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 Dennis also states in his affidavit that he has two life goals that he formed from an early stage.  The first is to take his rugby league career as far as he possibly can with the aim of becoming a contracted National Rugby League (“NRL”) player in the near future.  It is the impact of a conviction on those aspirations which is at the heart of this appeal.

[8]      Mr Dennis’ second life goal is to join the NZ Police.  Mr Dennis’ father is a serving member of the NZ Police, and his grandfather was also a long-term serving member.  A letter received from the National Co-ordinator for the Police pre-recruit programme confirms that Mr Dennis has attended pre-recruit seminars and pre- programme assessments.

[9]      Mr Dennis’ offending means his aspirations to join the Police are unlikely to be realised.  A letter on behalf of the NZ Police confirms a practice of not accepting recruit applicants who have been charged with a drink drive offence.  There are no exceptions.    That  position  appears  to  apply  regardless  of  whether  there  is  a conviction, or a discharge without conviction.

District Court decision

[10]     At the outset of his ruling, the Judge noted that he could not grant a discharge without conviction unless satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.

[11]     The  gravity  of  the  offending  was  referred  to,  and  note  was  taken  of Mr Dennis’ lack of previous convictions, early guilty plea and completion of the Right Track course for drink driving offenders.  However, the Judge did not make an express assessment of the gravity of the offending.

[12]     The Judge next turned to consider the real and appreciable risks of the impact of the conviction.  He observed that insofar as the Police force was concerned, the door now appeared to be closed, and it did not matter whether there was a conviction or not.  The Judge did not find that there was a real or appreciable risk in regard to a possible  career  in  the  NRL,  finding  any impact  on  such  a  career  to  be  purely speculative.

[13]     Having concluded that there was no significant disproportionate outcome, the Judge  accordingly  declined  the  application  for  a  discharge  without  conviction. Mr Dennis was convicted and fined $195, ordered to pay court costs of $130, and disqualified from holding or obtaining a licence for three months.

Relevant legal principles

[14]     Section 106 of the Sentencing Act 2002 gives the Court the discretion to discharge an offender without conviction.  Section 107 provides that this discretion cannot be exercised unless the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[15]     Section  107  requires  the  Court  to  undertake  a  three-step  analysis  and consider:3

(a)       The gravity of the offence;

(b)      The direct and indirect consequences of a conviction; and

(c)       Whether those consequences are out of all proportion to the gravity of the offence.

[16]     If  the  offender meets  the s  107  threshold  then  the Court  may go  on  to consider whether to exercise the residual discretion under s 106.4

3      Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8].

4      Z (CA447/12) v R, above n 2, at [9].

[17]     In Maraj v Police, the Court of Appeal confirmed that:

…  the  third  step  described  in  Z  (CA  447/2012)  v  R  is  subject  to  the Austin, Nichols approach on appeal: if the appellant can show that the first instance decision was wrong he or she is entitled to a fresh assessment by the appellate court.5

Gravity of offending

[18]     The Judge did not specifically categorise the gravity of Mr Dennis’ offending, although he observed that the breath alcohol level was “significantly above the zero level” set for youth.

[19]     This Court has held that driving with excess breath alcohol is an inherently serious offence whenever the alcohol limit is more than minimally above the permissible limit.6   In Linterman v Police, Miller J observed that discharges ought to be exceptional for drink driving offences for a number of reasons, including the fact that the offending is inherently dangerous.7

[20]     In Glenn v Police, Dunningham J assessed the gravity of the offending in the case before her as low.8   That case involved a 19 year old who had pleaded guilty to driving with excess breath alcohol as a youth.  His breath alcohol reading was 400 micrograms per litre of breath, but there were no other blameworthy features of the offending.   A discharge without conviction was granted in that case as the consequences for the appellant’s career in the tourism industry, in light of particular personal circumstances, outweighed the gravity of the offending.

[21]     There is no suggestion in this case that Mr Dennis was driving erratically. The only reason he appears to have been pulled over was because he had stalled the car.   Thankfully, there was no injury caused by the offending and no damage to

property.  Although the tolerance level for youth offenders is zero, in fact a person

5      Maraj  v  Police  [2016] NZCA 279 at [11]. The Court of Appeal also observed that the application of the Criminal Procedure Act 2011 to decisions made under s 106 may require consideration in another case and not by a Divisional Court. In that case, the Court proceeded on the basis that the appeal was correctly treated as an appeal against conviction without determining the point. I proceed on that basis also.

