Governor v Police
[2021] NZHC 525
•16 March 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-530
[2021] NZHC 525
BETWEEN LISA GOVERNOR
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 8 March 2021 Appearances:
J Yi for the Appellant
O Klinkum for the Respondent
Judgment:
16 March 2021
JUDGMENT OF GORDON J
This judgment was delivered by me on 16 March 2021 at 3.30 pm
Registrar/Deputy Registrar Date:
Solicitors: Crown Solicitor, Auckland Counsel: J Yi, Auckland
GOVERNOR v POLICE [2021] NZHC 525 [16 March 2021]
Introduction
[1] The appellant, Lisa Governor, appeals Judge Mathers’ decision in the Auckland District Court on 3 December 20201 refusing to grant her a community-based sentence in place of disqualification under s 94 of the Land Transport Act 1998 (LTA) and refusing to grant her a discharge without conviction.2
[2] Ms Governor pleaded guilty to one charge of driving while disqualified under s 32(1)(a) and s 32(4) of the LTA. This was Ms Governor’s seventh conviction for driving while disqualified. She was sentenced to 80 hours community work and disqualified from driving for one year.
Factual background
[3] Prior to the current offending, on 11 September 2019, Ms Governor was convicted of one charge of driving with excess breath alcohol (third and subsequent) in the Auckland District Court. It was in fact Ms Governor’s sixth conviction for driving with excess blood alcohol. The Court sentenced her to an alcohol interlock sentence under s 65AC(1) of the LTA. The effect of that was Ms Governor was disqualified from driving for 28 days, which ended on 8 October 2019, and was required to apply for an alcohol interlock licence at the end of the disqualification period.
[4] Ms Governor failed to apply for an alcohol interlock licence, and by operation of s 65AC(2)(c) and s 65AF, she was disqualified indefinitely as a result.
[5] On 12 July 2020, at around 3.50 pm, (while still disqualified) Ms Governor was driving on Sandringham Road in Auckland. Police stopped Ms Governor at a checkpoint, saw she was disqualified from driving, and impounded her vehicle for 28 days.
1 New Zealand Police v Governor [2020] NZDC 25140.
2 Sentencing Act 2002, s 106.
[6] Ms Governor explained that she had just finished lunch with her sister. She claimed she was driving home and was waiting for her income from Inland Revenue so she could install an alcohol interlock device into her car.
[7] On 2 September 2020 (before sentencing), Ms Governor applied for and was granted an alcohol interlock licence.
The Judge’s decision
[8] In the District Court, Judge Mathers considered Ms Governor’s respective requests for a community-based sentence under s 94 of the LTA or a discharge without conviction pursuant to s 106 of the Sentencing Act 2002. Judge Mathers noted Ms Governor’s “quite appalling” traffic conviction history for driving under the influence of alcohol and driving while disqualified and other offences.
[9] Mr Yi, who appeared for Ms Governor in the District Court, conceded that Ms Governor could not receive a community-based sentence pursuant to s 94 because of the decision of this Court in Scadden v Police.3 Judge Mathers agreed with the concession as she considered she was bound by that decision.4 In Scadden, which involved virtually identical facts, van Bohemen J held that the effect of s 94(4)(aa) was that the appellant was barred from being considered for a community-based sentence because he was still subject to an alcohol interlock sentence.
[10] On the application for a s 106 discharge without conviction, Judge Mathers found the supporting evidence for the application insufficient. She found that Ms Governor would not lose her job if she was convicted and it was merely an inconvenience for her to walk to work, not a negative consequence out of all proportion to her offending.
[11] Judge Mathers did not determine the gravity of Ms Governor’s offending but commented that the prosecution characterised it as moderate. She was not impressed with the argument that “because you do not come within s 94, you may avoid that Act by simply applying for a s 106 discharge”. The Judge considered that a s 106 discharge
3 Scadden v Police [2020] NHZC 1619.
4 New Zealand Police v Governor, above n 1, at [4].
application should not be used in such a way.5 But in any event, in considering Ms Governor’s conduct: driving while disqualified after recently being convicted of a charge of driving with excess breath alcohol for a third and subsequent time and not obtaining an alcohol interlock device, Judge Mathers did not find the consequences of conviction would be out of all proportion to the offending.
