WEERASINGHE v POLICE [2019] NZHC 139

WEERASINGHE v POLICE [2019] NZHC 139 [13 February 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-395[2019] NZHC 139BETWEEN REHAN WEERASINGHEAppellantAND NEW ZEALAND POLICERespondentHearing: 4 February 2019Counsel: A J Holland for AppellantB J Hamilton and H E Savage for RespondentJudgment: 13 February 2019JUDGMENT OF BREWER JThis judgment was delivered by me on 13 February 2019 at 2:30 pmpursuant to Rule 11.5 High Court Rules.Registrar/Deputy RegistrarSolicitors:Meredith Connell (Auckland) for RespondentIntroduction[1] On 6 December 2018, Judge AC Roberts refused to discharge Mr Weerasinghewithout conviction on one charge of possessing cannabis for the purpose of supply.1Mr Weerasinghe now appeals that decision.Approach on appeal[2] I must allow the appeal if I am satisfied that, for any reason, Judge Robertsmade an error such that Mr Weerasinghe should have been discharged withoutconviction.2[3] The law recognises that sometimes the consequences for an offender of beingconvicted of their offending will be so harsh that justice is better served by not enteringa conviction. The test is set out in s 107 of the Sentencing Act 2002:The 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.[4] It can be seen there is a high threshold between an offender and a dischargewithout conviction. It is not enough to satisfy the Judge that the consequences of aconviction would be disproportionate to the gravity of the offence. The Judge mustbe satisfied that the consequences would be out of all proportion to the gravity of theoffence.[5] To apply the test properly, a Judge must (as did Judge Roberts) conduct a three-step analysis:3(a) Assess the gravity of the offending. That means first looking at all therelevant circumstances of the offending and of the offender, and thenstanding back and deciding how serious the offending is.1 Police v Weerasinghe [2018] NZDC 25686.2 See Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12]–[13].3 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8]–[9].(b) Determine the direct and indirect consequences of a conviction for theoffender.(c) Determine whether those consequences are out of all proportion to thegravity of the offending.[6] I will examine Judge Roberts's reasoning against the circumstances before himand, in doing so, I will make my own assessment as to whether there is an error and,if so, whether there should be a different result.[7] Before doing so I record that Mr Holland wished me to have regard to anaffidavit which was not before Judge Roberts. At the sentencing, as I will come to,Judge Roberts had regard to an affidavit of Joanna Jane MacDonald, who gave heropinion on the likely consequences of a conviction for Mr Weerasinghe's present andfuture employment. Judge Roberts did not rely on the affidavit. Mr Holland wishedme to have regard to a supplementary affidavit by Ms MacDonald in which shestrengthens the opinions given in the first affidavit. The Crown opposed me receivingthe supplementary affidavit. At the hearing, I ruled in favour of the Crown. Thesupplementary affidavit does not traverse fresh matters. More importantly, I did notfind it added anything cogent to the first affidavit such that I should have regard to itin the interests of justice.Did the Judge make an error such that Mr Weerasinghe should be dischargedwithout conviction?The gravity of the offending[8] The offending itself is succinctly summarised by Judge Roberts:[2] On 22 February, the Auckland City Police and Counties ManukauPolice executed a drug search at 16 Hawera Road, Kohimarama. You were notthere present. Inside the ground floor bedroom on top of a desk was a cannabispackaging setup consisting of a roll of foil, scissors, pre-cut foils, digital scalesand a sealed top plastic jar containing 29 tinnies. Tinnies currently sell on thestreet for $20. Each of the tinnies contained one gram each of cannabis. Withina wooden monkey ornament $200 broken down into five $20 notes and two$50 notes. Inside the bedroom beneath a double bed a blue ice cream containerwith two snap lock bags containing seeds. One bag 32 seeds, the other 42seeds.[3] A search of Vodafone records as between 10 November and21 February indicated the extent of your operation. The summary refers tophone numbers attributed to a large group of people including 12 that havebeen specifically identified as belonging to individuals aged from 17 to 41years. The phone content revealed that you would personally deliver cannabisto ensure payment was made.[9] As to Mr Weerasinghe's personal characteristics, he was 22 years old and hadno previous record of criminal offending of any sort. He entered a plea of guilty at theearliest reasonable opportunity. He said, and this is not disputed, he sold cannabis tofinance his own addiction to cannabis. Mr Weerasinghe took steps to address thataddiction. He completed an eight-week course with Community Alcohol and DrugServices. He has never failed a workplace drugs test and it is submitted he now nolonger uses cannabis. At the hearing of this case I received from Mr Holland, withoutopposition from the Crown, a letter dated 29 January 2019 from Mr Grant Foster, apsychologist with Augustus Clinic, who is a specialist in providing alcohol and drugtreatment. He says Mr Weerasinghe has had three sessions at the Augustus Clinic thisyear and concludes:If Mr Weerasinghe requires any further support I would be happy to work withhim again.