Doel v Police

[2024] NZHC 2356

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2024-485-54

[2024] NZHC 2356

BETWEEN

SAM LOUIS DOEL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

21 August 2024

Appearances:

N C Mount and M Robinson for Appellant

G P Fitzgerald and M Gavey for New Zealand Police

Judgment (Result):

21 August 2024

Reasons:

22 August 2024

JUDGMENT OF McHERRON J

Introduction

[1]    On 15 March 2024, Mr Doel had drinks and dinner with his partner and some friends at home. The next morning, about 9.30 am, Mr Doel drove to Wellington Airport to pick up a friend. He was going too fast down Cobham Drive and was pulled over. Police administered an evidential breath test. Given it was at least eight hours after he stopped drinking, he had slept, and had eaten a large amount of food while drinking, Mr Doel thought he would be fine to drive. However, the alcohol had not cleared Mr Doel’s system from the night before. He blew 693 micrograms. The legal limit is 250 micrograms per litre of breath.1

1      Land Transport Act 1998, s 56(1A).

DOEL v NEW ZEALAND POLICE [2024] NZHC 2356 [21 August 2024]

[2]    In hindsight, and with the knowledge he has acquired from an alcohol treatment programme, Mr Doel now accepts he made a stupid and dangerous decision to drive that morning. At the first opportunity, Mr Doel pled guilty to one charge of driving with excess breath alcohol.2 On 19 June 2024, he was convicted and sentenced in the Wellington District Court. It was the first time Mr Doel had been charged with or convicted of an offence. The District Court Judge declined Mr Doel’s s 106 Sentencing Act 2002 application for a discharge without conviction and disqualified him from holding a driver’s licence for six months.3

[3]    Mr Doel appeals the refusal to grant a discharge without conviction.4 He does not appeal the disqualification.

[4]    I am persuaded that the District Court decision is wrong and that a miscarriage of justice occurred. In my view, Mr Doel should be discharged without conviction because, on the particular facts of this case, the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

Background

[5]    Mr Doel is 33 years old. He works as a rope access technician in the geotechnical engineering industry. His work requires regular travel throughout New Zealand and overseas. One of his contract employers, Geostabilization International (GSI), is contemplating sending him to Canada and the USA for work and training. It is the real and appreciable risk that this opportunity will be jeopardised that I must evaluate on Mr Doel’s appeal.

Relevant law

On appeal

[6]    This appeal against conviction and sentence is brought pursuant to ss 229 and 244 of the Criminal Procedure Act 2011. The basis for determining an appeal against

2      Section 56(1) and (3) maximum penalty of 3 months’ imprisonment or $4500 fine. The Court must order the person to be disqualified from holding or obtaining a driver licence for 6 months.

3      Police v Doel [2024] NZDC 13911 [Decision under appeal].

4      Jackson v R [2016] NZCA 627 at [6]–[16].

a refusal to grant a discharge without conviction is whether a miscarriage of justice has occurred:5

(a)by virtue of a material error by the sentencing judge in entering a conviction; or

(b)as a result of an error by the judge in applying the principles of discharging an offender without conviction under s 107 of the Sentencing Act.

[7]    The Court of Appeal in R v Hughes noted that such an appeal is not an appeal against the discretion of the Court.6 It is a matter of fact requiring judicial assessment and the discretionary power of the Court to discharge without conviction arises only if the s 107 threshold has been met.7 The usual appeal principles apply, as set out in Austin, Nichols & Co Inc v Stichting Lodestar.8

[8]    Section 106 of the Sentencing Act provides that if a person who is charged with an offence is found 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”. Although the heading to s 107 refers to “guidance” in the application of s 106, its requirements are mandatory.9 Section 107 provides:

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.

5 At [12]. See Gaunt v R [2017] NZCA 590 at [9].

6      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.

7 At [28].

8      Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141. This approach was confirmed in Brown v New Zealand Police [2019] NZHC 2348; and Sharma v New Zealand Police [2018] NZHC 2471.

9      Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [8], citing R v Hughes, above n 6, at [8].

