Georgy v New Zealand Transport Agency HC Auckland CRI-2010-404-000392

[2011] NZHC 219

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-000392

SAMIR PHILIP BOSHRA GEORGY

Appellant

v

NEW ZEALAND TRANSPORT AGENCY

Respondent

Hearing:         7 March 2011

Counsel:         M Read for Appellant

C Paterson for Respondent

Judgment:      17 March 2011

JUDGMENT OF ASHER J

This judgment was delivered by me on Thursday, 17 March 2011 at 1pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
M Read, PO Box 6804, Wellesley Street, Auckland 1141. Email:  [email protected]

Meredith Connell, DX CP24063, Auckland 1140. Email:  [email protected]

GEORGY V NEW ZEALAND TRANSPORT AGENCY HC AK CRI-2010-404-000392 17 March 2011

Introduction

[1]      The appellant, Samir Georgy, pleaded guilty to one charge of producing a logbook with false particulars contrary to s 79R(2)(b) of the Land Transport Act

1998 on 20 July 2010.  He had erroneously filled in some details of his daily driving of his taxi.  He was convicted and sentenced to come up for sentence if called upon within eight months and to pay costs of $130 by Judge G T Winter on 16 September

2010.[1]

[1] New Zealand Transport Agency v Georgy DC Manukau CRI-2009-092-12079, 16 September 2010. 

[2]      The  appellant  argued  in  the  District  Court  that  he  should  be  discharged without conviction under s 106 of the Sentencing Act 2002 and now appeals against his conviction arguing that he should have been discharged.

Approach[2]

[2] Paras [3]–[9] are largely taken from R v Zhang HC Auckland CRI-2010-404-453, 17 March 2011. 

[3]      Section 106 of the Sentencing Act 2002 confers jurisdiction on a court to discharge an offender without conviction.  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.

[4]      In R v Hughes the Court of Appeal held that the decision as to whether the test under s 107 has been met is not a matter of discretion.[3]    It is a matter of fact requiring judicial assessment and is subject to normal appellate principles.   Those appellate principles are set out by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.[4]   The appellate Court must give judgment in accordance with its own opinion, even where that opinion is an assessment of fact and degree and entails

[3] R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].

[4] Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

a value judgment.[5]    In this appeal it must assess for itself whether the test under

[5] At [16].

s 107 has been met.  However, the decision subject to appeal is relevant and will be carefully considered and the view expressed taken into account.

[5]      The courts have adopted a three-step approach to the test under s 107 and the analogous  provisions  that  have preceded  it.    First,  the Court  must  consider the gravity of the offending.   Secondly, it must consider the direct and indirect consequences  of  a  conviction.    Finally,  it  must  carry out  a  balancing  exercise, determining whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.   See Fisheries Inspector v

Turner[6] and Police v Roberts.[7]

[6] Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA) at 241–242.

[7] Police v Roberts [1991] 1 NZLR 205.

[6]      Section 107 refers to the gravity of the “offence” and not the offending. However,  an  offence  should  not  be  considered  in  the  vacuum  of  the  statutory elements of the offence and its penalty.  It is necessary to look at the offending itself and assess culpability:  Delaney v Police[8] and Kohere v Housing New Zealand.[9]   The reaction of the offender to the offending can also be relevant.

[8] Delaney v Police HC Wellington CRI-2005-485-22, 22 April 2005 at [29].

[9] Kohere v Housing New Zealand HC Auckland CRI-2007-404-2, 26 April 2007 at [20].

[7]      In relation to a conviction affecting an offender’s ability to obtain or retain a certain status such as immigration status, or ability to travel overseas, the courts often  conclude  that  it  is  appropriate  for  the  consequences  of  conviction  to  be resolved by the appropriate authorities, rather than the Court attempting to pre-empt that  decision-making  process  by  a  decision  to  discharge  without  conviction:

R v Foox,[10] Liang v Police[11] and Steventon v Police.[12]   There is nothing that requires

[10] R v Foox [2000] 1 NZLR 641 (CA) at [39].

[11] Liang v Police HC Wellington AP38/02, 16 April 2003 at [20].

[12] Steventon v Police HC Auckland A108/01, 2 November 2001 at [22].

the courts to intervene to try and impose their perception of what the right status consequences  should  be.    That  is  best  left  to  the  authorities.    But  a  Court’s assessment of culpability in the sentencing exercise may assist those authorities. And there will always be occasions where in a finely balanced case a discharge may be warranted on these types of grounds: R v Hemard.[13]  The case for discharge may

[13] R v Hemard HC Christchurch T30/03, 11 April 2003 at [16].

not be so strong where the details of the offending will be known and closely

examined by the relevant authority in any event, than where the query will be only as to prior convictions, for instance in an application for professional certification.

[8]      In assessing consequences, it is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient if the Court is satisfied there is a real and appreciable risk that such consequences would occur: Iosefa v Police[14] and Alshamsi v Police.[15]

[14] Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34].

[15] Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20].

