G v Police HC Wellington CRI-2008-485-87

[2008] NZHC 1522

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2008-485-87

G

Appellant

v

NEW ZEALAND POLICE

Defendant

Hearing:         23 September 2008

Appearances: D Ewen for the appellant

J Webber for the respondent

Judgment:      29 September 2008

RESERVED DECISION OF CLIFFORD J

Introduction

[1]      Mr G  , the appellant, pleaded guilty in the District Court to driving with excess breath alcohol.

[2]      Mr G  ’s offending occurred in the early evening of 13 December 2006, as he was driving along Tinakori Road.  He drove his car into a vehicle stopped in front of him at traffic lights.   A subsequent evidential breath test returned a result of

1338mgms/litre.    Mr  G    initially  pleaded  not  guilty  to  the  charge,  but  later

changed his plea to guilty.

G V POLICE HC WN CRI-2008-485-87  29 September 2008

[3]      Mr G   is 47 years of age and works as a diesel mechanic.   He has one previous conviction; driving with excess breath alcohol (1239 mgms/litre) in 2003, for which he was fined $800 and disqualified from driving for nine months.

[4]      Subsequent to his guilty plea Mr G   applied for a discharge without conviction, suggesting also that the Court nevertheless disqualify him from driving pursuant to the Court’s power under s 106(3)(c) of the Sentencing Act 2002.

[5]      The Court accepted it had jurisdiction to adopt the course proposed, but declined to do so.

Grounds of appeal

[6]      Mr G   sought a discharge without conviction on the basis that, if convicted he would – by reference to his earlier conviction – be unable to apply for a limited licence (s 103(2)(a) and (d) of the Land Transport Act 1998).

[7]      Mr G  ’s case then, and now, is that without a limited licence he will lose his job.  The loss of his job, combined with associated effects on him and his family, would constitute direct and indirect consequences of conviction that were out of all proportion to the gravity of his offending.

[8]      Discharges without conviction are quintessentially discretionary decisions. Therefore, the exercise of that discretion will not be interfered with just because this Court might have arrived at a different result.  The well known formula laid down by the Court of Appeal in May v May ((1982) 1 NZFLR 165 (CA)) records that, to succeed on appeal, it must be shown that the Court erred in law, took account of irrelevant considerations or failed to take account of relevant considerations, or was plainly wrong.

[9]      With those criteria in mind, Mr Ewen advances Mr G  ’s appeal on the following basis:

a)       The  Judge  wrongly  took  into  account  an  irrelevant  consideration, namely that there was an allegation that the appellant had been consuming alcohol in his vehicle just prior to the accident in which he was involved;

b)The Judge wrongly concluded that the loss of the appellant’s job was not a certain consequence of disqualification;

c)       The Judge failed to give proper weight to relevant considerations, namely the rehabilitative steps taken by the appellant since the offending; and

d)The District Court heard Mr G  ’s application for a s 106 discharge on 27 September.  It did not deliver its decision until 13 June 2008. Mr Ewen, for Mr G  , also raises the issue of delay in this appeal.

District Court decision

[10]     The District Court Judge, having been referred to the decisions of Delaney v

Police (HC WN 22 April 2005) and Kingi and McEwen v Police (HC WANG 6

September 2007) discussed the principles that apply when a Court is considering the discretion to discharge provided by s 106, and the guidance for the exercise of that discretion provided by s 107, of the Sentencing Act.  The Judge correctly identified that analysis as requiring a consideration of the gravity of the offence, and the direct and indirect consequences of a conviction, in order to reach the conclusion required by s 107.

[11]     The Judge went on to record his view that the offending was very grave.  He did not  consider  that  the  gravity of  the  offending was  significantly reduced  by actions Mr G   had taken after the event to address his drinking problem.  Finally, he concluded that the consequences of a conviction, including that it might impact on Mr G  ’s employment, were not out of all proportion to the gravity of Mr G  ’s offending.

[12]     I now turn to the particular elements of the Judge’s decision which are the subject of this appeal.

Irrelevant consideration

[13]     There had been an allegation, referred to in the Police’s written submissions, that Mr G   had been seen by a witness to be drinking out of a cask of wine whilst driving.  That matter had not been established as a fact at the time of sentencing. The Judge did refer to that allegation in the course of his discussion as to the gravity of the offending.  He did so in the following passage:

[27]The Court takes into account the conduct of the offending, including the accident.  There is the allegation that he was physically drinking alcohol while driving.  The time of day, the locality, the accident, the degree of alcohol in his system, all point to high potential for extreme danger and to a wide set of potential victims.

[14]     Mr Ewen argued that, in referring to that matter, the Judge had erred by taking account of an irrelevant consideration, namely a fact that had not been proved.

