WIRIHANA-HOSKINS v R [2023] NZHC 1591

WIRIHANA-HOSKINS v R [2023] NZHC 1591 [26 June 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-000140[2023] NZHC 1591BETWEEN MOREHU JAMES WIRIHANA-HOSKINSAppellantAND THE KINGRespondentHearing: 19 June 2023Appearances: J Yi and H Shin for the AppellantK Li for the RespondentJudgment: 26 June 2023JUDGMENT OF GORDON JThis judgment was delivered by meon 26 June 2023 at 10 amRegistrar/Deputy RegistrarDate:Solicitors/Counsel:J Yi, Barrister, AucklandCrown Solicitor, Auckland[1] The appellant, Morehu Wirihana-Hoskins, pleaded guilty in the District Courtat Auckland to one charge of possessing cannabis for supply.1 His application to bedischarged without conviction was declined.2 He now appeals that decision.Background[2] The Summary of Facts record that at approximately 4.35 am on 7 December2021 the Police were called to Mr Wirihana-Hoskins' address, which he shared withhis two co-offenders, Messrs Dean and Mensouri. The Police had been called byneighbours who had heard the victim of an assault at the address calling for help.Mr Wirihana-Hoskins was asleep at the time and was not involved in the assault.[3] When the Police arrived at the house Mr Wirihana-Hoskins was not presentinside.[4] At approximately 4.40 am a member of the public approached two Policeofficers standing as scene guards at the front of the property. They were directed tothe park directly adjacent to and at the rear of the property.[5] The Police ran around the side of the property to the park behind and sawMr Wirihana-Hoskins standing next to two large bags of cannabis which appeared tohave been thrown over the back fence into the park. The two bags of cannabiscollectively contained 11.02 kilograms of cannabis bud.[6] When interviewed by the Police shortly after being taken into custody,Mr Wirihana-Hoskins claimed it was a coincidence that he was found next to the bagsof cannabis.[7] Mr Wirihana-Hoskins filed an affidavit in the District Court which not onlyaddressed the claimed consequences of a conviction for possession of cannabis forsupply, but also contained evidence regarding his relationship with his two co-offenders and the events of the evening in question. He says he grew up inNew Plymouth and during High School he met his co-offender, Jawad Mensouri.1 Misuse of Drugs Act 1975, s 6(1)(f). Maximum penalty: eight years' imprisonment.2 R v Morehu James Wirihana-Hoskins [2023] NZDC 6415.Mr Wirihana-Hoskins moved to Auckland for job opportunities in 2019. Since thenhe has worked in the hospitality industry, initially working in various bars andrestaurants in Auckland. In late 2020 when Mr Mensouri moved to Auckland, the twoof them began flatting together with the third co-offender, Metuangaro Dean.[8] While the three of them were living together, in the middle of 2021Mr Mensouri and Mr Dean began supplying cannabis for extra income. Mr Wirihana-Hoskins says he never wanted to get involved in their cannabis business. He justwanted to focus on his hospitality career.[9] He says from time to time Mr Mensouri or Mr Dean would ask him to do somefavours for them relating to their cannabis business. He says he did not want to fraytheir relationship because they were all living together at the same flat. But he sayshe was more afraid about their becoming violent, having seen glimpses of them beingviolent to the people with whom they were dealing cannabis.[10] Mr Wirihana-Hoskins says on the night of the offending he was asleep in hisbedroom and was awoken by someone crying out for help from within the house. Hesays it sounded like there was a fight going on. He left the address to remove himselffrom the situation deciding to go to a friend's house not far away. As he was leavinghis two co-offenders told him that the Police had been called and would be arrivingsoon. They told him to collect two bags of cannabis that they would be throwing overthe fence to the adjacent park. He says he listened to them because he felt pressured.[11] He says a short while later he walked to the adjacent park and saw two largebags of cannabis. It was at this time that a member of the public saw him collect thebags and shortly after, two Police officers walked over and questioned him about thebags of cannabis.District Court decision[12] On 24 March 2023 Mr Wirihana-Hoskins' application for discharge withoutconviction under s 106 of the Sentencing Act 2002 (the Act) was heard in the DistrictCourt at Auckland.[13] Judge Fitzgibbon first outlined the facts of the admitted offending referring toboth the Summary of Facts and parts of Mr Wirihana-Hoskins' affidavit.[14] Next, the Judge undertook the standard three-step analysis required for anapplication under s 106.