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Doel v Police

Doel v Police

Case [2024] NZHC 2356 22 August 2024

Appeal

Criminal Liability

Sentencing

Miscarriage of Justice

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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…

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 Doel v Police

Details

AGLC: Doel v Police [2024] NZHC 2356
Case: [2024] NZHC 2356
Decision Date: 22 August 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Sam Louis Doel appealed against the decision of the Wellington District Court to refuse his application for a discharge without conviction for driving with excess breath alcohol. The District Court had disqualified Doel from holding a driver's licence for six months but declined his application for a discharge without conviction under s 106 of the Sentencing Act 2002. Doel argued that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. The appeal was heard on 21 August 2024, and judgment was delivered on 22 August 2024.

The legal issues the court had to decide included whether the District Court erred in finding that the consequences of conviction for Doel were not out of all proportion to the gravity of the offence, whether the court appropriately considered the direct and indirect consequences of a conviction, and whether the consequences of a conviction would be out of all proportion to the gravity of the offence. The court also considered whether the District Court's failure to discuss certain factors constituted a material error.

The court found that the District Court had erred in its application of the principles under s 107 of the Sentencing Act by giving insufficient weight to the likely direct and indirect consequences of a conviction. The court was persuaded that the consequences of a conviction would be wholly disproportionate to the gravity of the offence, particularly in light of the opportunity Doel had to upskill in North America that was likely to be lost if he could not travel at short notice. The court concluded that a discharge without conviction was necessary to allow Doel to contribute to the New Zealand community following his work and training opportunities overseas. The appeal was allowed, the conviction was set aside, and Doel was discharged without conviction under s 106 of the Sentencing Act. Doel's disqualification from driving continued until 19 December 2024.

Orders