Burns v Police
[2023] NZHC 2585
•15 September 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2023-485-042
[2023] NZHC 2585
BETWEEN PATRICIA BURNS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 15 September 2023 Counsel:
Z S Meehan for Appellant
R G Buckman for Respondent
Judgment:
15 September 2023
JUDGMENT OF CHURCHMAN J
Introduction
[1] The appellant pleaded guilty in the District Court to one charge of driving with excess breath alcohol (EBA).1 Judge Tompkins rejected an application for a discharge without conviction under s 106 of the Sentencing Act 2002. The appellant was fined the sum of $400 and disqualified from driving for six months. As a result of the breath level involved, the appellant was subject to the alcohol interlock regime.
[2] The appellant sought leave to appeal out of time. The reason that leave is said to be necessary is that counsel failed to act promptly upon instructions to appeal which were given within the requisite 20-day working period.
1 Land Transport Act 1998, s 56(1) — maximum penalty three months’ imprisonment or $4,500 fine.
BURNS v NEW ZEALAND POLICE [2023] NZHC 2585 [15 September 2023]
[3] A notice of general appeal was filed challenging the failure to discharge the appellant without conviction.
[4] The principal issue raised is whether the Judge was correct in finding that the consequences of conviction were not out of all proportion with the gravity of the offence.
[5] The issues raised on appeal are capable of serious argument. The failure to file the appeal in time was the fault of counsel rather than the appellant. Leave is not opposed by the respondent. I therefore grant leave to appeal.
Relevant facts
[6] At 5:45pm on Sunday 11 September 2002, the appellant was stopped for a compulsory breath test in Upper Hutt. The test revealed a reading of 812 micrograms of alcohol per litre of breath. The appellant’s explanation was that she had consumed several glasses of wine after work and prior to driving home. The driving was not accompanied by any aggravating features. The appellant pleaded guilty promptly. No conviction was entered at the time of the plea as the appellant wished to pursue an application for discharge without conviction.
[7]That application was heard on 14 June 2023 and dismissed.2
[8] At the time of sentencing, the appellant’s driver’s licence was suspended as a result of medical issues.
[9] Although the appeal was against the failure to discharge without conviction, Mr Meehan has indicated that the appellant does not challenge the order for disqualification.
Points in contention on appeal
[10] In the District Court, the Police had opposed the application for discharge without conviction and had referred the Judge to the 2013 decision of Miller J in the
2 Police v Burns [2023] NZDC 12242.
High Court in Linterman v Police.3 The Judge noted that in Linterman, Miller J had expressed the view that discharges without conviction for driving with excess breath alcohol ought to be exceptional.4
[11] The appellant refers to the decision of the Court of Appeal in Basnyat v Police,5 where the Court had indicated that the approach of treating the test in s 107 of the Sentencing Act as if the word “exceptional” was found there was an error. In that case, the Court of Appeal said, in relation to Linterman:
[19] Properly construed, Linterman is not a gloss on the statutory test, but rather a statement of the practical consequence of the application of the sections. Drink driving is a moderately serious offence when seen by reference to its potential consequences and to the pervasiveness of alcohol abuse in our society. That means that the proportionality scales to be applied at stage three of Z (CA447/2012) v R are, to an extent, tipped by that level of seriousness. The consequences of a conviction must also therefore be relatively significant before they are “out of all proportion” to the moderate seriousness of the offence. It would be different if drink driving were a minor offence, but it is not.
[20] But judges must not treat Linterman as if it were a proxy for the statutory test, and they must not exercise their discretion as if the word “exceptional” is to be found in s 107 …
[12] The appellant submits that the Judge has done exactly what the Court of Appeal said should not be done.
[13] The appellant also submits that the District Court Judge did not explicitly go through the process of assessing the gravity of the offending. It was conceded that the Judge did go through the consequences of conviction in forming the view that they were not out of all proportion to the gravity of the offending.
The correct legal approach
[14]Section 107 of the Sentencing Act provides:
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
3 Linterman v Police [2013] NZHC 891.
4 Police v Burns, above n 2, at [13].
5 Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344.
[15] Both counsel accept that the proper approach in interpreting s 107 is the three-step approach set out by the Court of Appeal in Prasad v R:6
(a)identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;
(b)identification of the direct and indirect consequences of conviction; and
(c)a determination of whether those consequences are “out of all proportion” to the gravity of the offence.
