Commissioner of Inland Revenue v Registrar of Companies

[2019] NZHC 2547

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI 2019-463-57

[2019] NZHC 2547

BETWEEN

TAHLIA JOY IRENE ANDREWS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Date of hearing:	7 October 2019 (at Rotorua)
Appearances:	T J Conder and EJT Sherratt for the appellant R W Jenson for the respondent
Date of judgment:	7 October 2019

ORAL JUDGMENT OF JAGOSE J

Solicitors/Counsel:

Holland Beckett, Tauranga

Pollett Legal Limited, Tauranga

ANDREWS v NEW ZEALAND POLICE [2019] NZHC 2547 [7 October 2019]

[1]    Tahlia Andrews pleaded guilty to driving with excess breath alcohol.1 She unsuccessfully sought a discharge without conviction and was convicted, fined and disqualified from driving by Community Magistrate Shaun Cole on 29 March 2019.2

[2]    Ms Andrews subsequently appealed to the District Court, arguing the Community Magistrate’s decision was wrong and the penalty imposed manifestly excessive.3 On 6 June 2019, Judge I D R Cameron in the District Court at Tauranga allowed the appeal in relation to sentence (reducing the fine imposed from $700 to

$300) but declined the appeal against refusal to grant a discharge without conviction.

[3]    Ms Andrews now seeks leave to bring a second appeal against the decision of the District Court to refuse her application for discharge without conviction. No challenge is made to the fine and disqualification period imposed.4

Background

[4]    At approximately 3 am on Saturday, 9 February 2019, Ms Andrews was driving on Ferry Road in Taupō. The area has a speed limit of 50 kilometres an hour. Driving conditions were favourable and traffic was minimal. Ms Andrew’s partner was sitting in the passenger seat. Without warning,  he  pulled  on  the  vehicle’s  handbrake.  Ms Andrews lost control and the vehicle collided with a power pole. Attending police noted she exhibited signs of recent alcohol intake. A breath test revealed her breath contained 782 micrograms of alcohol per litre of breath, more than three times the legal limit.5

[5]    Ms Andrews said she knew she should not have driven but was trying to remove herself from a bad situation. She had been drinking with friends earlier in the evening and became separated from them. She was followed by a group of unknown men, after which she went to her vehicle to “recover from the ordeal”. Her partner of

1      Land Transport Act 1998, s 56(1).

2      Police v Andrews DC Tauranga CRI-2019-069-000188, 29 March 2019.

3      Police v Andrews [2019] NZDC 10876.

4      Ms Andrews was disqualified from driving for six months (the mandatory disqualification period under s 56(3) of the Land Transport Act 1998).

5      The limit is 250 micrograms of alcohol per litre of breath: Land Transport Act, s 11(a).

around 12 months joined her, and the two argued. Her decision to drive the vehicle is said to be a result of her desire to remove herself from that stressful situation.

[6]    Ms Andrews has ongoing mental health difficulties. She suffers from borderline personality disorder, anxiety, depression and post-traumatic stress disorder. She has experienced serious family violence in the past, a history which her counsel, Tim Conder, says forms the background to her current offending.

Community Magistrate’s decision

[7]    The Community Magistrate applied the orthodox four-stage approach to an application for discharge without conviction.6 In assessing the gravity of the offending, the Magistrate considered Ms Andrews’ “high reading” of 782 micrograms of alcohol per breath an aggravating factor. But she acknowledged Ms Andrews was “under unique stress as a result of [her] personal history, mental health condition and the events of that night”.7

[8]    The consequences of conviction included employment repercussions (the potential loss of a career as a Corrections officer) and potential restrictions on travel (Ms Andrews had a planned trip to the United States). The Magistrate did not expressly hold the consequences of conviction would be out of all proportion to the gravity of the offending. But, given she discussed exercise of her s 106 discretion, I infer that was her conclusion.8

[9]    Ultimately, the Magistrate was not prepared to discharge Ms Andrews without conviction. Her breath alcohol reading was high, the consequence of which meant potential risk to the public, Ms Andrews and her partner.9 A $700 fine was imposed, and Ms Andrews was disqualified from driving for six months.

6      See Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344 at [15].

7      Police v Andrews, above n 2, at [10].

8      Rahim v R [2018] NZCA 182 at [5].

9      Police v Andrews, above n 2, at [22].

District Court decision

[10]   On first appeal, the Judge characterised Ms Andrews’ offending as “moderately serious”.10 While Ms Andrews’ mental health difficulties were noted, the Judge considered Ms Andrews had “made a conscious and deliberate decision to drive the vehicle knowing that she had consumed a significant quantity of alcohol”.11 Further, the Judge found it “difficult to see how driving away in the vehicle was going to remove the defendant from the stressful situation she found herself in”.12 Alternatives were available. The Judge acknowledged there were several mitigating features of both the offending and Ms Andrews herself – she has no prior convictions, mental health difficulties, and is only 26 years old. But  the Judge considered it clear that  Ms Andrews knew what she was doing was wrong.

