Hartnett v Police
[2021] NZHC 2193
•25 August 2021
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 only for special reasons
3 New Zealand Police v Hartnett, above n 1, at [4]: considering the gravity of the offending (including the aggravating and mitigating factors relating to the offending and the offender); identifying the direct and indirect consequences of a conviction, and considering whether those consequences are out of all proportion to the gravity of the offence. If the Court determines that the consequences are out of all proportion it still must consider whether it should exercise its discretion to grant a discharge.
4 At [4]–[9].
5 At [9].
6 At [10], referring to Ms Hartnett’s affidavit and Mr Bott’s submissions.
7 Linterman v Police [2013] NZHC 891.
relating to the offence. Special reasons relating to the offender will not do. Nor is ignorance of one’s alcohol level a defence; a driver who chooses to drink at all takes the risk that for whatever physiological or other reason her level will prove higher than she thought. Third, an applicant must identify some extraordinary consequence of conviction, which is difficult when the ordinary consequences are unpleasant…
(footnote omitted)
[8] The Judge said “there is nothing exceptional about your case”, and he mentioned that it was a routine test, Ms Hartnett was co-operative with police on the night, emotional matters had come to a head, she had several drinks then chose to drive to see her grandmother, and did not take any alternative courses of action.8
[9]The Judge then turned to the disproportionality test, noting:9
[16] … s 107 requires that a discharge must not be granted unless direct and indirect consequences of conviction are out of all proportion to the gravity of the offence, and I agree with the police submission that, despite the detailed and extensive material that have been filed, that your situation is neither exceptional nor rare.
[17] In this case, Ms Hartnett, I do not find that the consequences of a conviction outweigh the gravity of the offending and therefore your application for discharge without conviction is declined.
Appeal
[10] An appeal against a discharge without conviction is an appeal against conviction and sentence.10 Section 232(2) of the Criminal Procedure Act 2011 provides that the appeal must be allowed if there has been miscarriage of justice resulting from the refusal to grant a discharge without conviction, or as the Court in Jackson put it:11
... the principled basis for determining an appeal against a discharge without conviction is to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing judge in entering a conviction. That is because a trial includes a proceeding in which the appellant has pleaded guilty. Alternatively, it can be said that a miscarriage of justice has occurred "for any reason" if the Judge has erred in applying the principles for discharging an offender without conviction found in s 107 of the Sentencing Act.
8 New Zealand Police v Hartnett, above n 1, at [14].
9 At [16]–[17].
10 Jackson v R [2016] NZCA 627 at [12].
11 At [12].
[11]The threshold test in s 107 is not a matter of discretion, but:12
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.
[12] The issue is therefore whether the Judge’s decision declining to grant a discharge without conviction to Ms Hartnett amounted to a miscarriage of justice or whether the Judge otherwise erred in applying the principles for discharging an offender without conviction.13
[13] This appeal is conducted by way of rehearing, and Ms Hartnett bears the onus of satisfying the Court that it should differ from the decision under appeal.14
[14]The grounds of appeal are set out in the Notice of Appeal as follows:
The Judge misstated the relevant test in declining the s106 application. The Judge was wrong as a matter of law that loss of employment was not relevant in the s106 balancing exercise.
Other errors of fact and law that will be raised upon receipt of the decision and transcript.
Additional evidence
[15] I will first address the affidavit of Daniel Moriarty dated 10 August filed in support of Ms Hartnett’s appeal. Mr Moriarty is the CEO of Urban Plus Limited, a property development and rental housing business. Ms Hartnett is the Project and Support Manager at Urban Plus Limited. She has not formally sought leave to file this affidavit, but I take it that admission is sought.
[16] The affidavit outlines Ms Hartnett’s role and confirms the company’s policy around employees with convictions, which allows it to summarily dismiss employees. Mr Moriarty confirms an employee review process has begun concerning Ms Hartnett but has been parked pending this appeal. Mr Moriarty says although he cannot say
12 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].
13 A miscarriage of justice is defined under s 232(4) of the Act as any 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 or a trial that was a nullity.