[15] In assessing the gravity of the offending the Judge said that 11.2 kilograms ofcannabis is a significant amount which indicated a commercial element. Sheacknowledged that Mr Wirihana-Hoskins said he was just doing what he had beentold. On the basis of R v Terewi, 3 the Judge considered the offending would ordinarilyfall within Category 3 with a starting point of more than four years' imprisonment.However, given there was no evidence of commercial gains or profits, the Judgeconsidered Category 2 of Terewi was the appropriate category.[16] The Judge referred to the aggravating and mitigating factors of the offendingand of Mr Wirihana-Hoskins personally. She referred to his knowledge of hisflatmates' business of supplying cannabis to supplement their income, the significantamount of cannabis he had been found with, the pressure to remove the bags ofcannabis which were those of his flatmates and not his, his remorse, that he had cut allties with his flatmates, and the absence of any prior convictions. Taking all thosefactors into account the Judge assessed the gravity of the offending to be moderatelyserious for offending of that type.[17] The Judge then considered the direct and indirect consequences of aconviction. The Judge stated that in order to meet the statutory threshold there mustbe a real and appreciable risk that the consequences referred to, will occur.[18] Judge Fitzgibbon said that having considered the information in Mr Wirihana-Hoskins' affidavit there was simply insufficient evidence before the Court that aconviction would result in difficulties with the current employer or with any futureemployment opportunities. She stated there was no evidence that Mr Wirihana-Hoskins' employment would be terminated or that he would not be offered3 R v Terewi [1999] 3 NZLR 62 at [4].opportunities in the future. Similarly, with regard to the consequences for overseastravel, the Judge stated there was no evidential basis for that claim.[19] Accordingly, the Judge was not satisfied that there was a real and appreciablerisk of the consequences eventuating.[20] It followed that the Judge was not satisfied that the consequences of aconviction would be out of all proportion to the gravity of the offending.[21] The Judge then moved to consider the sentence. She determined thatrehabilitation was the better option for Mr Wirihana-Hoskins and sentenced him to12 months intensive supervision.Grounds of appeal[22] The grounds of appeal are that:(a) the Judge erred by placing excessive weight on the gravity of theoffending;(b) the Judge erred by placing insufficient weight on the consequences ofthe conviction; and(c) the Judge erred in the balancing test.Approach on appealSection 232 of the Criminal Procedure Act 2011[23] An appeal against a refusal to grant a discharge without conviction under s 106of the Act is a composite appeal against conviction and sentence under s 232 of theCriminal Procedure Act 2011 (CPA).4 An appeal against conviction proceeds by wayof rehearing.54 Jackson v R [2016] NZCA 627 at [16].5 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32].[24] The Court must allow the appeal if it is satisfied that, in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extentthat a miscarriage of justice has occurred or in any case, a miscarriage of justice hasoccurred for any reason.6 A "miscarriage of justice" is defined as an error, irregularityor occurrence in or in relation to or affecting the trial that has created a real risk thatthe outcome of the trial was affected or resulted in an unfair trial.7[25] There will have been a miscarriage of justice if there was a material error bythe Judge in entering a conviction;8 and there will have been a miscarriage of justice"for any reason" if the Judge erred in applying the principles under s 107 of the Act.9[26] The decision as to whether the test under s 107 of the Act has been met is nota matter of discretion. It is a matter of fact requiring judicial assessment which can besubject to appeal on normal appellate principles.10 If an appellate court comes to adifferent view on the evidence, the trial Judge necessarily will have erred and theappeal must be allowed.11 But the appellant must show that an error has been made;the appeal court does not consider the evidence de novo.12Sections 106 and 107 of the Sentencing Act[27] Section 106 of the Act provides that a court may discharge an offender withoutconviction following a finding of guilty or a plea of guilty. Section 107 then provides: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.6 Criminal Procedure Act 2011, s 232(2).7 Section 232(4). Section 232(5) provides that in subs (4), trial includes a proceeding in which theappellant pleaded guilty.8 Section 232(2)(b).9 Jackson v R, above n 4, at [12].10 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11] citing R v Rajamani [2007] NZSC 68,[2008] 1 NZLR 723 at [5].11 Sena v Police, above n 5, at [38].12 At [38].