Kim v Police
[2016] NZHC 2984
•9 December 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-000288 [2016] NZHC 2984
BETWEEN HYE KYUNG KIM
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 28 November and 9 December 2016 Appearances:
H Kim for Appellant
D Wiseman for RespondentJudgment:
9 December 2016
(ORAL) JUDGMENT OF LANG J [on appeal against conviction]
KIM v NEW ZEALAND POLICE [2016] NZHC 2984 [9 December 2016]
[1] Ms Kim pleaded guilty in the District Court to a charge of driving a motor vehicle whilst the level of alcohol in her breath exceeded 400 micrograms of alcohol per litre of breath. On 10 August 2016, Judge C M Ryan declined an application by Ms Kim to be discharged without conviction. The Judge convicted Ms Kim, but given the exceptional circumstances of the case did not impose any period of disqualification. Ms Kim appeals on the basis that the Judge erred in failing to discharge her without conviction.
The facts
[2] The facts of the case as contained in the summary before the Judge were not complicated. The summary records that at approximately 2.52 am on Sunday 17
January 2016, Ms Kim was driving a BMW motor vehicle along Tamaki Drive in Parnell. Her vehicle was then seen to be parked on the side of the road with a portion of the vehicle protruding into the left hand lane of Tamaki Drive.
[3] When a police patrol stopped and spoke to her, the keys were still in the ignition and Ms Kim was the sole occupant of the vehicle. Ms Kim exhibited signs of having consumed alcohol and she admitted having consumed alcohol before driving. Breath testing procedures were then undertaken and these ultimately returned a reading of 447 micrograms of alcohol per litre of breath.
The hearing in the District Court
[4] By the time Ms Kim came to be sentenced, there was a significant further body of information before the Court. This took the form of an affidavit by Ms Kim filed in support of her application for a discharge without conviction. In her affidavit, Ms Kim said that she had been attending a function on the evening of
16 January 2016. She had decided that she would not be driving a motor vehicle that evening and was travelling with a companion. At approximately midnight, the vehicle in which Ms Kim was travelling was stopped at a police checkpoint. The driver tested positive for breath alcohol, and was taken to a nearby police station.
[5] Ms Kim’s affidavit went on to record:
9. …
Police then transported my vehicle into a compound car park near the port with me still inside the vehicle.
I asked if I could go home or come to the Police station with the officer so I could call my children to come and take me. The police officer shouted “lock the door and stay in the car!” and left me there.
I did not know why I had to remain in the vehicle but because it was a police officer who directed me to stay I decided to comply.
10.The compound car park was very dark and lighting was extremely poor. Whenever I heard people nearby, I was petrified.
My fear was compounded by the fact a female jogger in Remuera had been killed about a week earlier. I could not relax for a second and desperately waited for Police to come back and they never did.
11. I decided to call my children. I talked to my daughter [M] who was at home at the time. I was told she would come and get me but later I was told that she could not reach me because road was blocked.
12. I waited for about 3 hours in my car.
For the last time I saw some men walking past and I could not take it anymore.
My phone battery was almost flat so I decided to start my car using my spare keys to charge my phone so I could keep in contact with my daughter.
I realised the car park was very dark and I did not want to attract any attention by driving around the car park. I saw a street lamp on a nearby street so I drove a very short distance (about 20m), parked my car and started charging my phone.
13.Police arrived within 5 minutes. I could not believe how quickly they arrived when I have been waiting for 3 hours without [sic] in the car park. A police officer immediately demanded a breath test and I complied. I was over the limit and was taken to Auckland Police Station.
14.At the Police station I fully complied with the procedure. After everything was done the police officer told me to go home.
When asked about how I was going to get home the police officer rudely said there would be a taxi around the corner.
It was around 4am when I came out of the Auckland Central Police Station. There was not a single taxi outside. I wandered around the street, which was filled with drunken partygoers. I went back to the Police station and called a taxi at the counter. I finally left the city at around 5am.
I was sick for days.
15.I am a law-abiding citizen. I do not drink and drive. I have been in New Zealand for a long time and I know the importance of not breaking the law.
16.I had no intention of driving that night. When I decided to drive it simply did not occur to me that it would be considered driving given the circumstances I was under. Had I realised it I would not have.
[6] The Judge acknowledged that the circumstances of Ms Kim’s offending were quite unusual. For that reason she found herself able to waive the usual period of disqualification that would otherwise have been imposed. The Judge considered, however, that Ms Kim had not satisfied the legal test for a discharge without conviction. The Judge accordingly entered a conviction. She also ordered Ms Kim to pay a fine of $200 and Court costs of $130.