[12] After dismissing the s 94 and s 106 applications, Judge Mathers sentenced Ms Governor to 80 hours community work and disqualified her from driving for a year. Judge Mathers deferred Ms Governor’s sentence of disqualification to allow Mr Yi to appeal the decision.6 She ordered Ms Governor’s disqualification to start on 10 December 2020.7
Grounds of appeal
[13] Ms Governor advances two appeal grounds (the second in the event that the first ground is unsuccessful):
(a)The statutory interpretation of s 94(4)(aa) in Scadden is incorrect; s 94 does apply to Ms Governor and a community-based sentence ought to have been imposed having regard to the factors in s 94(1)(b); and
(b)The Judge erred in declining the s 106 application. The mandatory one year disqualification is a consequence out of all proportion to the gravity of the offending, as is the possibility of Ms Governor falling into a cycle of disqualification.
[14]I will address the issue of the interpretation of s 94(4)(aa) first.
Section 94(4)
[15] As noted the first issue is the correct interpretation of s 94(4)(aa) of the LTA. Section 94 provides:
5 New Zealand Police v Governor, above n 1, at [9]–[10].
6 At [11].
7 At [14].
94 Substitution of community-based sentences
(1)This section applies if—
(a)the offender has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence; and
(b)the court, having regard to—
(i)the circumstances of the case and of the offender; and
(ii)the effectiveness or otherwise of a previous order of disqualification made in respect of the offender; and
(iii)the likely effect on the offender of a further order of disqualification; and
(iv)the interests of the public,—
considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver licence; and
(c)the court considers that it would be appropriate to sentence the offender to a community-based sentence in accordance with Part 2 of the Sentencing Act 2002.
…
(4)This section does not apply if—
(a)section 63 or section 65 applies; or
(aa)an alcohol interlock sentence has been ordered under section 65AC(1); or
(b)the offender is prohibited from applying for a limited licence under section 103(2)(a), (b), or (d).
Approach on appeal
[16] This appeal is brought under the Criminal Procedure Act 2011 (CPA). An appeal against conviction is conducted by way of a rehearing.8 An appeal against a refusal to grant a discharge without conviction under s 106 Sentencing Act 2002 is a composite appeal against conviction and sentence.9
8 Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32].
9 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144, at [6]–[16]; and Ovtcharenko v Police
[2017] NZCA 65 at [5].
[17] In regards to an appeal against conviction, ss 232(2)(b) and s 232(2)(c) of the CPA provide that the first appeal Court must allow the appeal if satisfied that the Judge erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred, or a miscarriage of justice has occurred for any reason. Section 232(4) of the CPA provides that miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.
[18] The Supreme Court confirmed the approach for applying s 232(2)(b) in Sena v New Zealand Police, as that described in Austin, Nicholls & Co Inc v Stichting Lodestar in the context of civil appeals.10
[19] In relation to an appeal against sentence, s 250 CPA provides that the first appeal court must allow the appeal if satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed. The extent of error that must be shown is that the sentence is “manifestly excessive”.
Submissions for Ms Governor (s 94)
[20] Mr Yi submits that s 94(4)(aa) was intended to preclude the substitution of a community-based sentence only if an alcohol interlock sentence is ordered in respect of the particular offending for which the Court is to sentence the offender. Mr Yi submits that the proper interpretation is that the mandatory initial disqualification period (of 28 days) as part of the alcohol interlock sentence cannot be substituted into a community-based sentence. He submits that this can be the interpretation given to the ordinary meaning of the words “this section does not apply if an alcohol interlock sentence has been ordered under section 65AC(1)”. This meaning is also in line with the purpose of s 94 and the amendments made to the LTA.
[21] Mr Yi submits that there are two errors in Scadden. First, he submits that van Bohemen J erred in referring to the statement in Perry v Police,11 (which was referred to by the Court of Appeal in Lally v Police12) where I said, “Periods of
10 Sena v New Zealand Police, above n 8, at [32].
11 Perry v Police [2018] NZHC 3246
12 Lally v Police [2019] NZCA 286 at [13].
disqualification still have an important function under the new regime, operating as both a harm reduction measure and having a punitive element.13 In Perry the appellant was charged with two charges of driving with excess breath alcohol (third or subsequent) and two concurrent charges of driving contrary to a zero alcohol licence. In Lally, the appellant was also driving while intoxicated. He was charged with driving with excess breath alcohol (third or subsequent) and driving while disqualified (third or subsequent). Mr Yi submits that my comments in Perry need to be seen in that context and that van Bohemen J placed too much weight on the need for a disqualification for a driving while disqualified offence.
