OTIS v POLICE [2019] NZCA 231

OTIS v POLICE [2019] NZCA 231 [18 June 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA627/2018[2019] NZCA 231BETWEEN MARKO OTISApplicantAND NEW ZEALAND POLICERespondentCourt: Courtney, Lang and Whata JJCounsel: D P H Jones QC for ApplicantJ A Herring for RespondentJudgment:(On the papers)18 June 2019 at 3.30 pmJUDGMENT OF THE COURTA The applications for an extension of time and to adduce further evidence aregranted.B The application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Whata J)Introduction[1] Mr Otis seeks leave out of time to bring a second appeal againstthe District Court's refusal to grant a discharge without conviction.1 He pleaded guiltyto possessing half a gram of methamphetamine — enough for five smokes.21 Criminal Procedure Act 2011, ss 237(2) and 253(3).2 Police v Otis [2018] NZDC 587 [District Court judgment] at [1] and [7].His application for discharge was dismissed in the District Court.3 Jagose J dismissedhis first appeal.4 Both Courts rejected his central claim that the impact of convictionwas grossly disproportionate because, given his age (55), a conviction would ruin hisprospects of securing suitable employment.[2] Mr Otis filed his application for leave to bring a second appeal out of time.As the Crown do not oppose an extension of time being granted and no prejudice arisesfrom the delay, we grant leave to extend time.[3] Mr Otis also applies to adduce further evidence to assist his appeal. It is anupdating affidavit addressing Mr Otis' personal circumstances. The respondent raisedno objection to our reading it, and the respondent in fact refers to it. We have thereforeconsidered it for the purposes of this leave application.[4] An appeal against a refusal to grant a discharge without conviction ischaracterised as an appeal against both conviction and sentence.5 The criteria for leaveare that the appeal involves a matter of general or public importance or thata miscarriage of justice may have occurred or may occur unless the appeal is heard.6In this case Mr Otis relies only on the second limb, asserting a miscarriage of justice.This is a high threshold: not every error in the court below will lead to a miscarriageof justice.7Application for leave[5] As provided in s 107 of the Sentencing Act 2002, a judge must not dischargean offender without conviction unless satisfied as to the two-stage threshold test:107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unlessthe court is satisfied that the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence.3 At [18].4 Otis v Police [2018] NZHC 1383 [High Court judgment] at [31].5 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [8]–[9].6 Criminal Procedure Act, ss 237(2) and 253(3).7 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [38].[6] The leave application raises three main errors said to have been made at bothstages of the test.[7] First, Mr Otis says that the High Court Judge misapprehended the relevant factswhen assessing the gravity of the offending in two key ways:(a) despite characterising the gravity of the offending as low, the Judgewrongly endorsed the sentencing Judge's finding that the presence of aClass A drug "inferred involvement with a dealer, if not in dealing";8and(b) expressing "disquiet" about categorising the gravity of the offending aslow.9[8] This complaint relates to the fact that, although Mr Otis himself was inpossession of only half a gram of methamphetamine, a total of one and a half gramswas found in the car in which Mr Otis was a passenger. In determining the level ofMr Otis' culpability the sentencing Judge considered that the overall circumstancespointed to the involvement of a dealer and, coupled with the nature of Class A drugs,warranted an inference that culpability was increased.10 On appeal, the High CourtJudge rejected criticism of this finding on the basis that the amount ofmethamphetamine in a defendant's possession is only one factor and the sentencingJudge was entitled to take into account the entire factual matrix in assessing Mr Otis'culpability, which the sentencing Judge characterised as moderate.11 The High CourtJudge, however, made it clear that Mr Otis' position was to be determined on the basisonly of his possession of half a gram.12[9] Mr Jones QC, for Mr Otis, argued that the High Court Judge should havedismissed the comments made in the District Court about the involvement of a dealer,given that there was no evidence at all that Mr Otis was dealing and that the Judge's8 High Court judgment, above n 4, at [19].9 At [21].10 District Court judgment, above n 2, at [9] and [14].11 High Court judgment, above n 4, at [16]–[19].12 At [12].failure to do so meant that the appeal proceeded on the basis of Mr Otis havingthe benefit of the doubt rather than clearly on the basis of being in possession of onlyhalf a gram.