The approach to ss 106 and 107 in the context of drink-driving

[9]    Because of the inherently dangerous nature of drink-driving, the courts are often reluctant to discharge persons charged with such offending. It has been described as “very serious offending” in and of itself.10

[10]   Miller J noted in Linterman v Police11 that applications for discharge without conviction in alcohol-related driving cases ought to be “exceptional”. He correctly described drink-driving as a “pervasive social problem”, noting that in “the hands of a drunk a car is a dangerous thing”. However, in Basnyat v Police, the Court of Appeal said, “[p]roperly construed, Linterman is not a gloss on the statutory test, but rather a statement of the practical consequence of the application of the sections”… “judges must not treat Linterman as if it were a proxy for the statutory test, and they must not exercise their discretion as if the word ‘exceptional’ is to be found in s 107”.12

[11]The correct approach to the s 107 test involves a four stage analysis:13

(a)consider all aggravating and mitigating factors of the offence and offender to establish the gravity of the offence;

(b)identify the direct and indirect consequences of conviction;

(c)consider whether those consequences are out of all proportion to the gravity of the offence; and

(d)consider whether, in exercise of the residual discretion in s 106, a discharge should nonetheless be declined.

[12]   A proportionate response to drink driving will ordinarily be the entry of a conviction. It will therefore be necessary to identify factors either in the offending or

10     NZ Law Society v Stanley [2020] NZSC 83 at [72] and [102]; Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].

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

12     Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344 at [19] and [20].

13     At [15] (footnotes omitted); see Z (CA447/2012) v R, above n 9.

the consequences of a conviction for the offender to show that result is wholly disproportionate.14

[13]   The ordinary consequences of a drink driving conviction include social stigma and the normal requirement to disclose the fact of conviction to prospective employers and immigration authorities.15 Drink driving is a pervasive social problem and the legislature has responded with a sentencing policy that emphasises personal and general deterrence.16

District Court decision

[14]   The District Court Judge concluded that the gravity of the offending was “moderate”, finding that the culpability was “substantial” but Mr Doel’s mitigating personal factors brought the gravity down.17 The Judge considered it was “rare” for a defendant to be discharged without conviction on an alcohol driving charge.18 He found that Mr Doel and his referees’ concern as to the consequences were focused, and falsely based, on avoiding disqualification rather than conviction.19 The Judge did not accept the evidence provided that a conviction would adversely influence his work-related travel overseas, or future employment prospects, labelling it “broad” and “no[t] specific”.20

[15]   Overall, the Judge determined he was “not satisfied at all” that the consequences of conviction would be out of all proportion to the gravity of the offending.21

Grounds of appeal

[16]Mr Doel says that the Judge erred:

14 At [22].

15     Linterman v Police, above n 11, at [9].

16     Simpson v Police [2020] NZHC 2255 at [28].

17     Decision under appeal, above n 3, at [11].

18 At [16].

19     At [13] and [14].

20     At [19] and [22].

21 At [26].

(a)In finding that the direct and indirect consequences for Mr Doel of being convicted were not out of all proportion to the gravity of the offending and therefore that the test in s 107 of the Act was not met.

(b)In stating that “discharges without conviction on an alcohol driving charge are rare”.

(c)By not appropriately representing or weighing Mr Doel’s references particularly in relation to the six-month disqualification and the impacts on Mr Doel’s future employment, particularly in North America.

(d)By placing insufficient weight on counsel’s submissions as to the North American visa process when an individual has a drink-driving conviction.

(e)By considering future offending pursuant to s 56 of the Land Transport Act 1998 when Mr Doel has never previously appeared before the court at 33 years old and this was his first drink driving (or any) offence.

(f)By failing to place adequate weight on the positive factors and work Mr Doel had done in support of his s 106 application or to appreciate that Mr Doel accepted (at the hearing) the mandatory 6-month disqualification was proportionate and necessary and instead focused his application on the conviction.

Submissions

For Mr Doel

[17]   Ms Mount submits that the gravity of the offending should properly be seen as low to moderate on the basis of “strong mitigation”. Ms Mount submits the decision was unduly harsh, out of step with other similar cases, and has resulted in a miscarriage of justice. In addition to the grounds of appeal summarised above, Ms Mount says the Judge failed to take into account the fact that, in the District Court, the Police did not oppose the application for discharge.

[18]   Ms Mount says the Judge failed to discuss Mr Doel’s remorse, his insight into drink-driving more generally, his immediate engagement with the Alcohol and Drug clinician at the District Court at his first appearance, and his proactive disclosure of his offending to his close circle to ensure accountability and accept responsibility.

[19]   According to Ms Mount, the Judge’s characterisation of the offending as “nearly three times that permissible” unfairly conflates permissibility and criminality. The permissible level for a fine is 250 micrograms of alcohol per litre of breath, but criminality proceeds above 400 micrograms.

[20]   Ms Mount points me to the analogous cases of Iosefa v Police and Simpson v Police,22 as well as several other comparable Wellington District Court drink-driving cases where discharges were granted, in developing an argument that the decision under appeal is “unduly harsh” and out of line with these comparative decisions.

