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D v Police HC Palmerston North CRI-2004-454-27 [2006] NZHC 825 (17 July 2006)

Last Updated: 17 June 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

_{CRI-2004-454-27}

BETWEEN D

Appellant

AND POLICE Respondent

Hearing: 17 July 2006

Appearances: P Young for the appellant

S C Holt for the respondent

Judgment: 17 July 2006

_{ORAL JUDGMENT OF MACKENZIE J}

[1] The appellant appeals against conviction and against the sentence imposed on charges of selling liquor on licenses premises known as “The Vault” to a person under the age of 18 years. He was convicted in the District Court at Palmerston North on 4^th May 2006, after a defended hearing, and on each of the two charges he was fined the sum of $300, with court costs of $130.

[2] The facts as found by the learned Judge are that on 22 September 2005 a 16½ year old youth was a volunteer in a controlled purchase operation in respect of a run on a number of licenses premises in the evening and night on that date. He was accompanied for the purposes of attending at The Vault licensed premises by a police officer and also by an employee of MidCentral Health, who are partners with the police in liquor licensing matters. The learned Judge held that the way in which the operation was established and the script prepared for it involved a requirement for the volunteer to engage in some conversation with the liquor seller or bar person

_{before actually buying the drink, and he held that there was some conversation prior}

D V POLICE HC PMN CRI-2004-454-27 17 July 2006

in the present case to that. He said that what is required from the bar person is an assessment of the age of the volunteer concerned, and he noted the submission that it was unreasonable to test the bar person with a volunteer who was so tall, apparently some six feet four inches in height, and who the Judge said “is said to have looked rather older than the age of 18 years”, although he noted that that is a subjective matter.

[3] The learned Judge dealt with the submission that there had been an unfair entrapment of bar persons by the presenting volunteer. He held that on the evidence he did not consider that the evidence had been obtained unfairly or that it amounted to an entrapment. He noted that the question of age had not been addressed by the bar person. There had been no evidence from the present appellant at the hearing, and the evidence was that, when making a purchase, the volunteer had not been questioned as to his age. The learned Judge accordingly found the charges proved and imposed the fines to which I have referred.

[4] Mr Young for the appellant submits that the Judge was wrong in the conclusion which he reached with regard to the issue of entrapment. He submits that the circumstances were such that the conduct of the police in relation to this matter was unfair. He raises the matters of the selection of the volunteer, who, although

16½ years of age, was tall and is said to have appeared considerably older than his years. He notes that this volunteer was accompanied by a plain clothes police constable and a public health service officer, as I have already noted. He submits that they were both in their twenties and that the volunteer would have looked part of that group and of an age with them.

[5] In considering whether the conduct involved amounts to entrapment, the issue is, in essence, whether the conduct concerned involves merely providing the opportunity for the offending to take place, in which case the conduct is permissible, or whether it constitutes active encouragement resulting in a crime being committed that would otherwise not have been committed. That is the way in which O’Regan J expressed the test in Taylor v Vandna Enterprises Ltd (High Court, Auckland, AP22- PL02, 25 July 2002). He referred to the House of Lords decision in R v Looseley: Attorney-General’s Reference (No. 3 of 2000) [2001] UKHL 53; [2001] 4 All ER 897, where

Lord Hoffmann noted the comment of Lord Bingham CJ in Nottingham City Council v Amin [2000] 2 All ER 946, where he said, at p 950, that the accused should not be “incited, instigated, persuaded, pressurised or wheedled into committing” the offence. Those terms are not intended to be given a disjunctive and technical meaning and they involve the concept of conduct which causes the defendant to commit the offence as opposed to giving him an opportunity to do so. Here the evidence accepted by the Judge was that the volunteer had purchased liquor and no enquiry was made of him as to his age.

[6] I am satisfied that that conduct falls clearly on the permissible side of the line. I am satisfied that the decision of the learned Judge to that effect was one which was clearly correct. The proposition that selecting a volunteer who may appear to be over the age of 18, and having that volunteer associate with persons who are in fact over that age, can amount to entrapment involves a consideration of the defence available under s 155(4) of the Sale of Liquor Act 1989. Under that provision, it is a defence if the defendant proves that the person who sold or supplied the liquor believed on reasonable grounds that the person to whom it was sold or supplied had attained the age of 18 years. If a volunteer is selected who may appear to be over the age of 18 years, that may make it somewhat easier for a defendant to make out that defence than if a person of obviously younger age was selected. But that fact tends to demonstrate that the selection of such a volunteer cannot in itself amount to entrapment. That is to say, the selection of a person who is apparently over age, and the presentation of that person in circumstances which might tend to confirm that appearance, does not in my view of itself constitute entrapment. It is, in those circumstances, a matter for the defendant to seek to establish the s 155(4) defence. Here the appellant, while represented at the hearing, did not appear and did not give evidence. Mr Young has handed in today a statutory declaration from the appellant in which he says that he had been in China at the time and that he came

back to New Zealand on 9^th May 2006. That is shortly after the hearing. There is no

suggestion in the Judge’s decision that any adjournment to accommodate the appellant’s position was sought, and I must approach the matter on the basis that, as the Judge said, the defendant elected to give or call no evidence. That makes reliance upon the statutory defence impossible.

[7] For those reasons, I am satisfied that the Judge was right to admit the evidence which he did. That evidence clearly established the offence, and the appeal against conviction must be dismissed.

[8] As to the appeal against sentence, Mr Young submits that the Judge should have discharged without conviction, and invites this Court to substitute such a discharge. He refers to a decision of Judge Morris in another prosecution apparently arising out of the same operation where on a plea of guilty that step was taken. There the Judge expressed the view apparently that the volunteer in this case appeared to be or “looks about 22”. I have already dealt with that proposition and the relevance of it in relation to the appeal against conviction.

[9] As to the appeal against sentence, while the apparent age of the person concerned may well be relevant to the penalty to be imposed, it does not follow that a discharge without conviction is the appropriate outcome. As Mr Holt points out, there is a statutory test in s 107 of the Sentencing Act, which is that the Court must not discharge an offender without conviction unless it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. There is no evidence before the Court, and there was none before the Judge in the court below, as to the consequences for this appellant. It is submitted that this conviction may make it difficult or impossible for the appellant to own or manage licensed premises in New Zealand in the future. Mr Holt in his very careful and comprehensive submissions submits that such a consequence is not likely. He points out that the consequences of a conviction, so far as suspension of licence is concerned, is a matter for the Liquor Licensing Authority but do not generally give rise to more than a short suspension for a licensee. Mr Holt submits that there is nothing to suggest a single breach of the Act will have longer term consequences for the appellant.

[10] In the light of all the material, I am satisfied that the appellant has not made out the statutory test that the direct and indirect consequences of a conviction are shown to be out of all proportion to the gravity of the offence. The fines imposed were modest and towards the bottom of the scale and can in no way be said to be manifestly excessive. The appeal against sentence must also be dismissed.

“A D MacKenzie J”

Solicitors

Crown Solicitor, Palmerston North, for the respondent