Hartnett v Police - [2021] NZHC 2193

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-485-046

[2021] NZHC 2193

BETWEEN
KELSEY MOANA HARTNETT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 24 August 2021

Appearances:

M Bott for the Appellant

W Tupua for the Respondent

Judgment:

25 August 2021

JUDGMENT OF GRICE J

Introduction

[1] Ms Hartnett appeals the decision of the District Court1 declining her application for discharge without conviction under s 106 of the Sentencing Act 2002 (the Act) in relation to one charge of driving with excess breath alcohol.2 Ms Hartnett received a fine of $400 and was disqualified from driving for six months and one day.

[2] Ms Hartnett’s ground of appeal is that the Judge erred in the application of the test under s 107 of the Act. Ms Hartnett has also sought to adduce evidence on appeal by way of affidavit from her employer, Mr Daniel Moriarty.

1 New Zealand Police v Hartnett [2021] NZDC 13110.
2 Land Transport Act 1998, s 56(1), which reads: A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person’s breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, exceeds 400 micrograms of alcohol per litre of breath.

HARTNETT v NEW ZEALAND POLICE [2021] NZHC 2193 [25 August 2021]

Background

[3] At about 3.00 am on Friday 26 June 2020 Ms Hartnett was driving a car on Naenae Road in Lower Hutt and was stopped for alcohol and licence checks. An evidential breath test was conducted, and the result was 485 micrograms of alcohol per litre of breath.

[4] Ms Hartnett had been drinking at home and had a fight with her partner before she was stopped by police.

[5]Ms Hartnett is 29 and does not have any previous convictions.

District Court judgment

[6] After setting out the three-step process for determining a discharge without conviction application,3 the Judge assessed the gravity of the offending as moderate.4 He pointed to the low breath alcohol reading and Ms Hartnett’s lack of previous convictions.5

[7] In terms of the direct and indirect consequences of a conviction, the Judge noted the effects on Ms Hartnett’s employment, namely the real likelihood that she would be dismissed.6 The Judge then cited the decision of Miller J in Linterman v Police, where his Honour said:7

[9] I agree that discharges ought to be exceptional for this offence. It is illuminating to reflect on the several reasons why that might be so. First, in the hands of a drunk a car is a dangerous thing. Second, good character and extenuating personal circumstances normally count for little. Drink-driving is a pervasive social problem which has brought many good citizens into the dock and caused the legislature to respond with a sentencing policy that emphasises personal and general deterrence. Notably, the court may relieve an offender of the minimum disqualification period…

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.

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Details

Case: [2021] NZHC 2193
Decision Date: 25 August 2021

CaseChat Overview and Summary

Ms Kelsey Moana Hartnett appeals the District Court's decision to decline her application for discharge without conviction under s 106 of the Sentencing Act 2002, in relation to one charge of driving with excess breath alcohol. The District Court imposed a fine of $400 and disqualified Ms Hartnett from driving for six months and one day. Ms Hartnett's ground of appeal is that the Judge misapplied the test under s 107 of the Act and she sought to adduce additional evidence by way of an affidavit from her employer, Mr Daniel Moriarty. The appeal raises issues as to whether the District Court Judge misapplied the test for granting a discharge without conviction, and whether the new evidence should be admitted.

The Court considered that the District Court Judge did not misapply the test under s 107 of the Act. The test requires the judge to be satisfied that the direct and indirect consequences of a conviction are out of all proportion to the gravity of the offence. The Judge correctly assessed the consequences of a conviction in the context of a drink-driving offence. The Judge also considered the risk of loss of employment, which was an appropriate factor to consider in the assessment of the consequences of a conviction. The new evidence from Mr Moriarty was considered credible but not fresh evidence and would not have a material impact on the assessment of the decision under appeal or the statutory tests applicable to discharges without conviction. The appeal was dismissed.

Orders