Andrews v Police

[2017] NZHC 3073

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2017-425-000037 [2017] NZHC 3073

BETWEEN

MICHAEL JOHN ANDREWS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	11 December 2017
Appearances:	T J McCullum for Appellant R W Donnelly for Respondent
Judgment:	12 December 2017

JUDGMENT OF DUNNINGHAM J

[1]      This appeal began as an appeal against the imposition of a six month period of disqualification instead of a community-based sentence, after the appellant had entered a plea of guilty to a charge of dangerous driving.

[2]      Since filing the appeal, it has become apparent that the appellant was not eligible to apply for a community-based sentence pursuant to s 94 Land Transport Act

1998 (LTA), in lieu of disqualification.   He now appeals both his conviction and sentence on the basis of counsel error, saying that counsel should have recognised that he was not eligible under s 94 LTA, and should have pursued a discharge without

conviction.

ANDREWS v NEW ZEALAND POLICE [2017] NZHC 3073 [12 December 2017]

Background

[3]      The charge of dangerous driving arose when, on 15 December 2016, the appellant was travelling on State Highway 6 near Queenstown.  As he passed the intersection with Crown Range Road, an area governed by double yellow no passing lines and an 80 kilometre per hour speed restriction, he pulled out to overtake another vehicle. In doing so, he crossed the centre line fully, travelling over to the right turning lane for vehicles travelling in the opposite direction who wished to travel up the Crown Range Road.  Part way through the manoeuvre, a tour bus rounded the blind corner ahead, travelling towards the appellant. The vehicle the appellant was overtaking was forced to brake heavily and pull on to the road verge in order for the appellant to take evasive action to avoid a head-on collision with the bus.

[4]      The appellant does not have an unblemished driving record, but of particular relevance is that he was convicted of careless driving causing death, as a consequence of an incident which occurred on 6 March 2014.  In that case he was negotiating a sweeping left-hand bend on State Highway 1, when he crossed the centre line into the opposite lane and into the path of the victims in that matter. The oncoming car braked and swerved to the right to avoid a collision with the appellant’s vehicle. At the same time he swerved left back towards his original lane and the two vehicles then collided. The elderly male driver of the oncoming car was injured and subsequently died of his injuries.

District Court proceedings

[5]      The appellant initially applied for a discharge without conviction on the present charge.  The application turned on the consequences for his employment as a self- employed fencing contractor if he was convicted and the mandatory disqualification period was imposed. However, when he appeared before Judge Farnan on 1 May 2017 for sentencing, she advised him that she considered there were insufficient grounds for a discharge without conviction.  She went on to say that “in any event, even if I were to discharge him without conviction, it is the type of case where I would likely

impose a disqualification in any event, which really defeats the whole purpose of Mr

Andrews’ application”.1

[6]      The alternative which was discussed at that hearing was that he could apply to have a community-based penalty imposed on him in lieu of disqualification.   The Judge  adjourned  sentencing  through  to  a  date  in August,  in  order  to  allow  the appellant’s lawyer to file the appropriate application, together with affidavits and submissions.

[7]      Sentencing then proceeded on 21 August 2017.  Judge Farnan explained that the appellant:

…originally sought to be discharged without conviction in respect of one charge of dangerous driving. He now seeks, in the alternative under s 94 Land Transport Act 1988, to have a community-based sentence imposed upon him in lieu of disqualification.

The Judge then reiterated her views that there were insufficient grounds for a discharge and, in any event, she would be likely to impose disqualification in any event.

[8]      She then turned to consider the s 94 application.  She noted that the appellant had previously been disqualified.  He had driven with a sustained loss of traction and had driven carelessly, resulting in the death of another driver. He had also driven while disqualified and had incurred a number of demerit points and licence suspensions in the past.  However, he had subsequently attended an advanced driving course, and, in the eight months since the incident occurred had not been involved in any further driving incidents.

[9]      The Judge then reviewed the evidence that a disqualification would have serious consequences for the appellant as he would lose the ability to run his fencing contracting business and that would have an impact on his own finances and also on the financial position of the friend who had funded him into that business.  However, she also noted that the police strongly opposed the appellant being dealt with in any other way than a disqualification. Their particular concerns were public safety, given

his driving history.

1      Police v Andrews [2017] NZDC 18860.

[10]     While the Judge acknowledged the likely effect on the appellant’s business, she was concerned that he was “back driving dangerously within a two and a half year period of that accident, and within a relatively short period of getting your licence back”.  She considered she must take account of the interests of public safety and decided she needed to deal with him in the usual way and impose the standard disqualification of six months, noting that, because of his record, it could have been significantly higher than six months.

Appeal against conviction and sentence

[11]     As  already  noted,  the  appeal  was  initially  brought  as  an  appeal  against sentence.  There has been no formal application for appeal against conviction. However, while the change has come late, I consider the issues are not complicated and there has been no real prejudice to the respondent. Accordingly, I grant leave for the appeal to be brought as an appeal against conviction, as well as sentence.

