that he was never able to process right fromwrong, or the consequences.11 Dr Simon Bainbridge MBBS, BMedSci, MBA, FRANZCP, MRCPsych. M was referred to DrBainbridge by Dr Lowe of the Health and Counselling Centre, Massey University Albany campus.[18] M describes himself during the period he was undiagnosed and untreated asimpulsive, lacking in concentration, with poor self-esteem, depression and anxiety dueto his failures and never being able to succeed in life.[19] Despite the yet untreated ADHD, at the age of 23 M gained entry to MasseyUniversity, Auckland as an adult student and he enrolled in the Bachelor of Businessdegree. However, at the age of 25 he was stood down for one year by MasseyUniversity for poor grades. It was during this time that he came to suspect that he mayhave ADHD and obtained the referral to Dr Bainbridge.[20] M also has a physical illness in the form of a spinal arthritis disease whichcauses him pain and mobility issues. He takes regular pain relief medication for thisillness as well as the ADHD medication. Previously he used cannabis for pain relief,both illegally and when he lived in Australia, on prescription. He says he does nothave many options for a career that suits his physical disability, but he did not want tobe a on a disability allowance for the rest of his life. Hence his attempt to enter a desk-based profession.[21] When Dr Bainbridge reviewed M in May 2019, he found much was improved.The May 2019 reports records M stating:Things have been amazing; my whole life has changed since I saw you; afterI started taking the medication, I could feel that my brain became morebalanced and I am no longer getting in trouble with the Police; I have not beenarrested for a while and at university, my grades have improved; I feel I havea lot more control over how I act and what I do and I am really pleased withhow things have gone.[22] On review in May 2019 Dr Bainbridge noted that M had found that he was ableto make better decisions and have better judgment and not act so impulsively while onthe prescribed medication, Concerta.12 There were possible side-effects, but thesewere being managed. M was also still taking prescription drugs for arthritis.13 DrBainbridge renewed the required special authority for Concerta, on the basis the12 Concerta requires a special authorisation; it appears to carry risks of side effects however DrBainbridge reported in his 2019 report that M was managing the medication well. There is nothingto suggest any change in this respect.13 These drugs were Tramadol for pain relief, Quetiapine 200mg to 250mg each day,Metoclopramide, and Finasteride.ongoing prescriptions for this drug would be provided by M's general practitionerdoctor, who was to be responsible for his ongoing management.[23] M has provided the Court with the reports Dr Bainbridge prepared in May 2017and May 2019. Dr Bainbridge has now retired from practice. For the purpose of theappeal M has obtained a report from Dr Hans Laven, a registered clinicalpsychologist,14 who also attended the appeal hearing and was cross-examined by therespondent. While the respondent through counsel questioned aspects of Dr Laven'sevidence, the respondent did not file its own expert evidence.[24] Mr Laven conducted his own assessment of M using a recognised diagnostictool15 and stated that prior to treatment M had severe ADHD as a child and an adult.Mr Laven referred to research which he said showed ADHD was a factor that increasedthe chance of criminal offending by threefold. He opined that for M "the ADHD wasa very significant and a primary contributor or cause of the offending".[25] After the diagnosis and treatment with Dr Bainbridge, M was able to return touniversity to finish his degree. During his last two years at university, which were parttime, he obtained two academic excellence awards. He also won three competitionsin data analytics and represented Massey University in the global CFA equity researchcompetition. Put shortly there was a significant improvement in his academicendeavours.Work experience[26] In February 2020 while M was still at University he was "scouted" and offeredwork with a chartered accountant during his University studies.16 The Bachelor ofBusiness degree was completed in June 2020 and M graduated in May 2021. It wasat this time that he left employment with the chartered accountant and commencedlooking for permanent work. The accountant provided him with a reference dated 3May 2021 which recommends M as a candidate for employment and confirms he was14 Hans Laven MSc Diploma of clinical psychology Auckland University, winner of Senior Prize inpsychology.15 The DIVA 22.0 (Diagnostic Interview for Attention Deficit Hyperactivity Disorder in Adults).16 M was employed by [redacted], Chartered Accountants Ltd.employed as an assistant accountant from March 2020 to April 2021. It describes hisrole as being responsible for preparing financial statements and taxation returns forcompanies, trusts and sole traders and other administration tasks as required. Thereference describes M as having communication skills, being organised and havinggood computer skills. He is said to be able to work independently and able to followthrough to ensure a job gets completed. He is also described as flexible and willing towork on any project that is assigned to him. He is described as someone who wouldbe a beneficial team member for any employer.[27] In July 2021 M lodged this appeal. In August 2021 he was offered a positionat the [redacted] as an analyst. He revealed his convictions and the appellate processhe was going through to get his "clean slate". He was advised that the [redacted] werenot interested in employing him until he had a "clean slate". His applications for otherjobs in the financial services industry have resulted in potential employers seekingdisclosure of any criminal history, which has led him to abandon further pursuit ofthose jobs.