Brown v Police - [2013] NZHC 2190

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2013-419-35 [2013] NZHC 2190

ROA JOE KEVIN BROWN Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 20 August 2013

Counsel: J Higgins for Appellant
J Tarrant for Respondent

Judgment: 2 October 2013

JUDGMENT OF RONALD YOUNG J (Appeal against conviction and sentence)

Introduction

[1] Mr Brown is a truck driver. On 7 February 2013 he drove a truck and trailer combination from Napier to Taupo. And then the following morning he drove on to Mt Maunganui. He left the hotel early in the morning of 8 February 2013. At about
7.30 a.m. he was stopped at a weigh bridge. He was breathalysed. His breath level was 468 micrograms of alcohol per litre of breath.

[2] In the District Court Mr Brown made application for a discharge without conviction. The Judge concluded that this was serious offending and while acknowledging that Mr Brown would lose his job did not consider that the consequences of a conviction were out of all proportion to the gravity of the
offending.

BROWN v POLICE [2013] NZHC 2190 [2 October 2013]

[3] Counsel submits that the Judge made the following errors. He:

(a) failed to give adequate weight to the significance of the loss of

Mr Brown’s employment including serious financial strain;

(b)incorrectly concluded that when Mr Brown was consuming alcohol the night before the event, he knew he would be driving in the early morning;

(c) incorrectly assessed the seriousness of the offending as at the higher end of the scale;

(d) mistakenly gave weight to Mr Brown’s previous convictions;

(e) failed to take into account the rehabilitative steps Mr Brown had taken since the accident to address his consumption of alcohol.

Background facts

[4] When Mr Brown was stopped he was the driver of a heavy motor vehicle combination, a truck and trailer unit and fully laden with gravel. At the time of his apprehension, Mr Brown told the police officer that he had only had three bottles of beer with dinner and had finished about 9.00 p.m.

[5] Mr Brown said that on the evening before being apprehended he had driven the truck with gravel from Napier to Taupo. When he arrived he checked into the Spa Hotel for the night. He later ordered dinner and had four bottles of beer after dinner. He believed he would have ten hours rest and would then resume his journey the following day.

[6] Later that evening Mr Brown said he received a telephone call from his manager. The manager told him he had to get to Mt Maunganui by 7.00 a.m. the following day to deliver the gravel. He left Taupo at approximately 6.00 a.m. heading towards Tauranga and was stopped at 7.30 a.m. at the weigh bridge.

[7] The appellant’s claim that his employer advised him he had to leave Taupo many hours earlier than he had anticipated was the pivotal fact on which the application for a discharge is based. Essentially Mr Brown says…

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 Brown v Police

Details

AGLC: Brown v Police [2013] NZHC 2190
Case: [2013] NZHC 2190
Decision Date: 2 October 2013

CaseChat Overview and Summary

The case of Brown v Police involves an appeal by the appellant, Mr Brown, a truck driver, against his conviction and sentence. Mr Brown was stopped at a weigh bridge and found to have a breath alcohol level of 468 micrograms of alcohol per litre of breath. The District Court denied Mr Brown's application for a discharge without conviction, considering the seriousness of the offending. The High Court was required to determine whether the District Court judge made any errors in assessing the seriousness of the offending, the consequences of a conviction, and whether a conviction would be out of all proportion to the gravity of the offending.

The High Court found that the District Court judge failed to adequately weigh the significance of the loss of Mr Brown's employment, incorrectly concluded that Mr Brown knew he would be driving in the early morning, assessed the seriousness of the offending as higher than it should have been, mistakenly gave weight to Mr Brown's previous convictions, and failed to take into account the rehabilitative steps Mr Brown had taken since the accident to address his alcohol consumption. The High Court found that the seriousness of the offending was at the low level, and the consequences of a conviction, including the loss of Mr Brown's job and potential difficulty in finding alternative employment, would be out of all proportion to the gravity of the offending. Therefore, the High Court allowed the appeal, quashed the conviction, and discharged Mr Brown without conviction.

The final orders of the High Court were to allow the appeal, quash the conviction, and discharge Mr Brown without conviction. The court also noted that while it had the power to do so, it chose not to impose a disqualification.

Orders