Ahmed v Police
[2022] NZHC 769
•13 April 2022
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2021-412-48
[2022] NZHC 769
BETWEEN JAMIL AHMED
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 12 April 2022 Appearances:
B P Stephenson for Appellant C E R Power for Respondent
Judgment:
13 April 2022
JUDGMENT OF EATON J
This judgment was delivered by me on at pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Introduction
[1] Jamil Ahmed pleaded guilty to one charge of driving a vehicle with excess breath alcohol1 and was convicted and sentenced by Judge Phillips in the Dunedin District Court to a fine of $600 and disqualification from driving for six months. On
1 Land Transport Act 1998, s 56(1) and (3) – maximum penalty of three months’ imprisonment or a fine not exceeding $4,500 and disqualification from holding or obtaining a driver licence for at least six months.
AHMED v NEW ZEALAND POLICE [2022] NZHC 769 [13 April 2022]
4 November 2021, the Judge declined to grant a discharge without conviction.2 Mr Ahmed now appeals against that decision.
Facts
[2] At about 11 pm on 28 July 2021, Mr Ahmed was driving his Nissan Morano vehicle on Prince Albert Road, Dunedin. A passing patrol car observed the vehicle weaving within its lane and driving at well below the speed limit. Mr Ahmed’s vehicle was stopped by police with red and blue flashing lights. When spoken to, Mr Ahmed admitted to consuming alcohol and was required to undergo a breath screening test. He returned a positive result for alcohol. Mr Ahmed was required to accompany police back to Dunedin Central Police Station where he underwent an evidential breath test and returned a result of 600 micrograms of alcohol per litre of breath. In explanation Mr Ahmed stated, “I’m sorry I drank and drove.”
[3] In his affidavit evidence, Mr Ahmed deposed he had left his house to clear his head after an argument with his wife. Mr Ahmed stated that, although he lived near to the beach, he chose to drive there due to having a compromised ability to walk. He was stopped on his way home from the beach.
District Court decision
[4] Judge Phillips approached the question of whether to discharge Mr Ahmed under s 106 of the Sentencing Act 2002 by considering the criteria for granting a discharge provided in s 107.
[5] The Judge reviewed Mr Ahmed’s affidavit evidence. He took issue with his claim that he had only two standard drinks of whiskey given his breath alcohol reading of 600 micrograms.
[6] In assessing the gravity of the offending, the Judge had regard to the fact Mr Ahmed made an immediate expression of remorse, co-operated with police, entered an early guilty plea to the charge and was of otherwise of good character. However, he found an aggravating feature was that Mr Ahmed did not assess he had
2 Police v Ahmed [2021] NZDC 21735.
been drinking for some time before driving and was found to have a breath level of 600 micrgrams. Overall, the Judge considered the gravity of Mr Ahmed’s offence as in line with the offending in Snellex v Police,3 and described it as just below moderately serious.
[7] The Judge then considered the direct and indirect consequences of conviction which related to Mr Ahmed’s inability to regain employment as a hotel duty manager. He observed Mr Ahmed had allowed the required manager’s certificate to lapse in November 2020 as he had been intending to study but that, following the breakdown of his marriage, he now wished to return to the hotel industry. The Judge concluded there was a real and appreciable risk that Mr Ahmed would be unable to obtain the manager’s certificate required under the Sale and Supply of Alcohol Act 2012 for a period of two years from the date of conviction (being the stand-down period applied to applicants with relevant prior convictions).
[8] The Judge did not consider a conviction presented an absolute bar to Mr Ahmed obtaining such a certificate and observed he would be likely to succeed in his application after the expiry of the two-year period after demonstrating good character in the interim. The Judge found that where an independent body is charged with determining the suitability of individuals for particular employment, the Court will be more ready to enter a conviction and it would be wrong for the Court to prevent full disclosure of information to that body by granting a discharge. He considered any bar to future employment may only be temporary and the evidence in this regard was not at all decisive. The Judge added that for positions in the liquor industry, prospective employers should be fully informed of an applicant’s history.
[9] The Judge determined the offending was moderately serious and the consequences of a conviction would not be out of all proportion to the gravity of the offending. Mr Ahmed was convicted and sentenced on the charge to a $600 fine and disqualification from driving for six months.
