Lechner v Police

[2013] NZHC 1166

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-22 [2013] NZHC 1166

GARTH ERICH LECHNER

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         21 May 2013

Counsel:         D Ewen for Appellant

S Carter for Respondent

Judgment:      23 May 2013

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 12.00pm on the 23rd May 2013.

JUDGMENT OF WILLLIAMS J

Introduction

[1]      On 28 March 2013 having plead guilty, Mr Lechner was convicted of drink driving.  He was fined $300 plus court costs and medical expenses and disqualified from driving for two months.  Mr Lechner appeals against conviction and sentence. He says the learned Judge should have discharged him without conviction.  He says

that the Judge erred in his assessment of the gravity of the offence and the indirect

LECHNER V NEW ZEALAND POLICE HC WN CRI-2013-485-22 [23 May 2013]

consequences of a conviction and that this led to an erroneous application of the s 107 balancing test.

Facts

[2]      On 4 November 2012 at approximately 12.20am Mr Lechner was at a party. He became involved in a verbal altercation with his girlfriend.  He decided to leave the party.   He got into his car and reversed it into the driveway and then drove

20 metres along the road and parked.   He says he did this because he feared that people at the party would damage it.   Apparently some of the party goers took exception to some of Mr Lechner’s comments during the course of the argument with his girlfriend.  The police did not challenge this explanation for why the car was moved.  Having parked the vehicle, he then left it.  There was then a brief altercation on the street, the police were called and a neighbour pointed Mr Lechner out.  The police did not charge Mr Lechner with any offence arising from the altercation, but having discovered that he had recently driven the car, the police breath tested him. He failed the breath test and then elected to have a blood test.   The result was

124 micrograms of alcohol per 100 millilitres of blood.

District Court decision

[3]      The learned Judge was not satisfied that the direct and indirect consequences of a conviction were out of all proportion to the gravity of the offence.  In assessing the  seriousness  of  the  offence,  he  noted  that  drink-driving  is  a  serious  driving offence but that Mr Lechner’s offending was at the less serious end.   The learned Judge took into account that Mr Lechner had not offended similarly in the past and the car was driven only a short distance without any apparent danger to anyone else. He also noted Mr Lechner’s reasons for driving his car and the fact that he had taken bedding to the party and intended to stay the night there.

[4]      In assessing the consequences of a conviction, the learned Judge considered Mr Lechner’s  argument  that  a  conviction  would  further  limit  his  chances  of employment when his personal circumstances and previous convictions already limit those  opportunities.    The  learned  Judge  went  no  further  than  finding  that  a

conviction for drink driving would probably have “some effect at some stage in

some ways”.

[5]      In applying the balancing test, the learned Judge said the additional adverse effect of having a conviction for drink driving on top of his current convictions would not be out of all proportion to the seriousness of the offending.

[6]      Mr Ewen argued that the learned Judge overstated the seriousness of the offence – it was, Mr Ewen said, a summary offence that was by definition not serious.    He also  submitted that  this particular  offending was  a very low  level example on the spectrum of seriousness.  He added relying on Police v SR[1], it is not necessary to point to particular consequences of offending where, seen in context, the conviction itself is a disproportionate impact.  He identified also the appellant’s problems with Asperger’s syndrome.

[1] Police v SR [2013] NZHC 980.

[7]      Ms  Carter  for  the  police  argued  to  the  contrary  that  the  Judge  rightly identified the offending as “moderately serious” and that there was little to indicate that a drink driving conviction would have any direct negative consequences for the appellant.  This meant inevitably, Ms Carter submitted, that the appellant would fail the disproportionate consequences test in s 107.

Discussion

[8]      In my view, the appellant should have been discharged without conviction. There are two key factors:

(a)       the low level of the offending; and

(b)the impact of a fresh conviction on his employment prospects in light of the rules of the Criminal Records (Clean Slate) Act 2004 and the

time since his last conviction.

Seriousness of offending

[9]      It is difficult to conceive of a less serious example of this offending.   The appellant drove 20 metres down the road to get his car out of the party vicinity.  This was because his disagreement with his girlfriend had caused party goers to take sides and the appellant was concerned that his car may be damaged in some kind of retaliatory action.   His clear intention was to spend the night at the party and not drive home.  The police do not dispute his version of the facts.  There is no doubt that 20 metres was all the distance he was going to drive that night.   In those circumstances, even though drink driving is a serious offence, the facts in this case disclose offending at such a low level that the disproportionality threshold in s 107 would not be difficult to satisfy.

[10]     I  do  not  agree  with  the  learned  Judge’s  conclusion  that  Mr  Lechner’s offending  in  this  case  was  moderately  serious.    I  acknowledge  of  course,  that Mr Lechner’s blood alcohol level was 125 mg per 100 millilitres of blood, but the driving aspect was extremely minor.  In my view, the learned Judge gave insufficient weight to that element of the offending.

Clean slate effects

[11]     Between 2007 and 2008 the appellant received a number of convictions for wilful damage, offensive behaviour and assault.   For the next five years he has stayed out of trouble.  One significant impact upon him is that but for this conviction the appellant could have claimed a clean slate by 2015.[2]     A conviction in this circumstance would mean he would have to wait a further five years again to 2020 before obtaining a clean slate.   This means his earlier and more serious offending will remain visible.  It seems to me that a conviction in these circumstances would indeed be out of all proportion to the gravity of the offending.  I do not consider that,

on these facts, the appellant is required to point to an actual or likely effect on

current employment.  There will be cases where such an effect will be required, but this is not one.  I adopt here the reasoning of Woodhouse J in Police v SR[3].

[2] Criminal Records (Clean Slate) Act 2004 s 7. Assuming that he did not receive a further conviction before that time.

[3] Police v SR [2013] NZHC 980.

[12]     In my view the s 107 threshold is met.  I am also of the view that this court ought to exercise its discretion in a case of this nature to grant a discharge under s 106.  The appellant has stayed out of trouble for five years.  The courts ought to do what they can to encourage former offenders to stay out of trouble.  This offending, as I have said, is so low level that there is simply nothing to be gained either for this appellant or the community generally in marking the offending with a conviction.

[13]     The  appeal  is  allowed.    The  conviction  is  quashed  and  the  appellant  is granted a discharge without conviction.  The disqualification remains as provided for

in s 106(3)(c).[4]

[4] See Police v Stewart (2004) 22 CRNZ 34.

Williams J