Cowan v Police

[2016] NZHC 3012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000380 [2016] NZHC 3012

BETWEEN

VIRGINIA LEE COWAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	12 December 2016
Counsel:	A P Comeskey for Appellant G A Campbell for Respondent
Judgment:	12 December 2016

ORAL JUDGMENT OF DOWNS J

Solicitors/Counsel:

A P Comeskey, Auckland.

Meredith Connell, Auckland.

COWAN v POLICE [2016] NZHC 3012 [12 December 2016]

The issue

[1]      This conviction appeal raises a narrow issue: did the Judge below err in declining to discharge the appellant without conviction in relation to the offence of driving while suspended?

Background

[2]      On 28 April 2016 the appellant was caught driving while suspended.   Her driving was otherwise unremarkable.  The appellant accepted she was a suspended driver, but said she had to attend a job interview and a meeting with her children’s lawyer.

[3]      The appellant has six children.  And, she cares for her elderly mother.  Her mother wrote a letter to the District Court saying she was recovering from a hip operation and the appellant has “a lot on her plate”.

[4]      On  2  November  2016  Judge  Glubb  declined  to  discharge  the  appellant without conviction.1   His Honour accepted this was the appellant’s first offence and she had entered a guilty plea at the earliest possible opportunity.  However, the Judge concluded  the  offence  was  moderately  serious  and  the  appellant  had  made  a conscious decision to drive while suspended, putting her preferences ahead of the law.   The Judge acknowledged a conviction might affect the appellant’s ability to

complete her nursing studies.  But the Judge concluded the Court should not usurp the role of the Nursing Council by discharging the appellant.

The appellant’s case

[5]      The appellant contends the offending was not moderately serious and the Judge erred in concluding the consequences of a conviction may be ameliorated by an application for a limited licence.

[6]      The appellant accepts any difficulties that may arise in relation to the Nursing

Council are more appropriately a matter for it, but submits it will be difficult for her

1      Police v Cowan [2016] NZDC 22479.

to obtain different employment with a conviction.   The appellant has tendered an email, albeit without associated evidence, which appears to suggest she recently missed out on a different job.  She submits the consequences of conviction are out of all proportion to the gravity of the offending.

Analysis

[7]      The relevant provisions are ss 106 and 107 of the Sentencing Act 2002.  They provide:

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.

(2)   A discharge under this section is deemed to be an acquittal. (3)   A court discharging an offender under this section may—

(a)   make  an  order  for  payment  of  costs  or  the  restitution  of  any property; or

(b)   make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—

(i)    loss of, or damage to, property; or

(ii)  emotional harm; or

(iii) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:

(c)   make any order that the court is required to make on conviction. (3A)  Sections 32 to 38A apply, with any necessary modifications, to an

order under subsection (3)(b) as they apply to a sentence of reparation.

…

(5)   Despite  subsection  (3)(b), the  court  must  not  order the  payment  of compensation in respect of any consequential loss or damage described in subsection (3)(b)(iii) for which compensation has been, or is to be, paid under the Accident Compensation Act 2001.

…

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.

[8]      Applicable principle is well-known.2  A Court must: (a)         Identify the gravity of the offence;

(b)      Identify the direct and indirect consequences of a conviction; and

(c)      Determine   whether  the   direct   and   indirect   consequences   of   a conviction would be out of all proportion to the gravity of the offending.

[9]      It is common ground the Judge approached the application this way, albeit on

the appellant’s case, with the errors discussed earlier.

Gravity of the offending

[10]     Mr Comeskey submitted the appellant’s driving was unremarkable and, for example, no drugs or alcohol were involved.   True.   But this is to identify the absence of other offending which, if present,  would have resulted in  additional charges and a more severe penalty.   No exigent circumstances confronted the appellant, who, as the Judge observed, made a decision to drive unlawfully.  I am not persuaded the Judge erred in assessing the offending as “moderately serious of its type … albeit at the lower end of the spectrum”.

