Linterman v Police

[2013] NZHC 891

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000123 [2013] NZHC 891

BETWEEN  ANNABEL ROSEMARY CRACROFT LINTERMAN

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         10 April 2013

Counsel:         JHM Eaton for Appellant

A R McRae for Respondent

Judgment:      29 April 2013

JUDGMENT OF MILLER J

[1]    Ms Linterman appeals the District Court’s refusal of her application for a

discharge without conviction on a charge of driving with excess alcohol.

[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 be permitted entry in 2016.

[6]    The Judge considered all of this.  She observed that the question was whether the  identified  consequences  of  conviction  were  out  of  all  proportion  to  the seriousness of the offence.   She reasoned that everyone suffers some personal consequences  from  such  a  conviction,  and  she  was  not  satisfied  that  those  for Ms Linterman were substantially worse than anyone else, for several reasons:   the conviction does not foreclose a career in law; a two and a half to three year delay before going to Canada is not disproportionate; and if Ms Linterman prefers not to wait she can undertake an LLM in environmental law at a university in another jurisdiction.

[7]    The appeal focuses on the Judge’s merits assessment.[1]   It is not suggested that she misdirected herself about the statutory test.   So far as the consequences of conviction go, Mr Eaton suggests that Ms Linterman will be delayed for three or even four years in undertaking the LLM, meaning that she may be as old as 31, by his calculations, before she completes it.  That will disrupt her clearly charted career path.  He says that the Judge was wrong to find that she can take the LLM elsewhere, for neither he nor Ms Linterman know of any comparable LLM.   The UBC programme is said to be specialised and especially relevant to New Zealand environmental  policy.    Further,  she faces  uncertainty because she might  not  be granted entry under the rehabilitation process.

[1] This is a general appeal: R v Hughes [2009] 3 NZLR 222.

[8]    So  far as  the  gravity of the offence is  concerned,  Mr Eaton  submits  that Ms Linterman  would  not  knowingly  break  the  law.    She  believed,  not  without reason, that she was under the limit.   So her culpability is low.   He concedes, however, that discharges are seldom granted for drink-driving offences.

[9]    I  agree  that  discharges  ought  to  be  exceptional  for  this  offence.    It  is illuminating to reflect on the several reasons why that might be so.   First, in the hands of a drunk a car is a dangerous thing.  Second, good character and extenuating personal circumstances normally count for little.  Drink-driving is a pervasive social problem which has brought many good citizens into the dock and caused the legislature to respond with a sentencing policy that emphasises personal and general deterrence.      Notably,   the  court   may  relieve   an   offender  of  the   minimum

disqualification period only for special reasons relating to the offence.   [2]  Special

[2] Land Transport Act 1998, s 81.

reasons relating to the offender will not do.  Nor is ignorance of one’s alcohol level a defence; a driver who chooses to drink at all takes the risk that for whatever physiological or other reason her level will prove higher than she thought.  Third, an applicant must identify some extraordinary consequence of conviction,  which is difficult when the ordinary consequences are unpleasant.  A drink-driving conviction always  carries  a  social  stigma  and  the  offender  must  normally disclose  it  to  a

prospective employer, who may wonder whether it evidences poor judgement or

undue fondness for drink,[3] and to immigration authorities, who may categorise it as evidence of antisocial tendencies.

[3] Mr Eaton referred, by way of example, to Ms Linterman’s inability to take up a short term

position in Switzerland teaching, I believe, tennis, while she is in France.

[10]  That said, a discharge is available in law for the offence, so the legislature must be taken to have recognised that some cases may merit one.[4]   When granting a discharge a court may make any order that it would be required to make on conviction, so the policy of the legislation can be respected by imposing a period of disqualification.[5]    And under settled principles the offender’s explanation and good character  may  be  considered  when  assessing  the  gravity  of  the  offence  and exercising the discretion under s 106 of the Sentencing Act 2006, although the weight accorded these things must be affected by the legislative policy that I have just discussed.[6]    Further, the cases indicate that disruption to travel or study plans may justify a discharge if sufficiently proved,[7]  although counsel could draw my

attention to no judgment of this Court in which one has been granted or upheld on such grounds for drink-driving.

[4] Police v Stewart (2004) 22 CRNZ 35;   Waight v Police HC Auckland CRI-2006-404-465, 24

May 2007.  In my opinion, disqualification is not a true minimum sentence for s 106 purposes because of the sentencing court’s power to avoid it independently of the jurisdiction to discharge without conviction.

[5] Sentencing Act 2002, s 106(2). The court may also order that money be paid in lieu of a fine

[6] A similar view was taken by Woodhouse J in Livingstone v Police HC Auckland CRI-2011-404-

167, 2 August 2011.

[7] Livingstone v Police HC Auckland CRI-2011-404-167, 2 August 2011;  Ying-Nan Wu v Police

HC Dunedin CRI-2007-412-000071, 7 February 2008;   Currie v Police HC Auckland CRI-

2008-404-307, 27 May 2009;   Brunton v Police [2012] NZHC 1197 and Evans v Police HC Wellington CRI-2009-485-97, 6 November 2009.