[12]     The Court must allow the appeal if it finds a miscarriage of justice has occurred for any reason.2   Miscarriage of justice is defined in the Act as any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.3

[13]     Here the error alleged is counsel error in not pursuing the discharge without conviction in the mistaken belief that he could avoid a period of disqualification by applying under s 94 LTA.

[14]     In R v Scurrah, the Court of Appeal discussed the circumstances in which counsel error could lead to a successful conviction appeal:4

[17]     The approach appears to be, then, to ask first whether there was an error on the part of counsel and, if so, whether there is a real risk that it affected the outcome by rendering the verdict unsafe.  If the answer to both questions is ‘yes’, this will generally be sufficient to establish a miscarriage of justice, so that an appeal will be allowed.

2      Criminal Procedure Act 2011, s232(2).

3      Section 232(4).

4      R v Scurrrah CA159/06, 12 September 2006.

The appellant’s submissions

[15]     The appellant submits there has been a miscarriage of justice due to the error of counsel in “discontinuing” the application for discharge following the suggestion of the Court in the prosecution.  Had she realised that the appellant was ineligible to receive a community-based sentence under s 94 LTA, she would have further developed and advanced the discharge without conviction application so that it could be fully considered by the Court.

[16]     Counsel for the appellant says the effect of the conviction and being unable to drive for business purposes will be financially crippling on the appellant.5   She also says that in the last four months he has a child born in the United States and is experiencing “significant difficulties” in obtaining a visa to visit the child.  In these circumstances, she argues that the conviction and sentence should be quashed and the matter remitted back to the District Court for the s 106 application to be fully developed and considered by the Court.

The respondent’s submissions

[17]     The respondent had filed written submissions regarding the appeal against sentence and it was a consequence of that submission that it was realised the appellant was not eligible for a community-based sentence under s 94 LTA.

[18]     The respondent does not take issue with the appeal being amended to an appeal against conviction.

[19]     On that count, Mr Donnelly’s submission was that the appellant could not show a real risk that the outcome would have been different.  He says this was not a case which met the test of the consequences being out of all proportion to the gravity of the offending.  While acknowledging the consequences for Mr Andrews’ business, these were not sufficient disproportionate to the seriousness of the offending which involved dangerous driving, and which followed on from his previous conviction for serious

driving offending.

5      His period of disqualification has been stayed pending this appeal.

Analysis

[20]     At issue is whether counsel error has led to a miscarriage of justice such as I should allow this appeal and refer the matter back to the District Court for reconsideration.

[21]     I accept it was in response to the Judge’s indication that a discharge would not be forthcoming, and her suggestion that an application under s 94 LTA may be more promising, that the application for a discharge was not pursued.  It is only since filing the appeal that the respondent has identified that the appellant was not eligible for a community-based sentence in lieu of disqualification because of his earlier conviction for dangerous driving causing death.   I am satisfied that if it were not for that suggestion, the discharge application would have been pursued.

[22]     However, it is not sufficient to establish that there was an error on counsel’s part.  There must have been a real risk that it affected the outcome.  In this case, as was acknowledged by counsel for the appellant, the 1 May hearing was scheduled for the purposes of hearing the application for discharge without conviction.   The application was before the Judge and, although she did not make a formal finding on the matter, it is quite clear that she would not have granted the application.

[23]     The only further issue raised in this hearing is the difficulty the applicant is now experiencing in getting a US visa to see his new born child.  However, it was acknowledged that his existing conviction for dangerous driving causing death has created the problem with getting a US visa.  While the current conviction may be contributing to those difficulties, it is clear that it did not create them.

[24]     In any event, I have considered afresh whether the Judge was correct to express the view that a s 106 discharge without conviction would not be appropriate. Applying the established principles, this is to be assessed in a three step process:6

(a)       identifying the gravity of the offence;

6      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 and Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8].

(b)      identifying the direct and indirect consequences of a conviction; and

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

[25]    In this case, assessed on its own, the offending was moderately serious offending, but looked at in the context of the offender’s previous history and in particular, the 2014 conviction for similar offending, the offending must be considered reasonably serious, particularly as it raises public safety concerns.

[26]     However, the effects on the offender of a disqualification are also serious in that there will be a six month hiatus in his business, unless he employs a driver or makes some other arrangement for being taken to fencing jobs.   That will have significant financial consequences for him.  There is also the more recent issue of needing a US visa where a further driving conviction may exacerbate the difficulties he is already experiencing in getting a US visa.

[27]     While these consequences are significant when viewed in the round for this offender, I do not consider they reach the threshold of being “out of all proportion” to the gravity of the offending.  In short, the statutory threshold for a discharge without conviction has not been met.

[28]     In order for the appeal to be allowed, the Court has to be satisfied there is a real risk that a different outcome would have been resulted if the s 94 application had not been erroneously pursued. As that test has not been able to be met by the appellant in this case, the appeal is dismissed.

Solicitors:

Southern Law, Invercargill

Preston Russell Law, Invercargill