Luteru v Police

[2023] NZHC 2508

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2023-443-19

[2023] NZHC 2508

BETWEEN

ALFRED LUTERU LUTERU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	30 August 2023
Appearances:	N R Harding for the Appellant H Bullock for the Respondent
Judgment:	7 September 2023

JUDGMENT OF HARLAND J

Introduction

[1]    Alfred Luteru pleaded guilty to a charge of driving with excess blood alcohol.1 He applied for a discharge without conviction, but his application was declined by Judge Hikaka on 24 May 2023.2 Mr Luteru appeals this decision. The respondent opposes the appeal.

[2]    The appeal was filed out of time by two working days. The respondent does not oppose an extension of time being granted. The delays were occasioned through no fault of the appellant, including a delay in his application for legal aid being

1      Land Transport Act 1998, s 56(2): maximum penalty three months’ imprisonment or a fine not exceeding $4,500 and a mandatory disqualification from holding or obtaining a driver licence for six months or more.

2      New Zealand Police v Luteru [2023] NZDC 10340.

LUTERU v POLICE [2023] NZHC 2508 [7 September 2023]

processed. In the circumstances, I am satisfied it is in the interests of justice to hear the appeal and grant leave for it to be heard out of time.

Principles on appeal

[3]    The Court may grant a discharge without conviction under s 106 of the Sentencing Act 2002 only if it is satisfied, under s 107, that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.3

[4]    The decision under s 107 involves a matter of fact requiring judicial assessment. Appeals against the proportionality test under s 107 are by way of rehearing, with the appellate Court making its own assessment of whether the criteria are established.4 If a discharge without conviction should have been granted, then there will have been a material error by the sentencing Judge, or a miscarriage of justice will have occurred for any other reason, and so the appeal against conviction must be allowed.5

The offending

[5]    On 24 December 2022, Police were called to a hotel in Hāwera due to a large number of patrons celebrating Christmas Eve. At about 12.20 am, Mr Luteru was spoken to by Police and asked who was driving the vehicle he was standing next to. He was drinking alcohol at the time. He said that he was waiting for a friend to pick him up.

[6]    Some 10 minutes later, the Police observed Mr Luteru get into the driver’s seat of the vehicle and drive away. The Police stopped the vehicle. Mr Luteru elected to have a blood sample taken. His blood alcohol level was revealed to be 136 mg of alcohol per 100 ml of blood, when the legal limit is 80 mg.

3      Sentencing Act 2002, s 137.

4      H v R [2012] NZCA 198 at [35]–[36].

5      Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].

[7]    When spoken to by Police, Mr Luteru said that his friend was not answering his phone and therefore he did not have a sober driver to drive the vehicle.

District Court decision

The material filed in support of the application for discharge without conviction

[8]    As is usual when a defendant wishes to file an application for a discharge without conviction, the appellant filed an affidavit prior to his sentencing hearing. He explained his reason for driving, which was consistent with the explanation he gave to the Police, and he noted that he was often the sober driver for work functions but, in this case, as someone else had offered to fulfil that task, he participated in the festivities. Although he said he felt “O.K. to drive”, he deposed that he had since appreciated that he was simply over-confident because of the alcohol he had consumed. The appellant was clear that this would not happen again in the future.

[9]    The appellant has no other criminal or traffic history and he outlined that he has applied for permanent residency in New Zealand. He expressed his concern that a conviction would, at the very least, delay his application and, at the very worst, cause it to be rejected. He outlined that he had put significant effort into coming to New Zealand, including being away from his family in Samoa when the borders closed for COVID. He outlined the advice he had received from an immigration consultant that it would be much harder for him to get residency if he has a conviction as he would need a character waiver and there was no guarantee that he would be successful in obtaining one. He noted the advice he had received that, if he was discharged without conviction, the path to residency would be more straightforward with much less chance that his application would be rejected. Obtaining permanent residency is clearly very important for the appellant as he has a wife and five children in Samoa that he is hoping to permanently bring to New Zealand so they can be together.

[10]   The appellant noted that he would be in a position to make a donation to charity as directed by the Court and he accepted that, even if he was discharged without conviction, he could still be disqualified from driving.

[11]   The appellant is employed as a team leader at Silver Fern Farms Ltd’s Hawera plant. He is a skilled slaughterer. His affidavit attached letters of support from his parish steward, site manager, human resource manager, the Samoan team at Silver Fern Farms and, as well, there was a character reference from his brother, a letter from his immigration consultant, an email from his mentor at Te Ara Pae Trust, and a letter from the Vaimoana Pasifika Trust.

[12]   The character references speak of the appellant’s participation in his community, including the supportive and senior role he has at Silver Fern Farms, and the pastoral and cultural care he provides to other workers from Samoa while living and working in Taranaki, helping to ensure that they are not too isolated from their whānau, church and village.

[13]   The reference from Silver Fern Farms describes the appellant as a leader of the Samoan team. He is heavily relied upon not only to be a translator but to assist with training and supporting other Samoan employees to adjust to “the ‘kiwi way’ of life”. The appellant is described as punctual, honest and reliable.

[14]   The references also record that the appellant is very remorseful for the offending.

[15]   The letter from the appellant’s immigration consultant outlines that he holds an essential skills work visa valid to 18 January 2024. His application for a resident visa was lodged on 11 April 2022.

[16]   The immigration consultant also outlined various immigration instructions that she considers are relevant to the appellant. These include that applicants for visas must be of good character (Immigration Instruction A5.1) and that a person who has been convicted at any time in the last five years of an offence (including a traffic offence involving dangerous driving, driving having consumed excessive alcohol or driving having consumed drugs), will not normally be granted a residence class visa unless granted a character waiver (Instruction A5.25(h)).

[17]   The immigration consultant further notes that, given the nature of the charge, the appellant may not meet the good character requirement to be eligible for residency under Instruction A5.25(f). She noted:

Any conviction appearing on Mr Luteru’s criminal record will seriously jeopardize Immigration New Zealand’s decision to grant a Resident visa.

A discharge without conviction will greatly help Mr Luteru’s circumstances to secure residency in New Zealand he has worked so hard to achieve. Mr Luteru’s sacrifice to remain in New Zealand for 3 years, separated from family when the borders closed, whilst actively contributing to the New Zealand economy is commendable.

We strongly encourage the court’s decision to discharge Mr Luteru without conviction.

[18]   The letter from the Vaimoana Pasifika Charitable Trust, the only Pasifika organisation in Taranaki, was also instructive. The committee member of the Trust that provided a letter of support outlined that her role for the last two years had been to assist Pasifika people applying for New Zealand residency in Taranaki. The letter outlines the experience the Trust has had with obtaining residency visas and notes, for those with a criminal conviction, there are “more loop holes” and potential difficulties for those who wish to include their family or bring them to New Zealand later on.

The Judge’s decision

[19]   At the outset of his judgment, Judge Hikaka noted the information he had before him which he described as “significant”, and he acknowledged the number of people who attended Court to support the appellant.

[20]   When outlining the offending, the Judge referred to the appellant having been spoken to by the Police while he was standing next to the vehicle, his response that it would not be him, but the Judge observed that nonetheless 10 minutes later the appellant got “behind the wheel and drove”.6 The Judge said:

[9] The explanation was that there was  no sober  driver  to  drive the vehicle, so you took it upon yourself. The level of alcohol in your system was high. You would have known at the time you were under the influence. By far, the majority of people would have known that, with that level of alcohol in their system.

6      New Zealand Police v Luteru, above n 2, at [8].

[21]   The Judge then outlined the immigration consequences for the appellant, noted his prior role as a sober driver for work functions and reflected that he had put a lot of effort into coming to New Zealand. However, he also noted that, even with no conviction entered, there would still be a chance of the appellant’s residency application not succeeding.

[22]   The Judge then referred to the legal test for a discharge without conviction. He described the offending as moderately serious because of the reasonably high level of alcohol the appellant had in his system. The Judge also considered that the direct and indirect consequences of the conviction on the appellant would be moderately serious.

[23]   He noted that the prosecution did not oppose the application for discharge without conviction. However, he referred to the principles of denunciation and deterrence, and said:

[28] There are so many positive comments about you in all of this information that has been provided. It would be a great surprise if you were not given a character waiver but, on the other hand, a discharge without conviction would potentially invite any number of people, and there were 37 who signed up to be in support of you, drinking, driving and then on the basis of a delayed residency application or a rejection of such an application, applying for a discharge without conviction. That is not sending the right message for moderately serious offending such as yours of drink-driving.

[24]   The Judge then expressed his surprise that 10 minutes prior to being seen to be getting into the driver’s seat and driving away and having been approached by a Police officer, the appellant nonetheless decided to do exactly that. Noting the appellant’s remorse, the Judge concluded that he could not be satisfied that the direct or indirect consequences of a conviction would be out of all proportion to the seriousness of the offending. He considered them to be more evenly balanced and dismissed the application.

[25]   In convicting and fining the appellant, as well as ordering him to pay costs to the prosecution and disqualifying him for six months from driving, the Judge then said:

[34]      Without hesitation, I note that the level of support you have within the community, recognising what a valuable person you are in this local community, will go a long way toward supporting the character wavier [sic]

requirements of the Immigration inquiry. If need be, this decision can be attached to the various other documents you have provided to show that I am of the view that you would be a person of value to our community, particularly given the role that you have taken on and the influence you have had on others.

[35]      However I cannot step away from what the law requires of me to do with this balancing act and I have made my decision in line with that balancing act.

Discussion

[26]   As I indicated to counsel during the hearing, I do not consider the floodgates argument, potentially referred to by the Judge when he referred to denunciation and deterrence forming part of the sentencing process,7 to be compelling, given that each application for a discharge without conviction must be considered on its facts. The nature of each person’s situation is highly variable. It is not binding or even highly persuasive where one applicant receives a discharge without conviction and another does not for offending of this kind.

[27]   But I do not see the Judge’s judgment as depending on that observation. The essence of his decision was that he could not find the consequences of the conviction, both direct and indirect, to be out of all proportion to the gravity of the offending. This was because he assessed the offending to be moderately serious and the indirect and direct consequences of conviction to also be moderately serious.

[28]   The question on appeal is whether any of the personal circumstances relating to the appellant, when considered as part of the assessment of the gravity of the offending, mitigate or reduce the Judge’s assessment of it, given that his “moderately serious” finding related to the offending itself. This is important because the gravity of the offending in this context takes into account the aggravating and mitigating circumstances of the offending and the offender.8

7 See above at [23].

1. Sok v R [2021] NZCA 252, (2021) 29 CRNZ 962, citing Z (CA447/2012) v R [2012] NZCA 599,

[2013] NZAR 142 at [27]-[28], in turn citing A (CA747/2010) v R [2011] NZCA 328 at [25].

[29]   As noted by the Court of Appeal in Basnyat v Police, driving with excess blood alcohol is a moderately serious offence because of its potential consequences and the pervasiveness of alcohol abuse in our society.9 The Court went on to say:

[22]  The legislative directive is that a proportionate response to driving  with a blood alcohol level above 80 milligrams per 100 millilitres of blood will ordinarily be the entry of a conviction. All other things being equal that will be the inevitable result. It will therefore be necessary to identify factors either in the offending or the consequences of a conviction for the offender that show that result is wholly disproportionate. A blood alcohol reading that is only just over the limit will be relevant — placing the gravity of the offending at the low end of moderately serious as Brewer J indicated — but not enough on its own. There will also be factors personal to the offender, often related to the offending itself, which will go to gravity. These might include the use before deciding to drive of faulty personal breath alcohol checking devices or the need to drive to assist others in an emergency, and the like. Youth will also be a relevant factor under this heading.

(footnote omitted)

[30]   In this case, the appellant was caught with an alcohol blood level of higher than one and a half times the legal limit.10 The Judge was generous when he described the offending as “moderately serious”. It could have been categorised as serious given the high reading. There are no mitigating features of the offending itself, such as driving to assist others as mentioned in Basynat v Police referred to above. Rather, the appellant was aware that he should not be driving as he told the Police 10 minutes before he drove that he was going to have a sober driver take him home.

[31]   There are however mitigating features personal to the appellant, namely that he pleaded guilty at an early opportunity, he has no previous criminal convictions in New Zealand, and there are the character references. Although referring to them, the Judge did not assess how much weight he attached to them in his overall assessment of the gravity of the offending. Arguably, these matters reduced the gravity of the offending. In the circumstances, this would reduce the gravity of the offending overall to the lower end of moderately serious.

9      Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344 at [19].

10     Land Transport Act, s 56(2).

[32]   Regarding the direct and indirect consequences of the conviction, the main consequence is the impact the conviction will have on the appellant’s application for permanent residency in New Zealand.

[33]   This is unlike many discharge without conviction applications the court sees where the concern is deportation. The appellant is currently on an essential skills worker visa that is valid until 18 January 2024. Therefore, his liability for deportation is reliant on the Minister of Immigration determining that there is a “sufficient reason” for his deportation, which can include criminal offending (as opposed to a conviction) and other matters relating to character.11 A conviction therefore does not impact his liability to be deported, but it may affect his ability to get a permanent residency visa.

[34]   Instruction A5.25.1 of the Operational Manual for Immigration New Zealand states that an immigration officer must not automatically decline residence class visa applications on character grounds but must consider the surrounding circumstances of the application to decide whether they are compelling enough to waive the good character requirement. The factors that are relevant include, but are not limited to:

i.if applicable, the seriousness of the offence (generally indicated by the term of imprisonment or size of the fine);

ii.whether there is more than one offence;

iii.if applicable, the significance of the false, misleading or forged information provided, or information withheld, and whether the applicant is able to supply a reasonable and credible explanation or other evidence indicating that in supplying or withholding such information they did not intend to deceive INZ;

iv.how long ago the relevant event occurred;

v.whether the applicant has any immediate family lawfully and permanently in New Zealand;

vi.whether the applicant has some strong emotional or physical tie to New Zealand;

vii.whether the applicant’s potential contribution to New Zealand will be significant.

11     Immigration Act 2009, s 157.

[35]   Regardless of whether a discharge without conviction is imposed, it appears that Immigration New Zealand will take into account the fact that the appellant pleaded guilty to the charge in its assessment of his permanent residency application with the result that a character waiver may be required in any event.

[36]   Further, I do not consider the consequences of the offending being disclosed to Immigration New Zealand are as grave as Mr Harding submits. He is correct to point out that the conviction engages instruction A5.25 of the Operational Manual which means the appellant would be an applicant who would “not normally be granted a residence class visa”, however instruction A5.25.1 also explicitly states that an immigration officer must not automatically decline a residence class visa application on character grounds. All the factors that were placed before the District Court and this Court, including the details of the offending and the letters of support and about the appellant’s good character, can be placed before Immigration New Zealand. The Court is entitled to assume that Immigration New Zealand will behave fairly and rationally in making its decision.12

[37]   In conclusion, it is far from clear in this case that it is an inevitable outcome that the appellant’s application for permanent residency will be declined because of his conviction for driving with excess blood alcohol.

[38]   I therefore agree with the Judge’s assessment that the consequences of the conviction for the appellant are moderately serious, likely at the higher end of the available scale.

[39]   However, the test is whether the consequences of conviction are out of all proportion to the gravity of the offending. As noted by the Court of Appeal in Basnyat v Police, usually the proportionate response to driving with excess blood alcohol is the entry of a conviction.13 In this case, I have reassessed the gravity of the offending at the lower end of moderately serious and the consequences of a conviction were moderately serious, it cannot be said that the proportionality test has been met. Even

12     Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [24]; and Jing v New Zealand Police [2019] NZHC 2999 at [13].

13     Basnyat v Police, above n 9, at [22].

though I have independently reached a different view from the Judge about the assessment of the gravity of the offending, this does not impact on the Judge’s overall conclusion.

Result

[40]The appeal is dismissed.

Harland J