Lawrence v Police

[2016] NZHC 148

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2015-442-0028 [2016] NZHC 148

BETWEEN

JEREMY JAMES LAWRENCE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	10 February 2016
Appearances:	M Vesty for the appellant S K O'Donoghue for the Respondent
Judgment:	12 February 2016

JUDGMENT OF THOMAS J

This judgment was delivered by me on 12 February 2016 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Resolution Chambers, Nelson. Crown Solicitor, Nelson.

LAWRENCE v NEW ZEALAND POLICE [2016] NZHC 148 [12 February 2016]

Introduction

[1]      The appellant, Jeremy Lawrence, pleaded guilty to one charge of driving with excess breath alcohol.   He applied for a discharge without conviction, and that no disqualification from driving should be imposed.  Those applications were dismissed by a District Court Judge on 17 November 2015 and he appeals against the decision.1

[2]      The appellant had a job interview the week following the appeal hearing.  In the circumstances I gave a results judgment dismissing the appeal.  I now give my reasons.

Background

[3]      The appellant was tested as having 114 mgs of alcohol per 100 mls of blood. That is more than twice the 50 mg legal limit.  There was no other driving fault, and it was accepted that the appellant miscalculated how much alcohol he had consumed. He has no previous convictions and a good driving history.

[4]      The appellant’s application for discharge was based on the likelihood he would lose his employment as a result of a conviction.  At the time of offending, the appellant was an agent for the companies Avis and Budget Rent-a-Car.  He employed eight staff and casually employed a further 15.  The appellant’s driving ability was central to these contracts.   The contracts with both companies included  30 day termination clauses, and the appellant was concerned that he would lose the contracts as a result of his conviction and temporary loss of licence.  The appellant mentioned other people who had similar contracts terminated after some level of misdemeanour.

[5]      Shortly after the appellant’s conviction was entered, his agency agreements were terminated.  This happened after 10 years of the contract being in place.  The reason for terminating the contracts was unclear because the company was restructuring in a way that no longer required an independent agent.  The appellant

has been invited to apply for other positions in the organisation.  The positions are

1      Police v Lawrence [2015] NZDC 22815.

competitive, and the appellant is concerned that his conviction will disadvantage his application.

[6]      The Judge assessed the gravity of offending as moderate.   This took into account the level of alcohol detected, the appellant’s previous good character, his remorse and guilty plea, and the wider interest of deterring and denouncing those who drink and drive.   The Judge then considered the likely consequences of a conviction and concluded that there was no evidence the appellant’s contract would be terminated.   The Judge thought that the appellant was “too valuable to the company to be let go.”  And he took into account that, after a month stand down period, the appellant would be able to apply for a limited licence.

Legal framework

[7]      Sections  229  and  244  of  the  Criminal  Procedure Act  2011  confer  on  a convicted person the right to appeal against their conviction and sentence, respectively.  A refusal to grant a discharge without conviction is a decision both as to conviction and as to sentence, and an appeal is treated as one against both conviction and sentence.

[8]      Section 106(1) of the Sentencing Act 2002 allows for a person found (or who pleaded) guilty of an offence to be discharged without conviction.   Section 107 provides the following guidance:

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.

[9]      The Court of Appeal stated in R v Hughes that the test under s 107 of the

Sentencing Act requires an evaluative judgment, and is not a matter of discretion.2

Therefore, an appeal against the answer to the s 107 test will follow the principles set down by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar, and

the court must come to its own conclusion on the merits.3

2      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11]. This view was confirmed in Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [12]-[13].

3      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.

[10]     On appeal, therefore, the court must apply the analysis required by s 107. In R v Hughes the Court of Appeal established a three step test that is helpful when applying s 107:4

(a)       first, the court must assess the gravity of the offending;

(b)second, the court must assess the direct and indirect consequences of the conviction; and

(c)       third, the court must determine whether the consequences are out of proportion with the gravity of the offending.

[11]     In  the  first  step  the  court  should  take  into  account  all  aggravating  and mitigating factors of both the offending and the offender.5    This must be weighed against all the likely consequences of a conviction.

[12]     The Court of Appeal has said that a Judge need not be satisfied that the consequences will inevitably or probably occur, but he or she should be satisfied that there is a real and appreciable risk of such consequences.6     The High Court has

previously said that there should be some evidence as to the alleged consequences.7

Submissions

[13]     Counsel for the appellant relies on the fresh evidence of the appellant losing his contract.   The prospects of his career being affected are now more serious. Counsel recognises the high standard that has been set for obtaining a discharge without conviction in previous drink driving cases.  Even so, counsel submits that the present case reaches that high threshold.

