D v Police HC Auckland CRI 2006-404-387

[2007] NZHC 397

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-00387

D

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         30 April 2007

Appearances: Mr D A D   in person

M S Gatland for the Crown

Judgment:      30 April 2007

(ORAL) JUDGMENT OF ANDREWS J

Solicitors/Parties

Meredith Connell, PO Box 2213, Auckland
Mr DA D  , 19 Kellyville Road, Mercer

D D V NZ POLICE HC AK CRI 2006-404-00387  30 April 2007

Introduction

[1]      Mr D   appeals against his conviction and sentence.

[2]      On 18 September 2006 Mr D   pleaded guilty and was convicted on two charges of making a false document namely a notice of change of ownership of motor vehicle for a Ford Falcon motor vehicle towing a caravan knowing it to be false and intending that it be acted upon as genuine.

[3]      The circumstances are that Mr D   entered into an agreement to sell the vehicle and caravan to a Mr Ball, resident in Reefton.  Mr D   lives in Mercer. The agreement was that Mr D   would drive the vehicle and caravan to Wellington to meet Mr Ball at the Ferry Terminal where Mr Ball would inspect the vehicle and if he was happy with it, take it over and travel to his home in Reefton. Mr D   says that Mr Ball asked him to obtain a change of ownership so that the vehicle was presented to Mr Ball in Mr Ball’s name.  For that purpose Mr D   says Mr Ball gave him all of the details required for the change of ownership form.

[4]      On his way down to Wellington Mr D   stopped at Foxton and completed the change of ownership process.  In doing so he signed Mr Ball’s name on the form.

[5]      When the matter was called in the District Court at Pukekohe Mr D   saw the duty solicitor.   He saw him on two occasions.   I have seen an email from the solicitor who advises that he met with Mr D   on two occasions, that he and Mr D   spoke in detail about the charges.    Mr  D    subsequently voluntarily entered pleas of guilty, having received an indication that the sentence would be by way of a fine.

Issue on appeal

[6]      It transpires that what Mr D   really seeks is that no conviction should be entered against him.  Mr D   accepts that having signed his name to the change of ownership form, albeit as he says on Mr Ball’s instructions, he committed an offence to which he properly pleaded guilty.

[7]      However,  he  says  that  it  has  since  become  apparent  that  having  this conviction means that he will now be prevented from travelling to the United States where he has for the past eight years, each year, undertaken work for the Imola Racing Team based in Indianapolis.  I am satisfied from what Mr D   tells me that he is engaged there to work on race cars to improve their performance.    His practice has been to travel to the United States in about the first week of December and stay for two to four months.

[8]      On being advised of the present convictions his United States employers have advised that it will preclude their continuing to support his having a work visa to travel to the United States.

Discharge without conviction

[9]      It is plain that no submission was made to the District Court Judge that a discharge without conviction was sought.   Had such a submission been made  it would have been noted by the District Court Judge.  This is also supported by Mr D  ’s advice today that it did not occur to him, until he spoke later with his United States employers, that the conviction would be a problem.

[10]     The matter not having been raised before the District Court I am not in the position of dealing with an appeal against the exercise of discretion by the District Court Judge.  I am at liberty to exercise my own discretion as to whether a discharge should be granted under s 106 of the Sentencing Act 2002.

[11]     In that respect Mr D   has submitted that if the conviction stands he will no  longer be able to travel to work in the United States as he has done.    The conviction is a concern to his employers but I understand from him that were he now to be discharged without conviction he could continue to travel.

[12]     In these matters it is always for the Court to balance the consequences of a conviction with the seriousness and circumstances of the offence on which that conviction would otherwise be appropriate.

[13]     I accept Mr D  ’s statement to me that he understood that he was signing the change of ownership form at Mr Ball’s request and to enable Mr Ball to have ownership and therefore insurance coverage from the moment he took charge of the vehicle.  That, to my mind, is a relevant factor in considering whether a discharge without conviction should be granted.

[14]     I am also satisfied that a conviction will have a significant impact on work that Mr D   has been doing for the last several years and intends to continue to do, if he can.

Result

[15]     In  the  circumstances,  whilst  in  no  way  lessening  the  seriousness  of any offence of making a false document, I am satisfied that the consequences of conviction are out of proportion to the actual offence.

[16]     Accordingly, the appeal is allowed.

[17]     The conviction is to be set aside and Mr D   is to be discharged without conviction.

Andrews  J