C v Police HC Dunedin Cri-2010-412-27

[2010] NZHC 1344

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2010-412-000027

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 August 2010

Counsel:         S Vidal for Appellant

L C Denton for Respondent

Judgment:      4 August 2010

ORAL JUDGMENT OF PANCKHURST J

[1]      In  the  District  Court  at  Balclutha  on  18  May  Judge  Kellar  heard  an application pursuant to ss 106 and 107 of the Sentencing Act 2002 that the appellant be discharged without conviction in relation to an offence of driving with excess breath alcohol concentration.

[2]      The facts of the offence were as follows.   On 23 January at 3.30 am at Balclutha the appellant was stopped by a police officer.  This was a routine stopping, there being no indication of driving fault, much less of an accident or anything of

that kind.  The appellant was the sole occupant of the vehicle.  A breath test revealed

C V NEW ZEALAND POLICE HC DUN CRI-2010-412-000027  4 August 2010

732 micrograms of alcohol per litre of breath.  The appellant was 19 years of age at the time.

[3]      As is readily evident from the summary of facts he was most cooperative, remorseful, if not indeed distressed, at the fact of his apprehension for this offence. Although he could have been charged as a youthful offender, the charge was brought on an adult basis, namely that he had driven when over the 400 microgram level.

[4]      Mr  C    is  a  student  at  the  University  of  Canterbury.     He  is  an undergraduate studying for a degree in forestry.  At the relevant time, however, he was at home in the course of the university vacation.   He comes from a farming background.  He was working on his father’s property, his father at the time being disabled as a result of a mishap.

[5]      As it happened he was enjoying work experience with a Canadian helicopter logging company and this had matured into an offer of employment should he have occasion to travel to Canada.  It was this desire to experience forestry work overseas that gave the impetus for the application for a discharge.  Canada is apparently the leading  country in  the  world  in  relation  to  forestry  technology  and  techniques. However, it is also a country which has strict requirements in relation to the grant of visas.  Documentation obtained from the internet concerning the policy in relation to Canadian visas indicated that a criminal conviction “including one for driving while under the influence of alcohol” may prohibit entry into Canada.  Hence, Ms Vidal argued in the District Court that a direct consequence of the conviction was likely to be a inability to travel to Canada and, hence, to obtain valuable work experience in that country.

[6]      Judge Kellar, although sitting I was told in a busy list court, considered the application  with  some  care.    With  reference  to  the  offence  itself  he  gave  a description of the salient features to which I will return in a moment.  He then turned to the consequences of the entry of a conviction and said this:

[10]   ...  In my view, the consequences to you of a conviction for this type of offence would not be out of all proportion to the gravity of the offending. This is not a case where if a conviction is entered you would be unable to

obtain  any  employment  in  your  chosen  career  anywhere  in  the  world, whether in New Zealand or otherwise.

[7]      That said, he then considered the gravity of the offending and first of all referred to the need to denounce and deter with reference to drink driving.  He added this:

[11]   ...  People who drink and drive are disproportionately responsible for mayhem on  our roads.   In  the  Balclutha  area in  particular  I have  been dismayed to the amount of drink driving offending that occurs.  It is often in rural settings where the probability of serious injury or even death is high and, as I mentioned at the outset, people who drink and drive with the amount of alcohol that you had in your bloodstream are seriously impaired in their ability to drive.  That poses a danger not only to you but also to other road users.  Hence, there is a public interest in entering convictions for drink driving offending.

[8]      Finally, at paragraph [12] of his remarks the Judge referred to the need for consistency.   He rightly noted that offenders, in relation to this particular traffic offence, come from across the social spectrum.  In short, it is an offence which is committed by people from all walks of life.  This led him to the observation that it was not appropriate to single out those who wish to work overseas in a chosen field for  special  treatment  in  relation  to  the  sentence  imposed.    Hence,  the  Judge concluded, that the test mandated in s107 of the Act was not met and the application failed.

[9]      Ms Vidal, in support of the appeal, has advanced two main arguments.  The first was that the seriousness of the subject offence was overstated.  There were two elements to the argument.  The first concerned the Judge’s assessment of the inherent nature of the offending.  As to this he said at paragraph [5]:

[5]   ...  You were stopped as a result of a routine traffic stop.  There was no other driving fault.  Your breath alcohol level was 732.  As I have already noted, that is almost five times the limit that applied to you being under 20 and it is reasonably high, even if the adult level covered you.   You are remorseful.  I accept that there are a number of underlying matters that have come to light for which you are seeking professional assistance.

To my mind the assessment of the inherent culpability of the offence cannot be criticised.  The Judge has described the salient features of the offending, in effect he described them as unremarkable and noted that the worst feature was the level of intoxication.