[11]   The Judge accepted a conviction would effectively mean Ms Andrews would be unable successfully to reapply to be a Corrections officer but held there was no suggestion a conviction of this type would prevent her obtaining employment in the future. Similarly, the Judge considered there was no real evidence the conviction would preclude her from visiting the United States. The consequences were not out of all proportion to the gravity of the offending; the appeal against refusal to grant a discharge without conviction was declined. Given the mitigating features of the offending, the Judge reduced the fine imposed from $700 to $300.

Issues on appeal

[12]   Mr Conder says the District Court Judge failed to have regard to Ms Andrews “unique characteristics”, specifically her mental health and history of being a victim of family violence. Mr Conder says this failure means Ms Andrews “was held to an unrealistic standard” as to the availability of alternatives, causing the Judge to err in his assessment of Ms Andrew’s culpability. That, Mr Conder says, is a miscarriage of justice.

10     Police v Andrews, above n 3, at [14].

11 At [9].

12 At [9].

Further evidence

[13]   Mr Conder seeks leave to adduce an affidavit sworn by Alison Towns, a registered clinical psychologist. Dr Towns discusses how victims of family violence may make apparently irrational decisions, and  details  the  psychological  process Ms Andrews was experiencing when she made the decision to drive while intoxicated. It does not appear Dr Towns assessed Ms Andrews personally. Her conclusions rely on Ms Andrews’ affidavit and the District Court judgment. There is no criticism of Dr Towns. I understand from Mr Conder she was conducting this essentially on a pro bono basis.

[14]   Leave is granted if the interests of justice favour admission of new evidence on appeal.13 If the evidence is both fresh and credible, it should generally be admitted.14 I have some reservations under both heads:

(a)the evidence is not fresh. It is to explain, as a victim of family violence, the counterintuitive constraints on Ms Andrews’ options and actions in the circumstances leading up to the offending. The point has been at issue throughout; and

(b)to the extent Dr Towns’ opinion is to be taken literally – as explaining what Ms Andrews “would have” perceived, and “the psychological process [she] was undergoing at the time of the incident” – it goes beyond the bounds of her expertise and constitutes an impermissible exercise in advocacy.15

But, taken more generically – that victims of family violence have a heightened awareness of and response to risk to personal safety, characterised by assertions of coercive control, and may be counselled to remove themselves from such situations to one of quiet and safety – I am prepared to admit Dr Towns’ affidavit in the interests of justice as providing such insight. The Crown does not oppose, for that reason.

13     Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119]; and Bain v R [2007] UKPC 33, (2007)

23 CRNZ 71 at [34].

14     Lundy v R, above n 13, at [120].

15     High Court Rules 2016, r 9.43 and Schedule 4.

Approach on appeal

[15]   An appeal against a refusal to grant a discharge without conviction is an appeal against conviction and sentence.16 I must not grant leave for a second appeal unless satisfied the appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred or may occur unless the appeal is heard.17

[16]   If leave is granted, I must allow the appeal if I am satisfied the Judge “erred in his … assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or if I am satisfied “a miscarriage of justice has occurred for any reason”. Otherwise I must dismiss the appeal.18 By ‘miscarriage of justice’ is meant something has occurred in relation to trial to create a real risk against a more favourable outcome for Ms Andrews, or has resulted in an unfair trial or a nullity.19 The threshold is high; not every error will amount to a miscarriage of justice.20

[17]   If Ms Andrews can establish Judge Cameron was wrong, I will consider her application for discharge without conviction afresh.21

[18]   I may discharge Ms Andrews without conviction only if the direct and indirect consequences of her conviction would be out of all proportion to the gravity of the offence.22 Only then may I decide if to exercise my residual discretion. The Court of Appeal recently characterised drink driving as “a moderately serious offence when seen by reference to its potential consequences and to the pervasiveness of alcohol abuse in our society”.23 The “proportionality scales … are, to an extent, tipped by that level of seriousness”.24 But this does not necessarily mean ‘exceptional’ consequences are required for a discharge without conviction to be allowed.25 Nonetheless, there

16     Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [9].

17     Criminal Procedure Act 2011, s 237.

18     Sections 240 and 232.

19     Section 232(4); and R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].

20     Otis v Police [2019] NZCA 231 at [4]; and McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [38].

21     Maraj v Police [2016] NZCA 279 at [11]; and Austin, Nichols & Co Inc v Stichting Lodestar

[2007] NZSC 103, [2008] 2 NZLR 141 at [13].

