Gibson v Police
[2019] NZHC 1920
•8 August 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-175
[2019] NZHC 1920
BETWEEN ANTHONY PETER GIBSON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 5 August 2019 Appearances:
D Grove for the Appellant
S Rankin for the Respondent
Judgment:
8 August 2019
JUDGMENT OF GORDON J
This judgment was delivered by me
on 8 August 2019 at 11.30 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Crown Solicitor, Auckland
Foy & Halse, Auckland
GIBSON v POLICE [2019] NZHC 1920 [8 August 2019]
Introduction
[1] The appellant, Anthony Gibson, appeals both the decision finding him guilty and the refusal to grant him a discharge without conviction on one charge of dangerous driving.1
Background
[2] On 15 November 2016, there was a dispute between Mr Gibson and a Murray Downes regarding Mr Downes’ parked car. Mr Downes and his partner were seated in their car, which was parked on the side of the road, while waiting to pick up a child from a nearby school. Due to the traffic around the school at the time, Mr Downes parked with the back of his vehicle close to Mr Gibson’s driveway, leaving space in front of him to easily move out of the parking space.
[3] Mr Gibson turned up in his Toyota Hilux ute. He was angry at the manner in which Mr Downes had parked his vehicle. He swore at Mr Downes who refused to move his vehicle and indicated that Mr Gibson could park his vehicle in the space in front of Mr Downes’ car. Mr Gibson then moved forward and reversed into the space resulting in contact between the tow bar on Mr Gibson’s ute and the number plate of Mr Downes’ car. The damage caused was not significant.
[4] On 5 September 2018, in an oral decision, Judge Ryan found Mr Gibson guilty of dangerous driving.2
[5] On 27 March 2019, Judge Ryan declined Mr Gibson’s application for discharge without conviction.3 She instead sentenced Mr Gibson to make an emotional harm payment of $350 and disqualified him from driving for six months.
1 Land Transport Act 1998, s 35(1)(b). Maximum penalty: imprisonment for a term not exceeding three months or a fine not exceeding $4,500 (s 35(2)).
2 Police v Gibson [2019] NZDC 18972 [Conviction decision].
3 Police v Gibson [2019] NZDC 5613 [Sentencing decision].
District Court
Decision finding charge proved
[6] The Judge set out the elements of the offence that the Police needed to prove beyond reasonable doubt:4
(a)Mr Gibson was driving;
(b)his driving fell below the standards expected of a reasonably competent driver and that Mr Gibson was responsible for that lapse; and
(c)his driving created a dangerous situation.
[7] After referring to R v Jones,5 the Judge then summarised the legal position by stating that there must be a dangerous situation created by the fault of the driver. His driving must have fallen below the standard of care expected of the reasonably competent driver and, as a consequence of that departure from the expected standards, danger was created.6
[8] The Judge then set out a summary of the evidence of the witnesses and proceeded to evaluate the evidence. The Judge observed that there was a conflict between the evidence of the police witnesses (Mr Downes, his partner Sylvia Morse and an independent witness, Raewyn Bosnyak who was seated in her car parked on the other side of the road) and the evidence of Mr Gibson. The Judge said:
[34] In this case there is a conflict between the evidence of the police witnesses Downes, Moore [sic] and Bosnyak and the evidence of the defendant. Their accounts of the same events are totally at odds. Therefore, it is necessary for me to assess the credibility and reliability of their evidence.
[35] I observed that both Mr Downes and Mr Gibson became terse when they were cross-examined. For example, Mr Downes told Mr Grove, “Just imagine if you had children,” and “You need to go back and get your driver’s licence.” His approach sometimes required my intervention.
[36] Mr Gibson more than once responded to police cross-examination by offering a commentary on the police evidence and how it “did not stack up”.
4 Conviction decision, above n 2, at [2] and [7].
5 R v Jones [1986] 1 NZLR 1 (CA).
6 Conviction decision, above n 2, at [5].
When pressure was placed upon him by such cross-examination, I had to intervene to ask him to just answer the questions.
