Glenn v Police
[2016] NZHC 928
•9 May 2016
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 CrownJudgment:
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 from a random stop, not one prompted by any error in regard to Mr Glenn’s driving. She also noted he pleaded guilty at an early opportunity and was remorseful for what occurred. She accepted it was an error of judgment, as was often the case in this type of offending, and
considered that Mr Glenn was otherwise of good character and a good worker.
2 Sentencing Act 2002, s 107.
3 Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20].
4 H v R [2012] NZCA 198.
5 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.
6 Z v R [2012] NZCA 599, [2013] NZAR 142.
[7] In terms of direct and indirect consequences of conviction, the Judge had before her three affidavits, one was from Mr Glenn himself. The second was from his mother who outlined Mr Glenn’s battle with a neurological condition, dyspraxia. This means he is clumsy and has difficulty processing verbal and written information. It also means he is easily frustrated and has high anxiety levels. The third was from Michelle Chambers, an adventure tourism internship manager, who gave evidence that the job market in the tourism industry is competitive, with, for example, New Zealand Ski receiving 4,000 applications for 600 jobs at Coronet Peak, The Remarkables and Mt Hutt. This means “if there are two people of similar ability vying for the same job, a criminal conviction will be a negative factor for one applicant … [and] … could therefore be the reason an applicant does not get a job”. However, she did say that “[Mr Glenn] performed very well at Coronet Peak … [and] … I will continue to support [Mr Glenn] in his efforts to obtain another internship”.
[8] In terms of the direct and indirect consequences of a conviction, Judge Cook noted it was unclear whether this conviction would prevent Mr Glenn from travelling to Canada and so she did not consider that this aspect of a conviction should weigh heavily in the consideration she was undertaking.
[9] However, she did accept that a conviction, given the appellant’s age, would be a factor which prospective employers would take into consideration. She also took into account his personal circumstances and “the potential emotional impact on you in rejection of work opportunities”. However, she said it was difficult to gauge how substantial those consequences would be, given the nature of the charge and Mr Glenn’s other positive circumstances.
[10] In conclusion, taking into consideration all of the factors, she was satisfied that the conviction would have some impact in terms of his employment but that it would not be “out of all proportion to the nature of the offence”. She therefore declined the application.
Introduction of further evidence
[11] In the present appeal, the appellant seeks to admit to three further affidavits. These included an affidavit of Sarah Louise Preece, a human resources manager for NZ Ski, and an affidavit of Chanel Vito, a store manager of Kathmandu Clothing Store and a former employer of Mr Glenn. Both these deponents comment on the impact of Mr Glenn’s conviction on his employment, including circumstances which have arisen post-conviction. There is also an affidavit from Dr Justin Barry-Walsh, a consultant forensic psychiatrist, who expands on the materials provided in Mr Glenn’s mother’s affidavit. It provides expert evidence on the consequences of a conviction for someone like Mr Glenn, given his neurocognitive difficulties, when compared with other young people in the same circumstances.
[12] I accept that it is appropriate to admit further evidence in appeals such as this, when it is updating the Court on events subsequent to conviction and which may support earlier submissions, particularly as to the likelihood of there being adverse consequences of conviction. However, I am less attracted to the view that the Court should, as a matter of course, allow further evidence which simply bolsters the submissions made in the first instance hearing, but which could, with reasonable diligence, have been obtained before sentencing.
[13] In this case the respondent did not object to the further evidence being admitted and Mrs Guy Kidd said that the evidence (other than the updating evidence) was essentially expanding on, and providing a more robust basis for the evidence introduced by Mr Glenn’s mother in relation to Mr Glenn’s neurocognitive issues, and so should be admitted in the interests of justice.
[14] The usual test for admission of fresh evidence is that it is relevant, credible and cogent (all of which is not in dispute here), and that it is “sufficiently fresh, that is it could not with reasonable diligence have been called at the trial”. However, as the Privy Council said in Lundy v R, the requirement for evidence to be “sufficiently fresh” is “not an immutable rule because the overriding criterion is always what
caused or best served the interests of justice”.7
[15] For that reason, I think it logical to consider the application in light of the totality of the evidence before me, in order to determine whether the further evidence filed should be admitted, because it is in the interests of justice to do so.
Gravity of the offence
[16] Ms Guy Kidd, for the appellant, argues that this was an offence of driving above the youth breath alcohol level, not the more serious offence of driving above the adult level, noting if the appellant had been a year older, no offence would have been committed. She also takes exception to the Judge’s conclusion that Mr Glenn took a “calculated risk” when he drove that night, saying that his evidence was that he had not planned to drive home, but to leave his car there. His choice to drive that night was an impulsive decision made on the spur of the moment, rather than a “calculated” one. She points to the offender having no previous convictions, nor has he been the subject of diversion or a discharge without conviction. His parents, who own the car, have withdrawn that from him, and his mother doubts that he will repeat the offence. He has also attended psychological counselling following his arrest and engaged with an alcohol counsellor in Queenstown.