22     Sentencing Act 2002, s 106; and Basnyat v Police, above n 6, at [15], citing Z (CA447/2012) v R

[2012] NZCA 599, [2013] NZAR 142.

23     Basnyat v Police, above n 6, at [19].

24 At [19].

25 At [20].

must be a “real and appreciable” risk any given consequence will happen; this recognises I am to assess future likelihood.26

Discussion

[19]   The essence of Mr Conder’s submission is Ms Andrews’ history of mental difficulties and abuse rendered her “incapable” of using the alternatives identified by the Judge. Dr Towns’ generic opinion is victims of family violence, confronted by significant risk, may experience a survival response in which flight is the only option. That is contended to be the position – having retreated to her car as refuge, only to find it no longer a haven when in later dispute with her partner – in which Ms Andrews found herself. Dr Towns’ evidence gives possible context to Ms Andrews’ actions.

[20]   But Ms Andrews’ evidence indicates a rational awareness of her actions rather than the ‘reflexive response’ for which Dr Towns contends. There is no  evidence  Ms Andrews was counselled to act as she did in response to perceived threat. Neither is there evidence she went to her car in such response. Rather, Ms Andrews herself explained she went to her car “simply to sit and give myself some time to recover”:

Particularly because of my history and my mental health, I sometimes need time and space to process what is happening and to depressurise. When I am in a stressful situation it can be important for me to get away to recover before having to deal with other people.

[21]   Only there, in subsequent dispute with her partner, did she feel she “had to get out of that situation”. She “almost immediately” regretted her decision to drive the vehicle: “I can only say that I was not thinking clearly at the time”. She knew she would “definitely be over the limit”, given the “amount of alcohol [she] had consumed”. Notably, when the car crashed, she “got out and began running away. This was because I was still feeling stressed and overwhelmed and felt like I needed to get away”. That illustrates driving, with her partner still in the car, was not her only option. Given the crash occurred “[s]hortly after pulling out”, it undermines the contention the immediate vicinity presented such risk as prevented her leaving the car. That threat was not, after all, why she had gone to the car in the first place. Her partner’s continued presence in the car undermines the suggestion her driving was in flight from him.

26     DC (CA47/2013) v R [2013] NZCA 255 at [43].

[22]   The crash was caused by Ms Andrews’ partner’s action in pulling on the handbrake. But Ms Andrews’ breath/alcohol ratio was more than three times over the legal limit. Drink driving is a social problem with inherent danger.27 Dr Towns acknowledges that Ms Andrews’ intoxication was itself a factor. Drink driving is a moderately serious offence because of its potential consequences.28 Ms Andrews’ situation is not similar to drink driving offending in which the offender was discharged without conviction.29 While Ms Andrews previously has not offended, “[d]rink- driving is a pervasive social problem which has brought many good citizens into the dock”, and the legislature correspondingly has responded with a sentencing policy that emphasises personal and general deterrence.30

[23]   I cannot identify any matter of general or public importance, or possible miscarriage of justice, such as may qualify for a second appeal. Dr Towns’ legitimate expert opinion evidence does not provide a foundation for a more favourable outcome for Ms Andrews, or illustrate the Judge’s approach was unfair to a disqualifying degree. The Judge had due regard for Ms Andrews’ history and state of mind.31 He did not err in characterising the gravity of her offending as being ‘moderately serious’ despite her personal difficulties. There is no other apparent error. Mr Conder’s submission that the overall circumstances meant that Ms Andrews suffered a disproportionate cumulative penalty is not accepted. The impacts of conviction on Ms Andrews’ desired career and travel is speculative, neither being established to a point beyond possibility, and insufficient to support the necessary disproportionality.32

Result

[24]I grant Ms Andrews’ application to adduce Dr Towns’ affidavit.

27   See Basnyat v Police, above n 6, at [19]; and Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].

28 Basnyat v Police, above n 6, at [19].

29 At [22]. A discharge without conviction was granted after the appellant (a police officer) administered two-self tests using a breathalyser which gave inaccurate readings (Waight v Police HC Auckland CRI-2006-404-465, 24 May 2007). In Police v Erwood [2007] DCR 728, an off- duty rural police officer attended an accident, having been drinking with friends. There was no evidence he was impaired when administering assistance, but a breathalyser showed he was over the limit. He was discharged without conviction.

30 Linterman v Police [2013] NZHC 891 at [9].

31 Police v Andrews, above n 3, at [5]–[7] and [10].

32 Edwards v R [2015] NZCA 583 at [24]–[28].

[25]I dismiss Ms Andrews’ application for leave to appeal.

—Jagose J