Basnyat v Police - [2018] NZHC 51

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-345 [2018] NZHC 51

BETWEEN
SHREESH BASNYAT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 5 February 2018

Counsel:

C Mitchell for Appellant
D Houghton for Respondent

Judgment:

5 February 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 5 February 2018 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Colin Mitchell (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent

BASNYAT v POLICE [2018] NZHC 51 [5 February 2018]

Introduction

[1] On 13 March 2017, Mr Basnyat pleaded guilty to one charge of driving with excess blood alcohol.1 On 18 September 2017 Judge Ellis, in the District Court at Auckland, refused Mr Basnyat’s application for a discharge without conviction2 and instead convicted and fined him $800, plus court costs and medical fees. Mr Basnyat was also disqualified from driving for six months. Mr Basnyat now appeals against the refusal to discharge him without conviction.

Facts

[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.

District Court decision

[3] The key passages of Judge Ellis’s decision are as follows:3

[9] The evidence does not indicate any immediate likelihood of your losing your job. You are obviously thought of highly by your employer, and your employer is in the best position to assess your abilities and determine whether or not this should slow your progress through the ranks.

[10] I accept that there is a possibility that if you were to apply for other jobs you would have to explain this conviction. It may be that having to explain that would put you at a disadvantage, but that is a consequence of your choosing to drink and drive, not of my choosing to hold you accountable for
it.

[11] The ordinary consequences of drinking and driving have been well publicised in all sorts of media through the country. You can expect to be stopped by the police, and what will follow then is you will be brought to Court and held accountable.

1      Land Transport Act 1998, s 56. The maximum penalty is three months’ imprisonment or a fine not exceeding $4,500.
2      Pursuant to ss 106 and 107 of the Sentencing Act 2002.
3      Police v Basnyat [2017] NZDC 21099.

[12] I am not persuaded that the consequences that are pointed to in your case are – to quote the section – “out of all proportion,” to the seriousness of the offending.

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] NZHC 51
Case: [2018] NZHC 51
Decision Date: 5 February 2018

CaseChat Overview and Summary

Shreesh Basnyat appealed against the District Court's refusal to grant him a discharge without conviction for driving with excess blood alcohol. The District Court had convicted him and imposed a fine, court costs, medical fees, and a six-month driving disqualification. The legal issue before the High Court was whether the District Court erred in finding that the consequences of conviction were not out of all proportion to the gravity of the offending. The High Court assessed the gravity of the offence, the direct and indirect consequences of a conviction, and whether those consequences were out of all proportion to the gravity of the offence. The High Court found that the District Court had properly assessed the gravity of the offence and the consequences of a conviction. While the appellant's career prospects and ability to travel might be impacted, this was not out of all proportion to the gravity of the offending. The High Court dismissed the appeal and upheld the District Court's decision.

Orders