[37] It is fair to say that the demeanour of both men and to a lesser extent that of Ms Morse when being cross-examined helped me gain an insight into how each was likely to have reacted to the other on 15 November 2016, corroborated by the evidence of the independent Ms Bosnyak.
[38] Mr Downes was given to making hyperbolic statements at times, describing the space in front of him as being as big as a bus, which neither Ms Morse nor Ms Bosnyak accepted. At the same time, when given an opportunity to explain the damage to his car, which could not be confirmed because he had sold it, he deposed that there was very little damage.
…
[40] Mr Gibson minimised his own involvement, maximising the bad behaviour of Mr Downes and Ms Morse although he did accept that everyone had behaved badly. He depicted himself as an experienced and careful driver who would not have behaved in the manner the police witnesses described, endeavouring to use technical language to persuade me that he was an expert, but in his own cause.
[9] The Judge concluded that Ms Bosnyak was the one witness who was not involved and hence the most independent. “She had no axe to grind. She gave her evidence in a consistent, concise and ultimately compelling manner.”7 The Judge found that there was plenty of room for Mr Gibson’s ute to park in front of Mr Downes’ car. Mr Gibson was angry and aggressive. He reversed straight back in one motion without slowing down and struck Mr Downes’ car. The Judge noted that Mr Gibson said, “You should have moved your F-ing car”.
[10] The Judge was satisfied that the reversing into Mr Downes’ car was deliberate because Mr Gibson was angry and upset with Mr Downes.8
[11] In light of these factual findings, the Judge turned to the three elements of the offence that the prosecution was required to prove. First, Mr Gibson was the driver. Secondly, his driving fell below the standards expected of a reasonably competent driver and the defendant was responsible for that lapse. The Judge stated that the reasonably competent driver should not behave in the way that Mr Gibson did. He was entirely responsible for deliberately reversing into Mr Downes’ car.9
7 At [41].
8 At [50].
9 At [52].
[12] Thirdly, the Judge held Mr Gibson’s driving created an objectively dangerous situation. The Judge stated:
[53] Third, did the driving create a dangerous situation. I have to look at that objectively. I take on board Mr Gibson’s evidence that [if] he had slammed his ute into the car at full speed, it would have shunted it down the road. That, he accepted, would have been dangerous. There were no injuries to either party and there were no children about because the school day had not quite ended. It is not a question of morality and even though I found that Mr Gibson behaved badly, I have to ask; did he create a dangerous situation?
[54] This could be described as road rage and a loss of control. Everyone who saw it apart from Mr Gibson and including the independent, in my view, objective witness said it was deliberate. Reversing a car into another car created a real risk that the two people in the other car could have been injured and that the car could have been shunted backwards. If Mr Downes had his car in park or his brake off, the car could have been shunted down the road or into the path of an oncoming car. Anybody could have come out of one of the homes or one of the cars or from the school at that moment. It was on a public road. I find that it created a dangerous situation.
[55] None of those scenarios occurred, but I am not required to satisfy myself that they did. What is required is an objective assessment as to whether the driving was or could have been dangerous to the public. When I view it objectively, there is fault on Mr Gibson’s behalf, and the driving clearly fell below the care and skill of a competent and experienced driver. There was a dangerous situation created by the fault of Mr Gibson. His driving fell below the standard of care expected of a reasonably competent driver and as a consequence of that departure, danger was created.
[13]The Judge accordingly found Mr Gibson guilty of the charge.
Sentencing decision
[14] Mr Gibson sought a discharge without conviction under s 106 of the Sentencing Act 2002. The Judge stated that, in assessing the application, she must take three steps: first she must consider the gravity of the offending, secondly, the consequences of conviction and thirdly, whether the consequences are out of all proportion to the gravity of the offending.10
[15]First, as to the gravity of the offending, the Judge said:
[32] Your offending was deliberate and selfish, high risk and to prove a point. You were angry with these stubborn and in your view selfish people, so you showed your displeasure by using your car as a weapon. I accept that no
10 Sentencing decision, above n 3, at [3].
damage resulted but that was luck. When you deal with other people’s cars in a dangerous manner, you put their lives and their cars at risk.