[28] The law in relation to ss 106 and 107 was summarised by the Court of Appealin R v Taulapapa:13[22] It is settled law that a court considering a discharge should: examinethe gravity of the particular offence, taking into account all aggravating andmitigating factors of the offending and the offender; identify the direct andindirect consequences of conviction; and consider whether thoseconsequences are "out of all proportion" to the gravity of the offence. Onlythen does it move to considering the residual discretion under s 106. Theremust be a "real and appreciable" risk that any given consequence will happen:this standard recognises that the court is assessing the likelihood of somethingthat may happen in the future.[23] The offender should ordinarily put information before the court toprovide a factual basis for a decision that the test has been satisfied. There isno legal onus on the offender to do so however, and the standard of proof ins 107 is simply that the judge be satisfied that the requirements of the sectionare met.[29] The nature and seriousness of the consequences and the degree of likelihoodof their occurring will be material to the Court's assessment of whether thoseconsequences would be out of all proportion to the gravity of the offence.14 The higherthe likelihood and the more serious the consequences, the more likely it is that thestatutory test can be satisfied.15[30] As noted in Taulapapa above, there is no onus on an offender to establish thatthe disproportionality test has been met. The requirement is simply that the Court besatisfied it has been met. The word "satisfied" calls for the exercise of judgment bythe Court and it is inapt to import notions of burden and standard of proof.16Fresh evidence[31] Mr Wirihana-Hoskins seeks leave to file an affidavit in this Court. It addressesa narrow issue. Mr Wirihana-Hoskins says he wishes to clarify what he meant byhelping his co-defendants with "favours here and there" (which is what he said in hisaffidavit in the District Court). He says that Mr Mensouri and Mr Dean wouldsometimes ask him to do some favours for them with regard to their cannabis dealings.13 R v Taulapapa [2018] NZCA 414 (footnotes omitted).14 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [35].15 At [35]. See also Maraj v Police [2016] NZCA 279 at [10].16 R v Hughes, above n 10, at [49] citing R v Leitch [1998] 1 NZLR 420 (CA) at 428.He says, for example, because the cannabis supply activities were at the shared flat,they would ask him to stay out of a certain room or move his belongings so it wouldnot interfere with what they were doing. He said he would give up more of his personalspace as an act of courtesy for the shared space that they lived in together.[32] Mr Wirihana-Hoskins further says he was never involved in any kind ofsupplying, manufacturing or growing. He did not help them in any way in this respect,nor did he have any intention to do so. He says the favours were few and far betweenbecause he was at work most of the time.[33] The procedure for the filing of fresh evidence is set out in r 8.8 of the CriminalProcedure Rules 2012. There is technical non-compliance with that rule. The noticeof appeal does not set out the particulars of the further evidence. There was nomemorandum filed and served within 30 working days of the notice of appeal beingfiled, setting out the particulars of the further evidence. There was similarly noaffidavit filed within the required 30 working days after the filing of a notice of appeal.Mr Wirihana-Hoskins' affidavit was filed in an unsworn form and was sworn on19 June 2023, the date of the hearing.[34] I will nevertheless consider the application on its merits. The test for adducingfresh evidence is set out by the Privy Council in Lundy v R:17 If the evidence is not credible, it should not be admitted. If it is credible,the question then arises whether it is fresh in the sense that it is evidence whichcould not have been obtained for the trial with reasonable diligence. If theevidence is both credible and fresh, it should generally be admitted unless thecourt is satisfied at that stage that, if admitted, it would have no effect on thesafety of the conviction. If the evidence is credible but not fresh, the courtshould assess its strength and its potential impact on the safety of theconviction. If it considers that there is a risk of a miscarriage of justice if theevidence is excluded, it should be admitted, notwithstanding that the evidenceis not fresh.