Haskell v Police - [2018] NZHC 1016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-089

[2018] NZHC 1016

BETWEEN
MICHAEL BRUCE HASKELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 7 May 2018

Counsel:

S M Kilian for Appellant J V Barry for Respondent

Judgment:

10 May 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 10 May 2018 at 3:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Kilian & Associates (Auckland) for Appellant Meredith Connell (Auckland) for Respondent

HASKELL v POLICE [2018] NZHC 1016 [10 May 2018]

Introduction

[1] On 9 March 2018,1 Judge D J Sharp refused to discharge Mr Haskell without conviction on a charge of refusing to permit a blood specimen to be taken after having been required to do so by an enforcement officer.2 Mr Haskell now appeals that decision.

Approach on appeal

[2] I must allow the appeal if I am satisfied that, for any reason, Judge Sharp made an error such that Mr Haskell should have been discharged without conviction.

[3] The law recognises that sometimes the consequences for an offender of being convicted of their offending will be so harsh that justice is better served by not entering a conviction. The test is set out in s 107 of the Sentencing Act 2002:

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[4] It can be seen there is a high threshold between an offender and a discharge without conviction. It is not enough to satisfy the Judge that the consequences of a conviction would be disproportionate to the gravity of the offence. The Judge must be satisfied that the consequences would be out of all proportion to the gravity of the offence.

[5] To apply the test properly, a Judge must (as did Judge Sharp) conduct a three- step analysis:3

(a)Assess the gravity of the offending. That means first looking at all the relevant circumstances of the offending and of the offender, and then standing back and deciding how serious the offending is.

1      Police v Haskell [2018] NZDC 4509.
2      Land Transport Act 1998, s 60(1)(a).
3      Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8]-[9].

(b)Determine the direct and indirect consequences of a conviction for the offender.

(c)Determine whether those consequences are out of all proportion to the gravity of the offending.

[6] I will examine Judge Sharp’s reasoning against the circumstances before him and, in doing so, I will make my own assessment as to whether there is an error and, if so, whether there should be a different result.

Did the Judge make an error such that Mr Haskell should be discharged without conviction?

(a)The gravity of the offending

[7] On 17 August 2016, Mr Haskell was stopped by Police who were concerned about the speed at…

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 Haskell v Police

Details

AGLC: Haskell v Police [2018] NZHC 1016
Case: [2018] NZHC 1016
Decision Date: 10 May 2018

CaseChat Overview and Summary

The appeal was brought by Michael Bruce Haskell against the decision of Judge Sharp, who refused to discharge him without conviction for the offence of refusing to permit a blood specimen to be taken. The court was required to determine whether Judge Sharp made an error such that Haskell should have been discharged without conviction. The threshold for a discharge without conviction is high, requiring the consequences of a conviction to be out of all proportion to the gravity of the offence. The court conducted a three-step analysis to assess the gravity of the offence, the direct and indirect consequences of a conviction, and whether those consequences were out of all proportion to the gravity of the offence. In this case, the court found that the consequences for Haskell's business travel, while significant, were not out of all proportion to the gravity of his offence. The appeal was dismissed, and the decision of Judge Sharp was upheld.

This case highlights the importance of co-operation with law enforcement and the potential consequences of refusing to comply with lawful instructions. The court emphasised that the gravity of the offence and the potential consequences of a conviction must be assessed in context, and that a discharge without conviction is not appropriate in cases where the offender refuses to co-operate with police and disregards legal advice. The decision serves as a reminder that the consequences of criminal activity can extend beyond the immediate offence and have long-lasting effects on an individual's personal and professional life.

Orders