Costello v Police
[2021] NZHC 2796
•19 October 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-376
[2021] NZHC 2796
BETWEEN BRIGID COSTELLO
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 18 October 2021 Appearances:
B So and C Megala for Appellant A Mackenzie for Respondent
Judgment:
19 October 2021
JUDGMENT OF LANG J
[on appeal against refusal to grant discharge without conviction]
This judgment was delivered by me on 19 October 2021 at 3.30 pm.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Solicitor, Auckland
COSTELLO v NEW ZEALAND POLICE [2021] NZHC 2796 [21 October 2021]
[1] Ms Costello pleaded guilty to a charge of driving a motor vehicle whilst under the influence of cannabis. On 23 July 2021 Judge B A Gibson declined an application for an order that she be discharged without conviction under s 106 of the Sentencing Act 2002.1 Ms Costello appeals against the Judge’s decision.
The offending
[2] The summary of facts records that on the afternoon of 25 March 2021 Ms Costello was driving her motor vehicle in a southerly direction on Orakei Road, Remuera. She lost control of the vehicle and it mounted the footpath and collided with a metal safety barrier.
[3] Ms Costello was taken to hospital with minor injuries after the incident. When a policer officer spoke to her at the hospital Ms Costello admitted having smoked cannabis earlier in the day before driving. A sample of her blood was taken and this was found to contain traces of cannabis.
Relevant principles
[4] An application for discharge without conviction is governed by s 106 of the Act, which relevantly provides as follows:
106 Discharge without conviction
(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
…
[5] In applying s 106, the Court must follow the guidance contained in s 107 of the Act. This provides:
107 Guidance for discharge without conviction
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.
1 New Zealand Police v Costello [2021] NZDC 14848.
[6] A court considering an application for discharge under s 106 must consider three issues.2 It must first assess the gravity of the offending having regard to the facts of the particular case. This exercise is not restricted to the aggravating and mitigating factors of the offending itself. Factors personal to the offender may also be relevant.3 Next, it must identify the direct and indirect consequences of a conviction being entered. In this context there must be a “real and appreciable” risk that any posited consequence will occur.4 Thirdly, the court must determine whether the consequences of a conviction would be out of all proportion to the gravity of the offending. There is a residual discretion not to grant a discharge but that will rarely be exercised where the statutory criteria have been met.
[7] An appellate court is required to reach its own view as to whether the direct and indirect consequences are out of all proportion to the gravity of the offending. If it accepts the statutory threshold has been met, the court must determine whether the court at first instance erred in principle when exercising its discretion to grant or refuse to grant a discharge.5
The Judge’s decision
[8] Ms Costello advanced two interrelated grounds as justifying discharge without conviction. The first related to the effect that a conviction may have on her chosen career as a teacher. The second related to the effect that a conviction would have on her underlying mental health issues.
[9] The Judge considered that the overall culpability of the offending was “towards the lower end of the scale for this type of offence”.6 This reflected not only the culpability of the offending itself but also the fact that Ms Costello has no previous convictions and had entered a guilty plea at an early stage.
2 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]-[17].
3 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; and DC (CA47/2013) v R
[2013] NZCA 255 at [35].
4 DC (CA47/2013) v R [2013] NZCA 255, at [43].
5 Edwards v R [2015] NZCA 583 at [6].6 New Zealand Police v Costello, above n 1, at [14].
[10] The Judge did not consider that the consequences of a conviction for Ms Costello’s employment opportunities were determinative. He observed that Parliament has enacted legislation requiring those who hold practising certificates as teachers to notify the Teaching Council if they are convicted of an offence carrying a maximum sentence of three months imprisonment or more.7 The Judge considered it would be wrong in principle to grant a discharge without conviction so as to avoid the Teaching Council being able to deal with the matter in a disciplinary context. He observed, however, that he would be surprised if there were adverse employment consequences for Ms Costello because the offending was at the lower end of the scale.
[11] The Judge then noted that there was no medical information before him to indicate the likely effect of a conviction on Ms Costello’s future mental health. In this context he said:
[10] There is no expert’s opinion as to how any conviction could be said to impact on her mental health or on her rehabilitative efforts and I am just left in the position of having to assume that if a conviction is entered, it will not assist her. A case, Maccabee-Bismark v Police from the Palmerston North registry in [2016] NZHC 2749 has been placed before me, where His Honour Dobson J said at paragraph [16] that although the topic was not addressed in the mental health reports available, it is a fair assumption that the existence of a conviction will add a material measure of pressure to the appellant’s attempts to deal with her mental health issues.
[12] The Judge held that he did not have the medical information he would need “to say with any degree of certainty that [Ms Costello’s] medical or psychological condition would be exacerbated by what, on the face of it, is a relatively moderate breach of the Land Transport Act 1998 in relation to driving after consuming a controlled drug”.8 This led the Judge to determine that the direct and indirect consequences of a conviction were not out of all proportion to the overall culpability of the offending.
7 Education and Training Act 2020, s 493.
8 New Zealand Police v Costello, above n 1, at [18].
Decision
The overall culpability of the offending
[13] Ms Costello provided an affidavit in the District Court explaining the circumstances in which her offending occurred. She said that on the evening before the incident giving rise to the charge she had a very sore stomach. The next morning her stomach was still very sore but she did not want to take anti-inflammatory drugs because she had not eaten very much. She therefore took “two puffs” of a marijuana cigarette that had been given to her some time earlier. She said she knew marijuana has pain-relieving properties and she smoked it as a form of self-treatment. She said she is not a regular smoker of cannabis.