[35] The overriding test is what is required in the interests of justice.1817 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].18 At [119]; and Bain v R [2007] UKPC 33 at [34].[36] Ms Li, for the Crown, submits that the evidence is not fresh as it was availableat the time of Mr Wirihana-Hoskins' sentencing in the District Court. But the Crowndoes not oppose the admission of the evidence for the purposes of the appeal.[37] I agree that the evidence is not fresh. It could have been included inMr Wirihana-Hoskins' original affidavit in the District Court. However, it is credible.Although it is not fresh I accept it is in the interests of justice for the evidence to beadmitted. There could otherwise be a misunderstanding as to what Mr Wirihana-Hoskins meant when he said that he helped his co-defendants with favours as regardstheir cannabis dealings. The new evidence clarifies what he meant when he said that.I admit the affidavit as evidence on the appeal.Three-step analysis[38] I now turn to the three-step analysis for s 106 applications and consider:(a) the gravity of the offence;(b) the direct and indirect consequences of a conviction; and(c) whether those consequences are out of all proportion to the gravity ofthe offence.Gravity of the offence[39] Mr Shin, counsel for Mr Wirihana-Hoskins, submits the gravity of the offenceshould have been assessed as low for the following reasons:(a) the extent of Mr Wirihana-Hoskins' involvement in the offence ofsupplying cannabis was minimal – he was next to the two bags ofcannabis and was found to be in possession of them;(b) he was pressured on the day of the offending to assist his co-defendantsin collecting the bags of cannabis because of an undercurrent ofviolence;(c) he pleaded guilty at the earliest opportunity;(d) he has expressed remorse for his offending;(e) he has no previous convictions;(f) he was of previous good character; and(g) he is unlikely to reoffend – he has cut off all contact with his co-defendants.[40] Ms Li submits the Judge correctly assessed the gravity of the offence asmoderately serious.[41] The term "the gravity of the offence" means the gravity of the offencecommitted, not the gravity of the type of the offence. In other words, an assessmentof gravity is informed by the culpable conduct, to be determined on an assessment ofthe facts, rather than the nature of the charge.19[42] This first step is referred to by the authors of Adams as, in fact, having twoparts as follows:20There are two steps inherent in the first stage of the s 106 assessment: an initialgrading of but one aspect of the case – the actual offending; and then a muchbroader analysis of all relevant considerations, including the actual offending.That the overall assessment of gravity is lower than the narrower assessmentof the offending merely reflects that at the second step within the gravityassessment there are positive mitigating factors to also consider.[43] As to the first step, in this case Mr Wirihana-Hoskins was found in possessionof a very large amount of cannabis. The quantity, 11.02 kilograms, indicates a large-scale operation (usually) with the expectation of commercial profit. However, in19 J (CA32/2021) v R [2021] NZCA 690 at [36] (footnote omitted); and Babich v R [2018] NZHC2324 at [7] citing Taylor v R [2018] NZHC 688 at [46].20 Mathew Downs (ed) Adams on Criminal Law – Sentencing (online looseleaf ed, ThomsonReuters) at [SA107.5].assessing culpability for drug-related offending the Court is required to consider notonly the quantity of the drug but the role of the offender.21[44] Mr Wirihana-Hoskins was not involved in the cannabis-selling businessoperated by his two flatmates. However, he facilitated their business by absentinghimself from the shared accommodation knowing he was taking that step to assistthem with running the cannabis-selling operation.[45] On the night in question he again knowingly assisted his flatmates by takingsteps with the intention of removing the cannabis from the park where the bags hadbeen thrown so that the Police did not locate the cannabis. Mr Wirihana-Hoskins saidhe did so because he was concerned about his flatmates' resort to violence. He exhibitsto his affidavit Police photographs said to have been taken on the night in question ofhis room which shows the contents of his room in disarray and with blood on the wallsand floor.