Consequences of conviction

[11]     Section 103(2)(c) of the Land Transport Act 1998 precludes the issue of a limited licence to a person who is convicted of an offence contrary to s 32(1) of the Act. And that section creates an offence if a person drives a motor vehicle on a road while  disqualified  from  holding  or  obtaining  a  driver’s  licence,  contrary  to  an

alcohol interlock licence or limited licence, or while the driver’s licence is suspended

2      See for example, R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.

or revoked.   It follows the appellant is not eligible to apply for a limited licence.3

The Judge appears to have believed otherwise:4

The police for their part submit that there is no absolute barrier to you in terms of employment, which I accept.   They also submit that there is a statutory body that is set up to assess suitability in the nursing profession. This Court should not be making decisions properly the preserve of that august body.  I also accept that, noting of course what Wylie J said in the decision of Police v Roberts and as approved by the Court of Appeal.  I then look to the impact of a conviction on employment, and the submission from the  police  is  that  the  future  is  entirely  speculative,  there  is  no  firm information before the Court.

I need to be satisfied that there is a real and appreciable risk that the consequences of a conviction would be out of all proportion to the gravity of the  offending.    In  that  assessment  I would  need to weigh  the  direct  or indirect consequences.   I am simply not satisfied that the fir or indirect consequences of a conviction are out of all proportion to the gravity of the offence.   I am also satisfied that there would be nothing to prevent the defendant from seeking a limited licence for employment purposes on the basis of satisfactory evidence, all of which is absent currently.

Accordingly, I decline to grant the discharge without conviction.

[12]  Consequently,  I  accept  Mr  Comeskey’s  submission  the  Judge misapprehended the position in relation to this aspect.  However, I am not persuaded the Judge committed reversible error for His Honour’s surrounding remarks imply this consideration was not determinative of the application.   Indeed, the remark appears to have been something of an afterthought, because there is no other limited licence reference in the judgment.

[13]     It is true, as Mr Comeskey points out, a first time drink driver may apply for a limited licence and so an element of unfairness arises in relation to the appellant’s offending.  However, I note s 81 of the Land Transport Act affords the Court with jurisdiction  to  order  a  lesser  period  of  disqualification  or  suspension  if  special reasons exist in relation to the commission of the offence.  So, for example, if the offence was committed under exigent circumstances.  It follows there is a difficulty with the appellant’s argument in that Parliament has expressly excluded those in the

appellant’s position from being able to apply for a limited licence.

3      See Smith v Police HC Auckland CRI-2010-404-398, 11 March 2011.

4      Police v Cowan, above n 1, at [5]–[7].

[14]     To discharge the appellant without conviction would be to achieve a result somewhat inconsistent with the regime created by the Land Transport Act.  This is not  to  conclude  a  discharge  without  conviction  would  never  be  appropriate  in relation to a suspended driver; it is rather to highlight the tension within the appellant’s case.

[15]     As to employment, the appellant currently has two part-time jobs.  Before me is an email which suggests she missed out on another, presumably better paid position.  But there is no evidence the appellant did not get that job because of her conviction or related inability to drive.  Other factors might have been at play, and if this is not the case, the point should have been the subject of evidence. As observed, the appellant has employment.   So, the case is different from many discharge applications in which an absence of employment by virtue of a conviction is said to be decisive.

Out of all proportion to the gravity of the offending

[16]     Here,  Mr  Comeskey relies  on  the  decision  in  Kairau  v  Police.5   There, Ronald Young J concluded “by a fine margin” he would discharge the appellant without conviction, for like offending, on the basis she had been suffering from long term depression and a combination of tumultuous personal circumstances.  And, the appellant in that case drove only because there was no one to collect her children from school.   As will be apparent, that case has particular features not replicated here.

[17]     The appeal is dismissed.

……………………………..

Downs J

5      Kairau v Police HC Wellington CRI-2005-485-154, 9 December 2005.