3 Snellex v Police [2017] NZHC 1792.
Principles on appeal
[10] The Court may grant a discharge without conviction under s 106 of the Act only if it is satisfied, under s 107, that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.4 Appeals against the proportionality test under s 107 are by way of rehearing, with the appellate Court making its own assessment of whether the criteria are established.5 If a discharge without conviction should have been granted, then there will have been a material error by the sentencing Judge, or a miscarriage of justice will have occurred for any other reason, and so the appeal against conviction must be allowed.6
Submissions
Appellant’s submissions
[11] On behalf of Mr Ahmed, no issue was raised on appeal with the Judge’s assessment of the gravity of the offending nor the sentence imposed upon conviction. Instead, Mr Stephenson submitted the Judge erred in his assessment of the consequences of a conviction by failing to properly consider and weigh all the consequences contended for (in particular those raised by Mr Ahmed in his affidavit) and that a miscarriage of justice had resulted from the refusal to grant a discharge in the circumstances.
[12] Specifically, Mr Stephenson submitted the Judge erred in not considering the fact Mr Ahmed says he has struggled to find any employment for a period of three months and that his back pain issues meant he could not return to alternative employment as security personnel. He maintained that if the Judge had considered Mr Ahmed’s significantly limited ability to obtain employment during the intervening two-year stand-down period, he would have assessed the consequences of conviction as particularly harsh and the disproportionality test would likely have been met. Given Mr Ahmed’s personal circumstances, Mr Stephenson submitted the two-year stand- down period is unduly punitive. He submitted that, if a discharge is granted, the six-
4 Sentencing Act 2002, s 107.
5 H (CA680/2011) v R [2012] NZCA 198 at [35]-[36].
6 Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12].
month period of disqualification from driving could be viewed as an appropriate punishment.
[13] In oral submissions Mr Stephenson confirmed Mr Ahmed had recently secured full-time employment as an online consultant. Mr Stephenson responsibly and realistically acknowledged the fact of employment might be seen as undermining the primary ground of appeal.
Respondent’s submissions
[14] For the prosecution, Mr Power submitted the Judge appropriately considered the consequences of entering a conviction, having weighed up the matters of primary concern, and the conclusion he reached was open to him. Counsel acknowledged the Judge may not have entirely considered other employment-related consequences of a conviction. However, it was submitted these are of a general nature and would not have affected the outcome. Mr Power submitted difficulties gaining employment are merely the ordinary consequences of driving with excess breath alcohol offending and that, in any event, the Judge was right to conclude it would not be impossible for Mr Ahmed to find employment suited to him. Mr Power observed that this has proven to be correct.
[15] Mr Power submitted there was not a demonstrated causative link between Mr Ahmed’s offending and his inability to gain other types of employment and there may be several other factors influencing a person’s ability to secure employment. It was accepted Mr Ahmed’s physical condition limited his employment prospects but Mr Power argued it did not render him entirely bereft of options. Mr Power submitted that in the absence of evidence of more specific and direct consequences, a conviction cannot be said to be out of all proportion to the offending. He submitted no miscarriage of justice occurred and the appeal should be dismissed.
Analysis
[16] Where a person is found guilty or pleads guilty, s 11(1)(a) of the Sentencing Act requires the Court to consider whether they might be more appropriately dealt with by way of discharge without conviction under s 106. Section 106 of the Act
provides that if a person who is charged with an offence is found guilty or pleads guilty, the Court may discharge the offender without conviction, unless by any enactment applicable to the offence the Court is required to impose a minimum sentence.
[17]Section 107 governs the exercise of that discretion:
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.
[18] This requires a three-step analysis.7 First, to assess the gravity of the offence, which includes taking into account all aggravating and mitigating features of both the offending and the offender.8 Second, the direct and indirect consequences of conviction for the offender must be assessed. There must be a “real and appreciable risk” that the consequences will occur.9 Finally, only if the Court is satisfied that these consequences are “out of all proportion” to the gravity of the offence may it consider exercising its discretion to discharge the defendant without conviction. There is no legal onus on a defendant to establish this statutory test, but the Court must be satisfied its requirements have been met.10
Gravity of offence
[19] There is no issue on appeal regarding the principles the Judge applied in relation to the s 107 gateway test nor regarding his assessment of the gravity of Mr Ahmed’s offending. A first offence of driving with excess breath alcohol carries a maximum penalty of three months’ imprisonment. While it may, relatively speaking, be described as a lower-level offence, the Court of Appeal has observed that drink driving “is a moderately serious offence when seen by reference to its potential consequences and to the pervasiveness of alcohol abuse in our society”.11
7 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16], approved in R v Sok [2021] NZCA 252, (2021) 29 CRNZ 962 at [40].
