John v Police
[2022] NZHC 3143
•29 November 2022
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 would preserve Mr John’s prospect of residency as a character waiver would not be required. Conviction, however, would require a character waiver for Mr John to obtain residency. Whether a waiver would be granted “is an evaluative decision and the approach taken by individual officers differs”. Mr Ryken considered, “there is a slightly greater than even chance that a character waiver would not be granted” if Mr John were convicted.3
3 Mr Ryken said it therefore followed conviction would “seriously prejudice any opportunity to obtain residence”. This observation is a little difficult to reconcile with Mr Ryken’s immediately preceding observation (concerning “a slightly greater than even chance ...”). I take him to mean entry of a conviction would give rise to a slightly greater than even chance a character waiver would not be granted, and because of this, potentially prejudice residency.
The District Court hearing
[5] Judge McDonald considered the offending “serious”.4 The Judge noted Mr John’s affidavit did not disclose consideration of alternatives to driving to find the missing wallet and the potential consequences for other road users were serious.
[6] The Judge accepted the offending was mitigated by the fact Mr John was a “first offender” and by post-offence conduct.5 In relation to the latter, Mr John was paying for the cost of the repairs to the fence and had completed: a total of 150 hours’ voluntary community service; an alcohol and drug course; and a defensive driving course. Mr John also pleaded guilty to the charges. The Judge concluded these features reduced the seriousness of the offending to “moderately” serious.6
[7] The Judge accepted there was “a high probability” Mr John would be deported.7 However, the Judge did not accept this outcome or related possibilities, for example, loss of employment, meant the consequences of conviction were out of all proportion to the gravity of the offending. He, therefore, declined the application.
A précis of Mr John’s case
[8]On behalf of Mr John, Ms Priest advances three main points:
(a)Drink-drive offending is, like other types of criminal offending, amenable to discharge without conviction; the statute places no restrictions according to offence type. Ms Priest identifies a host of examples in which drink-driving has resulted in a discharge without conviction.8
4 Police v John, above n 1, at [7].
5 At [10].
6 At [11].
7 At [19].
8 See for example, Simpson v Police [2020] NZHC 2254 (965 micrograms of alcohol per litre of breath); Waight v Police HC Auckland CRI-2006-404-465, 24 May 2007 (732 micrograms of alcohol per litre of breath); Brown v Police [2013] NZHC 2190 (468 micrograms of alcohol per litre of breath); Glenn v Police [2016] NZHC 928 (19-year-old offender with 400 micrograms of alcohol per litre of breath); Dennis v Police [2016] NZHC 1768 (18-year-old offender with 195 micrograms of alcohol per litre of breath); and Amstad v Police HC Auckland CRI-2011-404-161, 6 September 2011 (19-year-old offender charged with unlawfully taking a motor vehicle, driving with excess breath alcohol, failing to stop, dangerous driving).
(b)The seriousness of Mr John’s offending reduces to “low-moderate” once mitigating features are considered, and the Judge was wrong to conclude otherwise. Mitigating features also include remorse, which was inferable.
(c)Because the prospect of deportation is so high, there is a real likelihood the consequences of conviction are out of all proportion to the gravity of the offending. This conclusion is buttressed by the jeopardy to Mr John’s residency application in the event of conviction, and potential harm to Mr John’s mother, given she would no longer receive income from New Zealand.
Principle
[9]Section 107 of the Sentencing Act 2002 says:
107 Guidance for discharge without conviction
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.
[10] It follows a Court may discharge a defendant without conviction if satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.
[11] Attendance sequence is well known. The Court first assesses offence gravity, which includes both aggravating and mitigating factors. It then assesses direct and indirect consequences of conviction, including potential ones of sufficient risk. The Court then asks whether the consequences would be out of all proportion to the gravity of the offence. If so, the Court may discharge without conviction.
[12] For an appeal to succeed, an appellate Court must be persuaded the Court below was wrong; but reach its decision on its own view of the case.9
9 R v Taulapapa [2018] NZCA 414 at [18], citing H (CA680/2011) v R [2012] NZCA 198 at [35]–
[36].
Analysis
[13] Ms Priest is correct that the statute places no restrictions according to offence type, and equally correct that some drink-drivers have been discharged without conviction. The picture is, however, more nuanced than these bare propositions may suggest.
[14] It was sometimes said, based on a decision called Linterman v Police,10 that a discharge without conviction for drink-driving required “exceptional circumstances” or “significant hardship”, irrespective of the statutory test. In Basnyat v Police, the Court of Appeal clarified the position:11
[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 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. By and large they do not, as shown in the survey of 15 High Court decisions referred to in the article by Mr Conder which was cited by Mr Mitchell in argument. The learned author concluded as follows:
A close reading of these cases show[s] that exceptionality is not the key criterion. Rather it is the consequences themselves which must be clear. This is consistent with the language of s 107, which requires an explicit balancing act between a moderately serious offence like drink driving and the consequences which flow from a conviction. It is also consistent with the careful scrutiny encouraged by Heath J in the Ovtcharenko decision.
