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John v Police

John v Police

Case [2022] NZHC 3143 29 November 2022

Appeal

Jurisdiction

Sentencing

Unconscionable Conduct

Proportionality

Criminal Law

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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…

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 John v Police

Details

AGLC: John v Police [2022] NZHC 3143
Case: [2022] NZHC 3143
Decision Date: 29 November 2022

CaseChat Overview and Summary

In the case of John v Police, the High Court considered whether the District Court erred in declining to discharge Thomas John without conviction for driving with excess breath alcohol and driving carelessly. Mr John argued that the consequences of conviction, particularly the risk of deportation and the potential impact on his residency application, were out of all proportion to the gravity of his offending. The legal issues before the court were whether drink-driving offences are amenable to discharge without conviction, and if the consequences of conviction for Mr John were out of all proportion to the gravity of his offending. The Court found that while the statute does not restrict the discharge without conviction to certain types of offences, drink-driving is a moderately serious offence. The court noted that mitigating factors such as Mr John's remorse, first-time offending, and completion of community service and courses did not reduce the seriousness of the offence to a level that would justify a discharge without conviction. Furthermore, the court held that the Judge was correct in finding that the consequences of conviction, including the risk of deportation, were not out of all proportion to the gravity of the offending. The appeal was ultimately dismissed.

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