GRAHAM v NEW ZEALAND POLICE [2018] NZCA 172

GRAHAM v NEW ZEALAND POLICE [2018] NZCA 172 [28 May 2018]NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OFNAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARSOF CONNECTED PERSON PURSUANT TO S 202 OF THECRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA41/2018[2018] NZCA 172BETWEEN RICHARD KEITH GRAHAMApplicantAND NEW ZEALAND POLICERespondentHearing: 19 April 2018Court: Cooper, Dobson and Toogood JJCounsel: K A N Trotter for ApplicantJ E L Carruthers and H G Max for RespondentJudgment: 28 May 2018 at 10 amJUDGMENT OF THE COURTA The application for leave to adduce further evidence is granted.B The application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)[1] The applicant Richard Keith Graham pleaded guilty to three charges ofburglary and one charge each of offering to supply methamphetamine, possession ofBZP (a class C drug) and possession of a psychoactive substance with intent to supply.On 10 July 2017 Judge Pidwell discharged him without conviction.1 The policeappealed. On 22 December 2017, the High Court allowed the appeal, convictedMr Graham on all charges and remitted the matter to the District Court for sentencing.2That sentencing has yet to occur.[2] Mr Graham now seeks leave to bring a second appeal on the basis thatthe High Court erred, first in its assessment of the consequences of convictions insofaras Mr Graham's future employment prospects are concerned and second, in taking intoaccount the interests of prospective future employers when considering whetherthe consequences of the convictions would be out of all proportion to the gravity ofthe offending.Background[3] Mr Graham was a Corporal in the Royal New Zealand Air Force (RNZAF).He lived in Whenuapai and worked at the RNZAF base there where he was aCommunication Information Systems Technician. Between 2011 and 2015 Mr Grahamhad been in a sensitive specialist intelligence role which involved deployment overseas.[4] The offending was described by Hinton J as follows:[3] The burglaries occurred on three separate occasions in August andSeptember 2016 at the Whenuapai air base. Mr Graham used his securityclearance to access two buildings. He took multiple items from the buildings,including electronics from a store room containing operationally sensitiveequipment, and equipment and tools from construction sites at the base.The value of the items taken was in excess of $200,000.[4] During the investigation of the burglaries, the Police searchedMr Graham's home and a storage unit. The Police found 10 BZP pills in asafe in his home. In the storage unit, the Police located two containerscontaining 391 grams of NBOME, a psychoactive product with the intendedeffect of mimicking LSD. The Police also found two cellphones inMr Graham's possession. The phones were seized and examined, andthe Police identified a large number of communications relating to the supplyor trading of methamphetamine. There were approximately 700 calls to andfrom the cellphones over a three to four month period.1 New Zealand Police v Graham [2017] NZDC 15179 [District Court judgment].2 New Zealand Police v Graham [2017] NZHC 3299 [High Court judgment].[5] In the District Court, Judge Pidwell described the offending as serious.3She referred to the combination of the number of burglaries, the significant breach oftrust against Mr Graham's employer, his use of security clearance at a significant levelwhich he had as a member of the RNZAF, and the high value of the stolen items.4In addition, there had been a significant amount of planning, and Mr Graham had usedhis inside knowledge of the air base to target items to steal and place them in asecure unit. The Judge took the charge of offering to supply methamphetamine asthe lead charge, although noting that it was at the lower end of seriousness formethamphetamine supply because there was no evidence of actual commercialgain or sales.5 She did not state an overall starting point but apparently accepted itwas somewhere between three years (as submitted by counsel for Mr Graham) andthree and a half years (as submitted by the police) before taking mitigatingconsiderations into account.[6] The mitigating factors were significant. Following his arrest, Mr Graham hadassisted the police and cooperated fully with them. All of the stolen items wereconsequently able to be found with the consequence that the police did not seek anyorders for reparation. The Judge also referred to work that Mr Graham had done toaddress his problems of drug addiction. She accepted his evidence that as a result hehad become drug-free. The Judge was also prepared to accept that Mr Graham's useof methamphetamine was to "self-medicate for stress" suffered as a result of the workcarried out for the RNZAF on overseas deployment.6 In this respect, the Judge wasable to refer to an affidavit which had been filed by an officer of the New ZealandDefence Force, which said that Mr Graham had carried out sensitive intelligence workin an hostile overseas environment involving significant personal risk. There wasevidence that of 14 individuals who had been deployed in the unit in which Mr Grahamserved, many were subsequently suffering from adverse consequences. The Judgeidentified this as the underlying cause of the offending which had brought Mr Grahambefore the Court for the first time at the age of 33. On this basis, the Judge consideredthe gravity of the offending was significantly reduced.3 District Court judgment, above n 1, at [8].4 At [9].5 At [10].6 At [12].