6      Franks v Police [2013] NZHC 3556 at [13]; Simmonds v Police [2014] NZHC 2488 at [27].

7      Linterman v Police [2013] NZHC 891 at [9].

8      Glenn v Police [2016] NZHC 928.

does not commit a criminal offence until the breath alcohol level exceeds 150 micrograms per litre of breath.9   In this case, the 195 micrograms per litre of breath only exceeded that limit by 45 micrograms.

[22]     Mr Dennis’ personal mitigating features, such as his remorse, early guilty plea, lack of prior convictions, and attendance at the Right Track programme, also serve to reduce the overall gravity of the offence.

[23]     Whilst Mr Dennis’ young age is a further mitigating factor, I accept that caution is warranted in taking this factor into account as convictions for this offence will always be imposed on individuals who are less than 20 years of age.

[24]     Taking all these factors into account, I consider the gravity of Mr Dennis’

offending to be low in this case.

Consequences

[25]     Mr Dennis accepts that the impact on his NZ Police career flows from being charged with the offence, rather than from conviction.  The appeal therefore focuses on the impact of a conviction on Mr Dennis’ aspirations for an NRL career.

[26]     There is evidence to suggest that Mr Dennis has real prospects of realising his life goal to play in the NRL.

[27]     In 2015, Mr Dennis was invited by an NRL team, the Gold Coast Titans to be part  of  their  youth  development  program,  and  he  is  a  current  member  of  the Tweed Heads U20 team based in the Gold Coast.  The Tweed Heads Club is a feeder club to the Gold Coast Titans.  Mr Dennis was also invited to be a member of the Spartakiade Athlete Development Programme.    That programme focuses on developing and enhancing the skills and natural sporting attributes of athletes who have the potential to be professionals in a wide range of sporting disciplines.  In a

letter  from  the  director  of  the  Spartakiade  Athlete  Development  programme,

9      Land Transport Act 1998, s 57(1)

Mr Dennis is described as being a “gifted athlete who has the ability, skills, networks and reputation to become a professional NRL player”.

[28]     It is also clear from the evidence that entering a conviction for youth drink driving will have consequences for Mr Dennis in terms of that potential career path.

[29]   The director of Spartakiade Athlete Development Club describes the consequences for Mr Dennis as follows:

The NRL and Tweed Heads programs have very strict guidelines and protocols  relating to player  accountability and responsibility in terms  of alcohol/drug abuse, family violence, and violence on and off the field and on this occasion Jamie has not only let himself down but also his whanau and his club.  The impact and implications of his actions could mean potential stand down or being dropped back to club level football and potentially losing his current position to other players or being labelled.

[30]     The letter from the coach of the Tweed Heads U20 football club corroborates that position.  He states:

It is well known that the NRL and Tweed Head Clubs take any form of drug/alcohol abuse and violence extremely (on and off the field) very seriously and  in  many cases  senior  and junior  players  have  either  been dropped to lower  grades and  or  deregistered from the clubs, this is the immediate impact on any player that falls short of known expectations/club protocols, but the wider and ongoing impact comes in being labelled and has a very real impact of limiting future opportunity and contracts with other NRL clubs.

[31]     These letters evidence that a conviction for drink driving is likely to have a very real impact on future career opportunities in the NRL.   It is whether those consequences are out of all proportion to the gravity of the offending which must be considered in the third stage of the analysis as set out below.

Proportionality assessment

[32]     Although the consequences for a career in the NZ Police are not directly relevant to the enquiry, they nevertheless form part of the background context in which to assess the impact of the consequences of conviction.

[33]     The evidence before the Court shows that Mr Dennis had two clearly defined career paths.  He had already taken steps to pursue the NZ Police route, and a letter from the National Coordinator for the NZ Police Career Preparation Pre-Recruit Foundation Studies Course confirmed that Mr Dennis had the physical, mental and academic abilities to become a member of the NZ Police.  This is not a case where there are only generalised career aspirations that have no real evidential foundation.

[34]     A career in the NZ Police is no longer available to Mr Dennis as a result of his offending.   His two  stated life  goals have been reduced to one,  and career prospects  have  therefore  narrowed  considerably.    This  brings  any consequences flowing from conviction on Mr Dennis’ second pathway into sharper focus in my view.

[35]     The evidence suggests that much of the impact on Mr Dennis’ future career prospects arises out of non-compliance with NRL protocols and club expectations.  It is the act of drink driving itself which is causative of those consequences, rather than any conviction.   In that context, the impact of any conviction would appear to be negligible.