[28] When M first appeared before me he was unemployed. The appeal wasadjourned part heard to enable him to obtain updating expert evidence. When theappeal was recalled before me M was working on a short-term contract for a [redacted]entity. The contract was related to [redacted] matters and had been renewed incircumstances where there was no long-term future. He advised me the contract wasexpected to run out within a matter of months. This contract had not required M todisclose his criminal history and he had not offered to do so.[29] M submits his employment prospects are blighted by a criminal history thatwas acquired at a time when the effects of his untreated ADHD made him more proneto criminal offending. His last criminal conviction was in 2018, however the matterhad been in Court for four years. His last arrest was around 2015. He believes theabsence of criminal activity for nearly six years confirms his statements and the expertopinion about why the offending and other early failures in his life have occurred. Hefurther submits that had his ADHD been diagnosed and treated at the time theoffending started then he may have avoided entry of conviction and further offending.He contends that as matters now stand the entry of the convictions is disproportionateto the gravity of the offending, once explained by his expert evidence.LawAppeal rights[30] An appeal in which discharge without conviction sought is usually brought asan appeal against conviction and sentence.17 Here M has filed his appeal(s) as beingagainst conviction. However, given a discharge without conviction is treated as anacquittal,18 it is the appeal against conviction that is essential.19 M does not seek tochallenge the sentences imposed in the event he is not granted discharges withoutconvictions.20 Thus that there is no appeal against sentence is not fatal to the appeal.[31] This Court has jurisdiction under the Criminal Procedure Act 2011 (CPA) tohear appeals against decisions of a District Court Judge made in criminal proceedingsother than for a category three offence after the defendant has elected trial by jury ora category four offence.21[32] In the present case one of the convictions (the possession of an offensiveweapon) is for a category three offence for which M elected trial by jury and pleadednot guilty. Accordingly, this Court has no jurisdiction to hear an appeal against thatconviction nor the corresponding sentence.22[33] As for the remaining offences, apart from the 10 June 2013 convictions, theyare either category one or category two offences for which jury trial was not elected.Their appellate pathway to this Court is provided in ss 229, 230 and 244 of the CPA.17 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12]; Ovtcharenko v Police [2017] NZCA65 at [5]; and B v Police [2021] NZCA 16 at [61].18 Sentencing Act 2002, s 106(2).19 See Rutherford v Papakura District Council HC Auckland CRI 2005-404-162, 20 September 2005at [11]–[13] and Jackson v R, above n 17, at [8].20 Compare Jackson v R, above n 17, at [9].21 Criminal Procedure Act 2011, ss 230(1)(b) and 247(1)(b).22 Sections 230(1)(b) and (c) and 247(1)(c) and (d).[34] The exception are the convictions for offences committed on 10 June 2013;these pre-date the CPA. However, the criminal process for these offences was broughtsummarily under the now repealed Summary Proceedings Act 1957.23 This Act gavea right of appeal for conviction to this Court.24 Accordingly, other than the convictionfor possession of an offensive weapon all convictions are within the appellatejurisdiction of this Court.[35] Finally, this Court has jurisdiction to hear an appeal against conviction wherea discharge without conviction is sought despite it not having been sought at firstinstance.25[36] Section 231(2) of the CPA requires a first appeal against conviction to bebrought within 20 working days after the date of sentence for the conviction appealedagainst. However, s 231(3) provides the first appeal court may, at any time, extendthe time allowed for commencing an appeal against conviction.26[37] The principles relevant to such extensions of time are well established. Theyare to be found in the Court of Appeal's decisions in R v Knight and R v Lee.27 Thetouchstone is the interests of justice with the appeal court being required to balance anumber of factors including:28 the wider interests of society in the finality of decisions, the strength of theproposed appeal, whether the liberty of the subject is involved, the practicalutility of any remedies sought, the extent of the impact on others affected andon the administration of justice, and any prejudice to the Crown.