IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA627/2018
 [2019] NZCA 231

	
BETWEEN	
MARKO OTIS
Applicant	
	
AND	
NEW ZEALAND POLICE
Respondent	

Court:	
Courtney, Lang and Whata JJ	

Counsel:	
D P H Jones QC for Applicant
J A Herring for Respondent	

Judgment:
(On the papers)	
18 June 2019 at 3.30 pm	

JUDGMENT OF THE COURT

A	The applications for an extension of time and to adduce further evidence are granted.
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 against the District Court’s refusal to grant a discharge without conviction.  He pleaded guilty to possessing half a gram of methamphetamine — enough for five smokes.  His application for discharge was dismissed in the District Court.  Jagose J dismissed his first appeal.  Both Courts rejected his central claim that the impact of conviction was grossly disproportionate because, given his age (55), a conviction would ruin his prospects 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 arises from the delay, we grant leave to extend time.
[3]	Mr Otis also applies to adduce further evidence to assist his appeal.  It is an updating affidavit addressing Mr Otis’ personal circumstances.  The respondent raised no objection to our reading it, and the respondent in fact refers to it.  We have therefore considered it for the purposes of this leave application.
[4]	An appeal against a refusal to grant a discharge without conviction is characterised as an appeal against both conviction and sentence.  The criteria for leave are that the appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.  In 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 miscarriage of justice. 
Application for leave
[5]	As provided in s 107 of the Sentencing Act 2002, a judge must not discharge an offender without conviction unless satisfied as to the two-stage threshold test:
107	Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. 
[6]	The leave application raises three main errors said to have been made at both stages of the test.
[7]	First, Mr Otis says that the High Court Judge misapprehended the relevant facts when assessing the gravity of the offending in two key ways:
(a)	despite characterising the gravity of the offending as low, the Judge wrongly endorsed the sentencing Judge’s finding that the presence of a Class A drug “inferred involvement with a dealer, if not in dealing”; and
(b)	expressing “disquiet” about categorising the gravity of the offending as low. 
[8]	 This complaint relates to the fact that, although Mr Otis himself was in possession of only half a gram of methamphetamine, a total of one and a half grams was found in the car in which Mr Otis was a passenger.  In determining the level of Mr Otis’ culpability the sentencing Judge considered that the overall circumstances pointed to the involvement of a dealer and, coupled with the nature of Class A drugs, warranted an inference that culpability was increased.  On appeal, the High Court Judge rejected criticism of this finding on the basis that the amount of methamphetamine in a defendant’s possession is only one factor and the sentencing Judge was entitled to take into account the entire factual matrix in assessing Mr Otis’ culpability, which the sentencing Judge characterised as moderate.  The High Court Judge, however, made it clear that Mr Otis’ position was to be determined on the basis only of his possession of half a gram. 
[9]	Mr Jones QC, for Mr Otis, argued that the High Court Judge should have dismissed 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’s failure to do so meant that the appeal proceeded on the basis of Mr Otis having the benefit of the doubt rather than clearly on the basis of being in possession of only half a gram.
[10]	We agree that comments suggesting that Mr Otis could have had some involvement in dealing were inappropriate because they convey the possibility that the assessment of the gravity of the offending could be affected by a fact that was not relevant.  This could only make a difference, however, if the High Court Judge’s assessment of the gravity of the offending was incorrect, which is the subject of the second ground.  
[11]	We do not consider it arguable that the High Court Judge’s expression of disquiet over concluding that the gravity of the offending was low amounts to an error that could lead, or could have led, to a miscarriage of justice; the circumstances were unusual and, as we come to next, the Judge was entitled to find that there was no direct evidence linking the drug offending with the personal circumstances on which the change 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 Court about childhood trauma.  Specifically, it is unclear the extent to which the High Court Judge’s reasoning was influenced by a perceived absence of evidence linking Mr Otis’ offending to his traumatic personal circumstances.  These circumstances include his mother’s suicide, years of unacknowledged grief and concerted efforts to cope with his personal issues, including recent completion of a CADS course and multiple grief counselling sessions over a sustained period.
[13]	Mr Jones argued that there was clear evidence supporting the fact that offending 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 was undertaking with Mr Otis and his good progress.  But in terms of a forensic connection, her comment was limited to the general statement that “[d]rug and alcohol use can be seen as attempts by people to cope with the very intense emotions associated with trauma by numbing the body (Van der Kolk, 2014)”.  It was a matter for the Judge to place the weight he considered appropriate on this evidence.  We do not see any tenable argument that he made an error in his approach.
[14]	The third complaint is that the High Court Judge failed to properly consider the direct and indirect consequences of conviction and, in particular, the repercussions for Mr Otis’ ability to achieve employment.  In this regard, it is said the Judge failed to analyse a report, Ageing Workforce in the New Zealand Crown Entity Sector: Survey Report 2014 (Ageing Workforce Report), which details the difficulties of persons of more advanced years to obtain employment, and failed to consider the combined issues of age and a drug conviction.  It is further claimed that the Judge’s observation that discharge without conviction was “rare” was wrong. 
[15]	In assessing the direct and indirect consequences of conviction, the High Court Judge referred to the Ageing Workforce Report.  He accepted that conviction risked impeding Mr Otis’ job prospects but said he lacked evidence to take this issue much further.  This was a factual finding plainly available to him.  For example, as noted by counsel for the police, Mr Otis’ affidavit showed that he had been struggling to secure managerial-level employment well before the conviction.  He lost a management job in 2014 because of drug use.  We see no basis on which this finding could form the basis of the second appeal. 
[16]	Finally, the High Court Judge’s statement that it is “rare” for the courts to grant a 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 orthodox application of s 107.  
[17]	Overall, we are not satisfied that a miscarriage occurred or will occur if the appeal is not heard.  A further appeal would do no more than simply afford Mr Otis a further opportunity to relitigate the merits a third time.  For completeness no matter of general or public importance is raised by the proposed appeal.
Result
[18]	The applications for an extension of time and to adduce further evidence are granted.
[19]	The application for leave to appeal is declined. 

Solicitors: 
Cook Morris Quinn, Auckland for Applicant
Crown Law Office, Wellington for Respondent