[33] Nonetheless, it did not last long. This is not a case of your driving down the motorway pursued by police for 30 minutes, driving like an idiot, weaving in and out of traffic and overtaking on the wrong side of the road, running red lights and finally being stopped only by having your vehicle’s tyres spiked which is what we see too often. When I compare your driving with that, yours comes nowhere near. I am satisfied that the level of your dangerous driving was clearly at a low level. It did place others at risk, t [sic] was deliberate, it was a loss of self-control but nonetheless, I consider that it was low level offending.
[16]Secondly, as to the consequences of conviction, the Judge said:
[35] I also accept that a conviction will have real and appreciable consequences for your employment as an earth mover. However, you have managed since February 2018 to hold down a job, to obtain an income and not go bankrupt or have your company go into liquidation. That is over a year. Clearly you are capable of doing that. That is why the police have submitted that you have an alternative form of employment and you are able to hold your head above water. I agree.
[17] Thirdly, as to whether the consequences were out of all proportion to the gravity of the offending, the Judge held that they were not. She stated that it was difficult to see that Mr Gibson’s dangerous driving was the sole or significant reason for the refusal by the NZTA to grant Mr Gibson’s application for a Transport (Goods) Service Licence to drive his four-wheeler tip truck, which he purchased in February 2017. The Judge stated that there was no evidence before her that a s 106 discharge without conviction would resolve that problem for Mr Gibson. There were other relevant matters such as his many traffic infringements as well as the fact that Mr Gibson provided false information to NZTA when he answered “no” to the question as to whether he was facing any pending charges. She said:
[39] I do not consider that the consequences of this conviction are out of all proportion to the gravity of your offending. The consequence for a dangerous driver of a conviction and a disqualification for driving is commonplace. Such a conviction may affect a job if a limited licence cannot be obtained. It also means that you must persuade the NZTA why this and a whole lot of other matters should mean it grants you the licence. I do not consider that if I decline your application this will mean that you will get your licence. It is one of the many factors already before the NZTA, most of which have nothing to do with this offence.
…
[44] … While NZTA has indicated its intention to decline your licence, it has told you of your rights against that decision. The outcome, should you choose to pursue it, is contingent and uncertain. It also rests on other factors which, in my view, are more significant than this charge, including your suspension, the fact that you did not tell the NZTA the truth and your lengthy history of criminal convictions and traffic infringements.
[18] The Judge therefore declined the application for a discharge without conviction. Mr Gibson was disqualified from holding or obtaining a driver’s licence for six months and was directed to make emotional harm payment to Mr Downes of
$350.
Approach on appeal
[19] This Court must allow the appeal if it is satisfied that, in the case of a Judge- alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or if a miscarriage of justice has occurred for any reason.11 A miscarriage of justice is defined as an error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.12
[20] An appeal against conviction proceeds by way of rehearing.13 If an appellate court comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal must be allowed.14 The appellant must show that an error has been made.15 The appellate court must remember the advantages a trial judge has, especially where the challenge is to credibility findings based on contested oral evidence.16
[21] An appeal against refusal to grant a discharge without conviction proceeds as an appeal against conviction under s 232 of the Criminal Procedure Act 2011.17 There
11 Criminal Procedure Act 2011, s 232(2).
12 Section 232(4).
13 Sena v Police [2019] NZSC 55 at [32].
14 At [38].
15 At [38].
16 At [38].
17 Jackson v R [2016] NZCA 627 at [15].
will have been a miscarriage of justice “for any reason” if the Judge erred in applying the principles under s 107 of the Sentencing Act.18
Submissions
[22] Mr Grove, for the appellant, submits the Judge erred in her factual findings and that Mr Downes’ evidence was grossly exaggerated. He submits that there is a lack of evidence on which a conviction of dangerous driving can be based. In particular, he says there was no evidence of damage to Mr Downes’ car or injury to Mr Downes or his partner. Mr Grove acknowledges that the presence of damage is not part of the legal test for dangerous driving. But, he says the amount of damage is an indicator of the speed at which Mr Gibson reversed. He therefore submits that in order to satisfy the test for dangerous driving, the Court would need to be satisfied that Mr Gibson reversed “fast”. Mr Grove continues that if the reversing had been “fast” the impact would have caused more than minor damage to the number plate of Mr Downes’ car. The resulting minor damage does not provide for support for the evidence of the independent witness, Ms Bosnyak, who said that the ute was under acceleration as it reversed.