[21] Having surveyed these and other decisions for ourselves, we agree with that assessment. But the cautionary language adopted by Heath J in Ovtcharenko v Police is nonetheless apt:
[20] I agree with Miller J, in Linterman v Police, that applications for discharges without conviction in alcohol related driving cases should be scrutinised with care. It may, with respect, go too far to say that they ought only to be granted in “exceptional” circumstances. As with any other offence, it is necessary to apply the statutory tests. In doing so, the
10 Linterman v Police [2013] NZHC 891.
11 Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344 at [19]–[21] (footnotes omitted).
nature of the social problem that the legislation is intended to address is something that goes to an assessment of the gravity of the offending. (Footnotes omitted.)
[15]The Court added:12
[22] The legislative directive is that a proportionate response to driving with a blood alcohol level above 80 milligrams per 100 millilitres of blood will ordinarily be the entry of a conviction. All other things being equal that will be the inevitable result. It will therefore be necessary to identify factors either in the offending or the consequences of a conviction for the offender that show that result is wholly disproportionate. A blood alcohol reading that is only just over the limit will be relevant — placing the gravity of the offending at the low end of moderately serious as Brewer J indicated — but not enough on its own. There will also be factors personal to the offender, often related to the offending itself, which will go to gravity. These might include the use before deciding to drive of faulty personal breath alcohol checking devices or the need to drive to assist others in an emergency, and the like. Youth will also be a relevant factor under this heading.
[23] Specific consequences are required and those have been identified in many cases. They include employment or travel limitations where the risk of impact is appreciable. In short, some element of the offending or something in the circumstances of the offender are required to make the standard response wholly disproportionate.
[16] Mr Basnyat was a 31-year-old first offender with “a bright future”.13 He pleaded guilty, being “only four milligrams over the limit”.14 Mr Basnyat was, apparently, “an important contributor to the life of the Nepalese community in Auckland”.15
[17] Mr Basnyat’s discharge application failed.16 That decision was upheld by both the High Court17 and Court of Appeal. In part, this was because there was “nothing
… about the offending that reduces its gravity below the low end of moderately serious”.18
[18] This brings me to Ms Priest’s second submission, which concerns offence-seriousness. There are obvious aggravating factors to Mr John’s offending.
12 Basnyat v Police, above n 11, at [22]–[23] (footnotes omitted).
13 At [24].
14 At [24].
15 At [24].
16 Police v Basnyat [2017] NZDC 21099
17 Basnyat v Police [2018] NZHC 51.
18 Basnyat v Police, above n 11, at [25].
His breath alcohol level was nearly twice the legal limit (of 400 micrograms per litre of breath). Mr John lost control of his car. He hit a fence. Because the conditions were good (and the bend mild), it is reasonable to infer consumption of alcohol played a role. That no one was hurt—or worse—reflects providence. While there is a measure of overstatement in the Judge’s observation the offending involved “extreme driving fault”,19 the offending does represent a serious example of its kind. More technically, it a serious example of moderately serious offending (before mitigating features are considered). Whether this assessment is appreciably different from the Judge’s—he considered the offence “serious”20—is of no moment for reasons that will become apparent.
[19] As foreshadowed, Ms Priest contends offence-seriousness reduces to “low-moderate” once mitigating factors are considered. Again, Ms Priest notes Mr John is paying for the cost of repairs to the fence and has completed a total of 150 hours’ voluntary community service; an alcohol and drug course; and a defensive driving course. Mr John pleaded guilty to the charges. He is a first offender. Like Mr Basnyat, Mr John has a bright future. Ms Priest says Mr John is remorseful.
[20] These factors are mitigatory. However, they do not reduce offence-seriousness in the manner advanced. They make the offending a moderately serious example of its kind, it having been a serious example.
[21] A somewhat similar point arose in Basnyat. The mitigating features in that case were also unconnected to the commission of the offence and had little apparent purchase:21
[24] In this case, the argument is Mr Basnyat was only four milligrams over the limit; he is a capable young engineer working for a reputable infrastructure company; he is well regarded with a bright future and likely to require overseas travel as part of his current employment or in search of employment offshore given his transferable skill set; and he is an important contributor to the life of the Nepalese community in Auckland.
