Buick v Police

[2024] NZHC 3204

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-205

[2024] NZHC 3204

BETWEEN

DAVID JEREMIAH EDMOND BUICK

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	30 October 2024
Appearances:	D J Matthews for Appellant M W Fulton for Respondent
Judgment:	31 October 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 31 October 2024 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

BUICK v NEW ZEALAND POLICE [2024] NZHC 3204 [31 October 2024]

Introduction

[1]                 David Jeremiah Edmond Buick pleaded guilty to a charge of driving a motor vehicle on a road at a speed which might have been dangerous to the public.1 Judge Callaghan refused to grant a discharge without conviction and sentenced Mr Buick to six months’ disqualification for driving.2 Mr Buick now appeals that decision.

Facts

[2]The District Court summarised the facts of the offending as follows:

[2]The facts in relation to the offence are that on 7 March, at about

6.30 pm, the defendant was driving a Kawasaki 400G motorcycle on the Shands Road on-ramp to the Christchurch Southern Motorway. The ramp is single-lane. It curves as it merges with the dual carriageway, and has a 100K posted speed limit. There was low-to- medium traffic flow. He was travelling at 162 kilometres per hour, which was detected by radar. He was passing a four-wheel drive vehicle travelling at 102 in the left lane, and immediately prior to merging.

[3]When he stopped, he stated no reason for the speed. He had seen the four-wheel drive and replied “No, I don’t”, when asked if he thought merging at such a speed was safe.

District Court decision

[3]                 The Judge assessed the gravity of the offending to be medium-to-high having regard to the speed of the driving and the consequence risk of fatality. However, taking account of Mr Buick’s lack of previous convictions, his early guilty plea and the fact he has completed the Right Track programme, the Judge reduced that assessment to medium. The consequences of conviction were said to be general, noting Mr Buick would not lose his job is he was disqualified.

[4]                 Accordingly, the Judge found that the consequences of the offending were not out of proportion to the gravity of the offending. A discharge without conviction was not granted.

1      Land Transport Act 1998, s 35(1)(b) — maximum penalty three months’ imprisonment or $4,500.

2      Police v Buick [2024] NZDC 17181.

[5]                 In consideration of Mr Buick’s rehabilitation, and the steps he had taken to address the underlying cause of ADHD and receipt of treatment for that, the Judge disqualified him from driving for six months, which is the minimum period, and which was backdated to commence on 5 April 2024, meaning Mr Buick only had to serve two and a half months at the time of sentencing.

Principles on appeal

[6]                 The Court may grant a discharge without conviction under s 106 of the Sentencing Act 2002 only if it is satisfied, under s 107, that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.

[7]                 The decision under s 107 involves a matter of fact, requiring judicial assessment. Appeals against the proportionality test under s 107 are by way of rehearing, with the appellate Court making its own assessment of whether the criteria are established.3 If a discharge without conviction should have been granted, then there will have been a material error by the sentencing Judge, or a miscarriage of justice will have occurred for any other reason, and so the appeal against conviction must be allowed.4

Submissions

Appellant’s submissions

[8]                 Mr Matthews, for the appellant, submits the gravity of the offending should have been determined to be low in consideration of the appellant’s age (he was 29 at the time), his lack of criminal and demerit history, his previous good character, his diagnosis and treatment of ADHD, his remorse, and his completion of the Right Track programme. In light of Nattrass v R, Mr Matthews submits there is nothing further Mr Buick could have done to put things right,5 noting that his response to the offending was exemplary.

3      H v R [2012] NZCA 198 at [35]–[36].

4      Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].

5      Nattrass v R [2024] NZHC 2091 at [32].

[9]                 Turning to the consequences of conviction, the discharge without conviction was originally sought  on  two  grounds.  The  first  ground  of  inconvenience  to  Mr Buick’s employer due to the appellant being unable to drive, no longer applies as the disqualification period has now concluded.

[10]              The remaining consequence is that Mr Buick could be limited in future job opportunities by a conviction for dangerous driving. Mr Buick is at an early stage in his career as he is still completing his apprenticeship as an automotive electrician. A dangerous driving conviction risks prejudicing his future employability in the automotive industry. Other, more general, consequences may follow.

[11]              Mr Matthews relies on several authorities to submit the future impact on job opportunities can be taken into account to find a discharge without conviction:

(a)Nash v Police: general consequences that follow from conviction can be taken into account in a s 106 application.6

(b)R v Taulapapa: the Court may assume that job applicants with convictions are likely to be excluded without inquiry where employers must filter many applications, particularly in the case of young persons.7

(c)Tahitahi v Police: In a difficult job market, an appellant’s quest for employment is likely to be rendered even more difficult if they have convictions on their record.8

[12]              It is on these grounds that Mr Buick is submitted to have consequences that are out of all proportion to the gravity of the offending, and which would justify a discharge without conviction.

