Legal Research
Cases
Denden v Police

Denden v Police

Case [2014] NZHC 1814 4 August 2014

Unconscionable Conduct

Criminal Law

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000394 [2014] NZHC 1814

IN THE MATTER OF an appeal against conviction and sentence

BETWEEN

SONMEZ DENDEN Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 28 July 2014

Counsel:

R M Mansfield for the Appellant
R K Thomson for the Respondent

Judgment:

4 August 2014

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 4 August 2014 at 12.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: R M Mansfield, Auckland

Solicitors: Meredith Connell, Auckland

DENDEN v POLICE [2014] NZHC 1814 [4 August 2014]

[1] On 7 October 2013, Judge C Ryan convicted the appellant, Sonmez Denden, in relation to three charges:1

(a) driving a vehicle with excess blood alcohol contrary to s 56(2) of the

Land Transport Act 1998;

(b) failing to stop for police contrary to s 59 of the Land Transport Act;

and

(c) refusing to accompany the police contrary to s 52 of the

Land Transport Act.

The Judge declined an application by Mr Denden to be discharged without conviction under s 106 of the Sentencing Act 2002.

[2] Mr Denden appeals against this conviction on the basis that the Judge should have discharged him without conviction. Mr Denden submits that the Judge failed to give appropriate weight to the effect that a conviction would have on his intended career as a pharmacist by restricting or preventing him from being registered. These consequences, Mr Denden argues, would be out of all proportion to the gravity of the offending and so the threshold test under s 107 of the Sentencing Act was satisfied and the Judge should have discharged Mr Denden without conviction under s 106.

[3] The police submit that the Judge was correct in considering that the threshold test in s 107 was not satisfied and so a discharge without conviction under s 106 could not be granted.

[4] The issues to be determined in this appeal are:

(a) Should leave be granted to bring the appeal out of time? (b) Should “fresh” evidence be adduced? and

(c) Was the judge wrong to hold that the consequences were not out of proportion to the gravity of the offending, and if so, should the Court exercise its discretion under s 106 to grant a discharge without conviction?

Background to the appeal

[5] In the early morning of 8 September 2012, Mr Denden was stopped in Central Auckland by police after he drove through a red light. He had been drinking alcohol in town with a friend that night and made the fateful decision to drive home, thinking that he might still be under the permitted alcohol limit.

[6] When the police stopped Mr Denden, he showed some signs of having consumed alcohol and so the police officer administered a breath test. This showed that Mr Denden was over the legal limit of 400 micrograms of alcohol per litre of breath. The police officer instructed Mr Denden to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Denden v Police

Details

AGLC: Denden v Police [2014] NZHC 1814
Case: [2014] NZHC 1814
Decision Date: 4 August 2014

CaseChat Overview and Summary

Sonmez Denden appeals against his conviction for driving with excess blood alcohol, failing to stop for police, and refusing to accompany police. The appeal hinges on whether the Judge should have discharged him without conviction under section 106 of the Sentencing Act 2002. Denden argues that a conviction would disproportionately affect his intended career as a pharmacist and cause significant embarrassment to himself and his family. The police counter that the Judge was correct in finding that the threshold for a discharge without conviction under section 107 of the Act was not met.

The court first considers whether to grant leave for Denden to appeal out of time and to adduce new evidence. The court finds that while the delay in filing the appeal was slight and not due to special circumstances, the appeal should proceed to its merits. The court also grants leave to adduce further evidence as the Crown does not oppose it and it may assist in determining the issue.

The court then turns to the substantive issues. The court must come to its own view of the merits of the appeal and does not defer to the original decision-maker. The court finds that while the offending was moderately serious, the consequences of a conviction were not out of proportion to the gravity of the offending. Although a conviction may pose some difficulty for Denden's career aspirations, it is unlikely to prevent him from becoming a pharmacist. The Pharmacy Council will assess whether Denden is fit to practise and a conviction will not act as an absolute bar. The court concludes that the Judge did not err in refusing to grant a discharge without conviction and the appeal is dismissed.

Orders