The argument
[7] When the appeal was first called before me, counsel for Ms Kim acknowledged that the factual basis on which Ms Kim had advanced her application for discharge in the District Court was extremely thin. Her affidavit traversed principally the consequences of the imposition of a period of disqualification. They did not contain any explanation of the likely consequences for Ms Kim should she be convicted.
[8] For that reason I adjourned the appeal in order to enable Ms Kim’s counsel to file a further affidavit setting out the consequences that a conviction would produce for Ms Kim. The affidavit is now to hand but, unfortunately, does not take matters a great deal further.
[9] Ms Kim deposes that at 58 years of age she has never had any previous convictions. She is employed as a real estate agent and says that she has been extremely successful in that occupation. She says, however, that her employer is unaware of the current proceeding and she is concerned at the fact that she may encounter trouble in the future when she comes to renew her real estate agent’s licence. She is also concerned as to whether or not a conviction will disadvantage
her when she applies for a position with the AIRENZ, which requires a managerial level qualification.
[10] Ms Kim deposes that she is very embarrassed at the prospect of her employer finding out about her conviction, and she will also be embarrassed when she discloses to other people the fact of her conviction. In this context, Ms Kim says she has been carrying out work as a volunteer with the Red Cross organisation for some years and she will be embarrassed when she is required to disclose the conviction to that organisation. Furthermore, Ms Kim says that she will be required to reveal her conviction when she renews her car insurance. She says that this will also be embarrassing.
Relevant principles
[11] An application for discharge without conviction is governed by s 106 of the
Sentencing Act 2002 (the Act). This provides:
106 Discharge without conviction
(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
…
[12] In applying s 106, the Court must follow the guidance contained in s 107 of the Act. This provides:
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.
[13] When determining an application under s 106, the Court is required to consider three issues.1 It must first assess the gravity of the offending having regard
to the facts of the case. Next, it must identify the direct and indirect consequences of
1 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.
a conviction being entered. Thirdly, it must determine whether the consequences of a conviction would be out of all proportion to the gravity of the offending.
[14] An appellate court is required to reach its own view as to whether the direct and indirect consequences of a conviction are out of all proportion to the gravity of the offending. If it accepts the statutory threshold has been met, the court must determine whether the court at first instance erred in principle when exercising its discretion to grant or refuse to grant a discharge.2
Gravity of the offending
[15] This factor is not restricted to aggravating and mitigating factors relating to the offending. Factors relating to the offender may also be relevant.3
[16] Counsel for the respondent submits that the gravity of the offending in the present case can properly be described as moderate, because any decision to drink and drive is a serious issue.
[17] I accept this explanation as far as it goes, but that ignores the facts of the case as Ms Kim describes them in the affidavit that she presented to the District Court. These remain uncontested because the police did not file any evidence in opposition to it.
[18] I consider that the circumstances in which Ms Kim came to be driving in the early hours of 17 January place this offending in a different category to the usual case involving a driver who chooses to drink and drive. If Ms Kim’s version of events is accepted, her decision to drive was made in highly unusual circumstances. Taking those factors and Ms Kim’s previous unblemished record into account, I
would assess the overall gravity of the offending as being low.
2 Edwards v R [2015] NZCA 583 at [6].
3 Z v R [2012] NZCA 599 at [27]; DC v R [2013] NZCA 255 at [35].
The direct and indirect consequences of a conviction
[19] Ms Kim does not say that a conviction will prevent her from carrying on her occupation as a real estate agent. The fact that she has not been disqualified from driving also means that she does not face that impediment. It is difficult to see how a single conviction for drink driving in circumstances such as these could ever impede the professional career of a successful and competent real estate agent. Nor does Ms Kim point to any other significant consequences that a conviction will produce. The only consequence she can point to is the fact that she will be embarrassed when she is required to disclose the fact of her offending in the future.
[20] Embarrassment is an emotion that any person who has been convicted of drink driving is likely to suffer when disclosing that fact to others. Parliament must be taken to have recognised this to be so. Although it is undoubtedly a significant consequence for Ms Kim, I do not consider it is sufficient without more to raise the consequences of conviction above a low level. It follows that whilst the overall gravity of the offending can properly be assessed as low, so are the consequences.
[21] That being the case, Ms Kim cannot demonstrate that the direct and indirect consequences of conviction are out of all proportion to the overall gravity of the offending.
[22] For that reason the Judge’s decision was undoubtedly correct.
Result
[23] The appeal against conviction is dismissed.
Lang J
Solicitors:
Crown Solicitor, Auckland
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