Dennis v Police - [2016] NZHC 1768

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000160 [2016] NZHC 1768

IN THE MATTER OF an appeal against conviction and sentence

BETWEEN

JAMIE THOMAS NUI DENNIS Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 26 July 2016

Counsel:

P Q C Stokes for the Appellant
T R Bellingham for the Respondent

Judgment:

2 August 2016

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 2 August 2016 at 12.30 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors: Public Defence Service, Auckland
Meredith Connell, Auckland

DENNIS v POLICE [2016] NZHC 1768 [2 August 2016]

Introduction

[1] Mr Dennis pleaded guilty to one charge of driving with excess breath alcohol, being a person under 20 years.1 His application to be discharged without conviction was declined in the District Court and he was sentenced to a fine of $195, court costs of $130 and disqualified from holding or obtaining a licence for three months.2

[2] Mr Dennis now appeals on the basis that he should have been discharged without conviction. He submits that the consequences of conviction on his future career prospects are disproportionate to the gravity of his offending.

Background

[3] Mr Dennis was 18 years old at the time of the offending. Letters from those who know him well describe him as a fine young man, easy to teach and mentor, and willing to take things on board. He has no prior convictions and has the full support of family and friends to make sure that the error of judgment which led to his offending is not repeated in the future.

[4] The offending leading to the charge relates to events which occurred at about

11.25 pm on 9 December 2015. Mr Dennis was pulled over by the Police because he had stalled the car he was driving. He told Police he had consumed two seven per cent cans of bourbon before driving. A breath test revealed a reading of 195 micrograms per litre of breath.

[5] In an affidavit sworn in support of the application for a discharge, Mr Dennis states that he was not the assigned sober driver that night and was only handed the keys at the last minute, because the designated driver had been drinking. He says he felt pressure to accept the driving role and is now deeply regretful and remorseful for his decision to drive that evening.

[6] Mr Dennis immediately enrolled himself in the Right Track programme which is a 42 hour educational programme ostensibly for those who commit driving-

1 Land Transport Act 1998, s 57(1).
2 New Zealand Police v Dennis [2016] NZDC 8942.

related offences. This programme appears to have had a profound effect on Mr Dennis who says he has now learned that his actions have consequences and poor decisions can be made in an instant. He also learned that drink and drug driving impacts on many people’s lives and causes long lasting pain, hurt and suffering.

[7] Mr…

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 Dennis v Police

Details

AGLC: Dennis v Police [2016] NZHC 1768
Case: [2016] NZHC 1768
Decision Date: 2 August 2016

CaseChat Overview and Summary

Mr Dennis appeals his conviction for driving with excess breath alcohol, arguing he should have been discharged without conviction. He submits that the consequences of a conviction on his future career prospects are disproportionate to the gravity of his offending. The appeal hinges on whether the consequences of conviction on Mr Dennis’ career prospects are out of all proportion to the gravity of his offending. The High Court held that the consequences of conviction were out of all proportion to the gravity of the offending and quashed the conviction. The Court ordered that Mr Dennis be discharged without conviction, but that he remain disqualified from holding or obtaining a driver's licence for three months and that he pay court costs of $130. The Court ordered that the $195 fine imposed by the District Court be refunded if it had already been paid.

The Court considered the gravity of the offending and concluded that it was low. The Court then considered the consequences of conviction. It found that a conviction would have a very real impact on Mr Dennis’ prospects of playing in the National Rugby League and that those consequences were out of all proportion to the gravity of the offending. The Court exercised its residual discretion under s 106 of the Sentencing Act to discharge Mr Dennis without conviction.

Orders