[7] She was persuaded that Mr Graham would be dishonourably discharged fromthe Armed Forces if a conviction was entered against him. She considered also that aconviction in relation to offending involving dishonesty and drug use would have asignificant adverse impact on Mr Graham's ability to find employment in the future.[8] She was satisfied overall that given the "exceptional combination of facts",Mr Graham should be "given another opportunity to engage appropriately in society"which she was confident he could do.7 On this basis she discharged himwithout conviction.High Court judgment[9] Hinton J disagreed that a discharge was appropriate. She considered thegravity of the offending to be moderate, balancing conduct that was serious againstthe strong mitigating features on which Mr Graham was entitled to rely.8 Theseincluded his cooperation with the police, early guilty plea, remorse, successful stepstaken to address his drug dependency and his previously unblemished record.The Judge also said:[30] The very negative effect on Mr Graham from his hostile deploymentoverseas, also mitigates the gravity of the offending. The affidavit from asuperior of Mr Graham's is of particular assistance in that regard, where I notethat the superior recorded that, of the [14] individuals deployed along withMr Graham, three had approached the superior officer expressing difficulty inre-assimilating back into normal life and the superior had noted significantbehavioural changes in five others. It seems that Mr Graham has had a historyof significant depressive symptoms and trauma-related symptoms, which nodoubt flow in part from his earlier war-based deployment.[10] As to the consequences of conviction, the Judge noted that it was almostinevitable that Mr Graham would be dishonourably discharged from the Armed Forcesif convicted and that would have an effect on his ability to seek employment togetherwith the convictions.9 She considered Mr Graham was nevertheless "very capable andskilled", and there was no evidence that he would not be employable in a number ofalternative roles given all the circumstances of the case.10 He had entered into a7 At [18].8 High Court judgment, above n 2, at [25]–[31].9 At [44]–[45].10 At [46].building apprenticeship with a company called Thor Construction Ltd following hisarrest and he intended to continue with that apprenticeship and start a new career witha view to becoming a project manager. The Judge said that no evidence had beenoffered to suggest Mr Graham would be unable to obtain work as a builder. He wastherefore not without employment options if unable to work for the Defence Force orin similar fields. The Judge thought that there would be a realistic possibility, givenhis obvious ability and "remarkable rehabilitation", that he might have a career in the"rehabilitation field".11[11] For these reasons, she considered the consequences of a conviction wouldbe moderate.12[12] On this basis, the offending and the consequences of conviction were both ableto be characterised as moderate. This meant that the District Court's finding thatthe consequences of conviction would be out of all proportion to the gravity ofthe offending was wrong. Repeating observations that she had made earlier inthe judgment, the Judge said:13Convictions in these circumstances are an appropriate way to protect futureemployers' rights to know about offending, particularly of this nature, and therisks arising from that. I agree that Mr Graham has done everything that hecan to address his offending, but employers ought to be able to make their ownassessment, with full knowledge, of whether to employ individuals who havecommitted serious offences. There is also a need to denounce conduct likeMr Graham's even in the reduced circumstances that apply. Furthermore,there is the general desirability for consistency in sentencing offenders whohave committed similar offences in similar circumstances.The application for leave to appeal[13] For Mr Graham, Mr Trotter advanced two principal grounds of appeal. First,he submitted that Hinton J erred in the assessment of the consequences of theconvictions and in particular was wrong to conclude that:(a) Mr Graham's employment as an apprentice with Thor Construction Ltdwas a relevant consideration to be taken into account; and11 At [46].12 At [47].13 At [50].(b) Mr Graham had reasonable prospects of finding alternative gainfulemployment. Mr Trotter argued that this conclusion lacked a properevidential foundation.