[38] Subsequently in Smith v R the Court of Appeal said the reasons for the delayin bringing an appeal and the merits of the proposed appeal are of particular23 Summary Proceedings Act 1957, s 13.24 Section 115. Under the Criminal Procedure Act 2011, s 397 proceedings commenced before thecommencement date and not finally determined (including any appeal) continue in accordancewith the law as it was before the commencement date. Commencement includes an informationbeing laid under the Summary Proceedings Act 1957. The commencement date is 1 July 2013(Criminal Procedure Act 2011, ss 2(2) and 394). Mr M's information was laid on 14 June 2013.25 Bedford v R [2021] NZCA 395; and Kupriianova v New Zealand Police [2022] NZHC 1306.26 And see Summary Proceedings Act 1957, s 123.27 R v Knight [1998] 1 NZLR 583 (CA) at 587; and R v Lee [2006] 3 NZLR 42 (CA) at [95]–[99].28 R v Knight, above n 27, at 587.significance, with the latter likely being determinative of the interests of justice andtherefore the application for leave.29Discharge without conviction[39] The Court's authority to discharge without conviction is provided for in theSentencing Act 2002:106 Discharge without conviction(1) If a person who is charged with an offence is found guilty or pleadsguilty, the court may discharge the offender without conviction, unlessby any enactment applicable to the offence the court is required toimpose 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 anyproperty; or(b) make any order for the payment of any sum that the courtthinks 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 orphysical harm or loss of, or damage to, property:(c) make any order that the court is required to make onconviction.107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unless the courtis satisfied that the direct and indirect consequences of a conviction would beout of all proportion to the gravity of the offence.[40] It was established in R v Hughes :30[10] the court must first consider whether the disproportionality test ins 107 has been met. If (and only if) the court is satisfied the s 107 threshold29 Smith v R [2020] NZCA 221 at [3]–[4].30 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.has been met, may the court proceed to consider exercise of the discretion todischarge without conviction under s 106.[11] The decision as to whether the test under s 107 has been met is not amatter of discretion. It is a matter of fact requiring judicial assessment, whichcan be subject to appeal on normal appellate principles: Rajamani, at para 5.The discretionary power of the Court to discharge without conviction under s106 arises and exists only if the Court is satisfied that the s 107 threshold hasbeen met.[41] Accordingly, the normal appellate principles set out under Rajamani v R applyto the s 107 analysis.31[42] The considerations relevant to the s 107 analysis are set out in Z v R whereArnold J held:32... when considering the gravity of the offence, the court should consider allthe 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.[43] On this approach the court first determines the seriousness of the offence,having regard to both the aggravating and mitigating factors of the offence and theaggravating and mitigating factors which apply to the offender.33 The court thendetermines the direct and indirect consequences of conviction and whether they areout of all proportion with the gravity of the offending.Admission of new evidence[44] Finally, I note that where the appellate court is being invited to considerinformation relevant to the appeal's outcome that post-dates the date of sentencing, itis usual for an appellant to apply to adduce fresh evidence on appeal.31 Rajamani v R [2007] NZSC 68, [2008] 1 NZLR 723 at [5].32 Z v R [2012] NZCA 599, [2013] NZAR 142 at [27].33 In Sok v R [2021] NZCA 252 at n 3 the Court of Appeal recently confirmed that "it is settled lawthat 'gravity of the offence' in s 107 takes into account the aggravating and mitigatingcircumstances of the offending and the offender" (emphasis added).[45] It is well settled since R v Little and R v Moriarty that events which haveoccurred after sentencing may be taken into account on appeal.34 The relevantauthorities are helpfully summarised in Richardson v New Zealand Police.35 Ingeneral, evidence of such events must be sufficiently cogent and relevant and theremust be exceptional circumstances warranting its admission.36[46] In Richardson v New Zealand Police, Gendall J referred to Soloman (akaHanks) v R where the Court of Appeal stated that "R v Moriarty and the manysubsequent decisions of this court that have applied it permit us to take into accountthat the appellant has not reoffended throughout the entire two years since shecommitted the offences with which this appeal is concerned."37 Gendall Jacknowledged this statement suggested the Court of Appeal may have resiled from therequirement of exceptionality, at least to some extent. However, his Honourrecognised the otherwise consistent application in other appeals of a requirement forexceptional circumstances before the admission of evidence arising after sentence butbefore appeal to be admitted to court. In Gendall J's view each case will require aholistic assessment of the entirety of the case along with the new evidence.Discussion[47] The application for leave to appeal out of time and the proposed appeal restson new evidence, in particular that given by Dr Laven, but also in the form of thereports from Dr Bainbridge and evidence that M has given from the bar.38[48] When M first appeared before me, I told him of the need for evidence toestablish a causal link between his ADHD and the offending.39 He has provided thisevidence from Dr Laven, however, there is no formal application to adduce it as freshevidence.34 R v Little CA 48/82 24 February 1983 and R v Moriarty CA109/84, 10 August 1984.35 Richardson v New Zealand Police [2015] NZHC 1431.36 R v Little, above n 34, and R v Moriarty, above n 34.37 Richardson v New Zealand Police, above n 35, citing Soloman (aka Hanks) v R [2012] NZCA300.38 The respondent did not object to this evidence.39 See M v New Zealand Police HC Auckland CRI-2021-404-321, 6 October 2021 (Minute of DuffyJ) which explains why the appeal was adjourned part heard. It did not resume before me until 7March 2023.