[10] We agree that comments suggesting that Mr Otis could have had someinvolvement in dealing were inappropriate because they convey the possibility thatthe assessment of the gravity of the offending could be affected by a fact that was notrelevant. This could only make a difference, however, if the High Court Judge'sassessment of the gravity of the offending was incorrect, which is the subject ofthe second ground.[11] We do not consider it arguable that the High Court Judge's expression ofdisquiet over concluding that the gravity of the offending was low amounts to an errorthat could lead, or could have led, to a miscarriage of justice; the circumstances wereunusual and, as we come to next, the Judge was entitled to find that there was no directevidence linking the drug offending with the personal circumstances on which thechange in the characterisation was based in the context of the second ground.[12] The second complaint is that the Judge failed to properly consider Mr Otis'personal background, including significant fresh evidence filed in the High Courtabout childhood trauma. Specifically, it is unclear the extent to which the High CourtJudge's reasoning was influenced by a perceived absence of evidence linking Mr Otis'offending to his traumatic personal circumstances. These circumstances include hismother's suicide, years of unacknowledged grief and concerted efforts to cope withhis personal issues, including recent completion of a CADS course and multiple griefcounselling sessions over a sustained period.13[13] Mr Jones argued that there was clear evidence supporting the fact thatoffending arose from the circumstances described in this mitigating background.In fact, although there was evidence about the mitigating circumstances themselves,the evidence linking them to the offending was quite limited. A grief counsellor,Sarah Penwarden, provided a brief report about the therapeutic work she wasundertaking with Mr Otis and his good progress. But in terms of a forensic connection,13 CADS refers to Community Alcohol and Drug Services.her comment was limited to the general statement that "[d]rug and alcohol use can beseen as attempts by people to cope with the very intense emotions associated withtrauma by numbing the body (Van der Kolk, 2014)". It was a matter for the Judge toplace the weight he considered appropriate on this evidence. We do not see any tenableargument that he made an error in his approach.[14] The third complaint is that the High Court Judge failed to properly considerthe direct and indirect consequences of conviction and, in particular, the repercussionsfor Mr Otis' ability to achieve employment. In this regard, it is said the Judge failedto analyse a report, Ageing Workforce in the New Zealand Crown Entity Sector: SurveyReport 2014 (Ageing Workforce Report), which details the difficulties of persons ofmore advanced years to obtain employment,14 and failed to consider the combinedissues of age and a drug conviction. It is further claimed that the Judge's observationthat discharge without conviction was "rare" was wrong.15[15] In assessing the direct and indirect consequences of conviction, the High CourtJudge referred to the Ageing Workforce Report.16 He accepted that conviction riskedimpeding Mr Otis' job prospects but said he lacked evidence to take this issue muchfurther.17 This was a factual finding plainly available to him. For example, as notedby counsel for the police, Mr Otis' affidavit showed that he had been struggling tosecure managerial-level employment well before the conviction. He lost amanagement job in 2014 because of drug use. We see no basis on which this findingcould form the basis of the second appeal.[16] Finally, the High Court Judge's statement that it is "rare" for the courts to granta discharge without conviction for Misuse of Drugs Act 1975 offending was, we think,simply an observation that relatively few such cases of this kind have that outcome.In any event, it is clear the Judge made his decision on the basis of an orthodoxapplication of s 107.14 Lonergan Research Ageing Workforce in the New Zealand Crown Entity Sector: Survey Report2014 (New Zealand Human Rights Commission, 28 November 2014).15 High Court judgment, above n 4, at [29].16 At [24].17 At [26].[17] Overall, we are not satisfied that a miscarriage occurred or will occur ifthe appeal is not heard. A further appeal would do no more than simply afford Mr Otisa further opportunity to relitigate the merits a third time. For completeness no matterof general or public importance is raised by the proposed appeal.Result[18] The applications for an extension of time and to adduce further evidence aregranted.[19] The application for leave to appeal is declined.Solicitors:Cook Morris Quinn, Auckland for ApplicantCrown Law Office, Wellington for Respondent