[22] Mr Yi submits there was a second error in that van Bohemen J did not consider that the purpose of s 94 was (as Mr Yi submits) to stop drivers from being trapped in a treadmill of reoffending and endless disqualification. Mr Yi refers to the recommendations of the Transport and Industrial Relations Committee on the Bill stating the Committee’s belief that allowing a person to start driving with an alcohol interlock device promptly benefits road safety.14
[23] Mr Yi submits that although it could be seen as an odd result in the sense of being rewarded for driving while disqualified, offenders can start driving with an alcohol interlock device more promptly only by substituting a community-based sentence for the otherwise mandatory disqualification. He says without the ability to substitute a community-based sentence for the mandatory disqualification, Ms Governor, like Mr Scadden, will need to be disqualified for a year before resuming her alcohol interlock licence. He submits the purpose of s 94 itself is to stop people from being trapped in a treadmill of disqualification.
[24] Finally, Mr Yi submits that if Parliament had intended that people in Mr Scadden’s and Ms Governor’s situation should not be afforded the benefit of s 94, s 94(4)(b) would have stipulated this.
13 At [46].
14 Chris Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Land Transport Amendment Bill (15 March 2017) at 3.
Respondent’s submissions (s 94)
[25] Ms Klinkum, for the respondent, submits in summary that the wording in s 94(4)(aa) is clear and so is its purpose. The interpretation of the provision has already been considered and correctly identified by van Bohemen J in Scadden. Ms Klinkum submits the correct interpretation is that offenders who are subject to an extant alcohol interlock sentence are not permitted to have a community-based sentence substituted for a disqualification.
[26] Ms Klinkum submits there are (at least) two available interpretations of s 94: a narrow interpretation and a broad interpretation. Under the narrow interpretation, s 94(4)(aa) applies to preclude the substitution of a community-based sentence only if an alcohol interlock sentence is ordered in respect of the particular offending for which the court is to sentence the offender. The broad interpretation applies to preclude the substitution of a community-based sentence if an alcohol interlock sentence has been ordered and is extant.
[27] Ms Klinkum submits that the narrow interpretation is inconsistent with the plain meaning and purpose of s 94. Whereas the plain wording supports the broad interpretation. The statutory purpose also supports the broad interpretation.
Discussion
[28]In Scadden, van Bohemen J held that:
[28] On the face of the language used in the section, such an interpretation appears correct. The language is s 94(4)(aa) is in the present tense: “has been ordered”. This connotes that there an active order in existence. It excludes orders that have been spent and are no longer active.
[29] I agree with the Judge that the plain wording of s 94(4)(aa) supports the broad interpretation, namely that an offender already subject to an alcohol interlock sentence is precluded from applying for a community-based sentence to be substituted for a period of disqualification under s 94. This interpretation is the most natural meaning of “has been ordered”. The plain wording of the section is clear.
[30] The statutory purpose also supports this interpretation. Section 94(4)(aa) was introduced by the Land Transport Amendment Act 2017 as part of a suite of amendments to strengthen the alcohol interlock regime. Parliamentary materials associated with the amendments noted:15
The Bill proposes to improve road safety by reducing recidivist drink driving.
… Alcohol interlocks are a highly effective tool for reducing the incidence of recidivist drink-driving. International reviews of alcohol interlock programmes indicate that alcohol interlocks can reduce drink-drive reoffending by an average of 60 per cent while the device is fitted. The amendments contained in the Bill are expected to result in greater use of alcohol interlocks by high-risk offenders and, in turn, improve road safety.
[31] The above extract does not suggest that the purpose of s 94 is to stop people being “trapped in a treadmill of disqualification”. An offender simply needs to comply with the period of disqualification to avoid that.
[32] As Ms Klinkum submitted, Parliament clearly intended those subject to alcohol interlock sentences to comply with their conditions. Non-compliance with alcohol interlock sentences subverts the Parliamentary purpose of strengthening the alcohol interlock regime. Further, as Ms Klinkum submits more generally, non-compliance is inconsistent with the aim of reducing the incidence of drink driving. Allowing a person who is subject to an alcohol interlock sentence and who does not comply with its terms to avoid further disqualification tends to diminish the objective of compliance.