[49] It may be that as a self-represented appellant M does not know how to go aboutapplying to adduce fresh evidence on appeal. Further, I note that in Smith v R whereno affidavit to explain the delay in appealing was available the Court of Appeal putthat procedural irregularity to the side and proceeded to consider the merits of theproposed appeal, given they underlaid the question of whether to grant leave or not.40Also, in Richardson v New Zealand Police Gendall J noted the absence of anysubmissions regarding the new evidence, but went on to find the exceptionality ofsome of the evidence warranted its admission.41 Thus, whilst I decry in principle thefailure to comply with proper procedure, I recognise there needs to be some laxityabout the form in which a self-represented appellant presents his or her appeal,particularly where in substance the interests of justice weigh in favour of allowing theproposed appeal. Accordingly, I propose to consider the merits of the proposed appealfirst, as this will be decisive of the other matters.[50] The respondent describes the offending as moderately serious. I think it is lessthan that. It generally appears to be impulsive, opportunistic low range offending thatis more of nuisance value than anything else. Certainly, the conduct involved cannotbe condoned but there is nothing about the offending that suggests calculated intentand planning; nor did he profit from it. The penalties the offending attracted areconsistent with this view.[51] The crux of this appeal is the causal link Mr Laven's evidence draws betweenthe offending and M's ADHD. He saw M's ADHD as being "a real factor" and a"significant contributor" of the offending. Further his view is consistent with theresearch to which he refereed.[52] Secondly, there is the fact that M has stopped offending since receiving theADHD diagnosis and treatment. Generally, it is wrong to reason that becausesomething follows another thing the former causes the latter.42 However, here there isDr Laven's expert evidence to establish a causative link. There is no expert evidenceto contradict this view and the respondent's cross-examination of Dr Laven did not40 Smith v R, above n 29, at [4].41 Richardson v New Zealand Police, above n 35, at [28].42 The post hoc ergo propter hoc fallacy.diminish my impression that Dr Laven had given both a credible and a reliable experttestimony.[53] I asked Dr Laven whether he had given any thought to the possibility that Mwas using the ADHD diagnosis as a crutch to avoid the consequences of theconvictions. Dr Laven's response was as follows:A. Well, of course. That was in my mind from the outset. But I reallyfound no evidence to suggest that and basically everything I cameacross [seemed] a genuine, genuine on his part in terms of lookingback on his behaviour and one of the things, also, is that since he'sbeen treated, you know, he's seen those things more clearly. Thatseemed evidence to me, and also, he hasn't been offending as far as Iknow. So all those things really point to, yes, point to the ADHDbeing a real factor, and, in fact, you know, according to research andaccording to the assessment there is no reason for me to doubt that theADHD was a significant contributor [and] his attempt, or currentrequest regarding his convictions, is not sort of making that up or justusing it[54] I was impressed with Dr Laven's evidence. His report and his oral evidenceoutline his extensive experience in giving evidence for courts, which was also apparentto me from how he conducted himself in Court. His answers were clear and theexplanations he gave were intelligible and reasonable. His evidence was notundermined in any way by the cross-examination. The earlier reports from 2017 and2019 by Dr Bainbridge are consistent with Dr Laven's evidence.[55] Put simply the expert evidence from Dr Bainbridge and Dr Laven consistentlyshows that M has ADHD. I find the expert evidence provided by M to be helpful andpersuasive. This evidence strongly supports M' unmedicated ADHD symptoms beinga significant contributing factor in his offending. The respondent provided nocontradictory expert evidence.[56] I consider it highly probable that had M received his diagnosis of ADHD andbeen treated before the offending started he may never have offended. At the time ofthe first offending, had there been a diagnosis then and treatment started M may havereceived a discharge without conviction given the significant contribution of untreatedADHD symptoms to the offending and the probable effect of a conviction on him as ayoung person.[57] Dr Bainbridge's report shows that M has little in the way of family support.Yet through his own personal effort he has recognised there was something amiss withhimself, sought professional help and following diagnosis he has then complied witha treatment regime, which from what Dr Bainbridge outlines in his report, requirescareful management to balance side effects against therapeutic effect. These efforts,which are much to M's credit, have allowed him to avoid further offending, achieveacademic success in his chosen field and impress the persons who have engaged hisservices.43[58] I am satisfied the expert evidence from Dr Laven and Dr Bainbridge is relevantand cogent. I consider that were it not for M's untreated ADHD, the offending maynot have happened. Accordingly, the contribution M's untreated ADHD has played isa mitigating factor that further attenuates the seriousness of what I have already foundto be low level nuisance type offending.