[46] In Taylor v R, when considering an application for discharge, Thomas J referredto the defendant as being under the domination of her partner:22[49] Not only was Ms Taylor's part in the conspiracy minimal but, in respectof both offences, she was acting as a result of her partner's domination of her,something which had been a consistent and controlling factor in her life for along period. Given Ms Taylor's long history of abuse suffered from the earliestage, her ability to resist her partner's demands was severely compromised.The gravity of the offending, although serious in that it involvedmethamphetamine dealing, was, in all Ms Taylor's circumstances, very muchat the lower end of the scale.[47] I do not put Mr Wirihana-Hoskins in the same category as Ms Taylor. His co-offenders were friends, not domestic partners. There is no evidence of anything thatwas done or said to stop him from moving out of their shared accommodation whenhe became aware of their cannabis-dealing activities, as he says he has done since theoffending.21 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [63] citing the Sentencing Act 2002, s 8(a)and Zhang v R [2019] NZCA 507; [2019] 3 NZLR 648 at [110]: "It is patent that role has afundamental impact on culpability".22 Taylor v R, above n 19.[48] I assess his involvement as more than minimal as submitted by Mr Shin. Myassessment for this first stage is that the gravity of the offence is moderate.[49] I next move on to the personal mitigating factors relied on. Mr Shin saysMr Wirihana-Hoskins pleaded guilty at the earliest opportunity. I do not accept that.The charge was filed in the District Court on 28 January 2022 and Mr Wirihana-Hoskins first appeared in that court on 14 February 2022.[50] In a pre-trial application he challenged the admissibility of the hearsaystatement of the member of the public who reported seeing him with the bags ofcannabis to the Police. That challenge was unsuccessful. He then applied for leave toappeal to the Court of Appeal against the pre-trial decision. Leave was refused. In itsdecision of 3 November 2022, the Court of Appeal said:23[9] The application raises no novel point of law or conflict of authority orissue of wider significance. It turns on its facts. There is no reason to thinkthe issue cannot be dealt with in a conviction appeal after trial, or that it mightresult in such an appeal succeeding. On the face of it the circumstances inwhich the statement was taken suggest it was reliable; it was utteredimmediately by a witness with no stake in the matter and recorded separatelyby the officers soon afterward. Reliability and weight are ultimately juryquestions.[51] Mr Wirihana-Hoskins then pleaded guilty on 5 December 2022.[52] While it was, of course, open to Mr Wirihana-Hoskins to challenge theadmissibility of the evidence, and he pleaded guilty just over a month after the Courtof Appeal decision, I do not accept the guilty plea was at the first available opportunity.[53] I accept that Mr Wirihana-Hoskins is remorseful, he has no previousconvictions and the character referees, including his present employer, speak well ofhim. He has cut his ties with his co-offenders. Taking into account these mitigatingfactors I assess the gravity of the offence as low to moderate. That is lower than theassessment made by the District Court Judge.23 Wirihana-Hoskins v R [2022] NZCA 525 (footnote omitted).Direct and indirect consequences of a conviction[54] In his District Court affidavit, Mr Wirihana-Hoskins says he is concerned thatif he is convicted, his current job as a restaurant manager might be jeopardised. Herefers to his employment contract which includes two clauses: that he must at all timesuse his best endeavours to promote and protect the company's general interests,profitability and reputation; and that his employer is able to dismiss him without noticein the case of serious misconduct or other cause justifying summary dismissal.[55] He acknowledges that he currently has a very good relationship with hisemployer but says he is concerned that to protect the restaurant's and the company'sreputation, his employer might find the need to replace him.[56] Mr Wirihana-Hoskins says he is also concerned that a conviction of this naturewould make it extremely difficult for him to find jobs in the hospitality industry in thefuture and that prospective employers would simply look at the conviction on its faceand not give him the opportunity to explain his side of the story.[57] He further says that it is common for restaurant managers to obtain someexperience in New Zealand and then branch out to overseas countries such asAustralia, Canada and the United States to further their careers there. He says his ownmanager at his current employment has always encouraged him to look overseas, suchas Australia, and has told him that it is basically mandatory to move overseas to obtainexperience in order to further a career in hospitality. He says his manager has offeredto connect him with people he knows in Sydney to get him started.