Franks v Police - [2013] NZHC 3556

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000241 [2013] NZHC 3556

BETWEEN GINA LOUISE FRANKS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 17 December 2013

Appearances: S Thode for Appellant
J B Hamlin for Respondent

Judgment: 20 December 2013

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 20 December 2013 at 3.30 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

FRANKS v NZ POLICE [2013] NZHC 3556 [20 December 2013]

Introduction

[1] The appellant, Gina Louise Franks, is a 26 year old registered nurse. In May this year she returned to New Zealand, having spent two years working as a primary school teacher and volunteer nurse in Thailand. She spent the afternoon of 4 June
2013 with friends and family. She consumed wine at lunch and then wine again in the evening. At 1.09 am on 5 June 2013 she was stopped as she drove home and found to have a breath alcohol level of 653 mcg of alcohol per litre of breath.

[2] Judge P Sinclair refused Ms Franks’ application for a discharge without

conviction. Ms Franks appeals the decision on the ground that the Judge: (a) Erred in her assessment of the gravity of the offending;
(b)Failed to properly consider the consequences of a conviction in terms of the legislative framework of the Health Practitioners Competence Assurance Act 2003 (HPCA);

(c) Did not fully consider the other consequences of a conviction on

Ms Franks; and

(d) Failed to properly consider the Police position.

[3] The last ground I deal with briefly at this stage. The Police prosecutor filed a memorandum for the sentencing hearing advising that there was no opposition to the application. The Judge recorded at the outset of her decision that the Police did not oppose the application. However, an addendum noted that this was wrong and that the Police did, in fact, oppose. I am satisfied that this ground cannot warrant any interference in the decision. The decision was delivered orally as part of the sentencing process. It is therefore evident that the Judge made her decision on the basis that the Police were not opposing. The addendum, whilst erroneous, had no effect. In any event, the attitude of the Police would not affect the assessment that the Judge would have to make.

Principles relevant to a discharge without conviction

[4] Under s 106 of the Sentencing Act 2002 the Court may discharge an offender without conviction subject to s 107 which provides that:

The Court must not discharge an offender without conviction unless the Court is satisfied that the direct and indirect consequences of a conviction will be out of all proportion to the gravity of the offence.

[5] The correct approach requires the Court to consider first, the gravity of the offence (taking into account all the aggravating and mitigating factors relating to the offending and the offender), secondly, identify the direct and indirect consequences of a conviction and, thirdly, determine…

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 Franks v Police

Details

AGLC: Franks v Police [2013] NZHC 3556
Case: [2013] NZHC 3556
Decision Date: 20 December 2013

CaseChat Overview and Summary

Gina Louise Franks, a registered nurse, appealed the decision of Judge P Sinclair, who had refused her application for a discharge without conviction for driving with an excess breath alcohol level. Franks argued that the Judge had erred in her assessment of the gravity of the offence, failed to consider the consequences of a conviction under the Health Practitioners Competence Assurance Act 2003, did not fully consider the consequences of a conviction on her, and failed to properly consider the Police position. The court considered each of these grounds and concluded that the appeal should be dismissed. The court held that the Judge had made an error in her assessment of the gravity of the offending by placing undue weight on an irrelevant factor and not considering all relevant factors. However, even taking all relevant factors into account, the gravity of the offending was still regarded as moderate. The court also considered the consequences of a conviction, including the effect on Franks' employment, constraints on her ability to travel, and more general consequences of a personal nature. The court found that there was a real risk of consequences for Franks, but these were not out of all proportion to the gravity of the offending. The appeal was dismissed.

Orders