[59] The next consideration is the effect of the convictions on M. The appeal wasprompted by the difficulties he has experienced obtaining employment. This isunderstandable. The dishonesty offending and the recklessness that underlies muchof the other offending would clearly not attract potential employers in the financialservices industry. The inference I draw here is consistent with the comments ofGendall J in Richardson v New Zealand Police regarding "the general difficulties aconviction can create (particularly for dishonesty)".44 Here, Gendall J recognised theconsequences of a dishonesty conviction however minor "can have severeconsequences for a person's job prospects".45[60] In Richardson the appellant as a young adult had stolen $250 worth of make-upfrom a department store. It was her only dishonesty conviction. It would have beenexpunged by the "Clean Slate" legislation46 but for a subsequent driving convictionwhich kept her entire criminal history alive until the last such conviction enteredagainst her satisfied the statutory period. The effect was that the dishonesty conviction43 I refer here to the charted accountant who "scouted" M, employed him until graduation andprovided him with a very good reference as well as the health entity which has renewed its shortterm contracts with him.44 Richardson v New Zealand Police, above n 35, at [61].45 At [55].46 Criminal Records (Clean Slate) Act 2004.would not be expunged until 10 years after that offending. The dishonesty convictionprecluded the appellant from entry into her chosen profession as a real estate agent.The appeal out of time for a discharge without conviction was brought only in relationto the dishonesty conviction, given its effect on her.[61] Gendall J said that but for the presence of two driving convictions, which didnot form part of the appeal, he would have had no hesitation in allowing the appealand discharging without conviction on the dishonesty offending. Further that giventhe presence of the driving convictions he must put to the side the "generalconsequences" of the appellant having a conviction.47 Instead, the Judge focussed onthe consequences of the dishonesty conviction, which he found to be out of allproportion to the gravity of the dishonesty offending. Accordingly, he allowed theappeal and the appellant was discharged without conviction.[62] To like effect are the comments of Woolford J in Police v Paki which weremade in the context of an appeal by the Police against a District Court Judge's decisionto discharge without conviction on offences of drink driving and theft and burglary.Woolford J allowed the appeal in relation to the drink driving offending, but otherwisedismissed the appeal based on the negative impact the dishonesty convictions wouldhave on the defendant's future prospects:48[36] Without minimising the seriousness of drink driving offending, it isclear that convictions for burglary and theft would have a greater impact onMr Paki. Dishonesty convictions of this nature can have serious andpermanent consequences on a person's potential and future career, especiallywhen accrued at a young age. That real and appreciable risk does not followas a matter of course for a conviction of drink driving. I am satisfied that,considered alone, a conviction for drink driving is a black mark but one thatcannot be realistically compared to multiple dishonesty convictions foroffences as serious as burglary.[63] M is presently working as a contractor on a short-term contract for a healthentity with COVID-19 responsibilities. To this extent his circumstances haveimproved since he was before me in October 2021. However, there is no guarantee ofcontinued employment beyond the present contract term. It cannot be assumed thatCOVID-19 is something that will continue to require the attention it has done to date.47 At [47].48 Police v Paki [2014] NZHC 3112.It is common knowledge the health entity concerned is going through a period ofre-structuring, which is a further factor that could see someone who is working on ashort-term temporary contract finding it will not be renewed. Any opportunities ofpermanent employment with this health entity could generate the type of enquiriesabout personal history (including presence of criminal convictions) that employersseeking to employ persons for indefinite terms typically make. There is no reason todoubt any future attempts M makes to find employment in the financial servicesindustry will be met with the same need to provide information on criminal history ashave happened in the past.[64] The present case is comparable to that in Richardson v New Zealand Police.There the appeal was filed six years after conviction. Here the appeal was filed eightyears after the first convictions (June 2013) and three years after the last conviction(June 2018). As in Richardson the sentences imposed by the District Court at the timewere acceptable ones. Just as in Richardson here it is subsequent events which haveovertaken the initial sentencing exercise.[65] Here the offending occurred between the ages of 23 and 28 years which is olderthan Ms Richardson who was 20 years at the time of her offending. However, she didnot have ADHD and the delay in its diagnosis and treatment that M has experienced.[66] Like Ms Richardson, M' conviction history is eligible for release in accordancewith the Criminal Records (Clean Slate) Act 2004. That will take effect after sevenyears from entry of the last conviction, which was on 26 June 2018 for offending thatoccurred on 12 September 2015. As matters stand M will be eligible for removal ofhis convictions under the "Clean Slate" Act on 25 June 2025. He presently meets theAct's full requirements namely: he has not been convicted of an offence within sevenyears; he has never been sentenced to a fulltime custodial sentence; he has not beenconvicted of a specified offence; and he has no outstanding fines, costs orcompensation orders.