[36]    It is also implicit in the letters received on behalf of the rugby league organisations, that there will be an evaluative process whereby the seriousness of the breach of protocol will be weighed before deciding on an appropriate action, such as dropping Mr Dennis to a lower grade or deregistering him from the club.   In my view, that evaluative process is best left to the relevant rugby league officials who may  weigh  and  balance  the  impact  of  a  conviction  against  all  other  factors  in deciding the appropriate course.  There is insufficient evidence that a conviction will have a material bearing on the outcome of that process, or that it will result in any of these actions being taken in relation to Mr Dennis.  If that was the only consequence which  flowed  from  conviction,  then  I  would  not  consider  it  to  be  out  of  all proportion to the gravity of the offending.

[37]     However, that is not the only consequence at stake.  There is also the stigma that comes from a conviction.  All those who are convicted suffer a stain on their reputation, and in a general sense that stain is likely to make it harder to pursue

certain careers, irrespective of the chosen field.  That is a general consequence which flows from a conviction in the ordinary course.

[38]     But in this case, the impact goes beyond the ordinary.  It is apparent from the letters from the rugby league organisations that reputation is an important factor in determining whether or not a rugby league contract will be offered by an NRL club. It is also evident from those letters that the stain which comes from the “labelling” of a player as a convicted drink driver will have a very real and substantial impact on future opportunities with NRL clubs. A labelling can occur without any regard to the nature and circumstances of offending, or personal mitigating factors of the offender. In the absence of an evaluative process which might otherwise serve to keep a conviction in perspective, the consequences of being “labelled” seem quite severe.

[39]     Those consequences may also be particularly harsh given Mr Dennis’ young

age. As Whata J held in Amstad v Police:10

The brand of a conviction for young people who do not have a foothold in a career can be permanently damaging. This feeds inextricably into an assessment of the proportionality as between the seriousness of the offence and the consequences.

[40]     The Crown  points  to  the fact  that  a number  of rugby league stars have managed to maintain their careers despite convictions for drug and alcohol related offending.  I do not consider that to be a fair comparison.  Those players are already established in the NRL.  Mr Dennis is trying to break into that league and establish a career for himself.  The considerations which apply for those who are established, and those who are on the cusp of forging a career, are quite different in my view.

[41]     Nor do I consider the Criminal Records (Clean Slate) Act 2004 to be of direct relevance.   That Act means that the impact of a conviction may be removed after seven  years.    That  will  have  a  positive  effect  on  Mr  Dennis’ career  prospects

generally, but it does not assist in removing the immediate prejudice to him now.

10     Amstad v Police HC Auckland CRI-2011-404-161, 6 September 2011 at [22], in which the appellant was discharged without conviction on drink driving, failing to stop, dangerous driving and unlawfully taking a motor vehicle charge due to the impact on the appellant’s ability to join the armed forces.

That is particularly acute in this case given the limited window in which he is able to advance a career in rugby league.

[42]     Looking at these factors in totality, I consider conviction will have a real and appreciable consequence for Mr Dennis in his pursuit of a career in rugby league. That consequence is particularly harsh given Mr Dennis’ young age, clean record, and commendable efforts to ensure that poor choices are not repeated.   He has already suffered as a result of his offending, with his chosen career path now unavailable to him.  Further consequences from his offending may yet be felt as a result of non-compliance with rugby league protocols and expectations.   The very real impact on future career opportunities with NRL clubs which arises as a result of “labelling” elevates the consequences of conviction to such an extent that I consider them to be out of all proportion to the gravity of the offending in this case.

[43]     I am therefore satisfied that the threshold in s 107 has been met.

Residual discretion

[44]     The final step is to consider whether to exercise the residual discretion under s 106 to order a discharge without conviction.  For the reasons already discussed, I consider it should be exercised in favour of discharge in this case.

[45]     Section 106(3)(a) and (c) of the Sentencing Act allows a court discharging an offender to make an order for the payment of costs and to make any order the court is required to make on conviction.  Section 57(3)(b) provides that a court must order the person to be disqualified from holding or obtaining a drivers licence for three months or more.  There is no jurisdiction to maintain the sentence requiring payment of the $195 fine.

[46]     Despite the discharge, I consider it appropriate for Mr Dennis to pay court costs, and for the period of disqualification imposed in the District Court to remain. If the payment of the $195 fine has already been made, it will need to be refunded by the Ministry of Justice.

Result

[47]     The appeal is allowed. The conviction is quashed.

[48]     I make the following orders pursuant to s 106 of the Sentencing Act:

(a)       Mr Dennis is discharged without conviction on the charge of driving with excess breath alcohol, being a person under 20 years;

(b)Mr Dennis is disqualified from holding or obtaining a driver licence for three months from 16 May 2016; and

(c)       Mr Dennis is ordered to pay the court costs of $130 as ordered by the

District Court if not already paid.

[49]     The Ministry of Justice is to repay the $195 fine imposed in the District Court if this has already been paid.

Edwards J