IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-000324
[2022] NZHC 3143
BETWEEN THOMAS FENN JOHN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 7 November 2022 Counsel:
EP Priest for Appellant
CL Wilkinson for Respondent
Judgment:
29 November 2022
JUDGMENT OF DOWNS J
This judgment was delivered by me on Tuesday, 29 November 2022 at 11 am.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Auckland. EP Priest, Auckland.
JOHN v POLICE [2022] NZHC 3143 [29 November 2022]
Introduction
[1] Thomas John drove with excess breath alcohol and carelessly, crashing in a residential area. Judge D J McDonald declined to discharge Mr John without conviction.1 Mr John appeals. He contends the Judge erred. Mr John emphasises his likely deportation as a wholly disproportionate consequence of the offending, and the risk conviction may scuttle his residency application.
Background
[2] The offending occurred 28 November 2021, at approximately 4.25 pm. Mr John was driving in a residential part of Auckland with a speed limit of 70 kilometres per hour. He lost control of the car on a mild bend. The car spun 180 degrees and crashed into a fence. Police attended. Mr John appeared to have been drinking. A breath test revealed 771 micrograms of alcohol per litre of breath, almost twice the legal limit. Mr John said he had consumed three bottles of beer. Driving conditions were good, the road dry.
[3] Mr John pleaded guilty and applied to be discharged without conviction.2 He filed an affidavit and a second from David Ryken, an immigration expert. In brief, Mr John said:
(a)He came to New Zealand from India on a student visa in 2018.
(b)On the day in question, Mr John had been drinking with a friend. Mr John realised he had misplaced his wallet and drove to find it. He crashed during the return trip.
(c)He is now 29. He works (fulltime) in a dog daycare centre and holds an employer-assisted work visa. Mr John remits $200 per fortnight to his mother in India.
1 Police v John [2022] NZDC 16710.
2 It appears Mr John pleaded guilty to driving carelessly 1 February 2022 and driving with excess breath alcohol 31 May 2022. I say “appears” as the handwritten entries on the charge sheets are a little difficult to interpret.
(d)He hoped to obtain residency in New Zealand.
(e)He is worried conviction may result in his deportation and affect residency.
[4]Mr Ryken said:
(a)There is “a high probability” a conviction for the offence of driving with excess breath alcohol would result in Mr John being issued a deportation liability notice. An appeal (necessarily confined to humanitarian grounds) would not likely succeed.
(b)A discharge without conviction may enable Mr John to persuade Immigration New Zealand not to deport him (on the ground of disproportionality). However, while a discharge without conviction “will help” this contention, “in recent times … [it] is less likely to succeed”. Deportation is not contingent on conviction.
(c)A discharge without conviction…
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CaseChat Overview and Summary
The Court's reasoning demonstrates the importance of balancing the gravity of the offending with the consequences of conviction when determining whether to discharge an offender without conviction. In this case, the Court found that Mr John's moderately serious drink-driving offence, coupled with the lack of significant mitigating factors, meant that the consequences of conviction, while potentially serious, were not out of all proportion to the gravity of the offending.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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