8 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; DC (CA47/2013) v R [2013]
NZCA 255 at [35].
9 DC v R, above n 8, at [43].
10 R v Taulapapa [2018] NZCA 414 at [23]; R v Hughes, above n 9, at [49] and [53].
11 Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344 at [19].
[20] Here, Mr Ahmed’s vehicle was observed weaving within its lane and driving at well below the speed limit. Following an evidential breath test, Mr Ahmed returned a result of 600 micrograms of alcohol per litre of breath. The Judge was correct to identify Mr Ahmed was immediately remorseful, pleaded guilty, was fully co- operative with police and was of good character. However, the potential public danger recognised as being inherent in drink driving offending meant it was open to the Judge to assess the gravity of Mr Ahmed’s offending as “just below moderately serious”.
The direct and indirect consequences of conviction
[21] The substance of this appeal concerns the second and third stages of the analysis. That is, whether the Judge erred in his assessment of the consequences of a conviction by failing to properly consider and weigh all the consequences raised by Mr Ahmed in his affidavit. This issue must be considered in the light of the fact Mr Ahmed has now secured full-time employment.
[22] In his affidavit, Mr Ahmed deposed that he had previously been employed as a hotel duty manager from 2016 to 2020. He describes this as a position in which he is most skilled and experienced. He had previously worked in security and as a night patrol and noise control officer but can no longer do so following back surgery. To this end, Mr Ahmed annexed to his affidavit a copy of a spinal assessment report dated 5 August 2021 completed by a physiotherapist at Burwood Spinal Unit.
[23] In this report, the physiotherapist observed Mr Ahmed could walk independently without an aid but that he cannot run because of weakness and reduced sensation in his right leg and foot. Mr Ahmed reported lower back pain when standing or walking for a long time but that he is able to sit comfortably for long periods and drive without concerns. Mr Ahmed told the physiotherapist he was able to manage the pain because he was not working. It was noted he had not engaged with physiotherapy in the last three years and would benefit from professional input.
[24] Mr Ahmed then deposed that a current manager’s certificate granted by a local licensing authority was required in order for him to be considered for a duty manager role. He expressed concern that he would be required to disclose his conviction in his
certificate application and there would be a minimum two-year stand-down period before his application would be considered favourably.
[25] As at the date of Mr Ahmed’s affidavit he was in receipt of a job seeker’s benefit and had been applying for jobs for three months without success. He considered no employer will employ him as a hotel duty manager if he is unlikely to obtain a manager’s certificate for two years.
[26] It was common ground on appeal that the Judge had appropriate regard to Mr Ahmed’s difficulty in acquiring a manager’s certificate for a period of two years. However, Mr Stephenson submitted the Judge erred in not considering the balance of Mr Ahmed’s affidavit evidence, where he stated he has struggled to find any employment for three months and his back pain issues prevent him returning to alternative employment in security.
[27] The Sale and Supply of Alcohol Act 2012 sets out the process and requirements for obtaining a manager’s certificate. A person may not be appointed a manager of any licensed premises unless they hold a manager’s certificate granted under the Act.12 Mr Ahmed’s previous certificate expired on 30 November 2020 so he would be required to re-apply. The application must be filed with the licensing committee for the district in which Mr Ahmed resides.13 The licensing committee may decide the application or refer it to the Alcohol Regulatory and Licensing Authority (the Authority).14 In considering the application, the Authority or committee must consider the applicant’s suitability to be a manager, any convictions recorded against them, their experience in controlling any licensed premises, any relevant training and evidence the applicant holds, the prescribed qualification under s 218, and any matters dealt with in a report provided by police regarding the application under s 220.15 I have no doubt Mr Ahmed would need to disclose his conviction in the course of any application for a manager’s certificate.
12 Sale and Supply of Alcohol Act 2012, ss 216 and 217.
13 Section 219(2).
14 Section 221.
15 Section 222.
[28] The Authority has held that, where an applicant for a manager’s certificate has a relevant prior conviction, two years should elapse from the date of the offence before an application will be entertained.16 Mr Stephenson advised the Court that police oppose any application where the applicant has not completed the required stand-down period without a further conviction. In this context, I agree with the Judge that there is a real and appreciable risk that Mr Ahmed will be unable to obtain the manager’s certificate required under the Act for a period of two years from the date of his conviction for driving with excess breath alcohol.