For the Police

[21]   On behalf of the Police, Mr Fitzgerald submits the appeal should be dismissed because a miscarriage of justice has not resulted. The Judge was correct to conclude the consequences of a conviction are not out of all proportion to the gravity of the offending.

[22]More specifically, the Police submit:

(a)The Judge traversed the mitigating factors relevant to the appellant, and these were weighed in the decision by reducing the gravity of offending from a substantial to a moderate level.

(b)There was no error in the Judge’s comment that the level of alcohol in the appellant’s breath was “nearly three times that permissible”, as an infringement occurs at 250 micrograms, and so 693 is “almost three times that level”.

22     Iosefa v Police HC Christchurch, CIV-2005-409-64, 21 April 2005; Simpson v New Zealand Police, above n 16.

(c)The Judge did not err in discussing the referees’ focus on disqualification and this was not material to the decision to decline to grant a discharge without conviction.

[23]   The Police acknowledge the Judge erred in discussing the consequences a conviction would have in terms of future liability under the Land Transport Act, but submit that this was not a material error, nor consequential in the decision.

Analysis

[24]   I am satisfied the District Court Judge has erred in applying the principles under s 107 of the Sentencing Act primarily because the Judge gave insufficient weight to the likely direct and indirect consequences of a conviction, being the likely loss of opportunities to upskill, particularly in North America, with the consequence that the community will not have the benefit of Mr Doel’s improved ability to assist with disaster recovery operations on his return to New Zealand.

[25]   It is therefore appropriate that I consider ss 106 and 107 of the Sentencing Act and make my own assessment as to whether I am satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[26]   I acknowledge that in reaching my decision I have had the benefit of more specific information than the District Court Judge relating to the proposed destination of Mr Doel’s work-related travel, namely Canada. I have also had access to additional information which the Judge did not consider relating to the impediments faced by those with drink driving convictions who intend to travel to that jurisdiction. My decision to allow the appeal should not therefore be considered as a criticism of the overall approach taken by the District Court Judge.

Aggravating and mitigating factors of the offence and offender

[27]   I agree with the Judge that the gravity of the offending is moderate.23 The offending is aggravated by the fact Mr Doel was speeding (80km/h in a 60km/h zone), for which he received 20 demerit points and paid a fine.

[28]   I accept Mr Doel is genuinely remorseful and has taken proactive steps to ensure such offending is not repeated. I am mindful that Mr Doel has an unblemished record and previous good character: a factor I need to take into account in sentencing (even in this composite appeal).24 He has made a donation to Wellington Free Ambulance and has completed voluntary work for Tū Mātau Ora.

[29]   Mr Alex Wilmshurst, the general manager of Abseil Access (another business to which Mr Doel provides contracted services) informed the Court that Mr Doel is tested regularly for alcohol and drugs due to the high-risk nature of his work, and “always returned negative results”. Mr Doel has held his full driver licence for 15 years with no incident, as well as full driver licences in the United Kingdom and Western Australia.

[30]   I also note the comments of Chris Fahy, an addictions counsellor for the intensive alcohol treatment program Mr Doel completed who informed the Court that Mr Doel was “unlikely to offend again in this manner”. Mr Fahy said that, in attending the Program, Mr Doel “appeared to absorb the information, asked relevant questions, and gave personal examples and reflections.”

The direct and indirect consequences of conviction

[31]   The Court is less likely to grant a discharge without conviction if the impact on the offender’s employment is unclear and there is insufficient evidence to support any consequences. Without more, impaired job opportunities are a general consequence of conviction to be weighed in the balance.25

23     See, for example, Aguilar-Barrientos v Police [2023] NZHC 1833 at [39] (excess breath alcohol of 685 micrograms, described as “mid-range” in terms of excess levels).

24     Manawaiti v R [2013] NZCA 88 at [15]; Rana v R [2014] NZCA 468 at [16]. See Walker v New Zealand Customs [2021] NZHC 3380 at [51].

25     Loimata v R [2024] NZHC 1388 at [37]; Brunton v Police [2012] NZHC 1197 at [16].

[32]   However, I do not accept in the specific circumstances of this case that the impact of employment is unclear, or that the plans are tentative such that they should carry little weight.

[33]   First, I acknowledge that Mr Doel’s travel plans are not wholly hypothetical: there are work trips proposed to Canada, the United States and Papua New Guinea.