[67] The circumstances of this case satisfy me that the convictions are a significantobstacle to M obtaining long-term steady employment. This is demonstrated by thedifficulties M has experienced since acquiring his degree, the type of work he seeks(based on his academic qualifications) and the fact he has obtained and held atemporary contract allowing him to work in financial services when he was notrequired to disclose whether he had a criminal history. Moreover, the Court need notbe satisfied that the consequences complained of will necessarily result, only that thereis a "real and appreciable risk" that they will.49 I am satisfied there is such risk here.[68] It follows that I find the evidence of the adverse impact of the convictions onM's employment prospects to be relevant and cogent.[69] I am satisfied that the new evidence, both in relation to his ADHD and theconsequences of the convictions on employment prospects, goes to show theconsequences of the convictions are out of all proportion to the offending, once seenfrom this new perspective.[70] The next question is whether the circumstances of this case are so exceptionalthat the new evidence should be admitted in the appeal and whether leave to appealout of time is granted. I am satisfied the answer is yes.[71] M' life has essentially been blighted by this period of time where his ADHDsymptoms were not recognised and appropriately managed. Through his own effortshe has obtained a diagnosis and treatment which has turned his life around.Nonetheless, he is still coated with the remnants of this time in the form of theconvictions which are holding him back from attaining his true potential. By 25 June2025 the "clean slate" legislation will remove the convictions. Based on his recentpast performance there is no reason to think M will fail to maintain his present goodrecord and jeopardise the application of this legislation. So, the issue comes down towhether matters should be left where they are until the "clean slate" legislation takesits effect or whether the removal of the convictions should be considered by admittingthe new evidence and granting leave to appeal against the convictions out of time.[72] I find the answer to this question is finely balanced. On one view a delay ofaround two years four months may seem tolerable. On the other hand, after all hishard work at university and persistently managing his ADHD medication to address49 Alshamsi v Police HC Auckland CRI 2007-404-62, 15 June 2007.symptoms M has faced unemployment and still faces the real risk of furtherunemployment until June 2025 when the "clean slate" legislation will take effect. Inote that in Strickland v New Zealand Police Panckhurst J found that although theappellant's convictions would not necessarily bar him from enrolling in the NewZealand Army there would be a 12 month stand-down which even by itself would bea consequence out of all proportion to the offending (a disorder conviction andpossession of cannabis conviction).50 For M the risk of unemployment aftereverything else he has faced is enough to place his case in the category of anexceptional circumstance that warrants admission of the new evidence and thegranting of leave to appeal out of time. Further the new evidence shows the merits ofthe substantive appeal are strong which is a further factor for allowing admission ofthe new evidence and granting leave to appeal out of time.[73] The final question is the assessment under s 107 of whether the consequencesof the relevant convictions, as they are now understood, are out of all proportion to thegravity of the offending. This involves consideration of the fact the conviction forpossession of an offensive weapon will remain on M's record and whether, if dischargewithout conviction is granted it should apply to all relevant convictions or only someof them, in particular the convictions for dishonesty.[74] If the appeal is allowed the conviction for possession of an offensive weaponwill remain on M's record because it is beyond the jurisdiction of this Court to dealwith it. However, M has the charge notice and police summary of facts to explain thatconviction. Possession of a four-inch clasp knife in the circumstances in which it wasfound on M should not be the same deterrent to potential employers as would the otherconvictions. Thus, I do not see the remaining presence of this conviction as a reasonfor dismissing the appeal.[75] The final question is whether the appeal should be allowed in respect of allrelevant convictions or only some of them. This requires assessing whether theconsequences of all relevant convictions are out of proportion to the gravity of theoffending or whether only some convictions satisfy this test.50 Strickland v New Zealand Police [2013] NZHC 2704 at [13].[76] Dr Laven's evidence is relevant to M's culpability in his offending prior tobeing diagnosed with ADHD and receiving medication and thus is relevant globallyto the gravity of M's offending. Dr Laven referred to four theoretical models for whyADHD is linked to criminal offending, all of which he considered were present in M'case. The first theory is that ADHD symptoms create criminogenic factors that, incombination with lack of foresight and consideration of consequences, increase therisk of criminal behaviour. Frequent experiences of failure, inferior performance,relationship conflict and punishment can result in beliefs that success through normalmeans is not available and the person has been "short-changed" in life and is thusentitled to obtain desired outcomes by whatever means.