[29] In assessing the consequences of a conviction, I accept the Judge did not expressly consider the evidence the two-year stand-down period may be rendered more punitive in light of Mr Ahmed’s back pain issues which curtail his ability to gain alternative employment as a security personnel and the fact he had been unable to obtain employment in the three months preceding the sentencing. However, given Mr Ahmed is now in employment, the consequence of ongoing unemployment is no longer a real and appreciable risk.
Proportionality
[30] As the Judge identified, the entry of a conviction does not present an absolute bar to Mr Ahmed obtaining a manager’s certificate in the future. In the intervening two years before the expiry of the anticipated stand-down period, Mr Ahmed will have the opportunity to demonstrate his suitability to be a manager pursuant to s 220 of the Sale and Supply of Alcohol Act by maintaining good character and not reoffending. I have no doubt he will do so. As Mr Stephenson acknowledged in the District Court, the Authority has held that, in light of a conviction, any person should not be deemed unsuitable to hold a manager’s certificate indefinitely.17 Any bar to Mr Ahmed returning to work as a hotel duty manager is merely temporary.
[31] There is a significant difference between a case where a conviction is an absolute barrier to a defendant continuing in an established career, and one where a
16 Re Judd [2014] NZARLA PH 94; Re NZ LNQ Ltd [2014] NZARLA PH 229.
17 Referring to G L Osborne NZLLA 2388/95.
conviction is more properly described as a short-term obstacle to a defendant recommencing employment within their preferred industry.
[32] In Ramage v Police, the appellant sought a discharge without conviction after driving with excess breath alcohol.18 The High Court found that difficulties gaining employment in such circumstances are “merely the ordinary consequences of offending behaviour” and determined that, whilst finding employment suited to the appellant may well be made more difficult than it would be without a conviction, it would not be impossible.19 Similarly here, Mr Ahmed’s struggle to secure employment over the three month period he has referred to is an ordinary consequence of his offending. His back pain certainly limits the options he may have in roles that involve standing for long periods, but he plainly has many qualities that enhance his prospects of employment, albeit, and as has transpired, in a field where he has no prior experience.
[33] Furthermore, there is here an independent statutory body, namely the Authority or relevant licensing committee, charged with assessing Mr Ahmed’s character and suitability to be a manager of a licensed premises. Where Parliament has seen fit to establish an authority with the task of screening applicants for admission to a particular profession, the courts should not generally usurp the right of such a body to exercise its discretion to decide the significance of any particular conviction in light of their specialist expertise.20 There is a public interest that the relevant licensing committee or the Authority is able to conduct an investigation into Mr Ahmed’s character with the benefit of full disclosure of his offending behaviour. I also agree with the Judge that the liquor industry is one where the employer should be fully informed of a prospective employee’s history. Mr Ahmed’s conviction will be only one factor of many taken into account.
[34] It is not enough that the consequences of a conviction outweigh the gravity of the offending. The consequences must be out of all proportion to the gravity of the
18 Ramage v Police [2017] NZHC 75.
19 At [22].
20 Malster v Police [2020] NZHC 1444 at [39], citing Maraj v Police [2016] NZCA 279 at [36];
Graham v Police [2018] NZCA 172 at [29]; Police v Roberts [1991] 1 NZLR 205 (CA).
offending before the Court has jurisdiction to grant a discharge without conviction.21 In particular, the moderately serious nature of drink driving offending means the proportionality scales to be applied are “to an extent, tipped by that level of seriousness”, meaning the consequences of a conviction must therefore be “relatively significant” and “specific” before they are out of all proportion to the moderate seriousness of the offence.22
[35] In the present case, I do not consider Mr Ahmed’s physical condition will render the two-year stand-down period unduly punitive or disproportionately harsh. The consequences identified are insufficiently significant to be out of the ordinary, let alone out of all proportion to the gravity of the offending. The opportunity to become a hotel duty manager through applying for a manager’s certificate remains open to him following the expiry of any stand-down period and it would be wrong for this Court to pre-empt the decision-making of the relevant licensing committee or the Authority in determining Mr Ahmed’s suitability for such a certificate.
[36] I am satisfied that the consequences outlined in Mr Ahmed’s affidavit are not “out of all proportion” to the gravity of the offence.
Result
[37]The appeal is dismissed.
...................................................
Eaton J
Solicitors:
Public Defence Service, Dunedin RPB Law, Dunedin
21 R v Smyth [2017] NZCA 530 at [12].
22 Basnyat v Police, above n 11, at [19] and [23].
8
0