[34]   Clink McCormick (Mr Doel’s project engineer at GSI) provided a letter of support explaining that, as an Industrial Rope Access Trade Association (IRATA) qualified technician, Mr Doel is qualified to work overseas within the Geostabilization industry. Mr McCormick says that Mr Doel’s capabilities as a rope technician and his aptitude for machinery, as well as his attention to safety and outstanding interpersonal skills, make him a prime candidate to send overseas to work in the GSI’s offices in Canada and the USA. Those countries are currently engaged in developing new technologies and processes for rockfall and landslide mitigation. These are things that GSI wishes to bring into New Zealand. GSI intends to embed its workforce with GSI’s international partners to assist with this. This will be hindered if Mr Doel has issues moving around the USA and Canada as these projects tend to be spread around those countries.

[35]   Mr McCormick’s reference explains that the jobs in North America will have Mr Doel working with cutting-edge suspended drill rigs and a new generation of spider diggers. If Mr Doel can gain familiarity with these technologies, processes and equipment, it will increase the safety and efficiency of high-angle rope access drilling operations which are needed in New Zealand responses to disasters like Cyclone Gabrielle and the Kaikōura earthquake. Mr McCormick says that moving Mr Doel over to Canada and the USA will help GSI to retain him within the GSI group and develop a technician to return to New Zealand to bring back “a vast array of new skills to teach our techs here at home”.

[36]   Mr McCormick advises that other rope technicians at GSI who have the skills and seniority for such an overseas transfer opportunity tend to have family commitments precluding their commitment to a long term role overseas, making

Mr Doel ideally placed to maximise the learning opportunity available from GSI’s overseas partners.

[37]Mr McCormick states that:

While the timing of this is fluid, we would like to be able to send Sam over at short notice. Like New Zealand, cliff faces fall down without notice in the Americas, so when the opportunity arises to send him we would like to know that there will be no hold ups along the way

[38]   Mr McCormick considers that if Mr Doel is impeded from travelling for this work it will be “detrimental to the New Zealand rope industry as a whole” as:

The more people we can have learning overseas at the cutting edge, the better prepared we are for natural disasters and the rebuilds that follow them.

[39]   Mr McCormick refers to the assistance following the Kaikōura earthquake by skilled rope technicians who had been trained overseas. His letter explains that with the current downturn in work in New Zealand, GSI is looking to accelerate this programme and so would like to be able to send Mr Doel overseas at short notice.

[40]   I note  that  Mr  McCormick’s  letter  was  not  before  the  District  Court.  Mr Fitzgerald abided the Court’s decision as to its admission on appeal, acknowledging it is credible, without conceding it is fresh. I decided to admit it and consider it, because I consider it is highly relevant to the Court’s consideration of the consequences of the offence, not just for Mr Doel, but for the community. I was highly assisted by what Mr McCormick had to say. However, I acknowledge again that, in his assessment, the District Court Judge did not have the benefit of having that material before him.

[41]   In identifying the direct and indirect consequences of the conviction, the Court must be satisfied there is a “real and appreciable risk” that any given consequence will happen.26 I do not share the same concerns of the District Court as to the “broad” nature of the concerns raised — especially in light of Mr McCormick’s further letter which indicates that North American travel for work and training is highly foreseeable in Mr Doel’s case.

26     Prasad v R [2018] NZCA 537 at [11]; DC (CA47/2013) v R [2013] NZCA 255 at [43].

[42]   For the Police, Mr Fitzgerald accepted that a conviction is likely to result in impediments to Mr Doel’s ability to travel for work. Mr Doel has provided evidence about the likelihood of barriers to his ability to travel offshore for work. His other referees have informed the Court of the impact a conviction is likely to have on     Mr Doel’s job prospects in a highly competitive field.

[43]   In Basnyat v Police, the Court of Appeal dismissed concerns about travel for business conferences or work to Canada.27 The Court noted that it had perused the Immigration Canada website, and found that it:

… indicates that a person in Mr Basnyat’s situation is very likely to be granted entry albeit not as of right. The inconvenience for him will be that he must apply for entry. This is hardly disproportionate to the seriousness of his offending.

[44]   However, in December 2018, a month after Basnyat v Police was decided, the Canadian Criminal Code was amended to increase the maximum penalty for most impaired driving offences from five to ten years.28 A foreign national who has been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years is inadmissible on grounds of serious criminality.29 Overcoming criminal inadmissibility requires either:

(a)a determination of rehabilitation, which would not apply to Mr Doel until five years after the date of his offending;30 or

(b)application for a temporary residence permit.

[45]   As at 14 August 2024, the current processing time for a Canadian temporary residence application is estimated to be 113 days.31

27     Basnyat v Police, above n 12 at [28].

28     Criminal Code RSC 1985 c C-46, ss 320.14, 320.19.

29     Immigration and Refugee Protection Act SC 2001 c 27, s 36(1)(b).

30     Government of Canada “Overcome Criminal Convictions”

of Canada “Check Processing Times” On the basis of this material, I conclude that the difficulties of travelling to Canada at short notice with a drink driving conviction have significantly increased since Basnyat v Police was decided.