[77] Dr Laven's evidence continues with the explanation that the second and thirdtheories stem from the discovery that individuals with ADHD have low activity in theprefrontal cortex part of the brain. The second theory states that low prefrontal cortexactivity results in subjective boredom that individuals with ADHD feel compelled toremedy by seeking excitement. The prefrontal cortex is also responsible for foresight(awareness and consideration of long-term consequences) and moral judgment. Thethird theory focusses on disinhibition. There is an impaired ability for consciouscontrol of behaviour and emotions in awareness of social rules, and the inhibition ofinstinctive emotional reactions is impaired. Individuals with ADHD may struggle tocontrol an emotional reaction when required to by social or legal rules.[78] Finally Dr Laven's evidence refers offending involving the use of illicit drugs.He states that this is often self-medication to try to relax, sleep better (that is, addresssymptoms of ADHD) or to manage anxiety about failure and social maladjustment.[79] This evidence persuades me that M's ADHD is a factor relating to the offenderthat affects the gravity of his offending as a whole.[80] First, in relation to the convictions for dishonesty, I am satisfied the appealpasses the test under s 107 of the Sentencing Act.[81] The gravity of this offending is prima facie minimal as evidenced by thesentences M received. The gravity is further reduced by M's reduced culpability.Dr Laven's evidence discussed M's shoplifting offending in relation to the secondtheoretical model. He stated that M was likely motivated to offend to relieve the"intolerable boredom" sensation caused by ADHD. It also involved disinhibition ofemotional urge and a lack of foresight, according to Dr Laven, all direct symptoms ofADHD. In relation to the petrol theft offending Dr Laven stated that this alsohighlighted ADHD symptoms of impatience, poor moral reasoning, poor foresight andpoor problem-solving. Dr Laven also stated that his criminal attitude appeared toinvolve some self-entitlement to equity (as explained in the first theoretical model).Further Dr Laven explained that the decision to drive knowing he had insufficientfunds would have involved disinhibition of the "urge" to travel to whatever goal oractivity he sought; this urge would be stronger than for the average person who wouldfind it easier to overcome through moral reasoning and consequences. Although M isundoubtedly responsible for his offending, Dr Laven's evidence gives insight intofactors beyond Mr M's control (because he was unaware of his symptoms andtherefore unable to control them) which contributed to his offending.[82] The consequences of the dishonesty offending are severe. M will suffer anadverse impact on employment in his chosen field of employment. This field ofemployment is important to him because of his arthritis which prevents him fromworking in a physical field. Additionally, M has invested great time and effort into thefield to notable success. My analysis at [59]–[68] supports this conclusion.[83] Also supporting this conclusion are the requirements of the Financial ServiceProviders Registration and Dispute Resolution Act 2008. M informed me that hewishes to practice as a financial analyst, which requires (apart from in some cases alicense such as the United States qualification) registration under this Act.51 To thisend he obtained the necessary tertiary qualifications from Massey University. Withoutregistration he would not be able to provide financial advice to retail clients52 whichwould mean he could not advance in his chosen field and would limit his earningpotential. Under s 14(e) a person is disqualified from registration if they have beenconvicted of a crime involving dishonesty in the past five years. Although M'sconvictions are not captured by this provision it indicates the weight the regulatory51 Financial Service Providers Registration and Dispute Resolution Act 2008, ss 11 and 12.52 See section 22C.body places on dishonesty convictions. This is important because the regulatory bodyretains a discretion under s 15B to reject an applicant. Dishonesty convictions wouldplainly be relevant to its assessment.[84] Therefore I consider there is a real and appreciable risk that M's dishonestyconvictions prevent him from obtaining registration. Although that is not a direconsequence, in light of the work M has put towards his rehabilitation andreintegration as a productive member of society and his commendable academicachievements, it is a consequence which lays on the balance sheet in favour of adischarge without conviction. Additionally, this Court has recognised that the fact aconviction has the potential to restrict the appellant's choice of what type of careerthey wish to enter into is a relevant consequence.53[85] Accordingly, the consequences of the dishonesty convictions are out of allproportion to the gravity of the offending.[86] Regarding the conviction for possession of cannabis I am satisfied the appealshould be allowed here as well. The gravity of this offence is minimal as is evidentfrom the summary of facts set out above. Dr Laven's evidence is relevant here, namelythat M used cannabis to deal with pain from his arthritis, but also to help with calmingand sleep which was him dealing with ADHD symptoms that were unrecognised atthe time. Under cross-examination Dr Laven further explained that:His choice to break the law would have been contributed to by ADHD in termsof his ability to think through the implications, the degree of focus he had on:"Oh, I've got this pain and I need to get rid of it" without really thinking ofthe longer term risks and consequences of what he was doing. So I believethat it's very likely the ADHD contributed to, was one causal factor in hischoice to break the law in that particular way.Possession of a small amount of cannabis in this context of reduced culpability mustbe regarded as very low seriousness. The Court has previously recognised that apossession of cannabis conviction may stand in the way of pursuing a career "withmorality or character requirements".5453 Fraser v Police [2014] NZHC 2437 at [12(c)].54 At [12(c)].