6      Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009 at [19].

7      R v Taulapapa [2018] NZCA 414 at [42(d)].

8      Tahitahi v Police [2012] NZHC 663 at [25].

Respondent’s submissions

[13]              Ms Fulton, for the respondent, submits that with regards to gravity, Nattrass can be distinguished as Mr Buick was significantly older (being 29 compared to the appellant in Nattrass who was 18), and his speeding was considered to be “dangerous”, where a further misstep could have resulted in significant injury or fatality. Mr Buick was also not influenced by exigent circumstances. The respondent submits the Judge was correct to assess the gravity of the offending as medium-to-high given the surrounding circumstances.

[14]              The Judge was also correct to reduce the gravity to medium once taking into consideration personal factors such as lack of prior convictions or demerit history, his early guilty plea, and his completion of the Right Track programme.

[15]              Beyond the general black mark of a first conviction, the respondent submits there is no evidence that a conviction would negatively impact Mr Buick’s future career prospects. Mr Buick is not in the category of persons who does not have a foothold in their career, nor is he a “young person” for the purposes of the authorities referred to by the appellant. He is aged 29 with university degrees and is two thirds through an apprenticeship as an automative electrician. By the time he wishes to progress his career, he will have practical job experience alongside the experience of an apprenticeship and potentially further qualifications. This work does not fall within the “unskilled or semi-skilled work” envisaged in Taulapapa.

[16]              Turning to future career prospects, such as working to be a vehicle inspector, which would require Mr Buick to satisfy a fit and proper test, the respondent submits that should he apply, he would be given the opportunity to comment on the conviction and the circumstances of the offending would be considered.

[17]              As the overall gravity of the offence is medium (but even if it was assessed as low), and the consequences are limited to the general “black mark” of a conviction, the consequences cannot be seen to be out of proportion to the gravity of the offending. In the circumstances, the court cannot exercise its discretion to discharge Mr Buick without conviction.

Analysis

[18]              The threshold for a discharge without conviction is high, with the consequences being required to be out of all proportion to the gravity of the offence.9

[19]              I accept that the gravity of the offence itself was appropriately regarded by the District Court Judge as medium-to-high, considering the risk posed to the safety of those driving in the immediate vicinity of Mr Buick. That said, this was a case where, fortunately, no actual harm eventuated.

[20]              Turning to the offender, I accept he did everything reasonably possible to mitigate the gravity of offending. In that regard, I note his lack of previous convictions and demerit points, his completion of the Right Track programme, his seeking of a psychiatric assessment and resultant treatment for ADHD, and his remorse and his rehabilitation. I consider it would have been open to the Judge to assess the overall gravity as low in light of all these factors. However, the real issue on this appeal is whether the consequences of the offending are out of all proportion to the gravity of the offending.

[21]              Here, the consequences outlined by the appellant largely rest on the stigma of having a driving offence and its potential to hinder the appellant’s future employment in the automotive industry. On the information before the Court, this consequence seems unlikely. Mr Buick is university qualified, and he is on track to complete an automative electrician apprenticeship. It is likely that his current employer (who has supported him through the period of disqualification) can give positive references to his character so that when he seeks to progress his career, his qualifications and references will allow him to get further employment. This is quite different from a young person seeking to gain a foothold in the employment market.

[22]              The suggestion that the driving offence will hinder the appellant from being assessed as a fit and proper person for future roles such as a vehicle inspector is simply too speculative. Such a role is unlikely to be pursued by Mr Buick for at least seven years and, by that time, if he has no other convictions, the provisions of the Criminal

9      Sentencing Act 2002, s 107.

Records (Clean Slate) Act 2004 would apply. If this is Mr Buick’s sole conviction, and he has no other convictions following it, it is difficult to see how this could materially affect his career prospects.

[23]              For these reasons, I am satisfied that the consequences of conviction are not at all pronounced for Mr Buick. There is no credible evidence to suggest it will impact on his current employment and, should he wish to change employer, all other things being equal, it is difficult to see that this single conviction would overwhelm his qualifications and skill sets. Any consequences beyond seven years will almost entirely fall away as a consequence of the provisions of the Criminal Records (Clean Slate) Act 2004.

[24]              Accordingly, while I accept that the gravity of the offending, taking into account everything Mr Buick has done to mitigate it, could be described as low, I am still not satisfied that the consequences of the conviction are out of all proportion to the gravity of the offending.

Result

[25]The appeal is dismissed.

Solicitors:
Crown Solicitor, Christchurch

Copy to:

D J Matthews, Barrister, Christchurch