[47]   Ms Mount also referred to material from Nolo.com, a website with the purpose of “explaining the law to everyday people”, that had been placed before the District Court Judge suggesting that it would be necessary to obtain an official medical examination with a civil surgeon before Mr Doel’s entry into the USA with a drink driving conviction would be authorised.32 In her submissions, Ms Mount referred to delays of between six and 18  months  for  obtaining  such  medical  assessments.  Ms Mount referred to an unreported District Court case, Police v Grigg, in which she was counsel on 8 January 2024, and in which such website material was apparently accepted and Mr Grigg was discharged. However, like the District Court Judge in the present decision under appeal, I am less persuaded that entry into the USA would be as problematic as was claimed on behalf of Mr Doel. As the Judge pointed out, the same website also says: “one DUI Will Not Normally Make You Ineligible for a Visa to the United States”.

[48]   Nevertheless, while I am not persuaded that Mr Doel’s conviction would preclude him from entry to North America, I accept there is a real and appreciable risk it will preclude his being able to accept short notice opportunities there to train and work overseas, particularly in Canada.

[49]   The nature of Mr Doel’s work is specialised. I accept his submission, founded on the evidence from Mr Wilmshurst, that the rope access role in the geotechnical sphere requires an ability to travel without limits and at short notice. There is a real and appreciable risk that a conviction could materially disadvantage Mr Doel’s career prospects in geotechnical engineering. Moreover, the material I have considered indicates a realistic prospect that Mr Doel’s ability to contribute to the community, by assisting with recovery from natural disasters, could be adversely affected.

32     Ilona Bray “Can I Get a US Visa With a DUI on My Record” Section 107 is not limited to the consequences of a conviction for the offender. Indirect consequences are expressly included. Based on Mr McCormick’s reference, it is not fanciful to suggest an indirect consequence of Mr Doel’s conviction is the impediment it may place on improving New Zealand’s ability to respond to natural disasters using rope technicians trained in the latest techniques. Yet it seems that whether or not Mr Doel has a conviction could make all the difference to whether he can be posted at short notice to North America, particularly Canada, for work and training.

Are the consequences out of all proportion to the gravity of the offence?

[51]   Having assessed the offending as moderate, but with significant mitigating factors, I am of the view, by a narrow margin, that the consequences of a conviction for Mr Doel would be wholly disproportionate to the gravity of the offence.

[52]   Mr Doel has made genuine attempts, across multiple areas of his life (treatment, volunteering, donation, community accountability) to remedy the societal harm he contributed to by drink-driving. I am persuaded that through treatment and improved self-awareness he has addressed his previous blind spot in this regard and is highly unlikely to offend again.

[53]   A conviction would have specific and tangible impacts on Mr Doel’s ability to travel overseas, in particular to Canada, for training for his specialised work. The evidence provided, in particular the additional references from Mr McCormick, indicated that GSI is planning to send Mr Doel to Canada and the USA for training and work. I accept that the consequences of a conviction are likely to interfere with Mr Doel’s ability to travel to Canada for such work, particularly at short notice, and may in fact preclude him from being given such opportunities.

[54]   In R v Cleaver, the Court of Appeal accepted it was open to the District Court Judge to assess that the prospect of considerable delay and investigation before an application for a visa would be granted meant the consequences of a conviction were out of all proportion to the gravity of the offending. On the material before me, I make

the same assessment in relation to Mr Doel.33 I am persuaded that such consequences would be out of all proportion to the gravity of the offence, particularly in light of the opportunity Mr Doel has to upskill in North America that is likely to be lost if he cannot be available to travel at short notice. I ultimately accept the argument that a discharge without conviction is necessary to allow Mr Doel to contribute to the New Zealand community following his work and training opportunities overseas.

Residual discretion

[55]   Having concluded that the consequences of conviction are out of all proportion to the gravity of the offence, I do not consider that in the circumstances of this case there is any basis on which I should exercise my residual discretion under s 106 to decline the application for discharge without conviction.

Conclusion

[56]   The appeal is allowed.   The conviction is set aside.   I make an order under   s 106 of the Sentencing Act discharging Mr Doel without conviction.

[57]Mr Doel’s disqualification from driving continues until 19 December 2024.

McHerron J

Solicitors:

Robinson Legal, Wellington for New Zealand Police Luke Cunningham & Clere, Wellington for Defendant

33     R v Cleaver [2020] NZCA 397.