Ahmed v Police - [2022] NZHC 769

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZHC 769
Decision Date: 13 April 2022

CaseChat Overview and Summary

The appeal in Ahmed v Police concerns a challenge to the Dunedin District Court’s decision to convict and sentence Jamil Ahmed for driving with excess breath alcohol. Ahmed had pleaded guilty to the charge and was sentenced to a $600 fine and disqualified from driving for six months. Judge Phillips declined to grant Ahmed a discharge without conviction under s 106 of the Sentencing Act 2002. The key legal issue before the Court was whether the Judge had erred in his assessment of the consequences of a conviction by failing to properly consider and weigh all the consequences raised by Ahmed in his affidavit.

The Court considered the three-step analysis required under s 107 of the Sentencing Act for a discharge without conviction. The Court accepted there was no issue with the Judge’s assessment of the gravity of Ahmed’s offending. However, the appeal focused on whether the Judge had properly considered the direct and indirect consequences of a conviction for Ahmed. Ahmed had argued that his physical condition and inability to secure employment for three months rendered the consequences of conviction unduly punitive. The Court found that while the Judge had not expressly considered all the consequences raised by Ahmed, the consequences were not out of all proportion to the gravity of the offence. The Court noted the temporary nature of the consequences, the fact Ahmed had secured employment, and the existence of an independent body to assess his suitability for future employment. The Court concluded that the consequences of a conviction were not out of all proportion to the moderately serious nature of the drink driving offence.

The appeal was dismissed, affirming the conviction and sentence imposed by Judge Phillips in the Dunedin District Court.

Orders