14 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
definitively that Ms Hartnett will lose her employment, a conviction nonetheless begins the review process. He ends by saying:
Ms Hartnett is an extremely well-liked and thoroughly professional person who performs her role with dedication. However, our policy has been in place for some time and regrettably I cannot show favouritism.
[17] A letter before the court on sentencing from Mr Moriarty had emphasised that one of the employer’s concerns was the misuse of alcohol or drugs and noted that he would not predetermine that a conviction would follow but a “criminal conviction for driving while impaired, has the potential to impact an employee’s career.”15
[18] The Judge had the benefit of the letter from the employer and oral submissions to which the Judge referred as follows:16
[10] Then I need to look at the direct and indirect consequences of a conviction. In your affidavit and Mr Bott's oral and written submissions is that the immediate impact of conviction on your employment is real. He submits there is a real and appreciable risk that will prejudice both your immediate and future career prospects. In your affidavit at paragraph [17] and in oral submissions this morning, your employer has said to me that there is an effective non-conviction policy for your role. That is clause 15.6 of the contract and that there is a real likelihood that you would be dismissed.
[19] The respondent’s position is that this affidavit is not fresh evidence, except for the confirmation that a review process had begun in relation to Ms Hartnett’s employment; it offers nothing new than what was considered by the Judge. And, it could have been produced with reasonable diligence at sentencing. The respondent notes too that the affidavit will not have any impact on the sentence.
[20]In Mark v R, the Court of Appeal held:17
The principles for assessing the admissibility of fresh evidence for appeals against conviction are now well established. There is no reason why different principles should be engaged where an appellant wishes to adduce fresh evidence for an appeal against sentence. Thus, if the fresh evidence is not credible it should not be admitted. If it is credible, an assessment needs to be made as to whether or not it could have been presented to the sentencing Court with reasonable diligence. If the evidence is both credible and fresh it should
15 Letter dated 12 April from Daniel Moriarty, Chief Executive Officer, Urban Plus Limited to Ms Harnett.
16 New Zealand Police v Hartnett, above n 1, at [10].
17 Mark v R [2019] NZCA 121 at [16].
be admitted unless the appellate court is satisfied it would have had no effect on the sentence. If the evidence is credible but not fresh, the appellate court should assess its strength and its potential impact on the sentence. If the appellate court considers that the sentence could be manifestly excessive if the evidence is excluded, then it should be admitted notwithstanding that it is not fresh.
(footnote omitted)
[21] The evidence is credible, but I do not consider the sentence could be manifestly excessive if it is excluded. The Judge was aware of the company’s policy, noting:18
… your employer has said to me that there is an effective non-conviction policy for your role. That is clause 15.6 of the contract and that there is a real likelihood that you would be dismissed.
[22] Essentially, I do not consider the evidence will have a material impact on my assessment of the decision under appeal or the statutory tests applicable to discharges without conviction. It is therefore excluded.
Discussion
[23] The test to be applied to applications on discharge without conviction was clarified by the Court of Appeal in Taulapapa v R:19
[22] It is settled law that a court considering a discharge should: examine the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender; identify the direct and indirect consequences of conviction; and consider whether those consequences are "out of all proportion" to the gravity of the offence. Only then does it move to considering the residual discretion under s 106.20 There must be a "real and appreciable" risk that any given consequence will happen: this standard recognises that the court is assessing the likelihood of something that may happen in the future.21
[23] The offender should ordinarily put information before the court to provide a factual basis for a decision that the test has been satisfied. There is no legal onus on the offender to do so however, and the standard of proof in s 107 is simply that the judge be satisfied that the requirements of the section are met.22
18 New Zealand Police v Hartnett , above n 1, at [10].
19 Taulapapa v R [2018] NZCA 414 at [22]–[23].
20 Citing Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].
21 Citing DC (CA47/2013) v R [2013] NZCA 255 at [43].
22 Citing R v Hughes, above n 12, at [49] and [53]; and DC (CA47/2013) v R, above n 21, at [43].
[24] Ms Hartnett’s primary point on appeal is that the Judge appears to have imposed the threshold of “exceptional circumstances” instead of the well-established test; whether the consequences of a conviction would be out of all proportion to the moderate seriousness of the offence. By adopting the wrong test, Ms Hartnett submits the Judge went too far in saying effectively that in cases such as Ms Hartnett’s, discharges without conviction should only be granted in exceptional circumstances.