[58] Mr Wirihana-Hoskins says that this is something he will do. However, he hasnot made any concrete plans for this yet.[59] On the basis of the above evidence, Mr Shin submits there is a real andappreciable risk that a conviction for possession of cannabis for supply wouldsignificantly hinder Mr Wirihana-Hoskins' chances of future employment. He submitsthere will be undoubted disadvantage when it comes to future job applications andthere is a real and appreciable risk that Mr Wirihana-Hoskins would have significantdifficulty in finding work in the hospitality sector, especially in Australia where thereis a more competitive market. He says the conviction does not speak to his actualculpability.[60] Mr Shin relies on R v Taulapapa where the Court of Appeal reviewed previouscases regarding the consequences of conviction for young people and set out a seriesof propositions:24(a) Conviction carries a social stigma which the law sustains byrecording and publishing convictions. It may affect a person's career,but that consequence must normally yield to the employer's right toknow. This principle extends to independent bodies charged withassessing the character or suitability for a particular career. It appliesto all offenders for whom convictions are recorded, including theyoung.(b) The consequence may be severe if employers are unwilling to lookbehind the conviction to consider the person's merits and that reactionis unfair to the offender in the sense that the conviction itself oughtnot exclude them from the career or job concerned. Such risk mayarise where the conviction speaks to character or records a seriousoffence but does not fairly reflect the offender's character orculpability. Theft may be an example of an offence that may leademployers to reject an applicant without further inquiry.(d) The court may assume that applicants with convictions are likely tobe excluded without inquiry where employers must filter manyapplications before arriving at a shortlist for interview; this may applyparticularly to unskilled or semi-skilled work.(e) The consequences of conviction may be severe where an offenderpoints to a specific career or job to which conviction is likely topresent a barrier; and that may be especially so where the offender hasalready spent some time training for that career.[61] Ms Li submits that the District Court Judge was correct to find there wasinsufficient evidence that any of the consequences of a conviction will result. Inparticular, that there was no evidential basis for any claim of difficulties with thecurrent employer or with any future employment opportunities, and likewise in respectof travel.[62] I accept Ms Li's submission.24 R v Taulapapa [2018] NZCA 414 at [42] (footnotes omitted).[63] Mr Wirihana-Hoskins clearly has a good relationship with his presentemployer who provided a reference for him. Mr Shin confirmed that the employer isaware that Mr Wirihana-Hoskins was charged with this offence. There is nothing inthe reference from the employer or in any other evidence to indicate there is a real andappreciable risk that Mr Wirihana-Hoskins would lose his present employment. Noris there evidence that individuals with such a conviction are generally barred frombeing employed in the hospitality industry. As Ms Li submits, the only evidenceMr Wirihana-Hoskins has filed from those in the industry are references whichindicate that he is well-regarded and respected within the hospitality industry. Thistends to suggest that despite his conviction, he will succeed in the industry based onthe reputation he has built.[64] As to whether future employers may not look behind the facts of a conviction,notwithstanding what was said in Taulapapa, I note what the Court of Appeal said onthis issue in Edwards v R:25... We do accept that some employers may not be prepared to look beyond thebare fact of a conviction to read what the courts had to say about itscircumstances and mitigating factors, but we are not prepared to assume thatall or even most will behave in that way, especially where the offender isgenerally a person of good character, as in this case. ...[65] The same could be said here. I do not consider the evidence goes far enoughto satisfy the Court that there is a real and appreciable risk that Mr Wirihana-Hoskinswill have difficulty in obtaining future employment in his field if his conviction stands.[66] As to the consequences of conviction in relation to travel, the Court of Appealin Edwards specifically addressed the kind of evidence that is required:26[23] It is perhaps as well to say something about the evidence that anapplicant ought to adduce if he or she is to invoke foreign law and practice insupport of a discharge.