[14]     The  appellant  cites  Papuni  v  Police  as  a  comparable  case.8      There,  the appellant had driven home after working in the Auckland CBD, having had drinks

4      R v Hughes, above n 2,at [22].

5      Z v R [2012] NZCA 599, [2013] NZAR 142 at [27]–[28].

6      DC v R [2013] NZCA 255 at [43].

7      M v Police [2013] NZHC 1101, (2013) 26 CRNZ 308 at [58]–[62].

8      Papuni v Police [2013] NZHC 1958.

but nothing to eat.  The appellant would likely lose his employment at Chipmunks (a children’s play venue) which required him to drive children.  A conviction would also risk him not being able to travel overseas as a dancer and choreographer.  His dance group’s funding relied significantly on the appellant’s continued involvement.

[15]     The appellant says the Judge erred by not accepting the likelihood of the appellant’s contract being terminated.  The appellant argues that his present position makes the consequences of a conviction more serious.  He must now apply for an employment position, which would require him to disclose the driving conviction. The appellant submits that his situation is similar to that of the appellant in Papuni, because both were first time offenders, both had relatively low-level drink driving charges, and both faced significant consequences from a conviction.

[16]     In any event, the appellant relies on the change of circumstances since the date of the appeal.  The appellant has applied for a job at Avis and has an interview next  week.    In  the  circumstances  of  there  being  a  competitive  job  market,  in Mr Vesty’s submission, all the appellant seeks is to be put on a level playing field with the other applicants.  A conviction and disqualification from driving would put him at a disadvantage.

[17]     The respondent says there is no evidence his chances of gaining employment would  be  adversely  affected  by  a  conviction.    When  ending  his  contract, Avis communicated its intention to employ the appellant in a different position.   The respondent also notes, as Judge Russell did, that the appellant can apply for a limited licence to enable him to drive for work purposes.

[18]     The respondent  submits  the present  case  is  distinguishable from  Papuni. First, there was in that case a real and appreciable risk that the appellant would lose his job.   Secondly, there was a risk that overseas travel (deemed essential to the appellant’s   dance   career)   would   be   limited.      Additionally,   the   appellant’s involvement with at-risk youth made his dancing an important community contribution.  Thirdly, at the time of Papuni, the legal blood alcohol limit was 80 mg and it has since been lowered to 50 mg. The appellant’s blood alcohol level, at 102

mg, was not much more than the then legal limit.  Here, the appellant’s blood alcohol

level was more than twice the legal limit.

[19]     In Ms O’Donoghue’s submission, the appellant has failed to show there is a real and appreciable risk he will be less successful in his job application as a result of a conviction and disqualification.  In any event, as a prospective employer, Avis is entitled to the information about the event which led to the charge.  It is impossible, in Ms O’Donoghue’s submission, to know the impact on the appellant’s employment prospects of a conviction and disqualification.  Furthermore, Ms O’Donoghue refers to the Court of Appeal decision of Edwards v R in which the Court did not accept that all employers will not look beyond the bare fact of a conviction rather than considering its circumstances and mitigating factors, especially where the offender is

generally a person of good character.9   Ms O’Donoghue submits that is the case for

the  appellant.    He  is  clearly well  regarded  by  his  prospective  employer  and  is generally a person of good character.

Analysis

[20]     While  the  offending  was  not  particularly  serious,  the  Judge  correctly categorised the offending as moderate.   The lack of previous convictions and the appellant’s good character are strong mitigating factors, but the Judge was right to consider the sentencing purposes of deterrence and denunciation alongside these.  I agree with the respondent that the offending is more serious than that in Papuni.

[21]     I turn to assess the consequences of a conviction and disqualification.  The appellant has now lost his contract with Avis, but this was as a result of the company restructuring rather than because of the conviction.  In fact, Avis was positive about the appellant and expressed its intention to have him employed by the company in a different capacity.   There is nothing which suggests his conviction would prevent him from getting a job, except that he would be required to disclose that fact to a

prospective employer.

9      Edwards v R [2015] NZCA 583 at [18].

[22]     In many ways the application now is less compelling than when it was before the District Court when the loss of the contract with Avis would have had serious repercussions for the appellant’s employees.

[23]     I accept that the fact of a conviction and disqualification from driving will have consequences for the appellant’s job application.  However, I am not satisfied that the consequences are out of all proportion to the gravity of the offending.

[24]     The appellant’s job application will need to be considered on its merits and with the necessary disclosure to his prospective employer.  It is not for the Courts to hide potentially relevant information from prospective employers.   The appellant says  he  seeks  a  level  playing  field  with  the  other  applicants  for  the  position. However, what he in fact seeks, is to be put in a better position than them because he effectively wants to conceal information.  Prospective employers can be expected to consider each case on its merits.  As the sentencing Judge and the Police indicated there would seem to be no reason why the appellant would not be granted a limited licence for employment purposes.

Result

[25]     For the reasons given, the appeal is dismissed.

Thomas J