[17] Ms Guy Kidd urged me to be careful in applying the “policy comments” about the seriousness of drink driving offences made by Miller J in Linterman v Police,8 to the present circumstances. In Linterman, the driver was a young adult and she was significantly in excess of the adult limit (at 142 milligrams of alcohol per 100 millilitres of blood), when the legal limit was 80 per 100. The present offence did not involve the same level of risk to the public at large.
[18] Taking into account all circumstances of both the single offence, and of the offender, she said the gravity of this offence was low in the spectrum of the offending.
[19] The respondent accepts that Mr Glenn only exceeded the youth limit, not the adult limit. However, it is noted that for a youth, 400 micrograms is a relatively high reading and the policy behind making it a criminal offence to drive with the specified
alcohol level is to minimise risk. It is accepted, however, there were no other aggravating driving features.
[20] While accepting that youth is relevant to the question of gravity of the offence, it is noted that when convictions are entered for contravening the youth alcohol limit they will necessarily always be imposed upon individuals who are less than 20 years of age. Thus, some caution needs to be exercised in minimising the gravity of the offence because of youth.
[21] I accept that driving with excess breath or blood alcohol can have serious consequences, and is to be deterred on a policy basis. However, in this case the only blameworthy aspect of Mr Glenn’s behaviour was that he chose to drive, with an alcohol level that exceeded the youth limit, and was close to, but did not exceed, the adult limit. No other aspect of this offending contributed to the gravity of it. Instead, they go to mitigate the gravity of it when viewed in totality. In particular, the appellant’s guilty plea, and his voluntary steps to address the issues which led to the offending, are all mitigating factors. I assess the gravity of the offence as low.
The direct and indirect consequences of conviction
[22] In considering this stage of the test for a discharge without conviction, Ms Guy Kidd reminded me that direct and indirect consequences do not need to inevitably or probably occur: it is sufficient if there is a real and appreciable risk of such consequences.9
[23] Importantly, she urged me to have regard to his youth and the fact he was yet to establish himself in the career he has studied for which is tourism management. The protection of the Criminal Records (Clean Slate) Act 2004 will not assist him for seven years. As Whata J held in Amstad v Police:10
The brand of a conviction for young people who do not have a foothold in a career can be permanently damaging. This feed inextricably into an assessment of the proportionality as between the seriousness of the offence and the consequences.
9 DC v R [2013] NZCA 255 at [43].
10 Amstad v Police HC Auckland CRI-2011-404-000161, 30 August 2011 at [22].
[24] In the present case, Mr Glenn is undertaking the final study component of an Adventure Tourism Management Diploma. After that he will need to complete his practical internship hours, and having a conviction for driving with excess breath alcohol will make it more difficult to obtain further internship work and work in the industry following graduation.
[25] As explained in the affidavit of Ms Preece, who is the human resources manager for NZ Ski, because of his conviction, Mr Glenn was placed on an exception report rather than being automatically offered back his old job. It was only following a further review, which involved conferring with the head of department, the ski area manager and ultimately the Chief Executive Officer, that the application for employment could be granted. However, she confirms that “given the nature of his conviction and the type of work he would be performing, Henry was still a suitable candidate for this role”.
[26] Perhaps more importantly though, there is evidence that the conviction will likely hamper his ability to progress beyond entry level positions into managerial positions in the adventure tourism industry which he aspires to achieve. Chanel Vito, who employed Mr Glenn at Kathmandu on a fixed term contract, provided evidence of the different processes someone must go through when applying for a management role, even an entry level management role, as compared with lower level roles. Specifically, Mr Vito says his opinion, as he explained to Henry, was that “you pretty much shot yourself in the foot in terms of trying to work in management”. However, Mr Vito also says that “if I had the opportunity to I would hire Henry again and would re-employ him.
[27] The next consequence raised by Ms Guy Kidd is that the possibility of overseas employment or further study, in Australia or Canada, may be affected. That said, however, because his reading was under 401 micrograms per litre of breath, he is currently not “criminal inadmissible” to enter Canada. The real issue is whether a conviction would have an impact on his ability to obtain employment in Canada or Australia once he got there.
[28] The final point made in terms of consequences of a conviction is that, because of Mr Glenn’s neurological disorder, the emotional impact on him of rejection in obtaining work opportunities will be even greater than for a normal offender. It is clear from the affidavit evidence that Mr Glenn has struggled academically, having unsuccessfully embarked on university study before changing to the Adventure Tourism Management Diploma. It seems he has found his niche in the tourism industry and loves what he is studying. Despite his learning difficulties, he has achieved success in this environment and is extremely concerned that a conviction will affect his ability to get work in the adventure tourism industry after graduation. His mother explained that he has struggled to get where he is, and he has learned to manage the effects of his dyspraxia so that demands on him do not become overwhelming. However, she is concerned about the psychological impact of piling a conviction on him and, if that meant he got knocked back from employment opportunities, he would lose hope and become demotivated.