[14] The second ground advanced was that the Judge erred in concluding thatthe consequences of a conviction would not be out of all proportion to the gravity ofthe offending. It was submitted that the Judge had erred in taking into account therights of future employers in reaching her conclusion that the statutory test under s 107of the Sentencing Act 2002 (the Act) had not been met.[15] Mr Trotter sought to advance the first ground of appeal on the basis offresh evidence sought to be adduced in the form of affidavits from Mr Graham andMr Byron Hatley (the owner and manager of Thor Construction Ltd). In his affidavit,Mr Graham said that when he had first applied for his present position withThor Construction Ltd he was asked if he had any criminal convictions. At the time,the District Court proceedings had not been concluded. He did not tell his employerabout the pending charges. It was only when the High Court judgment was deliveredin December 2017 that he explained the position to Mr Hatley. It was at that point thatMr Graham learned of Thor Construction Ltd's contractual obligations to customersnot to employ someone with a criminal conviction. He stated further:10. As I am an apprentice carpenter, I cannot currently workunsupervised. It will take 3–4 years before I become a fully-fledged carpenter.During this period, I need to acquire the required skills and experience from awide range of projects.11. I am not currently working on some sites of the company due to theissue with my convictions.12. Mr Hatley has told me that if my [convictions] were to be upheld onappeal, I would be dismissed from my current position as an apprenticecarpenter because it would not be economical for the company.13. It is also my understanding that if I applied for another apprenticeshipwithin the construction industry, I will face the same difficulty with myconvictions.[16] Mr Hatley in his affidavit said that Thor Construction Ltd is"a building company involved in a range of high-end residential and commercialprojects across Auckland." The company engages approximately 85 persons asemployees and/or contractors. Mr Hatley noted that Mr Graham had been employedby the company as an apprentice carpenter for about one year, during which time hehas been a reliable employee. Mr Hatley stated, however, that the company works onsites where it is contractually required to pre-screen employees or contractors forcriminal convictions. To allow someone with a criminal conviction to work on such asite would breach those contractual obligations. It is consequently the company'spolicy not to employ someone with a criminal conviction on a site where suchcontractual requirements apply. Mr Hatley also said that such requirements havebecome a routine matter in the case of commercial construction projects, whichcomprise about 80 per cent of the company's turnover. An employee unable to workon the majority of sites would be of "limited value".[17] Mr Hatley confirmed that he was unaware of the charges in the District Courtuntil told about them by Mr Graham following release of the High Court judgment.He said that if the present situation were to continue, Mr Graham would have to bedismissed as an employee because he would be of limited value, notwithstanding thefact that he personally has no issues with Mr Graham's work ethics or trustworthiness.Mr Hatley predicted from his knowledge of the industry that the same obligationwould exist for many other contractor companies with the consequence thatMr Graham would face difficulties in obtaining or completing the necessaryapprenticeship within the building industry.[18] This evidence is not fresh in the sense that it could have been obtained prior tothe hearing in the High Court had Mr Graham explained the existence of the chargesto Mr Hatley prior to the hearing. However, it is perhaps understandable thatMr Graham, having been discharged without conviction in the District Court, wouldnot wish to discuss the position with his employer in advance of the High Courthearing. Further, we accept that the new affidavits are relevant to the disposal ofthe appeal and, in the absence of opposition from the Crown, we have decided to grantleave to adduce the further evidence.[19] For the Crown, Mr Carruthers submitted that Hinton J did not err in findingthat Mr Graham has reasonable prospects of finding gainful employment, nor in takinginto account the interests of future employers when weighing Mr Graham's offendingagainst the consequences it would carry for him. He submitted that the consequencesMr Graham has relied on are little more than the natural and anticipated consequencesof serious offending of this sort.Analysis[20] The applicant seeks leave to bring a second appeal under s 303 ofthe Criminal Procedure Act 2011. Under s 303(2), this Court must not give leave fora second appeal unless satisfied that the appeal involves a matter of general or publicimportance or a miscarriage of justice may have occurred, or may occur, unlessthe appeal is heard.[21] The substantive issues raised are to be addressed in the context of ss 106 and107 of the Act. Section 106(1) of the Act provides that if a person charged with anoffence is found or pleads guilty, the court "may discharge the offender withoutconviction, unless by any enactment applicable to the offence the court is required toimpose a minimum sentence."