[23] Mr Grove also points to the facts that there were no photographs of the damage; Mr Downes made no insurance claim; and he made no request for Mr Gibson to pay for the damage to his car.
[24] In relation to the s 106 application, Mr Grove submits that Mr Gibson’s loss of his licence and the NZTA’s declining of his application for a Transport (Goods) Service Licence and the consequent detriment to his business is out of all proportion to the low-level of the offending. Accordingly, he says Mr Gibson should be discharged without conviction.
[25] Mr Rankin, for the Crown, submits that given the inconsistent witness accounts, the Judge correctly identified that the case turned on findings of credibility and reliability; she accurately summarised the evidence of each witness; explicitly stated what evidence she accepted and rejected; and that it was entirely proper for the
18 At [12].
Judge to accept the evidence of the independent witness who said she saw Mr Gibson reverse his vehicle into the victim’s vehicle in one very fast movement.
[26] As to the sentencing decision, the Judge properly assessed the offending as “low-level” and she was aware of the consequences of conviction particularly relating to Mr Gibson’s employment as an earthmover and his application for a Transport (Goods) Service Licence. While there will be some negative consequences for Mr Gibson, these are ordinary consequences; they do not meet the required threshold.
Discussion
Appeal against decision finding charge proved
[27] The Judge correctly observed that there was conflicting oral evidence from Mr Downes and his partner on the one hand and Mr Gibson on the other. She was correct in her view that the case turned on findings of credibility and reliability.
[28] Mr Grove submits that Mr Downes’ evidence was “grossly exaggerated”. But this was recognised by the Judge in her decision. She noted that Mr Downes “was given to making hyperbolic statements at times”.19 In any event, the Judge relied on the evidence of the independent witness, Ms Bosnyak, not Mr Downes.20
[29]As to Ms Bosnyak’s evidence, Mr Grove submits that that witness:
… was parked further down the road and therefore had to look backwards to see what was happening, [and] could not and did not see the alleged damage to the vehicle.
[30] However, even if I were to accept that submission, damage to the vehicle is not an element of dangerous driving. The independent witness’s evidence which the Judge accepted was that:
(a)Both Mr Downes and Mr Gibson were shouting and swearing at each other;21
19 Conviction decision, above n 2, at [38].
20 At [41].
21 At [42]–[45].
(b)There was plenty of room for Mr Gibson’s ute to park in front of Mr Downes’ vehicle;22
(c)The actions of Mr Gibson were so angry and aggressive that the independent witness could tell what was going to happen;23
(d)Mr Gibson reversed straight back in one motion without slowing down and struck Mr Downes’ vehicle;24
(e)Mr Downes them got out of his car and yelled at Mr Gibson causing Mr Gibson to respond with “You should have moved your F-ing car”. This told the Judge that the movement back into Mr Downes’ car was “deliberate and angry;25 and
(f)The reversing into Mr Downes’ car was “deliberate” because Mr Gibson was angry and upset with him.26
[31] The Judge expressly stated that she did not accept Mr Gibson’s evidence that the “brake was activated so that the ute simply rolled 100 millimetres and touched”
Mr Downes’ car.27
[32] I do not accept Mr Groves’ submission that there would have been more than a dent in the number plate if Mr Gibson had deliberately accelerated during his reversing manoeuvre. The evidence was not that the ute was reversing at full speed, rather that it was accelerating as opposed to slowing down. The Judge, in her decision, made it clear she was not proceeding on the basis that the ute “slammed … into the car at full speed”.28
22 At [47].
23 At [48].
24 At [48].
25 At [49].
26 At [50].
27 At [48].
28 At [53].
[33] In any event, there was evidence from Mr Downes that the damage had gone through the number plate. He referred to damage to a grill behind the number plate and the existence of a rubber pad behind the grill designed to absorb impact.
