[2] The facts are that Ms Linterman was pulled over on Papanui Road just after midnight on 20 May 2012. She was on the road because she had attended a 21st birthday party as the sober driver for her group of friends and they were going home. She was stopped at random, so there was no driving fault. The only aggravating factor was her alcohol level. She elected to provide a blood sample, which established that her blood contained 142 milligrams of alcohol per 100 millilitres, substantially more than the legal limit of 80 per 100. She admitted to consuming three glasses of wine, the last at 9.30 pm. Her blood-alcohol level suggests she had
drunk significantly more than that. However, she had been exercising and had not eaten, she was exhausted from studying, and she might have been dehydrated. The
Police accepted at sentencing that she had believed she was under the limit.

LINTERMAN v N Z POLICE HC CHCH CRI-2012-409-000123 [29 April 2013]

[3] Ms Linterman is aged 23 and has no previous convictions. At sentencing on

10 December 2012 she was in the final year of an honours degree in law at Canterbury. She is a first class student and good sportswoman, of excellent character.

[4] She moved for a discharge on the ground that the consequences of conviction would wholly outweigh the seriousness of the offence in the circumstances, because it would preclude her from pursuing postgraduate study in Canada. She wants to take an LLM at the University of British Columbia (UBC), which has an excellent reputation in her chosen field, environmental law.

[5] She does not intend to do this at once. This year she is studying in France and she will then work with a leading law firm for two years before taking her LLM in
2016, which would mean entering Canada by the beginning of September in that year. But it was common ground in the District Court that Canada, which is apparently unique among foreign jurisdictions that offer postgraduate study in this respect, would not entertain entry for five years after completion of her sentence. This means she cannot apply until June 2018. She may not get entry at once because she will have to apply for what is called “rehabilitation”. That process could delay her past September 2018, and so cause her to lose another year. By contrast, she would not automatically be denied entry if she were to get a discharge without conviction. She would have to disclose the discharge, but there seems to be no doubt that she would…

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 Linterman v Police

Details

AGLC: Linterman v Police [2013] NZHC 891
Case: [2013] NZHC 891
Decision Date: 29 April 2013

CaseChat Overview and Summary

Ms Linterman appealed against the District Court’s refusal of her application for a discharge without conviction on a charge of driving with excess alcohol. She was caught with a blood alcohol level of 142 milligrams per 100 millilitres of blood, well above the legal limit of 80 milligrams per 100 millilitres. She argued that the consequences of conviction would wholly outweigh the seriousness of the offence, because it would preclude her from pursuing postgraduate study in Canada. The High Court considered the appeal on the grounds that the consequences of conviction were out of proportion to the seriousness of the offence and that Ms Linterman’s culpability was low. The Court found that the offence was serious almost by definition and that there were no special reasons relating to it that could relieve Ms Linterman of the minimum six months disqualification. While there was a real and appreciable risk that Ms Linterman would experience the delay that she feared, the Court found that the consequence was not burdensome enough to meet the statutory standard. The Court dismissed the appeal.

Orders