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Basnyat v Police

Basnyat v Police

Case [2018] NZCA 486 8 November 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA101/2018
[2018] NZCA 486

BETWEEN	SHREESH BASNYAT Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	9 May 2018
Court:	French, Cooper and Williams JJ
Counsel:	C Mitchell for Applicant J E L Carruthers for Respondent
Judgment:	8 November 2018 at 11.00 am

JUDGMENT OF THE COURT

AThe application to adduce further evidence is declined.
BThe application for leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Williams J)

Introduction

The District Court refused Mr Basnyat’s application for a discharge without conviction under s 106 of the Sentencing Act 2002, following a guilty plea for drink driving.[1] The High Court dismissed Mr Basnyat’s subsequent appeal.[2] Leave is now sought to bring a second appeal. The issue raised is whether the Courts below properly applied the test for discharge without conviction in s 107 of the Sentencing Act or were distracted into error by relying on flawed case law.

Factual and Procedural Background

[1]Police v Basnyat [2017] NZDC 21099.

[2]Basnyat v Police [2018] NZHC 51.

The facts of the offending were succinctly set out by Brewer J:[3]
[2] On the evening of 26 October 2016 Mr Basnyat was driving in Avondale when he turned into a schoolyard immediately prior to a police alcohol checkpoint. He was stopped by a mobile patrol. When spoken to by police, Mr Basnyat exhibited signs of recent alcohol intake. He underwent a breath test and gave a blood sample — the latter generated a blood alcohol reading of 84 milligrams of alcohol per 100 millilitres of blood. When spoken to by police Mr Basnyat said he had consumed three bottles of beer prior to driving.
[3]Basnyat v Police, above n 2.
On 13 March 2017 Mr Basnyat pleaded guilty to a charge of driving with excess blood alcohol.[4]
[4]Land Transport Act 1998, s 56. The maximum penalty is three months’ imprisonment or a fine not exceeding $4,500.
Mr Basnyat is a 31-year-old civil engineer. He is employed as headworks engineer at Watercare Ltd in Auckland. This involves ensuring that the company’s water storage and wastewater assets meet regulatory, operational, financial and water quality requirements. It is a position of considerable responsibility and some seniority. His supervisor Mr Chaloner-Warman provided an affidavit to the District Court indicating that, but for the convictions which could well have a negative impact on his career, Mr Basnyat had the potential to reach “the very highest levels in the organisation”.
An affidavit from a practising chartered accountant adduced in the High Court, but not (as far as we can tell) in the District Court, attested to the proposition that in the deponent’s experience as a professional and an employer, a drink driving conviction is likely to significantly impact on Mr Basnyat’s future employment prospects.
Mr Basnyat sought leave in this Court to produce further evidence in the form of…

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.

Continue reading Basnyat v Police

Details

AGLC: Basnyat v Police [2018] NZCA 486
Case: [2018] NZCA 486
Decision Date: 8 November 2018 at 11.00 am

CaseChat Overview and Summary

Shreesh Basnyat sought a discharge without conviction under section 106 of the Sentencing Act 2002 following a guilty plea for drink driving. The District Court denied the application and convicted him, which was later upheld by the High Court. The Court of Appeal now considers Basnyat's application for leave to bring a second appeal, along with an application to adduce further evidence in the form of an affidavit from his father. The primary issue is whether the courts below correctly applied the test for discharge without conviction under section 107 of the Sentencing Act or if they were influenced by flawed case law.

The Court of Appeal found that no matter of general or public importance arises in this case, and there is no risk of a miscarriage of justice. It is noted that the statutory test, which requires the consequences of a conviction to be out of all proportion to the gravity of the offence, was properly applied by both the District Court and the High Court. The Court of Appeal dismisses Basnyat's application for leave to appeal and his application to adduce further evidence. The decision confirms that the courts have not developed a bifurcated standard for drink driving cases, as argued by Basnyat. Instead, they continue to apply the four-stage analysis set out in Z (CA447/2012) v R, considering all aggravating and mitigating factors of the offence and offender to establish the gravity of the offence, identifying the direct and indirect consequences of conviction for the offender, and considering whether those consequences are out of all proportion to the gravity of the offence.

Orders