[14] The offending occurred later in the afternoon when she decided to visit a friend who lives a short distance away. She described what happened as follows:
6I got into my car and texted my friend informing her I was on the way. As I started driving, I felt a sudden onset of abdominal pain and started heating up. I was unsure of the source of pain and drove off. About five minutes into the trip I felt a very sudden, severe onset of abdominal pain. I decided I needed to pull over however I was driving on a stretch of road with yellow lines and couldn’t pull over.
7. I then got very lightheaded and told myself I needed water and had decided at that point to pull over after the yellow lines which weren’t too far.
8I felt like I was going to throw up or pass out; my stomach felt very bloated and the pain was so bad that I passed out as I was pulling over.
9I woke up to a member of the public knocking on my window asking if I was ok. I will still in pain when I woke up and the front left portion of my car was damaged.
10A member of the public then called emergency services.
[15] Ms Costello then described being taken to hospital and admitting to the police that she had smoked cannabis earlier in the morning because of pain. It was at this point that a sample of her blood was taken.
[16] The most concerning aspect of Ms Costello’s conduct lay in the fact that her car left the road and thereby placed pedestrians in danger. It is impossible to say, however, whether and if so to what extent the consumption of cannabis was causative
of the incident. There is therefore no evidence of any causative link between the consumption of cannabis and the most concerning aspect of the incident that led to the charge.
[17] Bearing in mind Ms Costello’s lack of previous convictions and her early guilty plea I consider the overall culpability of the offending is low.
Direct and indirect consequences of a conviction
[18] Ms Costello maintains her concern that a conviction may affect not only her existing employment as a teacher but also her opportunities for future employment either in that field or another. However, the Teaching Council will now be aware of the conviction because Ms Costello had an obligation to report it as soon as it was entered. Ms So advised me on Ms Costello’s behalf that she understands the Council has initiated a review of Ms Costello’s situation as a result. I agree with the Judge that it is safe to assume the Teaching Council will take all relevant considerations into account when conducting its review. These will include the assessment of both the District Court and High Court that the overall culpability of the offending falls at the lower end of the scale.
[19] Any application by Ms Costello for new employment as a teacher will be subject to vetting by the police. She will be required to disclose the existence of the charge at that time regardless of whether a conviction has been entered. This means that the existence of a conviction has only marginal relevance in terms of both her current and future employment as a teacher.
[20] Ms Costello has not suggested she is considering the possibility of looking for employment in another field. I therefore consider the consequences of a conviction for her future employment prospects are likely to be low.
[21] The position in relation to Ms Costello’s mental health issues is now much clearer as a result of a letter Ms So has obtained from a registered clinical psychologist who has been providing therapy to Ms Costello on a regular basis. Mr Mackenzie for the respondent does not oppose the letter being produced in support of the appeal and I grant leave accordingly.
[22] The letter from the psychologist outlines in considerable detail the issues Ms Costello has faced in recent years. She has experienced several significant and highly traumatic life events and has struggled with a number of other stressors during this period. The psychologist describes her mental health issues as being complex and chronic in nature, and says they can escalate depending on life stressors. She says Ms Costello can experience very negative beliefs about herself, and that these can impact many areas of her life. She also has low tolerance to life stressors and can experience overwhelming emotions including panic, guilt and shame.
[23] The psychologist describes the effect the conviction has had on Ms Costello as follows:
When I met with her on 26th July, shortly after her conviction, Brigid presented in a very traumatised state. Since this date, she has continued to experience significant anxiety and stress regarding the conviction. In my opinion, in observing her mental state in therapy, I have noticed that her existing symptoms of [Redacted] and depression have been exacerbated by the conviction and it has been harder for her to make progress in therapy. Given her reduced capacity to cope with stressors and her existing mental health problems, I can foresee that the conviction is likely to have a significant impact on her ability to work as a teacher. In the past her career has been very helpful as a protective factor to mitigate against her mental health problems and has provided an important sense of achievement and purpose. Should the option of being employed as a teacher be taken away from her, she is likely to struggle with more severe symptoms of depression in the future.9
[24] I have obvious sympathy for the position Ms Costello finds herself in. Through no fault of her own she suffers from significant mental health issues that clearly affect her in many different ways. I accept Mr Mackenzie’s submission that Ms Costello has already been required to absorb the impact of the conviction and the force of that particular stressor may have diminished considerably. However, as the letter from the psychologist makes clear, the existence of the conviction is likely to make her ongoing therapy more difficult. This in turn may affect her ability to continue her career as a teacher.
[25] I would therefore assess the direct and indirect consequences of a conviction as being moderate.
9 The redaction has been made to protect Ms Costello’s privacy interests in relation to sensitive information about her mental health issues.
Result
[26] Given my assessment that the culpability of the offending is low but the consequences are moderate I am satisfied Ms Costello has established the court has jurisdiction to make an order under s 106. The Court has a residual discretion to decline to make such an order but there would be no justification for taking that step in the present case.
[27] The appeal is accordingly allowed and the conviction is quashed. I make an order under s 106 of the Sentencing Act 2002 discharging Ms Costello without conviction. In accordance with s 493(4) of the Education and Training Act 2020 I direct the Registrar of this Court to notify the Teaching Council that the conviction has been quashed.
Lang J
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