[25] If one looked at [16] of the judgment in isolation, it is possible to conclude that the Judge applied the wrong test to s 107. He said:23
…I agree with the police submission that, despite the detailed and extensive material that have been filed, that your situation is neither exceptional nor rare.
[26]But at [17] the Judge said:
In this case, Ms Hartnett, I do not find that the consequences of a conviction outweigh the gravity of the offending and therefore your application for discharge without conviction is declined.
[27] The use of the description “exceptional” by the Judge refers to the “exceptional circumstances” jurisprudence from Linterman v Police.24 In that case, Miller J considered a discharge without conviction for drink driving ought to be exceptional and that an applicant “must identify some extraordinary consequences of conviction” in order for such applications to be granted.25
[28] In Basnyat v Police the Court of Appeal clarified the law around s 107 in light of Miller J’s approach in Linterman.26 The Court said:27
[19] Properly construed, Linterman is not a gloss on the statutory test, but rather a statement of the practical consequence of the application of the sections. Drink driving is a moderately serious offence when seen by reference to its potential consequences and to the pervasiveness of alcohol abuse in our society. That means the proportionality scales to be applied at stage three of Z (CA447/2012) v R are, to an extent, tipped by that level of seriousness. The consequences of a conviction must also therefore be relatively significant before they are “out of all proportion” to the moderate seriousness of the
23 New Zealand Police v Hartnett, above n 1, at [16].
24 Linterman v Police, above, n 7.
25 At [9].
26 Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344.
27 At [19]–[20].
offence. It would be different if drink driving were a minor offence, but it is not.
[20] But judges must not treat Linterman as if it were a proxy for the statutory test, and they must not exercise their discretion as if the word “exceptional” is to be found in s 107…
[29] The Judge did not treat Linterman as a proxy for the statutory test. While he no doubt had the approach in Linterman in mind, he also went on to explicitly refer to the statutory test; whether the consequences of a conviction outweigh the gravity of the offending. The Judge’s reference to Ms Hartnett’s case not being “exceptional” is more properly characterised as the Judge simply suggesting in the context of drink driving — which has been characterised by the courts as moderate level offending — that the consequences of a conviction faced by Ms Hartnett were not sufficient to engage the statutory threshold.
[30] In short, the Judge did not err in the application of the test under s 107 of the Act.
[31] In addition, there is no doubt that the Judge did properly consider the risk of loss of employment. The trigger for the review of Ms Hartnett’s employment under the employment agreement [cl 15.6] was the alcohol-related “arrest and/or charge…”. Importantly, and as Mr Tupua noted, not only a conviction for, but being charged with, a criminal offence which was incompatible with Ms Hartnett’s duties, could trigger a summary dismissal.
[32] In any event, I think it significant in this case that Ms Hartnett will not necessarily lose her employment. Clause 15.6 of the employment contract states the company “may” summarily dismiss employees should they be charged with, or convicted of, a criminal offence. There is clearly an element of discretion in this assessment. And I imagine Ms Hartnett’s good standing at the company would feed into the exercise of this discretion. The 12 April 2021 letter from Mr Moriarty to Ms Hartnett confirmed that a conviction for an alcohol-related offence will not automatically lead to termination, but that it has the potential to impact an employee’s career.
[33] Ultimately the judge is required to be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. I repeat what the Court of Appeal noted in Basnyat v Police:28
…Drink driving is a moderately serious offence when seen by reference to its potential consequences and to the pervasiveness of alcohol abuse in our society. That means the proportionality scales to be applied at stage three of Z (CA447/2012) v R are, to an extent, tipped by that level of seriousness. The consequences of a conviction must also therefore be relatively significant before they are “out of all proportion” to the moderate seriousness of the offence. It would be different if drink driving were a minor offence, but it is not.
[34] The District Court Judge correctly assessed the consequences in a drink-driving context. The Judge did not err in his application of the s 107 test.
Result
[35]The appeal is dismissed.
Grice J
Solicitors:
Heretaunga Law, Upper Hutt for Appellant Crown Solicitor, Wellington for Respondent
28 Basnyat v Police, above n 26, at [19].
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