Glenn v Police - [2016] NZHC 928

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2015-425-000055 [2016] NZHC 928

BETWEEN
HENRY GOWER GLENN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 2 May 2016

Appearances:

F E Guy Kidd for Appellant
R W Donnelly for Crown

Judgment:

9 May 2016

JUDGMENT OF DUNNINGHAM J

[1] The appellant, Mr Glenn, is a 19 year old adventure tourism student living in Queenstown. On 3 August 2015, he pleaded guilty to a charge of driving with excess breath alcohol as a youth. He applied for, but was declined, a discharge without conviction and was sentenced to a fine of $350 plus Court costs of $130 and
disqualification for a period of three months commencing on 9 November 2015.1

[2] The fine and Court costs have been paid and Mr Glenn appeals solely against the refusal to discharge him without conviction.

Principles on Appeal

[3] The procedure for granting a discharge without conviction is governed by ss 106 and 107 of the Sentencing Act 2002. Section 106(1) provides the discretion to order a discharge without conviction. However, before that discretion can be
exercised, the Court must be satisfied that “the direct and indirect consequences of a

1 Police v Glenn [2015] NZDC 23059.

GLENN v NEW ZEALAND POLICE [2016] NZHC 928 [9 May 2016]

conviction would be out of all proportion to the gravity of the offence”.2 These consequences need not be certain, provided that there is a “real and appreciable” risk of them resulting.3

[4] Satisfaction of the threshold proportionality test under s 107 is usually determinative, despite a residual discretion remaining. Because of this, appeals in relation to discharges without conviction are not treated as appeals against a judicial discretion.4 Instead, normal appellate principles are applicable. The reasoning behind this was articulated in R v Hughes:5

[11] 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 … The discretionary power of the court to discharge without conviction under s 106 arises and exists only if the court is satisfied that the s 107 threshold has been met.

[5] The Court on appeal is therefore to consider the issues afresh. The following analysis of the present case follows the three-stage approach outlined in Z v R,6 identifying the gravity of the offence, the consequences of a conviction, and finally conducting a weighing of those two to answer the proportionality inquiry under s 107.

The District Court decision

[6] When dealing with the matter in the District Court, Judge Cook noted that, in terms of the gravity of the offending, Mr Glenn was charged with having a breath alcohol level of 400 micrograms of alcohol per litre of breath when the level for a youth is 150 and further noted that this was “on the cusp of being over the adult level”. She took into account that the charge arose…

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 Glenn v Police

Details

AGLC: Glenn v Police [2016] NZHC 928
Case: [2016] NZHC 928
Decision Date: 9 May 2016

CaseChat Overview and Summary

The case of Glenn v Police involved Henry Gower Glenn, a 19-year-old student in Queenstown, who appealed the District Court's refusal to grant him a discharge without conviction for driving with excess breath alcohol as a youth. Glenn had been fined and disqualified from driving but sought to overturn the refusal to discharge him without conviction. The High Court had to determine whether the consequences of a conviction would be out of all proportion to the gravity of the offence, as required by s 107 of the Sentencing Act 2002.

The Court assessed the gravity of the offence, considering it low due to the appellant's youth, the absence of other aggravating factors, and his voluntary steps to address the issues leading to the offence. The Court then examined the direct and indirect consequences of conviction, focusing on the potential impact on Glenn's employment prospects in the tourism industry, given his neurocognitive disorder. The Court accepted that the consequences for Glenn would be more severe than for a typical offender due to his youth and personal circumstances.

After weighing the gravity of the offence against the consequences of conviction, the Court concluded that the likely adverse consequences for Glenn would be out of all proportion to the gravity of the offence. The Court granted the appeal and set aside the conviction, ordering that the penalties already imposed remain undisturbed.

Solicitors: AWS Legal, Invercargill
Preston Russell Law, Invercargill

Orders