[33] Imposing a further period of disqualification in cases such as the present may also deter the offender from failing to comply with an alcohol interlock sentence in the future.
[34] In Scadden, van Bohemen J also considered the interaction between s 94 and s 65AC which sets out when a court must impose an alcohol interlock sentence and what that sentence must comprise.
15 Land Transport Amendment Bill (173–1) (explanatory note) at 1–2.
[35]Section 65AC provides:
(1)If this section applies, the court must order an alcohol interlock sentence.
(2)An alcohol interlock sentence—
(a)disqualifies the person from holding or obtaining a driver licence for the period required by section 65AE; and
(b)authorises the person to apply for an alcohol interlock licence at the end of that period; and
(c)disqualifies the person from holding or obtaining any licence except an alcohol interlock licence; and
(d)authorises the person, after complying with the alcohol interlock licence requirements, to apply to replace the alcohol interlock licence with a zero alcohol licence.
(3)Subsection (1) applies unless for special reasons relating to the qualifying offence the court thinks fit to order otherwise and, if so,—
(a)section 94 may apply (and a reference to disqualification in section 94 must be treated as if it referred to an alcohol interlock sentence); but
(b)an alcohol interlock sentence may not otherwise be substituted by a community-based sentence.
[36] As the Judge noted, under s 65AC(3) the Court is granted a discretion, if there are special reasons relating to the qualifying offence, not to impose what would otherwise be a mandatory alcohol interlock sentence. Under para (a) where there are such special reasons, s 94 may apply. Paragraph (b) then provides that an alcohol interlock sentence may not otherwise be substituted by a community-based sentence.16
[37]The Judge then went on to say:17
Paragraph (a) of s 65AC(3) only makes sense in a context when s 94 is being considered at the time the alcohol interlock sentence is first applied or being considered for application. It does not readily apply to a situation such as the present where someone who has had an alcohol interlock sentence imposed, has failed to comply with the terms of the sentence and is then being sentenced for further driving offences while the alcohol interlock sentence remains active. It is also important to bear in mind that the disqualification that Mr Scadden seeks to avoid by the application of s 94 is not disqualification arising
16 Scadden, above n 3, at [34].
17 At [35].
from an alcohol interlock sentence but one for driving while disqualified under s 32.
[38]I respectfully agree.
[39] As to Mr Yi’s submission that the Judge erred in Scadden by referring to my statement in Perry v Police where I said “Periods of disqualification still have an important function under the new regime, operating as both a harm reduction measure and having a punitive element”, I agree with Mr Yi that in Perry (and the subsequent Court of Appeal judgment in Lally) the facts were different and there were concurrent charges. However, I am not persuaded that the Judge erred in referring to that statement. It is one that may have broader application than the particular facts of Perry. In any event, this did not form a significant part of the decision. The operative reasoning in Scadden stands on its own without this reference.
[40] The submission Mr Yi makes regarding s 103 does not persuade me that the broad interpretation is incorrect. Mr Yi submits that if Parliament had intended to exclude from the application of s 94 any person who is subject to an extant alcohol interlock sentence, it could have done so by including in s 94(4)(b) a reference to both s 103(2)(c) and (e) along with the existing references to other categories of persons who, under s 103(2), may not apply for a limited licence and who, by virtue of s 94(4)(b), are excluded from the application of s 94.
[41]Section 103(2)(c) and (e) provide:
103 Persons who may apply to court for limited licence
…
(2)The following persons may not apply under this section for an order under section 105 authorising the grant of a limited licence:
…
(a)a person who is disqualified from holding or obtaining a driver licence by an order made on his or her conviction for an offence against section 32(1) (which relates to driving while disqualified or contrary to a limited licence):
…
(e)a person who—
(i)is subject to an alcohol interlock sentence under section 65AC; or
(ii)would have been subject to an alcohol interlock sentence but an exception described in section 65AB(2) applied:
[42] In the present case, there is an additional layer over and above what is provided for in s 103(2)(c). Here, there is an offender who is subject to an existing alcohol interlock sentence and who has then committed an offence for which the punishment is a mandatory period of disqualification. If Parliament had added a reference to s 103(2)(c) into s 94(4)(b) that would have expanded the net far wider than s 94(4)(aa). It did not do so, making the distinction because of the purpose of the alcohol interlock regime. Once a person is under that regime, compliance is of the utmost importance. Accordingly it makes sense that Parliament did not decide to exclude from the operation of s 94 a person who is simply disqualified from holding a licence.