[16] Once the threshold set out in s 107 has been met, the Court then considers its residual discretion under s 106. There must be a “real and appreciable” risk that any given consequence will happen in the future.7
[17] Mr Meehan submitted that the gravity of the offending was moderate. He acknowledges that driving with an excess breath alcohol of 812 micrograms per litre of breath in itself could be described as moderately serious but submitted that the factors which reduced the gravity of the offence to that of being moderate were:
(a)the level of 812 micrograms per litre of breath was just above the 800 micrograms level that triggers a mandatory alcohol interlock sentence;
(b)there was no other driving fault;
(c)the appellant pleaded guilty early;
(d)she was previously of good character; and
(e)she attended an alcohol counselling course run by the Salvation Army.
[18] Particular emphasis was put on the fact that the appellant was to be a witness for the prosecution in a serious criminal trial and was upset at having been told,
6 Prasad v R [2018] NZCA 537 at [11].
7 At [11].
approximately a week prior to the drink driving incident, that the hearing in that matter was to be adjourned for a substantial period of time.
[19] I accept that, as her only prior conviction is for careless driving in 1995, the appellant can claim the benefit of good character. I also accept that she would have been stressed as a result of having to give evidence in the criminal matter. Her completion of what was described by the sentencing Judge as a brief alcohol and drug abuse intervention programme where she was assessed as not meeting the criteria for alcohol use disorder is also a positive factor. However, all of these matters were specifically considered by the Judge.
[20] I do not accept that the fact that the breath alcohol reading was “just above” the level that triggered a mandatory alcohol interlock sentence is a factor which reduces the gravity of the offending. The reality is that the interlock regime was implemented to deal with people who have driven while significantly intoxicated. Rather than being a mitigating factor, a reading of 812 micrograms confirms that the appellant was significantly impaired by her alcohol consumption at the time of driving. It is therefore an aggravating factor.
[21] I assess the combination of factors as warranting a categorisation of the gravity of the offending as being moderately serious.
[22] The next issue for me to determine is what the direct and indirect consequences of the entry of a conviction would be for the appellant.
[23] The evidence before the Court as to the potential consequences of a conviction was somewhat confusing. The appellant had filed an affirmation which said she was employed at a rest home as a diversional therapist. That role required the appellant to hold a driver’s licence so that she could drive residents to appointments or activities if required. The affirmation indicated that the appellant had told her original manager about the prosecution but that this manager had since left and she had not told her new manager.
[24] It was also clear that the appellant had her licence suspended as a result of health issues but did not seem to have had her employment terminated as a result of that. Mr Meehan confirmed in oral submissions that the appellant had resigned from her employment about a month before sentencing and that, at that she was both medically unfit for work and had had her driver’s licence suspended for medical reasons. At the time of the sentencing, she had been cleared medically to resume work but had not had her driver’s licence reinstated.
[25] As was noted in the decision,8 counsel had put before the Court what was described accurately by the Judge as “very generalised advice from a human resources consultant” to the effect that a person seeking employment in the particular area where the appellant worked would be required to complete a criminal conviction background check based on role type.
[26] Counsel conceded that the appellant was not able to put forward evidence that she would not be considered for roles in the aged care industry as a result of the entry of a conviction, but emphasised that the Court need only be satisfied that there was a real and appreciable risk that the relevant consequence would happen.9
[27] In support of his contention that a conviction was out of all proportion to the gravity of the offending, Mr Meehan relied heavily on the decision in Simpson v Police.10 That case involved a 30-year-old first offender who had an excess breath alcohol reading of 965 micrograms per litre of breath. The Judge in that case had detailed information before him as to the consequences of a conviction on the appellant’s career.
[28] The facts of that case had a number of significant differences to the present case. The principal ones are that the appellant had known that he would be drinking at a work-related cocktail function. He therefore arranged to spend the night at his parents’ home which was across the road from where the function took place to ensure that he would not be driving anywhere after drinking. He slept there on the night after
8 Police v Burns, above n 2, at [9].
9 Referring to DC (CA47/2013) v R [2013] NZCA 255 at [43].
10 Simpson v Police [2020] NZHC 2254.
the function. At 2:15pm in the afternoon of the following day, he drove home and was apprehended. He had not had anything to eat that day and was unaware that he would still be over the limit for driving.