[24] The court must be "satisfied" that the consequences of conviction are outof all proportion to the gravity of the offence. It is settled law that an applicantfor a discharge need only point to a real and appreciable risk that adverseconsequences will ensue. That standard recognises that the court is beingasked to predict what will happen in the future. So, for example, Mr Edwards25 Edwards v R [2015] NZCA 583 at [18].26 At [23]–[26] (footnotes omitted). See also R v Taulapapa, above n 24, at [52] and [54] where theCourt of Appeal accepted counsel's submissions citing these paragraphs in Edwards v R.need only point to a real and appreciable possibility that he will need to traveloverseas for work.[25] It does not follow, however, that a court will permit an applicant tospeculate about matters of present fact, in which we include any existing travelrestrictions that are said to preclude travel. Proof of these matters may requireexpert evidence if they are not agreed and cannot be established in any otherway.[26] It seems to us, speaking generally, that a court will ordinarily expect tobe satisfied that under the law and practice of the jurisdiction concerned:(1) the conviction must be disclosed but, assuming a discharge is given,the fact that the offence was committed need not be; and(2) in consequence of the conviction, the applicant is prima facieinadmissible, and for how long; and(3) there is no alternative entry process available or that, if there is, suchprocess is unreasonably difficult and uncertain in all thecircumstances.[67] In this case, Mr Wirihana-Hoskins has no specific plans to travel or workabroad. Rather, he puts it on the basis of something he will do in the future as valuableexperience to further his career. Additionally, he has not filed any evidence as to howa conviction of possession of cannabis for supply will impact on his likely travel inthe future. The words of Clifford J in Brunton v Police resound here:27 The Courts have held on numerous occasions that tentative future travelplans carry little weight in a s 107 context. Potential problems with traveloverseas have often been seen as a universal consequence, and unless realevidence can be shown that a conviction would impede entry into anothercountry, such speculative consequences will not form the basis for a dischargewithout conviction. ...[68] Mr Shin referred the Court to three cases: Wanoa v Police;28 Hudson v NewZealand Police;29 and R v Rakich.30 However, in each of those cases there wasevidence before the Court as to the likely impacts on the offender as regards travel.Even so, in Wanoa, for example, Edwards J observed in relation to travel to Australia:31[36] Furthermore, it is clear that the travel consequences which will flowfrom a conviction are a matter of discretion for the Australian authorities. Asthe Judge noted, a conviction will not operate as an automatic ban on entry27 Brunton v Police [2012] NZHC 1197 at [16].28 Wanoa v Police [2018] NZHC 259.29 Hudson v New Zealand Police [2012] NZHC 2769.30 R v Rakich [2014] NZHC 3287.31 Wanoa v Police, above n 28.into Australia. Rather, an evaluative exercise will be undertaken by theAustralian authorities to ascertain whether Mr Wanoa meets the goodcharacter test.[69] As already noted, in this case Mr Wirihana-Hoskins has not filed any evidenceat all about how a conviction for possession of cannabis for supply will impact on anypotential travel in the future. While the Court accepts that such a conviction may makeentry into some countries more difficult, on the basis of the evidence that was beforethe District Court Judge, it cannot be said there is a real and appreciable risk of anadverse consequence in relation to overseas travel.Balancing[70] The consequences of a conviction must be out of all proportion to the gravityof the offending before the Court has the jurisdiction to grant a discharge withoutconviction.32 I have assessed the gravity of the offending as low to moderate. That isless than the gravity as assessed by the District Court Judge. However, I have alsodetermined that the District Court Judge was correct in her decision that there was nota real and appreciable risk of the consequences claimed by Mr Wirihana-Hoskinseventuating.[71] In those circumstances it cannot be said that the consequences of a convictionare out of all proportion to the gravity of the offence. The test in s 107 is not satisfied.Therefore, the residual question of the exercise of the discretion under s 106 does notarise.Result[72] Mr Wirihana-Hoskins' appeal is dismissed._____________________________Gordon J32 R v Smyth [2017] NZCA 530 at [12].