IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000244 [2013] NZHC 2564

BETWEEN	GILAAD AMIR
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	1 October 2013	
Counsel:	T D Clee for Appellant
L M Mills for Respondent	
Judgment:	1 October 2013	

JUDGMENT OF COLLINS J

Introduction

[1] The question I have to consider is whether Mr Amir should have been discharged without conviction when he pleaded guilty to conspiring to import a class C controlled drug.

Context

[2] This question arises in the context of an appeal from the decision of Judge Ronayne who convicted and discharged Mr Amir.

[3]    Mr Amir played a comparatively minor role in the importation of methylone, an analogue of MDMA and a class C controlled drug.

[4]  Mr Amir’s role in the offending involved him opening a post office box that was to be the reception point for the methylone.  Mr Amir used an unsophisticated

AMIR v NEW ZEALAND POLICE [2013] NZHC 2564 [1 October 2013]

disguise when he opened the post box. He also used a fake name and community card and provided other false details.

[5]  When spoken to by the police Mr Amir said that he became involved after he was approached by a person whom he had not met before while he was working as an event manager at a concert. He said the unnamed person offered him $500 to open a post box. Mr Amir told the police that about ten days after he had opened the post box he again met this unnamed person and was paid $300 in exchange for the post box keys and paper work.

Mr Amir’s personal circumstances

[6]    Mr Amir is 28 years old.  He has no previous convictions and has provided 30 references that attest to his otherwise excellent character and this offending being completely foreign to his way of life. Those references include letters from Mr Amir’s younger brother, Mr Amir’s friends and colleagues, who refer to Mr Amir’s kindness, charitable disposition and that in all other respects he is a pillar of strength and a person of considerable integrity.

[7] Mr Amir’s offending occurred at a time of significant personal turmoil in his life. He had just discovered that his former girlfriend was pregnant with his child. This was a particularly distressing moment for Mr Amir as he feared the consequences of being estranged from his child.

[8] Mr Amir has attended counselling. It is also apparent Mr Amir offered amends (he made a donation to charity) and that he has taken remedial action to ensure he never offends again.

[9] Mr Amir attended a restorative justice conference on 29 May 2013. The recommendations from that conference were that the District Court “consider a discharge without conviction, and that counselling be part of [Mr Amir’s] sentence”.

Relevant legal principles

[10] An appeal against a refusal to discharge without conviction is a rehearing. I therefore must make my own assessment of the merits of Mr Amir’s application. This point was explained in the following way by the Court of Appeal in R v Hughes when it said:
The decision as to whether the test under s 107 [Sentencing Act 2002] has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles ... The discretionary power of the court to discharge without conviction under s 106 arises and exists only if the court is satisfied that the s 107 threshold has been met.

[11] Section 107 of the Sentencing Act 2002 provides that a 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. This requires the Court to engage in the following three-step process:

(1)	identify the gravity of the  offence, considering all the aggravating and mitigating factors relating to the offending and the offender;

(2)	identify the direct and indirect consequences of the conviction; and

(3)	determine whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.

Analysis

Gravity of the offending

[12] In my assessment, Mr Amir’s offending was serious. He was part of  a conspiracy to import a class C controlled drug. This by any analysis is a serious offence.

[13] I accept Mr Amir’s role was comparatively minor and at the lower end of the spectrum of offending of this kind. Nevertheless, Mr Amir consciously involved himself in the scheme to import class C controlled drugs. His role involved him deliberately setting out to deceive others when he used a fake identity and documents to open the post office box. I have taken into account Mr Amir’s previous good character, his guilty plea, and his state of health at the time of his offending.

Direct and indirect consequences of conviction

[14] I accept that a conviction is likely to have some impact on Mr Amir’s career prospects in event management, charitable and small business sectors. Although not relied upon by Mr Amir, I am sure a conviction of this kind is likely to impact on Mr Amir’s abilities to travel overseas. I also pay particular regard to the fact that a conviction will reduce Mr Amir’s self-esteem.

Proportionality assessment

[15] Notwithstanding the consequences of a conviction, I believe those consequences are not out of all proportion to the gravity of Mr Amir’s offending.

[16] However, in my assessment, those who partake, even in a minor way in planning to import illegal drugs must carry the consequences of being convicted. In this case, convicting and discharging Mr Amir was a proportionate and just response to his offending which, I have accepted, was at the lower end of the spectrum of offending of this kind.

Conclusion

[17] I agree with Judge Ronayne’s decision to convict and discharge Mr Amir. He should not have been discharged without conviction.

[18]    The appeal must be dismissed.

D B Collins J

Solicitors:
Crown Solicitor, Auckland for Respondent