[10] Mr Weerasinghe has done some voluntary work with the Salvation Army,although little emphasis was put on this.[11] Judge Roberts characterised the offending as "a low-end indicator ofmoderately serious offending".4[12] I note that Judge Roberts, in a discussion of R v Terewi, put the case withinband two and said a starting point of two years' imprisonment would be available,reduced by personal circumstances to 18 months' imprisonment.5 However, whetheror not that is correct, this very experienced District Court Judge decided the end point,in all the circumstances, should be a sentence of 12 months' supervision plus120 hours' community work. Neither Crown counsel nor Mr Holland contends thereis any error with this sentence if a conviction is to be maintained. I agree. Regardless4 Police v Weerasinghe [2018] NZDC 25686 at [16].5 R v Terewi [1999] 3 NZLR 62 (CA).of whether the offending is described in the way the Judge described it, or whether thedescription might be expressed using words such as "lower level retail dealing to alimited extent not involving others", the gravity of the offending is reflected by thesentence imposed by Judge Roberts.Consequences of a conviction[13] The real contest in this appeal is whether the Judge properly appreciated theconsequences to Mr Weerasinghe of this conviction.[14] Judge Roberts heard submissions that, based on Ms MacDonald's affidavit,there was a real risk that a conviction would result in Mr Weerasinghe losing theemployment he had at the time and a real risk he would not be able to gain furtheremployment in the construction and trade industries. Judge Roberts regardedMs MacDonald's opinion as to the risk to current employment as "speculative". TheJudge does not address the risk to future employment.[15] To an extent, events subsequent to the sentencing have proved Judge Robertsto be correct. Mr Weerasinghe did not lose his job and Ms MacDonald has sinceplaced him in another job. But, Ms MacDonald is a senior business manager with arecruiting company and, from the uncontested advice I was given by Mr Holland, hasbeen actively assisting Mr Weerasinghe in the knowledge that his conviction is beingcontested. Further, the job he had when sentenced was a temporary contract andMr Weerasinghe's employment with that employer ended when the contract ended.Likewise, his current employment is temporary.[16] In my view, Judge Roberts erred in placing no reliance on Ms MacDonald'saffidavit. For one thing, her opinions are consistent with common sense.Mr Weerasinghe is a young man with no real qualifications. He has been workingunder temporary contracts with various employers since March 2017. He works in theconstruction and trade sector. He would like to get permanent employment and aspiresto gaining an apprenticeship. Ms MacDonald deposed:11. In order to apply for other jobs, [Mr Weerasinghe] would need todisclose his conviction and given the strict anti-drug approach in theconstruction and trade industries, it would be very difficult for[Mr Weerasinghe] to obtain alternative employment.And:15. In my experience, it will also be very difficult to place[Mr Weerasinghe] in alternative employment roles with a cannabissupply conviction on his record.[17] I find that a consequence of conviction for Mr Weerasinghe is a real andappreciable risk that his ability to advance in life by securing permanent employmentwould be "blighted" (seriously compromised).6Consequences out of all proportion to gravity?[18] Mr Weerasinghe dealt in cannabis. The gravity of the offending was reflectedin the sentence of 12 months' supervision plus 120 hours' community work. Theidentified consequence for him of his conviction is a real and appreciable risk that hisability to gain permanent employment, particularly in the construction and tradeindustry, would be blighted.[19] I bear in mind that in assessing proportionality the Court should not respond toan identified consequence by hiding the underlying offending from those who have alegitimate interest in knowing about it. Employers in an industry with a necessaryintolerance of drugs – which can affect performance – have a legitimate interest inknowing about a prospective employee's drugs convictions. But, in this case theoffending was dealing in cannabis. Mr Weerasinghe has never failed a drugs test andhas reported, credibly given the steps he has taken, that he no longer uses cannabis.The industry in which he works regularly administers drugs tests. I do not see in thosecircumstances that future employers would be prejudiced by Mr Weerasinghe nothaving a conviction which he would have to disclose.[20] I find that the identified risk to Mr Weerasinghe's prospects of employment isa consequence out of all proportion to the gravity of his offending.6 R v Taulapapa [2018] NZCA 414.Decision[21] The appeal is allowed. Mr Weerasinghe's conviction and sentence arequashed. Mr Weerasinghe is discharged without conviction.________________________________Brewer J