[34] As to Mr Grove’s submission that there was no evidence of injury to Mr Downes or his partner, that is not an element of dangerous driving. The elements are as set out by the Judge (reproduced at [6] above).29
[35] Next, I address Mr Grove’s complaint that there was a substantial delay in bringing the prosecution. He submits that the delay has resulted in a lack of evidence to support Mr Downes’ version of events. He says that there was no evidence in the way of photographs to demonstrate the damage to the vehicle. In my view, there was an adequate description by Mr Downes. There is no suggestion he overstated the damage. To the contrary he agreed it was minor. But, again proof of damage is not required.
[36] Finally, the fact that Mr Downes did not make an insurance claim or ask Mr Gibson for money to cover the cost of repair does not render the evidence that was given any less reliable.
[37] Returning to the elements of the offence, there is no issue that Mr Gibson was driving. Second, the evidence established that Mr Gibson deliberately reversed into another vehicle. His driving therefore fell below the standards expected of a reasonably competent driver.
[38] Thirdly, and this really is the crux of Mr Groves’ submissions, did Mr Gibson’s driving create a dangerous situation? I consider Judge Ryan was correct in her assessment that the driving did create a dangerous situation. There was evidence before the Court as to how the act was dangerous and the Judge accepted it. I refer to
[53] and [54] of Judge Ryan’s decisions set out at [12] above.
29 See also Mash v Police [2014] NZHC 1223 at [25] and [27].
[39] Accordingly, I am not satisfied that Mr Gibson has discharged the onus of demonstrating any error or miscarriage of justice arising from the District Court Judge’s decision.
Discharge without conviction appeal
[40] Section 106 of the Sentencing Act 2002 provides for discharge without conviction:
106 Discharge without conviction
(1)If a person who is charged with an offence is found guilty 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.
(2)A discharge under this section is deemed to be an acquittal.
...
[41]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.
[42] Section 107 thus provides a gateway through which any discharge without conviction must pass. It stipulates a pre-condition to exercise of the discretion under s 106.30 If (and only if) the Court is satisfied the s 107 threshold has been met, may the Court proceed to consider the exercise of the discretion to discharge without conviction under s 106.31
[43] The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment which can be subject to appeal on normal appellate principles.32
30 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].
31 At [10].
32 At [11] citing Rajamani v R [2007] NZSC 68, [2008] 1 NZLR 723.
[44] There is no onus on an offender to establish that the disproportionality test has been met. The requirement is simply that the Court is to be satisfied it has been met. The word “satisfied” calls for the exercise of judgment by the Court and it is inapt to import notions of the burden and standard of proof.33 It is sufficient if the Court is satisfied that there is a “real and appreciable risk” that adverse consequences will flow from conviction.34
[45] Mr Grove submits that the “principle basis of the appeal relates to the level of offending”. He says the gravity of the offence is low. In his oral submissions he categorised it as extremely low. Mr Grove also mentioned the fact that Mr Gibson had voluntarily enrolled in, and completed, an Anger Management course, he sent a letter of apology to the complainants and he offered to meet with them to apologise in person.
[46] Then he submits that the gravity of the offending is out of proportion to the consequences of a conviction. He submits that, as a result of the charges being laid, Mr Gibson’s business suffered considerably. Shortly before being notified of the complaint against him he had purchased a four-wheel tip truck for $75,000 to operate his earthmoving business. Since that time he has paid $2,500 per month for finance costs but he has been unable to use that vehicle given the charge. All of these consequences he says are out of all proportion to the low-level offending.
[47] The Judge accepted it was “low level offending”.35 The Judge referred to Mr Groves’ submissions (based on Mr Gibson’s affidavit evidence) that Mr Gibson was remorseful; he had taken part in an Anger Management course; his offer to meet with Mr Downes and his partner to apologise in person; and his offer of reparation. These are matters that may be taken into account in assessing the gravity of the offending.36
33 At [49].
34 Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20]; and DC (MS CA47/2013) v R [2013] NZCA 255 at [43].