[10]     The second aspect of Ms Vidal’s argument concerned a psychologist’s report which was placed before the Judge.  This was from a Mr Shirley.  I indicated that at the relevant time the appellant was suffering from post traumatic stress disorder. This was said to relate back to a time when he was a boarder at high school and had been subjected to some serious abuse.  This had occurred some few years prior to the time of the offending in January of this year.   It is the case that the Judge only referred  to this aspect in that final  sentence of the passage  I have just quoted. However, again, I am not persuaded that this was to unreasonably downplay the relevant evidence.  In any event, even accepting that this young man was suffering from a stress disorder at the relevant time, it is difficult to accept that this explains his election to drive so late at night and with a very high breath alcohol reading.  I note, also, that he was driving, as the Judge commented, from Balclutha and back to his parents’ farm in the countryside.  All in all I am not persuaded that the Judge overstated the seriousness of the offence.  To the contrary, it seems to me that his assessment was balanced and appropriate.

[11]     The second limb of the argument concerned the issue of the consequences for the appellant of the entry of a conviction.   Again there were two aspects of the argument, one focusing upon whether a conviction would indeed prevent travel to Canada, and the other upon the need on his part to travel to that country.

[12]     With reference to the former, how difficult would it be for him to enter

Canada, the Judge said this:

[8]    ...  it cannot be said that there is a real and appreciable risk that if a conviction is entered you would be unable to enter Canada.  What it amounts to is this.  You would have to apply for rehabilitation and that application would have to be approved in order for you to be eligible to enter that country.

With respect, I differ somewhat from this assessment.  The available evidence from the computer printout does indicate that a conviction for an offence of this kind will prevent  travel  to  Canada.    However,  there  are  a  number  of  avenues  by  which someone can gain entry to the country.  These are variously described in the printout. One is a “deemed rehabilitation” after 10 years have passed (akin, it seems, to New Zealand’s   clean   slate   legislation   initiative).     Another   is   termed   “individual

rehabilitation”.  A person, five years after the conviction, may apply for entry and that application will be assessed on its merits.

[13]     Finally, as I read the available information, there is a temporary resident permit system where entry may be permitted  if “compelling circumstances” are demonstrated.  It may well be that individual rehabilitation after a five year waiting period is the most likely avenue which could avail the appellant.   In any event, I disagree  with  the  assessment  that  there  is  no  “real  and  appreciable risk”  of  an inability to travel to Canada in the event of a conviction.  It seems to me there is far more of a risk, and there is a high likelihood, of an inability to travel there and that this is likely to last for five years or even perhaps 10 years.

[14]     That brings me, however, to the second aspect of the argument and that is whether it was demonstrated that the appellant had a need to travel to Canada.  As to this, one must turn to his own affidavit in which he referred to this aspect.   The affidavit contains reference to the Canadian company which had been working near his parents’ property.  The affidavit continues as follows:

56.  My brother and I both worked for the company and we were offered employment in Canada should we wish to work for the company over there.

57.  Of  all  the  countries  in  the  world,  Canada  has  the  largest  forestry operation, it is the world’s largest exporter of forest products, annexed hereto and marked with the letter “A” is a copy of some information from the Canadian government website.

58.  Once I graduate I intend to work in Canada as well as in Europe in forestry positions.

59.  The point of obtaining my degree is so that I can work in professional positions in this industry and travel to different forestry operations around the world expanding my knowledge to ultimately come back here and share my experience.

I regard that evidence  as pivotal in relation to the present  appeal.   This is the highpoint in relation to demonstrating a need to travel to Canada.

[15]     Ms Vidal criticised the Judge because he had said that it was not a case where a conviction would mean that the appellant was unable to obtain any employment in his chosen career anywhere in the world.  If that is to be taken as meaning that, until that  level  of  consequence  is  demonstrated,  there  can  be  no  thought  given  to  a

discharge without conviction, then I respectfully disagree.  But in this case it seems to me that the most the appellant can demonstrate is a desire on his part to have the opportunity to travel to Canada in the near future, should he choose to do so.  I don’t think it can be said that his inability to travel there would be an impediment of great significance.   Rather, an inconvenience and something which would prevent him from advancing his career experience as soon as he would like.

[16]     Put another way, I am not brought to the point of satisfaction that entry of a conviction would be out of all proportion to the gravity of the offence.  This was a serious offence of its kind.  A conviction will be inconvenient to the appellant but, to my mind, in the fullness of time he will have the opportunity to go to Canada and his inability to do so in the short term is a cross which he will have to bear.

[17]     For these reasons the appeal is dismissed.

Solicitors:

Southern Law, PO Box 1195, Invercargill for Appellant

Wilkinson Adams, Dunedin for Respondent