[87] Thus, I am satisfied the appeal in relation to these convictions also satisfies thes 107 test.[88] I next turn to deal with the convictions for wilful damage (x 2) and commonassault. In relation to the gravity of the offending, again they are of prima facie lowseriousness based on the summaries of facts and the penalties imposed. Dr Laven inhis evidence linked the graffiti offending to excitement-seeking motivation associatedwith ADHD. With the assault offending, Dr Laven explained this was likely to reflectADHD effects regarding disinhibition of emotional arousal when feeling mistreatedas well as poor conscious judgement and foresight. Once again for the reasons I havealready explained this reduces M's culpability and thus the seriousness of hisoffending in relation to these convictions.[89] In relation to the consequences of the convictions, the Court has previouslyrecognised that an assault conviction means employment "is more likely to be moredifficult to secure".55 Convictions for these offences can also be a disincentive foremployers to engage Mr M's services, particularly given the unavoidable presence ofthe possession of an offensive weapon conviction. To an employer the overall imagemay be of a man with anti-social tendencies, who is best avoided. For the reasonsalready explained regarding the other convictions, I consider adverse career impactsare out of all proportion to the gravity of the offending for these convictions.[90] The remaining convictions are the conviction for driving whilst driving licencewas suspended (2013) and the breach of the supervision conditions (being the penaltyimposed for the possession of an offensive weapon offending). M said at the time theformer conviction came from a lapse of memory. The latter conviction was imposedafter M had begun treatment for ADHD, albeit in the early stages. Mr Laven said inevidence that in the early stages of treatment breakthrough misbehaviour can occur.In general, such offending is of minimal gravity, as is shown by the penalties imposed.Here there is the underlying effect of the undiagnosed and untreated ADHD symptomswhich Mr Laven linked to the offending, which minimises the gravity even further. Iconsider employers looking to employ financial services advisers would be looking55 Goggin v Police [2013] NZHC 2710 at [14].for persons who appear responsible and reliable. Such persons generally do notacquire convictions because they realise the detrimental impact these can have oncareer opportunities. The presence of these two convictions coupled with theconviction for possession of an offensive weapon may well deter employers fromemploying M. In which case he will be in the same possession as if the appeal werenot allowed for all relevant convictions. Accordingly, I am satisfied that here as wellthe consequences of the convictions are out of all proportion to the gravity of theoffending.[91] It follows that in relation to all relevant convictions M passes the s 107 test forallowing discharges without convictions. The Crown submitted that I needed to takeMr M's offending as a whole, and that the total seriousness of the offending was morethan the sum of its parts because each conviction was entered in the context of theprevious offending. I do not accept this reasoning, but even if that were the case, Iwould still be satisfied the s 107 test is met.[92] I am also satisfied that with M having passed the tests for the admission of thenew evidence the granting of leave to appeal out of time and the assessment under s107, it is therefore appropriate for me to exercise the discretion available to me unders 106 of the Sentencing Act to discharge him without conviction in relation to allconvictions that fall within the appellate jurisdiction of this Court. Many decisions ofthe courts determining discharge without conviction cases record that an attempt torehabilitate and reintegrate, whether by pursuing higher education or productive work,should be encouraged.56 M clearly falls into the category of "basically decent youngpeople with bright prospects who have committed aberrant offences blotting anotherwise clean copybook".57 As I have already explained, while Mr M's convictionsare more numerous than the typical candidate his convictions are aberrant in that thecause can be traced to his untreated and undiagnosed ADHD symptoms which havenow been addressed.56 See for example Fraser v Police, above n 53, at [12(b)]; Goggin v Police, above n 55, at [15]; andLatimer v R [2013] NZCA 562 at [12].57 Boonen v Police HC Wellington CRI-2003-485-41, 14 October 2003 at [14].[93] For completeness I note that M also sought to advance his appeal based on theadverse effect the convictions had on him obtaining membership of a financial servicesprofessional body in the United States of America. I have found it unnecessary toconsider this issue as I am satisfied for the reasons set out above that all tests forallowing this appeal are met.Result[94] Leave to appeal out of time is granted.[95] Leave to adduce fresh evidence is granted.[96] The appeal against the entry of the convictions identified at [3]–[8]; [10]–[11]herein is allowed. The convictions on those offences are set aside.[97] M is discharged without conviction on the above offences.[98] Publication of name, address or identifying particulars of appellant prohibitedby s 201 of the Criminal Procedure Act 2011.Duffy J