MARKO OTIS v NEW ZEALAND POLICE [2019] NZSC 113

MARKO OTIS v NEW ZEALAND POLICE [2019] NZSC 113 [11 October 2019]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 60/2019[2019] NZSC 113BETWEEN MARKO OTISApplicantAND NEW ZEALAND POLICERespondentCourt: Winkelmann CJ, O'Regan and Ellen France JJCounsel: D P H Jones QC for ApplicantJ E Mildenhall for RespondentJudgment: 11 October 2019JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONSIntroduction[1] Mr Otis pleaded guilty to possession of methamphetamine (half a gram) andpossession of utensils (a glass pipe and a cut straw). These items were found on himafter a car in which he was a passenger was stopped and searched. He sought adischarge without conviction but that application was declined in the District Court.1He was convicted and fined and ordered to pay Court costs. His subsequent appeal tothe High Court was unsuccessful2 and the Court of Appeal declined leave for a second1 New Zealand Police v Otis [2018] NZDC 587 (Judge McGuire).2 Otis v New Zealand Police [2018] NZHC 1383 (Jagose J) [HC judgment].appeal.3 As the latter decision is final, he now seeks leave for a direct appeal from thedecision of Jagose J in the High Court.Background[2] The High Court Judge's assessment of the gravity of the offending was that itwas low. In reaching that view the Judge considered new evidence about Mr Otis'personal circumstances. The Judge decided the offending was not sourced in thepersonal circumstances relied on. That finding was upheld in the Court of Appeal.4[3] The Judge then addressed the consequences of a conviction. He acceptedconviction might risk impeding job prospects. But Jagose J did not see the evidenceas enabling this matter to be taken further given the absence of evidence about thoseprospects. In the end, the burden of conviction was seen as "no more than the naturalconsequence of the conviction, which follows on the gravity of the offending. It is not disproportionate".5The proposed appeal[4] Leave to appeal is sought on the basis the proposed appeal would raise aquestion of public importance about how the courts should consider and addresspersonal circumstances in sentencing, particularly in this type of case.6 In addition, itis submitted a miscarriage of justice otherwise arises.7[5] Mr Otis wishes to argue that in the High Court his personal circumstances weregiven insufficient weight. He relies on a number of circumstances including hisrehabilitation, the link between his personal circumstances and his drug use, and theimpact on his future employment prospects (Mr Otis is now 57 years old and isprofessionally qualified).3 Otis v New Zealand Police [2019] NZCA 231 (Courtney, Lang and Whata JJ).4 At [11] and [13].5 HC judgment, above n 2, at [30].6 Senior Courts Act 2016, s 74(2)(a).7 Section 74(2)(b).[6] The respondent opposes leave on the basis no question of general or publicimportance arises. Rather, the respondent submits this is a challenge to the HighCourt's case specific assessment of the facts and that assessment does not give rise tothe appearance of a miscarriage of justice.Our assessment[7] Leave to appeal directly from the decision of the High Court is sought becausethe decision of the Court of Appeal to decline leave is final.8 The Court mustaccordingly be satisfied there are exceptional circumstances that justify a direct appealto this Court.9[8] That criterion is not met in this case. There may be questions about theapproach to be taken to the assessment of disproportionality in the context of anapplication for a discharge without conviction. We do not consider it would beappropriate to address those questions in this case which turns on its particular facts.The factual matters have been addressed in some detail by the High Court and, indeed,the Court of Appeal in its decision declining leave to appeal. Nothing raised byMr Otis suggests the High Court's analysis gives rise to exceptional circumstanceswhich justify a direct appeal.Result[9] The application for leave to appeal is dismissed.Solicitors:Cook Morris Quinn, Auckland for ApplicantCrown Law Office, Wellington for Respondent8 Criminal Procedure Act 2011, s 213(3).9 Senior Courts Act, s 75(b). This threshold is even higher where an appeal against the decision ofthe Court of Appeal is precluded by statute, as it is in this case: Burke v Western Bay of PlentyDistrict Council [2005] NZSC 46, (2005) 18 PRNZ 560 at [4]; and Sena v New Zealand Police[2018] NZSC 92 at [4].