[11]  Turning to the merits, for the reasons I have given Ms Linterman’s offence was serious almost by definition, with no special reasons relating to it that could relieve her of the minimum six months disqualification.   It lacked the unusual mitigating factors seen in other cases in which discharges have been granted on appeal for this offence.[8]   Still, hers was not a bad offence of its kind.  The only aggravating factor was her alcohol level, which was well over the limit.  That matters.  But there was no

driving  fault  and  I  accept  that  she  honestly  believed  she  was  under  the  limit,

although whether her actual level results from some physiological cause or she was simply mistaken about how much she had had to drink, I do not know.

[8] In Waight v Police HC Auckland CRI-2006-404-465, 24 May 2007 and Wood v Police HC Wellington CRI-2009-485-6, 30 April 2009, the offenders had taken precautions to ensure they were under the limit.  One had breath tested himself, and the other had stayed the night at a friend’s house.

[12]  Delay  in  getting  entry  to  Canada  for  postgraduate  study  is  the  only consequence that is said to supply the necessary disproportionality.  The facts have changed since the District Court hearing.  Canada has relaxed its stringent five-year rule by creating an exception called a temporary residence permit, which is available for those who are inadmissible for criminal reasons.   Mr McRae explained that Canada has found the policy excluded too many temporary visitors.  However, the general prohibition remains, and the rules envisage that a temporary permit will not be lightly granted.  The applicant must point to compelling reasons for entry; those may include “job qualifications”.  Where an applicant is criminally inadmissible she must also show she poses no risk of further criminal activity.  The authorities will consider an application on its merits, taking into account benefits to the person from entry, the nature and seriousness of the offence, and evidence of reform.

[13]  Notwithstanding the temporary residence permit, I accept that there is a real and appreciable risk[9] that Ms Linterman will experience the delay that she fears.  Her chosen career path is clear and she has already embarked upon it.  The delay would be for perhaps three years which would be likely, as a practical matter, to result in her never studying there.  I attach no weight to the need to seek “rehabilitation” once the five years is up; Ms Linterman is a qualified and eminently suitable person who

would get entry now despite disclosing a discharge without conviction, so there is no reason to suppose that the Canadian authorities will deny her entry after five offence- free years.

[9] Iosefa v Police HC Christchurch CRI-2005-409-64, 21 April 2005 at [34].

[14]  However, this consequence must be put into perspective.   I agree with the Judge that Ms Linterman’s situation differs from that of the person whose conviction will jeopardise, after a long course of study, her very entry to her chosen profession. Ms Linterman has a confirmed job at a leading law firm, and there is no suggestion that she will be denied admission to the bar.  She does not need the LLM to succeed

in  New  Zealand  legal  practice,  whether  at  the  bar  or,  as  she  prefers,  in  a

policymaking setting.  Nor does she suggest that the LLM is a step along a path to an academic career, for which the choice of programme might matter more.

[15]  Further, she could take her LLM in another jurisdiction.  Counsel’s criticism of the Judge for making this point is misplaced.   The UBC programme is doubtless unique in some respects, and I accept that it is highly regarded.   I am told that it takes one to five years to complete, rather than the single year that is usual for a Masters programme.   But there is no evidence that it is the only reputable LLM programme in environmental law anywhere in a world afflicted by environmental problems.  In fairness to Ms Linterman, her own statement to the District Court does not  suggest  that  it  is  the  only  option  for  her.    Rather,  she  states  that  she  has considered a number of such programmes, and has chosen UBC because Canadian law has influenced New Zealand practice, and because UBC has “a strong focus on policy-making amongst a broad range of ecological, social and economic factors.”  I readily accept that Canada is a fertile and congenial source of insight for New Zealand lawyers and policymakers, but this falls a long way short of saying that Ms Linterman’s  future depends  in  any substantial  way on  the UBC  programme.    I observe too that while there is no substitute for immersion, one need not live in Canada to incorporate Canadian law and policy into a course of study.   The comparative approach is a staple of academic study everywhere.  Ms Linterman has evidently used it in her LLB (Hons) dissertation.

[16]  In summary, there is no evidence that Ms Linterman’s very promising future as a practising lawyer depends upon taking an LLM at all, let alone a Canadian one. She is able notwithstanding the conviction to take an LLM in environmental law at an overseas university in 2016, as she wants to do, but not in Canada.  Alternatively, she can wait perhaps three years longer to attend UBC, but as a practical matter that is unlikely.

[17] The Court must weigh consequences and gravity, in search of serious disequilibrium.  “Out of all proportion” is an imprecise but exacting standard.  In this case I have found that the offence is intrinsically grave, although Ms Linterman’s is not a bad instance.  She is an exemplary person who has made a mistake that she is most unlikely to repeat.  There exists a real risk that it will alter her carefully planned

career path.  But although the particular consequence of conviction is both somewhat unusual and sufficiently definite, I cannot find it burdensome enough to meet the statutory standard.   It involves neither loss of career nor any material career disadvantage, and it affects neither her immediate study in France nor her subsequent employment in New Zealand.   Although cases involving students or young professionals  are  common,  my  attention  has  been  drawn  to  none  in  which  a discharge was granted on similar grounds for this offence.

[18]  Accordingly, Ms Linterman cannot show that the District Court Judge was wrong.  The appeal is dismissed.

Miller J

Solicitors:

Crown Solicitor’s Office, Christchurch for Respondent