[43] Turning to s 103(2)(e), it refers to a person who is subject to an alcohol interlock sentence under s 65AC, namely someone in Ms Governor’s situation, or a person who would have been subject to an alcohol interlock sentence but where an exception described in s 65AB(2) applied. Those exceptions include someone with a medical condition, someone who lives in a non-serviced area or where there are other specific reasons why an alcohol interlock sentence would not be appropriate, so it is not actually imposed. Again, that subsection deals with a greater class of people than does s 94(4)(aa). Rather, Parliament has crafted s 94(4)(aa) to carve out a specific class of people. That is apparent from the plain wording of s 94 supported by the purpose of the Act.
[44] Under the narrow interpretation, Ms Governor would be eligible to make a s 94 application because the alcohol interlock sentence was not ordered at the time of sentencing for the charge in issue. I agree with van Bohemen J that had Parliament intended this interpretation, it could have used the phrase “is ordered” as opposed to “has been ordered”.18
18 Scadden v Police, above n 3, at [30].
[45] Further, if the narrow interpretation were correct it would mean that s 94(4)(aa) is redundant and merely reinforces s 65AC(3), namely that an alcohol interlock sentence cannot be substituted for a community-based sentence (unless special reasons apply).
[46] The narrow interpretation would lead to the alcohol interlock regime being undermined. This interpretation would allow an offender, who has continued to drive without complying with the terms of an alcohol interlock licence, to avoid further disqualification for such driving because they have decided belatedly to comply with the terms of the alcohol interlock sentence. It was this factor that persuaded van Bohemen J that the narrow interpretation was not correct.19 I agree.
[47] For all the above reasons I consider the statutory interpretation of s 94(4)(aa) in Scadden is correct. That is, s 94(4)(aa) applies to preclude the substitution of a community-based sentence if an alcohol interlock sentence has been ordered and is extant.
[48] It is therefore not necessary to consider Mr Yi’s further submissions on whether a community-based sentence should have been substituted.
Section 106 appeal (discharge without conviction)
[49] When assessing an application for discharge without conviction under s 106, the Court must first determine whether the direct and indirect consequences of a conviction would be “out of all proportion” to the gravity of the offence. This question requires the Court to follow a three-step process:
(a)First to assess the gravity of the particular offence, taking into account any aggravating and mitigating factors relating to the offending and the offender;
19 Scadden v Police, above n 3, at [37]–[38].
(b)Second, to identify the direct and indirect consequences of a conviction, which involves assessing if there is a “real and appreciable” risk a consequence will happen; and
(c)Third, to determine whether those direct and indirect consequences would be out of all proportion to the gravity of the offending.
[50] The mandatory requirements of s 107 operate as a “gateway” through which an applicant must pass before the Court can exercise its direction to discharge an offender without conviction under s 106(1). If an applicant satisfies the requirements of s 107, the Court will most likely grant an application for a discharge without conviction.
Submissions for Ms Governor (s 106)
[51] Mr Yi submits the gravity of Ms Governor’s offending is low. He submits there were no aggravating factors such as drink driving or dangerous driving. Mr Yi submits the gravity of Ms Governor’s offending is reduced because she has installed the alcohol interlock device since being charged and she pleaded guilty to her offending.
[52] Mr Yi claims that the direct consequence of conviction on Ms Governor is that she will face disqualification from driving for one year. As a result of the conviction, Mr Yi reiterates Ms Governor will be trapped in the treadmill of disqualification. Mr Yi submits this direct consequence is out of all proportion to the offending.
Respondent’s submissions (s 106)
[53] Ms Klinkum submits that Ms Governor raises consequences of offending that are minor and inevitable inconveniences of receiving a conviction.
[54] Ms Klinkum notes that Judge Mathers did not reach a conclusion on the gravity of Ms Governor’s offending. Ms Klinkum submits the gravity of offending was moderate because:
(a)Ms Governor was driving in breach of court orders to have an alcohol interlock device installed in her car;
(b)Ms Governor has a long list of convictions for driving offences;
(c)Ms Governor was subject to a sentence of intensive supervision at the time of the offending; and
(d)Ms Governor was driving out of convenience (acknowledged by Ms Governor) not because of any exceptional circumstances.
[55] Ms Klinkum submits Ms Governor’s belated compliance with her alcohol interlock sentence does not detract from the circumstances of her offending.