[29] The appellant in that case had lost his employment and since being convicted had applied unsuccessfully for some 30 jobs in the industry that he had worked in. The judgment recorded that the appellant had completed a New Zealand Advanced Driver Training Course and made a charitable donation of $1,000 to Women’s Refuge.
[30] The Judge in Simpson referred specifically to the affidavit evidence of an expert who deposed:11
I can say unequivocally that the applicant will be overlooked for employment opportunities within [his chosen] industry should he obtain a criminal conviction of this nature on his record.
[31] The Judge on appeal concluded that the Judge at first instance had inaccurately recorded this witness’ evidence and that the witness had not said that it “would be difficult” for the appellant to obtain work in the industry but rather that he would “be overlooked” and that it was “extremely unlikely” that the appellant would progress in the industry.
[32] The Judge also referred to the importance of the appellant’s evidence that he had been unsuccessful in over 30 job applications since being dismissed. The Judge concluded that there was a real and appreciable risk to the appellant’s future career prospects in his chosen field as a result of a conviction.12
[33] The Judge then turned to assess whether there was a real and appreciable consequence that was out of all proportion to the gravity of the offence. The Judge referred to a number of factors identified by Miller J in Linterman, being:13
(a)in the hands of a drunk, a car is a dangerous thing;
11 At [25].
12 At [26].
13 At [28], referring to Linterman v Police, above n 2, at [9].
(b)good character and extenuating personal circumstances normally count for little;
(c)drink driving is a pervasive social problem and the legislature has responded with a sentencing policy that emphasises personal and general deterrence;
(d)an application must identify some extraordinary consequence of conviction, which is difficult when the ordinary consequences are unpleasant;
(e)a drink driving conviction always carries a social stigma and the offender must normally disclose the conviction to a prospective employer, who may wonder whether it evidences poor judgement or an undue fondness for drink, or antisocial tendencies.
[34] The Judge in Simpson placed great weight on the unequivocal affidavit evidence of the industry expert and the extensive history of unsuccessful job applications by the applicant following conviction. He was satisfied “[b]y a very fine margin”14 that the consequences of the conviction were out of all proportion to the gravity of the offending, notwithstanding his conclusion that the offending was moderately serious.
[35] In exercising his discretion under s 106, the Judge said he was mindful of the donation that the appellant had made to the Women’s Refuge, and he held it was appropriate to grant a discharge without conviction. The appeal was allowed and the fine and period of disqualification imposed were set aside.
Discussion
[36] Each case must be considered on its own facts. While there are some similarities between the facts of the present case and the facts in Simpson, there are also significant differences as outlined in [28]–[30] above.
14 At [33].
[37] The most important of these differences is the nature of the evidence as to the potential consequences of the entry of a conviction. The evidence in the present case is far more equivocal. In my assessment, it does not meet the threshold of establishing that there is a real and appreciable risk that the appellant will be unable to obtain other employment in her chosen industry.
[38] I accept that the District Court Judge in the present case appears to have approached his task on the assumption that the case of Linterman effectively inserts the word “exceptional” into s 107 and that the Court of Appeal has clearly said in Basnyat that this is wrong.15
[39] While the decision in Linterman does contain some helpful commentary on the reasons why drink driving offences are regarded as being moderately serious, the Police should not submit the case to District Court Judges as a guiding authority unless they also make it clear that the Court of Appeal has clarified that the reference to “extraordinary” circumstances must not be seen as a proxy or substitute for the correct statutory test.
Outcome
[40] An appeal against a refusal to discharge without conviction is conducted by way of rehearing.16 I have undertaken such a rehearing. In accordance with the three-step process outlined in Z (CA447/12) v R, I have concluded:17
(a)weighing all the aggravating and mitigating factors, the offending is moderately serious;
(b)the consequences of a conviction are common to all those convicted of similar drink driving offences, principally publicity, loss of reputation and disqualification from driving, but in this case do not establish the contention that there is a real and appreciable risk that the appellant will be unable to obtain work in her chosen industry in the future; and
15 Basnyat v Police, above n 5, at [20].
16 See Gaunt v Police [2017] NZCA 590 at [10].
17 Z (CA447/12) v R [2012] NZCA 599.
(c)the consequences of the offending and resultant conviction are not out of all proportion to the gravity of the offence.
[41]The appeal is therefore dismissed.
Churchman J
Solicitors:
Public Defence Service, Wellington for Appellant Crown Solicitor, Wellington for Respondent
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