[22] Section 107 of the Act is headed "Guidance for discharge without conviction."It provides: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.[23] The terms of the section involve the Court in an evaluative judgment.In Z (CA447/2012) v R, this Court said:14 when considering the gravity of the offence, the court should consider allthe aggravating and mitigating factors relating to the offending andthe offender; the court should then identify the direct and indirectconsequences of conviction for the offender and consider whether thoseconsequences are out of all proportion to the gravity of the offence [24] For reasons that we have already explained, Hinton J considered thatthe gravity of the offending was properly characterised as moderate. Mr Trotter doesnot seek to challenge that conclusion and we agree with it. Although the actual14 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].offending was serious considered on its own, the extent and range of the mitigatingconsiderations was significant.[25] The real issues on appeal turn on the assessment of the consequences ofthe offending, and on the question of proportionality.[26] As to the consequences of the offending, we accept that Mr Graham will notbe able to continue in employment with his current employer. Mr Hatley's affidavitmakes that plain. Hinton J did not have Mr Hatley's affidavit which confirms that notonly would Mr Graham's employment by Thor Construction Ltd come to an end, buthe might also face difficulties completing his apprenticeship and finding employmentelsewhere. Having said that, we are not prepared to find that Mr Graham would beunable to obtain some work in the construction industry notwithstanding a conviction.Mr Hatley's affidavit referred to Mr Graham facing "difficulties" in obtaining orcompleting the necessary apprenticeship with the building industry; that is as far asthe evidence goes. Further, the tenor of the evidence is to describe difficulties thatmight be faced in finding employment with companies involved in majordevelopments where the employer has entered into contractual commitments inrelation to the conviction records of those to be employed on the site. The evidencedoes not establish that this would also be applicable throughout the building andconstruction industry.[27] Hinton J thought it was "almost inevitable" that Mr Graham would bedishonourably discharged from the Defence Force in the event of a conviction.15Mr Trotter in fact confirmed to us that had occurred the day before the hearing of thepresent application. The Judge recognised that there would be a "strong stigma"attaching to such a discharge. This would be in addition to any stigma associated withthe convictions themselves.16 The consequence will be, as the Judge recognised, thatMr Graham will find it more difficult to obtain employment outside the Armed Forces,and he would be unlikely to obtain employment in work related to the specialist skillshe acquired in the RNZAF. However, it is not suggested that the Judge erred inconcluding that Mr Graham was very capable and skilled. Mr Hatley's affidavit15 High Court judgment, above n 2, at [44].16 At [44].confirms his general employability with his reference to Mr Graham's reliability, workethics and trustworthiness.[28] While we accept that Mr Graham will face difficulties in furthering his currentapprenticeship, we consider his overall skill level and aptitude is such that he will beable to find employment in the future. Difficulties experienced in the meantime wouldnot be out of all proportion to the gravity of the offending. On the contrary, they willbe the kinds of difficulties that naturally flow from convictions for the offences inquestion.[29] We note Mr Trotter's argument that the Judge erred in law by taking intoaccount the rights of future employers in concluding that the consequences of aconviction would not be out of all proportion to the gravity of the offending. We agreethat it is not immediately obvious why the rights of third parties who are prospectiveemployers to know about the offending is relevant to the proportionality analysis.We are inclined to think that the Judge had in mind that it is not the function of thecourts under s 106 to pre-empt decisions by employers about the suitability ofprospective employees, in much the same way that the courts are reluctant to usurpthe functions of disciplinary bodies or regulatory authorities. In any event, we are notpersuaded there was any error sufficient to disturb the Court's conclusion that the testin s 107 of the Act had not been met.[30] For these reasons, we have not been satisfied that the appeal involves a matterof general or public importance or that a miscarriage occurred or may occur unless theappeal is heard.Result[31] The application for leave to adduce further evidence is granted.[32] The application for leave to bring a second appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent