Livingstone v Police HC Auckland CRI-2011-404-167
[2011] NZHC 926
•2 August 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-404-167
DAVID LIVINGSTONE
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 1 August 2011
Appearances: Appellant in person
L J Clancy for the Respondent
Judgment: 2 August 2011 at 4:30 PM
JUDGMENT OF WOODHOUSE J
This judgment was delivered by me on 2 August 2011 at 4:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
Solicitors:
Mr D Livingstone, Auckland
Mr L J Clancy, Meredith Connell, Office of the Crown Solicitor, Auckland
LIVINGSTONE V NEW ZEALAND POLICE HC AK CRI-2011-404-167 2 August 2011
[1] Mr Livingstone has appealed against his conviction for operating a motor vehicle carelessly and driving with excess breath alcohol. He applied for a discharge without conviction pursuant to s 106 of the Sentencing Act 2002. This was declined by a Community Magistrate with that decision affirmed on appeal to a District Court Judge.
The offences
[2] On 29 May 2010 Mr Livingstone was driving a car in a suburban street in Auckland‟s North Shore. He lost control, veered to the left, mounted a footpath and crashed through a small wooden barrier. He was able to get the car back onto the road but was not able to drive it any further. Breath tests procedures were carried out. Mr Livingstone‟s breath alcohol level was 908 micrograms.
Personal circumstances
[3] Mr Livingstone was just short of his 19th birthday when the offences occurred. He was at Auckland University. Central to Mr Livingstone‟s application for discharge without conviction are his aspirations and prospects as a debater, and broader aspirations of overseas study, work and travel generally.
[4] Mr Livingstone is an accomplished debater. He has been involved in debating since 2007, when at secondary school, and represented Rosmini College and Takapuna Grammar School. He joined the Auckland University Debating Society when he started at university. His active and promising involvement in the Society is confirmed by an affidavit from the president of the Society. Mr Livingstone went with a debating team to Korea earlier this year and anticipates that he will be going to Manila for an international debating event later in the year.
[5] The president of the Debating Society said that the World Universities Debating Championship may be held in North America during the 2012/2013 academic year. Mr Livingstone, who represented himself with competence on the appeal, advised that he had not experienced any difficulty in going to Korea this year
and is not anticipating any difficulty in going to the international event in Manila, if he is selected. However, there is evidence that, if the 2012/2013 international event is held in Canada, Mr Livingstone may experience particular difficulty in entering Canada with the convictions that were entered for these offences.
[6] The evidence of difficulty in entering Canada was provided in an affidavit from Mr Livingstone‟s father. This consists of extracts from a Canadian Government website and a letter from the immigration section of the Office of the Canadian Consulate-General in Sydney. I will come back to this evidence when discussing the central issue under ss 106 and 107 of the Sentencing Act.
[7] In addition to Mr Livingstone‟s particular interest in debating, and his obvious aptitude in that regard, he referred in a more general way to difficulties he may experience in the future in travelling overseas for the purposes of further study, career opportunities and travelling in general. There are no definite plans in this regard. However, Mr Livingstone anticipates that he will complete a law degree. Many law graduates travel overseas for further study or work. And many students travel after graduation. There is evidence that he is a young man with ability and good prospects. This includes evidence from a family friend who was a Detective Senior Sergeant and subsequently a member of Parliament, and who has known Mr Livingstone since he was 10 years old.
The sentence and related matters
[8] Mr Livingstone pleaded guilty at an early stage, although he was not sentenced until February this year. He was convicted on both charges by the Community Magistrate, fined $800, ordered to pay Court costs of $132.89 and disqualified from holding or obtaining a driver‟s licence for 7 months.
[9] Mr Livingstone was also disciplined by his father. The car had been provided by Mr Livingstone‟s father. In June 2010, soon after the offences occurred, Mr Livingstone senior disposed of the car and did not permit his son to drive over the following months. As a consequence, the combined effect of family discipline and
the mandatory disqualification imposed by the Court is that Mr Livingstone has not been permitted to drive a car, at this date, for approximately 14 months.
Legal framework
[10] Under s 106 of the Sentencing Act 2002 the Court may discharge an offender without conviction (unless an enactment provides otherwise and that has no application here). Under s 106 the Court is exercising a discretion. Before the Court can consider exercise of that discretion, it must be satisfied in terms of s 107, which 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.
[11] Although the Court in this case refused to grant a discharge pursuant to s 106 of the Sentencing Act, the decision, by the Community Magistrate and the Judge, arose from the assessment under s 107. The Community Magistrate and the Judge were not satisfied in terms of that provision. An appeal against a decision under s 107 is not an appeal against the exercise of a discretion in the lower Court, but a
general appeal: see R v Hughes.1 The appellate Court must come to its own decision:
Austin, Nichols & Co Inc v Stichting Lodestar.2 The appellate Court is entitled to place such weight as it considers appropriate on the judgment (or judgments in this case) in the lower Court. I have had regard to the judgments in the lower Court, but an independent assessment is nevertheless required.
[12] The following may be noted in relation to s 107:
(a) The Court is directed not to discharge an offender unless the Court is satisfied to the extent prescribed by s 107, but this does not impose a
particular onus on the appellant: R v Hughes.3
1 R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 at [11].
2 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.
3 R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 at [49].
(b) The requirement that the Court be “satisfied” simply means that the
Court must make up its mind: R v Hughes.4
(c) The Court must assess all the relevant material before it and decide whether it is satisfied that the statutory test has been met: R v Hughes.5
(d)An assessment of “the gravity of the offence” is not limited to an assessment of the seriousness of the particular offending. In R v Hughes at [27] the Court of Appeal approved the following statement of Miller J in Delaney v Police:6
[29] … I consider that „the gravity of the offence‟ should be read as including not only the offence itself but also anything that may affect the Court‟s subsequent assessment of overall culpability. That includes guilty pleas, expressions of remorse and the Court‟s assessment of how likely it is that the offender will reoffend, the victim‟s perspective, and any consequence already suffered by way of reparation, community work or publicity.
(e) The matters referred to by Miller J were examples, not a definitive list. Any matter bearing on the overall culpability or criminality of the defendant should be taken into account.
(f) Direct and indirect consequences can be taken into account even though they may not definitely occur. I agree with the following statement of Randerson J in Iosefa v Police:7
[34] … [I]t is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient if the Court is satisfied there is a real and appreciable risk that such consequences would occur.
4 R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 at [50] applying R v White (David) [1988] 1
NZLR 264 (CA) at 267.
5 R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 at [53] approving, with a minor modification,
BC v Police HC Wellington, CRI-2003-485-101, 2 June 2004, Ronald Young J at [8].
6 Delaney v Police HC Wellington, CRI-2005-485-22, 22 April 2005.
7 Iosefa v Police HC Christchurch, CIV-2005-409-64, 21 April 2005. Asher J agreed with this statement in Alshamsi v Police HC Auckland, CRI-2007-404-62, 15 June 2007.
(g)The degree of likelihood that there will be an adverse direct or indirect consequence will nevertheless affect the proportionality test. So too will the nature and seriousness of the consequences. In this regard I also agree with a further statement of Randerson J in Iosefa v Police:8
[35] However, the nature and seriousness of the consequences and the degree of likelihood of their occurring will be material to the Court's assessment of whether those consequences would be out of all proportion to the gravity of the offence. In other words, the higher the likelihood and the more serious the consequences, the more likely it is that the statutory test can be satisfied.
(h)The proportionality assessment does not involve a simple balancing of consequences against the gravity of the offence. The consequences must be out of all proportion to the gravity of the offence.
Assessment
The gravity of the offence
[13] The excess breath alcohol offence, of its type, is a serious offence. I agree with the Community Magistrate‟s observation that it is “at the more serious end given the high reading, which is more than double the legal limit”. Mr Livingstone‟s youth is a factor that is to be brought into account in his favour, when assessing overall culpability, but it is also a factor which counts against him when the offence involves such a high level of alcohol in a young man.
[14] The excess breath alcohol offence is also a relatively serious offence when compared with other types of offence. Mr Clancy, for the respondent, referred to some other cases by way of comparison on the facts as well as on points of principle. One of these is Currie v Police.9 Mr Livingstone submitted that Currie could be distinguished on the facts as being a case involving an offence of greater gravity than
Mr Livingstone‟s principal offence of driving with excess breath alcohol. This
8 See n 7 above.
9 Currie v Police HC Auckland, CRI-2008-404-307, 27 May 2009, Potter J.
submission indicates to me that Mr Livingstone may not fully appreciate the relative gravity of his offence, when considering the general nature of the offence of driving with excess or blood alcohol, and when further considering the facts of Mr Livingstone‟s particular offence. The defendant in Currie committed two offences of common assault. An offence of driving with excess breath or blood alcohol is, in my judgment, a more serious offence – a sense of greater gravity – than an offence of common assault. When the gravity of the two types of offending are assessed in relation to possible consequences, driving with excess breath or blood alcohol is significantly more serious than common assault. Mr Livingstone submitted that the offending in Currie was more serious because, amongst other things, the defendant deliberately assaulted two victims; there were intentional acts of aggression. Mr Livingstone‟s actions were also intentional. He chose to get into a car and drive it when he was very intoxicated. The intoxication does not diminish these facts (and it may be noted that the defendant in Currie was also intoxicated). What is more, and significantly, Mr Livingstone created a real risk to others on the road as well as to himself, including a risk of serious injury and death.
[15] There are a number of factors which diminish the gravity of the offence, assessed in the broad way discussed by Miller J in Delaney.10 There are the positive aspects of Mr Livingstone‟s youth; generally speaking, the culpability of a youthful offender will be assessed as less, and possibly substantially less, than the culpability of an older person. Mr Livingstone has never offended before. The likelihood of re- offending should be put to one side. He pleaded guilty at an early stage. He has
been penalised by his father in a not insignificant way. The disqualification imposed in February has been in force since then so that that will apply even if there is a discharge at this stage. However, I do not consider that these matters substantially
reduce the overall gravity of the offence.
10 See n 6 above.
Consequences of a conviction
[16] The direct and indirect consequences of a conviction, to be weighed against the gravity of the offence, in my judgment do not take the matter to the point where a conviction would be out of all proportion to the gravity of the offence.
[17] The primary focus before the Community Magistrate and the District Court Judge was the consequence for Mr Livingstone if he has an opportunity to go to Canada as a member of the debating team. Before the community Magistrate and the Judge there was a degree of debate as to whether a conviction would definitely mean that Mr Livingstone could not enter Canada. The evidence produced by Mr Livingstone senior is not conclusive. A person with convictions such as those in this case can apply for what amounts to a dispensation. Nevertheless, the prospects of getting a dispensation, on the basis of the information provided, should be treated as low.
[18] However, even if it is assumed that Mr Livingstone would be refused entry to Canada, there are other less certain aspects to be weighed. There is no certainty that there will be any competition in Canada while Mr Livingstone is at university. The relative uncertainty in this regard diminishes the extent to which the indirect consequences of a conviction weigh against the gravity of the offence. It falls short of an indirect consequence out of all proportion to the gravity of the offence. A further important consideration in this regard is that, even if it could be said today that the next international competition will be in Canada and that Mr Livingstone will be on the team, and he will be refused entry to Canada, I would not be satisfied that that one-off consequence for him would be out of all proportion to the gravity of the offence. It might very well be a consequence which would not be of a nature suffered by many people convicted for similar offences, but that would not make the consequences “out of all proportion” to the gravity of the offence.
[19] There are the broader or longer term considerations of possible indirect consequences connected with overseas study or employment or general travel. I accept that these are matters that can and should be brought into account, notwithstanding the absence of any direct evidence of specific plans in respect of
which these difficulties could arise. But in this regard the degree of likelihood of insurmountable indirect consequences arising in this regard must be regarded as insufficient to take them to the point of making the consequences out of all proportion to the gravity of the offence. This is the sort of assessment referred to by Randerson J in Iosefa11 and quoted above. Mr Livingstone is at a reasonably early stage of his tertiary education. With hard work, good planning and the passage of time, and the real likelihood that there will be no further offending, these convictions may not have any significant consequence. And that may apply in relation to
Canada, the only country in respect of which direct evidence was provided. The Canadian website indicates that five years after a sentence has been completed the entry difficulties might be removed. In any event, there are many countries which Mr Livingstone is likely to be able to travel to, for a range of purposes, without any particular difficulty. This has now been demonstrated, as a matter of fact, by Mr Livingstone‟s travel to Korea this year, following the District Court hearing, and his advice that he does not anticipate difficulty in travelling to the Philippines later this year.
Conclusion
[20] I am not satisfied that the direct and indirect consequences of the convictions for Mr Livingstone would be out of all proportion to the gravity of these offences. I am satisfied that the decisions in the lower Courts were correct. The appeal is in
consequence dismissed.
Peter Woodhouse J
11 See n 7 above.
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