35 Sentencing decision, above n 3, at [33].
36 R v Hughes, above n 30, at [27] and [28] citing Delaney v Police HC Wellington CRI-2005-485- 22, 22 April 2005 and Montgomery v Police HC Palmerston North CRI-2005-454-70, 11 April 2006.
[48] Although the Judge did not explicitly state she was taking the above matters into account, I agree that the Judge correctly categorised the offending as low-level offending.
[49] The Judge declined the application on the basis that a conviction on the charge before her was only “one of the many factors already before the NZTA, most of which have nothing to do with this offence”.37 Mr Grove has not made any submissions as the Judge’s reasoning on this point.
[50] The issue really comes down to the application of the disproportionality test. There is Mr Gibson’s lengthy history of criminal convictions and traffic infringements. Mr Gibson has 44 previous convictions, 16 of which involve traffic offences and 24 involve dishonesty. Mr Gibson has unlawfully taken a motor vehicle three times, attempted theft once, used a document 11 times, received under $500 twice, stolen under $500 twice, stolen over $5,000 twice, unlawfully taken a yacht and committed a burglary.38
[51] As the Judge noted, Mr Gibson had driven carelessly four times, the last in 1992. He had either driven with excess breath or blood alcohol four times between 1986 and 1990. He has also driven while disqualified four times. He failed to stop on the direction of an officer, failed to stop for red and blue lights and drove recklessly in 1987 and 1990. However, as the Judge noted, many of those offences are historical and his last criminal offence was in 2003. Thereafter there were no further convictions.39
[52] However, Mr Gibson has regularly committed traffic infringements since 1987. Dealing with the infringements since Mr Gibson’s last offence in 2003, as the Judge noted, there are the following: speeding on 6 January 2003, unsafe changing of lanes on 29 March 2005, failing to comply with a red traffic signal on 12 December 2014, a drink driving between 250 and 400 micrograms of alcohol per litre of breath on 25 October 2015. Then there is exceeding 50 kms per hour as detected by a speed
37 Sentencing decision, above n 3, at [39].
38 At [10].
39 At [11].
camera on 8 June 2016, exceeding 90 kms per hour while towing a trailer on 30 December 2016, using a mobile phone while driving on 29 August 2017 and Mr Gibson was suspended from driving from 30 November 2017 for three months.40
[53] I agree with the Judge in her assessment that the letter from the NZTA declining Mr Gibson’s application for a Transport (Goods) Service Licence makes it clear that there were other considerations apart from the charge Mr Gibson was facing. The letter states the licence was declined for the following reasons:
1.You have convictions and/or infringements on the traffic register as outlined on the attached schedule marked ‘A’.
2.You have convictions and/or infringements on the police register as outlined on the attached schooled marked ‘B’.
3.On your personal details form (TL02) you answered ‘NO’ to the questions about criminal offending and pending charges. Those answers are false. A copy of form TL02 is attached marked ‘C’. It is an offence to provide false or misleading information in an application of this kind.
4.I note that your driver licence is currently suspended (for demerit points). NZTA records reveal that you were sent demerit point warning letters on the 4th March 2003 and 26th January 2016. Such letters are sent when the total number of demerit points in any two year period equals or exceeds 50 and warns of suspension if that figure reaches 100. Offending continued.
[54] I agree with the Judge when she said the situation is not as simple as Mr Gibson being declined a licence unless the s 106 application were to be granted.41 NZTA outlined four factors, as set out above, which had little (if anything) to do with whether or not the s 106 application is granted. In other words, the Judge reasoned, and I agree, that the reasons NZTA provided for declining the licence are live whatever decision is made on the s 106 application. In my view, the Judge was correct when she said:42
I do not consider that if I decline your application this will mean you will get your licence. It is one of the many factors already before the NZTA, most of which have nothing to do with this offence.
40 At [12]–[13].
41 At [27].
42 At [39].
[55] For all the above reasons, Mr Gibson has not shown any error on part of the Judge in applying the s 107 principles.
Conclusion
[56] Accordingly, I uphold both the decision finding Mr Gibson guilty of the charge and the decision to refuse the s 106 application for discharge without conviction.
[57]The appeal is dismissed in whole.
Gordon J
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