[9]      The section refers to the consequences being out of “all” proportion to the gravity of the offence.  The addition of the word “all” before proportion emphasises that in the proportionality exercise the direct and indirect consequences of a conviction must clearly outweigh the gravity of the offending.

Discussion

[10]     The offence itself is not a serious one.  It carries maximum penalties of a fine of $2,000 and one month’s disqualification.  It is the type of offence where a Court may be more amenable to a s 106 application.

[11]     The Judge who sentenced Mr Georgy had also heard other more serious charges relating to the logbook which he dismissed.   The Judge therefore had a knowledge of the situation and said of the gravity of the offending:

[9]   This was not serious offending and might  properly be described as falling at the lower end of the scale.  It might be characterised as a careless entry of false particulars in a logbook.

[12]     I infer from this that the Judge found that the false particulars were entered by mistake, without knowledge that they were wrong.

[13]     Mr Georgy, having appreciated that his methods of filling in his logbook were  wanting  and  that  there  were  errors,  has  changed  his  practice.    He  now reconciles his logbook with other records and those records are produced to ensure

that there is an exact correspondence.

[14]     Given  that  the  entry  of  the  false  particulars  was  careless  rather  than deliberate, and that the errors were minor, the gravity of the offending both in terms of the seriousness of the offence and the level of culpability must be seen as at the lowest end of the scale.

[15]     I turn to the direct and indirect consequences of a conviction.  By letter of

12 August 2010, when Mr Georgy was facing the charges, he was advised by the New Zealand Transport Agency (“the Agency”) that it proposed declining his application for renewal of a passenger endorsement on his driver licence on the ground the commercial licensing manager was not satisfied Mr Georgy was a fit and proper person to be the holder of such an endorsement.   The facts put forward included this logbook charge and a number of other charges which the Agency was aware had been dismissed.  At that stage the most serious of the consequences of the charges for Mr Georgy was that he was to lose his livelihood as a taxi driver.

[16]     Since  then  Mr  Georgy  has  been  given  a  renewal  of  the   passenger endorsement for a further five years by the Agency.  The thinking behind this charge has not been explained.  It may have something to do with the fact that the appeal against the dismissal of the convictions on the other charges was itself dismissed in the High Court.  The renewal appears to have been given by the Agency on the day before the Judge declined his request for a discharge without conviction.

[17]     There has been no explanation offered as to why the Agency changed its view, or its current attitude.  The Agency’s letter of 12 August 2010 is in sufficiently strong terms to demonstrate an appreciable ongoing risk that the conviction (entered after  the  renewal)  may  lead  to  some  further  action  being  taken  by  it  against Mr Georgy.  Alternatively, when, in five years’ time, he seeks to renew his licence, that application may be refused. While it has not been established that either of these consequences will inevitably or even probably occur, there is a real and appreciable risk that they may.   The conviction may affect Mr Georgy’s livelihood as a taxi driver.

[18]     I  must  now  consider  whether  the  direct  or  indirect  consequences  of  a conviction will be out of all proportion to the gravity of the offending.  As I have indicated there is a real and appreciable risk of a serious consequence of conviction, namely the decision being made that Mr Georgy is not a fit and proper person to be the holder of a passenger endorsement on his driver licence.   There has to be a concern that for some reason there is an adverse view of Mr Georgy in the New Zealand Transport Agency as evinced in the letter of 12 August 2010.  On the other hand the offence was minor.  The very low penalties indicate that it is right at the bottom end of offences in terms of gravity.   Moreover, Mr Georgy’s culpability is right at the bottom end.  The offending was as a result of carelessness.  Mr Georgy was immediately remorseful.  One is left with the impression that if it had not been for the more serious charges which were dismissed (and that dismissal was on the merits rather than on any technical ground), he may not have been charged with this more minor offence at all.

[19]     When the very minor nature of the offending is compared to the very serious consequences, I am satisfied that a discharge is appropriate.

[20]     I note that in assessing the consequences of a conviction, the District Court Judge did not take into account any disadvantage other than the blemish of the conviction.  The consequences of him not being able to continue working as a taxi driver were not considered.  I note also that the Judge held that a careless entry of false particulars in a logbook was a serious matter.  However, he did so in the context of there being a compact between citizen and state which produces strict liability offences as a consequence of allowing certain privileges, in this case the privilege of holding a passenger endorsement on one’s driver licence.  While that is true, it is not the case that the compact dictates that there can never be a discharge in the event of a minor offence.   I am therefore unable to reach the same conclusion as the learned District Court Judge.

[21]     I conclude that this is a case where a discharge is warranted.

Result

[22]     The  appeal  is  allowed.    The  conviction  and  the  suspended  sentence  are quashed and Mr Georgy is discharged without conviction.  In light of the ability of a court discharging an offender under s 106 to make an order for the payment of costs that the costs order can stand despite the result on appeal.[16]

[16] Sentencing Act 2002, s 106(3)(a).

…...……………………..

Asher J