[15]     I do not accept that argument.  As noted by Mr Webber for the Police, the Judge specifically referred to the “allegation” that Mr G   had been physically drinking while driving.   He did so when considering the gravity of the offending. Moreover, the Judge’s consideration of the gravity of the offending clearly focused on the very high blood alcohol reading involved, and the other circumstances of the offending, including the accident, the risk to the public involved and the previous similar conviction.   I do not think it can be suggested that the Judge erred in any relevant way in concluding that, by reference to the circumstances of the offending, the offending was extremely grave.  His reference to this allegation does not affect that conclusion.

Failure to consider mitigating factors

[16]     Mr Ewen also argued that, in assessing the gravity of the offending, the Judge had failed to take account of the steps taken by the appellant, subsequent to the event, to address his drink/driving problem.   Mr Ewen’s argument was that, with

reference to Delaney and Kingi, that was a failure to take account of a relevant consideration.

[17]     In Delaney, Miller J put the matter in the following terms:

[29]… I consider that the “gravity of  the  offence” should  be read  as including not only the offence itself but also anything that may affect the  Court’s  subsequent  assessment  of  overall  culpability.     That includes guilty pleas, expressions of remorse and the Court’s assessment of how likely it is that the offender will reoffend, the victim’s perspective, and any consequence already suffered by way of reparation, community work, or publicity.

[18]     In Delaney, the District Court Judge had erred in concluding he was not required to take into account the appellants’ remorse, guilty pleas, attendance at a restorative  justice  conference,  community  work  and   a  willingness   to   make reparation.

[19]     In  my  judgment,  the  position  is  different  here.    The  mitigating  factors identified by Mr Ewen were considered by the Judge.  On his assessment, however, they did not mitigate the gravity of the offending in a material way.   The Judge, therefore, considered the mitigating factors identified in the context of assessing the gravity of the offending, and reached a conclusion open to him.

Approach to loss of employment

[20]     The third matter raised by Mr Ewen was the inadequate way in which the Judge considered the adverse consequences of a conviction, and in particular the probability, and Mr Ewen says the virtual certainty, that Mr G   would lose his job if convicted, disqualified and unable to apply for a limited licence.

[21]     It was Mr Ewen’s submission that whilst the Police had originally taken the position that the consequence of Mr G   losing his employment was speculative, at the  hearing the  prosecutor  accepted  as  a  fact  that  the  appellant  would  lose  his employment if convicted and indefinitely disqualified.

[22]     Mr Ewen referred me to the following extract from the s 106 hearing:

… Police accept that he possibly will or probably will lose his employment in respect of a conviction at this time, however, there is nothing to say that he will not find employment with another company that can utilise his skills as a diesel mechanic. …

[23]     It was Mr Ewen’s submission, the Police having put the factual position in that way, that the Judge had been wrong to proceed on the basis that it was not accepted Mr G   would lose his job.  As Mr Ewen put it, “that the Judge forgot this critical concession is in all probability due to the fact that it took over eight and half months to deliver a sentencing decision”.

[24]     In my judgment, rather than not adopting the position as acknowledged by the Police and as set out above, that is precisely what the Judge did.  He discussed, at some length, the significance of a conviction, and an inability to apply for a limited licence, for Mr G  ’s employment.  He noted, on the basis of a letter provided by Mr G  ’s employer, that Mr G  ’s licence was “considered essential for him to function in his employment” (see [39] of the judgment).  He went on to consider, I accept, that that position might not be absolute, and that perhaps Mr G  ’s employer, or another employer, might give a degree of tolerance to Mr G   for the finite time that would pass until his licence was restored.  The Judge also considered the possibility of alternative employment, and the time that Mr G   had had to consider ways to mitigate the consequences of his being disqualified, and not being in a position to apply for a limited licence.

[25]     In my judgment, none of that is at odds with the position as acknowledged by the Police.  Therefore, I do not think it can be said that the Judge erred , as was the gist of Mr Ewen’s submissions, by failing to take proper account of the significance for Mr G   of a loss of employment associated with a conviction.

[26]     I therefore conclude that the Judge, in considering the question of whether the consequences of a conviction for Mr G   were out of all proportion to the gravity of his offending, did not err in the way submitted by Mr Ewen, and that he reached a decision that was open to him.

[27]     Finally, Mr Ewen referred to the delay that had arisen, and the difficulties and stresses in particular this had caused Mr G  .  Whilst I appreciate that the drawn

out process would not have been a pleasant one for Mr G  , at the same time his conviction and disqualification have not yet taken effect.   He therefore has had a considerable period of time to adapt to the reality that he may, as a result of this process, lose his licence for a period and may not be in a position to apply for a limited licence.  As the District Court Judge noted, if anything that ought to have provided for at least some greater opportunity to adjust to that possibility than would otherwise be the case.  I therefore do not see the delay involved, although certainly not desirable, as providing a basis for interfering with the District Court decision.

[28]     This appeal is dismissed.

“Clifford J”

Solicitors:         Surridge & Co, Porirua for the applicant (counsel:  [email protected]).

The Crown Solicitor, Wellington for the respondent ([email protected])