Brunton v Police - [2012] NZHC 1197

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-89 [2012] NZHC 1197

RODNEY JOHN WAYNE BRUNTON
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 28 May 2012

Appearances: M Edgar for the appellant
J Wall for the respondent

Judgment: 30 May 2012

This judgment was delivered by the Hon Justice Clifford on Wednesday, 30 May 2012 at 5.30pm pursuant to Rule 540(4) of the High Court Rules.

JUDGMENT OF CLIFFORD J

Introduction

[1] On 17 February 2012 the appellant, Mr Brunton, pleaded guilty before a community magistrate in the Manukau District Court to one charge of being a person under 20 years of age and driving a motor vehicle with excess breath alcohol exceeding 150 micrograms of alcohol, namely 177 micrograms of alcohol per litre of
breath.

BRUNTON v POLICE HC AK CRI-2012-404-89 [30 May 2012]

[2] The community magistrate convicted Mr Brunton, disqualified him from holding or obtaining a driver’s licence for three months, fined him $100 and ordered Court costs of $132.89. Mr Brunton now appeals against his conviction. He acknowledges his offending, but says he should have been discharged without conviction pursuant to s 106 of the Sentencing Act 2002. Mr Brunton says that that conviction would have consequences out of all proportion to the gravity of his offending, namely adversely affecting his ability to travel to Canada for study purposes and, subsequently, adversely affecting his likely future application to be registered as a chartered accountant.

Facts

[3] Mr Brunton was stopped at a routine police check on Sunday 5 February

2012 at about 1.07am. Earlier that evening he had attended what he describes as a “non-alcohol paint party under age rave”. Before going to that party, he says he and a friend had consumed two cans of a bourbon and cola drink in a car outside the party venue. They had entered the party at 9.00pm and left at 1.00am. He says no further alcohol had been consumed. When stopped by the Police, Mr Brunton acknowledged having drunk alcohol earlier that evening. When tested, Mr Brunton’s breath showed 177 micrograms of alcohol per litre of breath. The maximum permissible reading for someone under the age of 20 is 150 micrograms of alcohol per litre of breath.

[4] On 17 February Mr Brunton was represented by a duty lawyer. His instructions were that he wished to plead guilty at the first opportunity so that he could resolve the matter without his parents necessarily becoming concerned. He says he did not think about the consequences of a conviction or that he would be burdened with a criminal record. Therefore, he did not discuss with the duty lawyer seeking a remand so that legal advice could be sought, nor were any submissions made in favour of a discharge without conviction.

Analysis

[5] In the circumstances, the Police accept that I may consider afresh the question of whether or not Mr Brunton should have been discharged without conviction. I proceed on that basis.

[6] Mr Brunton was at the time…

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: [2012] NZHC 1197
Decision Date: 30 May 2012

CaseChat Overview and Summary

In Brunton v Police, the High Court of New Zealand addressed an appeal by Rodney John Wayne Brunton against his conviction for driving under the influence of alcohol. Brunton, who was 18 years old at the time, pleaded guilty to driving with a breath alcohol level of 177 micrograms per litre of breath, exceeding the permissible limit of 150 micrograms for individuals under 20. Brunton appealed his conviction, arguing that he should have been discharged without conviction under section 106 of the Sentencing Act 2002, claiming the conviction would disproportionately affect his future opportunities, including travel to Canada for study and future registration as a chartered accountant.

The legal issue before the court was whether the consequences of Brunton's conviction were out of proportion to the gravity of his offence, warranting a discharge without conviction. The court considered Brunton's remorse, his background, and the potential impact of the conviction on his future plans. Brunton argued that his conviction could hinder his ability to travel to Canada for study, as he was advised by the Canadian Embassy that a criminal record could disqualify him from entering the country. However, the court found that there was uncertainty about the actual impact of the conviction on Brunton's travel plans, as the evidence suggested he would not be inadmissible to Canada due to the level of alcohol detected.

Additionally, the court did not find Brunton's future application to be registered as a chartered accountant to be significantly prejudiced by the conviction. The court concluded that Brunton's personal regret and embarrassment over the conviction did not constitute a consequence that was out of proportion to the gravity of the offence. The court held that Brunton's appeal was dismissed, and his conviction stood.

The court's decision highlights the importance of demonstrating real and appreciable risks of adverse consequences to successfully argue for a discharge without conviction under section 107 of the Sentencing Act 2002. In this case, the speculative nature of the potential consequences did not meet the required threshold.

Orders