[25] There is nothing in particular about the offending that reduces its gravity below the low end of moderately serious. Mr Basnyat pulled into a schoolyard before being stopped so was plainly aware that he was at risk of being over
19 Police v John, above n 1, at [7].
20 At [7].
21 Basnyat v Police, above n 11, at [24]–[25] (emphasis added).
the limit. While the degree of excess was small, that alone will not be sufficient to justify a discharge. More will be required. In this case Mr Basnyat is young, but at 31, not so young that it might be said the gravity of the offending is mitigated thereby, or that the consequences for him will be disproportionate. It is acknowledged that he is in a responsible position with a bright future, but that is not an uncommon circumstance, at least among those employed in responsible positions. As we have said, excess alcohol consumption is pervasive in New Zealand.
[22] Mr Basnyat’s mitigating features appear fewer than Mr John’s; for example, there is no suggestion Mr Basnyat engaged in voluntary community work. However, Mr Basnyat’s offending was less serious; he was only a little over the limit and did not crash. All of which is to emphasise the mitigating features in Mr John’s case operate to make it a moderately serious example of its kind.
[23] This brings me to the consequences of conviction. The Judge accepted Mr Ryken’s evidence. The Judge concluded, however, Mr John’s potential deportation was a matter better left to immigration authorities. Mr John’s lack of family in New Zealand was considered to buttress this conclusion.
[24] Ms Priest contends the Judge gave undue weight to the last factor, noting Mr John has spent four years in New Zealand and now has a life here. Brief review of some of the case law is necessary.
[25] Abdul Rahim pleaded guilty to a charge of indecent assault “low on the scale of seriousness”.22 Mr Rahim, his wife and their child were recent immigrants from Pakistan. They had worked for up to 10 years to come here. Conviction was “likely to result” in Mr Rahim being deported.23 The Court of Appeal found that would be “devastating for him and his family”.24 It reversed the Courts below and discharged Mr Rahim without conviction.
[26] Quanwen Yu was convicted for driving with excess breath alcohol.25 Her reading was 500 micrograms of alcohol per litre of breath. Ms Yu received a deportation notice as she already had a criminal record (for minor drugs offending).
22 Rahim v R [2018] NZCA 182 at [22].
23 At [30].
24 At [30].
25 Yu v Police [2021] NZHC 3000.
Ms Yu had been in New Zealand for 12 years. She arrived at the age of 16. Ms Yu was in a stable relationship and had a daughter here. Ms Yu said she knew nothing about Chinese society and had no contacts in China beyond her immediate family. Eaton J concluded the consequences of conviction—deportation—were out of all proportion to the gravity of the offending. Ms Yu’s conviction was quashed.
[27] Ravi Kumar was convicted for assault with a weapon after holding a knife to the throat of a co-worker.26 The offending occurred in the face of ongoing provocation (racial taunts over months). Mr Kumar and his pregnant wife had residency here and were good candidates for citizenship. Conviction put them at risk of deportation for 10 years. Wylie J found this was out of all proportion to the gravity of the offending and quashed the conviction.
[28] In each of these cases—and another cited by Ms Priest27—presence of other family members in New Zealand was treated as important, even decisive. It follows the Judge did not err.
[29] The Judge did not err either in concluding deportation was better addressed by immigration authorities. While, as the examples above demonstrate, Courts are more prepared than they once were to intervene in this context, they remain careful not to usurp the role of officials in the enforcement of law. As the Court of Appeal explained recently, “this is justified for reasons of institutional competence and comity”.28 Another aspect is also important here. Mr Ryken acknowledges Mr John may be deported even if his conviction were quashed.
[30] Perhaps anticipating this reasoning, Ms Priest observes conviction may scuttle Mr John’s residency application. She observes Immigration New Zealand notified Mr John on 22 September 2022 that because of his conviction, he would “not normally be granted a residence class visa unless granted a character waiver”.29 Ms Priest
26 Kumar v Police [2015] NZHC 3293.
27 Chand v Police [2017] NZHC 2188.
28 Sok v R [2021] NZCA 252, (2021) 29 CRNZ 962 at [48]; and Almarzouqi v Police [2020] NZCA 398 at [14].
29 Ms Priest offered, without opposition, this aspect as fresh evidence.
reminds me of Mr Ryken’s evidence, which is that “there is a slightly greater than even chance that a character waiver would not be granted” if Mr John were convicted.
[31] I am not persuaded this feature alters the calculus, for, if residency were declined, that outcome, even in combination with other consequences, including loss of income to Mr John’s mother consequent on his loss of New Zealand employment, would not be wholly disproportionate to the gravity of the offending. The inescapable feature of this case endures: Mr John committed a moderately serious offence in a moderately serious manner.30 Consequences of conviction, while potentially serious, would not be out of all proportion to the gravity of the offending.
[32] This conclusion is not offered as commentary on Mr John’s character. It does not, therefore, circumscribe Immigration New Zealand’s statutory obligations.
Result
[33]The appeal is dismissed.
……………………………..
Downs J
30 See [18]–[22].
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