Burns v Police - [2023] NZHC 2585

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…

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 Burns v Police

Details

AGLC: Burns v Police [2023] NZHC 2585
Case: [2023] NZHC 2585
Decision Date: 15 September 2023

CaseChat Overview and Summary

The High Court of New Zealand, Wellington Registry, considered an appeal by Patricia Burns against a decision of the District Court. The appellant had pleaded guilty to driving with excess breath alcohol and was fined and disqualified from driving. The primary issue was whether the District Court was correct in determining that the consequences of conviction were not out of proportion to the gravity of the offence.

The appellant argued that the District Court erred in its application of the statutory test for discharge without conviction under Section 107 of the Sentencing Act 2002. Burns submitted that the District Court had treated the requirement for discharge as "exceptional" rather than correctly applying the statutory test, as clarified by the Court of Appeal in Basnyat v Police. The appellant contended that the District Court did not properly assess the gravity of the offending and the direct and indirect consequences of a conviction.

The High Court found that the District Court had not erred in its interpretation of the statutory test. The Court confirmed that the three-step approach set out in Prasad v R was the correct legal framework. The Court held that the gravity of the offending was moderate, with several factors contributing to this assessment. However, the Court found that the evidence presented regarding the potential consequences of a conviction did not establish a real and appreciable risk that the appellant would be unable to obtain future employment in her chosen industry.

The High Court concluded that the consequences of the conviction were not out of all proportion to the gravity of the offence. The appeal was dismissed, and the original decision of the District Court was upheld.

Orders