[56] In regard to the consequences of conviction, Ms Klinkum submits Judge Mathers correctly placed little weight on the fact Ms Governor would have to walk to work.
[57] Ms Klinkum submits that the claim by Mr Yi that Ms Governor will be trapped in a treadmill of disqualification is not a direct or indirect consequence of conviction. It is merely a possibility posited by Ms Governor which turns entirely on her own compliance with court orders.
[58] If Ms Governor was discharged without conviction, Ms Klinkum submits the Court may make any order that it is required to make on conviction. Therefore, the Court could make a disqualification order for a minimum period of 12 months pursuant to s 32(4)(b). Ms Klinkum submits it would be appropriate for the Court to impose a disqualification order on Ms Governor in this case.
[59] The Court has discretion to impose a disqualification order under s 106(3)(c) of the Sentencing Act. Ms Klinkum submits the Court should apply the test set out in s 81 of the LTA.
[60] Ultimately, Ms Klinkum submits a discharge without conviction would not resolve the disqualification issue and the consequences of conviction which
Ms Governor claims. The consequences of conviction on Ms Governor are not out of all proportion to the gravity of her offending.
Discussion
Gravity of offending
[61] Assessing the gravity of Ms Governor’s offending involves weighing the gravity of her actual offending and taking into account her personal factors.20 Factors such as her homelessness, lack of funds to install the interlock device and lack of a sufficient family support base in Auckland are relevant to the balancing exercise.
[62] I characterise the gravity of Ms Governor’s offending as moderate. She had not installed an alcohol interlock device despite court orders from September the previous year requiring her to do so on 8 October 2019. She was driving in breach of her alcohol interlock licence. She has an extensive traffic conviction history as already referred to. Although she says Covid-19 impacted on her financial situation, there was a period of over five months from the end of her 28-day period on 8 October, to the start of the Covid-19 lockdown in New Zealand. Ms Governor had not been drinking and was not exhibiting dangerous driving, but the gravity of her offending, in light of the Court’s orders and the backdrop of her previous offending, is moderate.
Consequences of conviction
[63] Mr Yi submits the direct consequence of conviction on Ms Governor is she will be disqualified from driving for one year, resulting in a number of negative consequences. This outcome is likely to occur because of the discussion above regarding s 94 and the mandatory disqualification under the Act. It is not a consequence of conviction in the s 106 context. As Ms Klinkum characterised it, being disqualified from driving is an inconvenience. I have reviewed the PAC Report and Ms Governor’s affidavit. These documents do not provide a basis to establish that the consequences of conviction on Ms Governor are “real and appreciable” and out of all proportion to the offending. She will not lose her job. She may need to walk to work if the bus service is not operating early in the morning.
20 Taulapapa v R [2018] NZCA 414 at [22].
[64] While Ms Governor has prior convictions for driving while disqualified, I do not consider she is trapped in a cycle of disqualification. There was a period between November 2003 and April 2015 when she did not offend. As Ms Klinkum submits, any reoffending is dependent on Ms Governor’s behaviour, not the consequences of conviction on her.
Balancing exercise
[65] The expression, “out of all proportion” implies there must be a significant disproportionate consequence in relation to the gravity of an offence before a Court would justify exercising the discretion to discharge without conviction.21 This test contains a high threshold. Although the offending was compliance-based, Ms Governor’s conscious and deliberate breach of her alcohol interlock order, simply for convenience, and Court orders raises the offending to moderate gravity. She now has an alcohol interlock device in her car and has taken steps to adhere to the alcohol interlock order in the aftermath, which is positive.
[66] However, I do not consider the consequences Mr Yi claims Ms Governor will experience are out of all proportion to the gravity of the offence. As noted, this is not a case where she will lose her job. She will have a walk of 30 minutes to her work for a year (or she will need to find alternative means of travel such as carpooling with colleagues). At the age of 59 and with no reported health concerns, this is not onerous. She will be able to complete her term on her alcohol interlock licence and move to a zero alcohol licence after her disqualification period ends. The delay in moving to a zero alcohol licence is an inconvenience, rather than a real or appreciable consequence on her life.
[67] Judge Mathers’ decision refusing to grant Ms Governor discharge without conviction under s 106 was correct.
21 Smyth v R [2017] NZCA 530 at [12].
Result
[68]The appeal is dismissed.
Gordon J
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