[29] Her concerns are reiterated by Dr Barry-Walsh who explained that:
Compared to other people facing such conviction Mr Glenn is more likely to be adversely affected. His persisting cognitive difficulties represent a significant hurdle for him to overcome vocationally and socially. He has struggled to reach the level of function and achievement he has obtained. His impairment limits his ability to compete including for employment and increases his vulnerability to psychological difficulties and mental illnesses such as depression. Thus the adverse consequences of a conviction are likely to be significantly greater than for someone not already working to compensate for the problems he has.
[30] Thus, in summary, it is submitted that the combination of his youth, his personal psychological features, and the likely impact of a conviction on him getting a job in tourism management, means the consequences of a conviction for him are much greater than would normally be the case.
[31] Mr Donnelly, for the respondent, accepts that, because of Mr Glenn’s youth, the conviction will have more impact than on a mature offender. It is also accepted that a conviction will have some impact on how prospective employers view the appellant. However, he says even the fresh evidence highlights that the appellant can progress even with a conviction, as both employers have seen past the conviction to re-employ him. Thus, while any future job applications by the appellant will need to
be considered on their merit, with the necessary disclosure to prospective employers, it seems that none of the prospective employers to date have chosen not to employ the appellant on the basis of his conviction. For this reason, while there will be adverse consequences for Mr Glenn because of a conviction, these consequences are not out of all proportion to the gravity of the offending.
Analysis
[32] I accept the respondent’s submission that, to date, the conviction has not proved an insurmountable impediment to the appellant’s employment. However, in Mr Vito’s case, he had effectively offered the part-time employment to Mr Glenn before checking the paperwork and realising there was a conviction.
[33] The more worrying issue is the evidence that it would be more of an impediment to his employment in the full-time management roles which he aspires to take on. While I take heed of the observation by the Court of Appeal in Edwards v R,11 that employers would look beyond the bare fact of a conviction to consider its circumstances and mitigating factors, especially where the offender is generally a person of good character, I cannot ignore the evidence that, in this industry, it may well preclude Mr Glenn from getting a management position. In particular, Ms Preece gives evidence that such a conviction would affect his ability to obtain or hold a duty manager certificate, and that would limit his ability to be offered roles
where that was required, with her saying it would “certainly stop an applicant being promoted further within the Department beyond the entry level position”.
[34] Thus, I am satisfied that there is evidence that there is a real and appreciable risk that there will be adverse consequences for his employment in tourism management roles although they are not necessarily an insurmountable barrier to progressing to managerial roles. That, on its own, would probably not be enough to elevate the consequences to meet the proportionality test in s 107.
[35] However, a further factor I have to take into account in this case, is the evidence from Mr Glenn, his mother and Dr Barry-Walsh about the struggle it has
been for him to get to this point, and the additional adverse consequences for him if this conviction does have the negative consequences which are anticipated on the evidence. These elevate the severity of the consequences of a conviction for this person and could result in a setback that would negate the hard won successes he has achieved to date. For someone of his age and personal insecurities, that could be crushing.
[36] In all the circumstances, I am satisfied that, looked at in totality, the likely adverse consequences for this offender will be out of all proportion to the gravity of the offence.
Suppression
[37] The appellant initially sought, and I granted, suppression of the details of Mr Glenn’s neurocognitive disorder. On reflection I advised counsel there was no evidence that any of the grounds in s 705 of the Criminal Procedure Act 2011 were met and that unless the appellant could point to the jurisdictional basis for the order, the suppression of that evidence would be lifted.
[38] Counsel now concedes there is no jurisdictional basis for that order but requests that an order be made that access to the Court file to be only with the permission of a Judge of this Court as was the order made in similar circumstances by the Court of Appeal in Rodrigo v New Zealand Police.12
[39] I accept that the evidence as to the details of Mr Glenn’s personal medical and psychological history are sensitive and sufficient details are provided in my decision to understand its relevance to the decision on the application for discharge without conviction. Accordingly, the earlier suppression order is lifted, but an order is made that access to the Court file is only to be with the permission of a Judge of this Court.
Conclusion
[40] I have found that the threshold test in s 107 is met, and there is no special reason to exercise the discretion against ordering a discharge without conviction. I am satisfied that the consequences for Mr Glenn are out of all proportion to the gravity of the offence, and a discharge should be granted.
[41] As I have relied, to a large extent, on the evidence of Ms Preece, Mr Vito and Dr Barry-Walsh in coming to this conclusion, I also conclude that it is in the interests of justice to admit this further evidence under s 335 of the Criminal Procedure Act 2011.
[42] The appeal is granted and the conviction is set aside. The penalties which have already been imposed, including the fine that has been paid, are undisturbed by this finding.
Solicitors:
AWS Legal, Invercargill
Preston Russell Law, Invercargill
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