Maraj v Police
[2015] NZHC 3055
•4 December 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-295 [2015] NZHC 3055
BETWEEN JAMESON AJODHYA MARAJ
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 9 November 2015 Appearances:
P J Davison QC and H Steele for Appellant
R Gibson for RespondentJudgment:
4 December 2015
JUDGMENT OF WHATA J
This judgment was delivered by Justice Whata on
4 December 2015 at 10.00 a.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Minter Ellison Rudd Watts, Auckland
Meredith Connell, Crown Solicitors, Auckland
Copy to:P Davison QC, Auckland
MARAJ v NEW ZEALAND POLICE [2015] NZHC 3055 [4 December 2015]
Introduction
[1] Mr Maraj crashed his car while reading a text. He was subject to a restricted licence with a zero drinking driving limit. When tested, his blood alcohol level exceeded the adult threshold.
[2] Mr Maraj now appeals against convictions for drink driving and careless use of a motor vehicle on the basis, in short, that the judge overstated the seriousness of his offending while under-estimating the implications of conviction for him. He is a young man, has an otherwise exemplary personal history and academic record with significant prospects for advanced medical research and study. But medical schools here and overseas take into account criminal convictions for the purpose of placement. The risk to Mr Maraj is that he may not be able to continue his studies of medicine at the highest levels for which he would otherwise be eligible. His overseas travel may also be affected, though I consider this to be a minor consideration.
[3] The central issue then is whether the risk of Mr Maraj’s exclusion from advanced medical studies presented by the convictions is out of all proportion to his drink driving and careless use of a motor vehicle.
Background
[4] Mr Maraj pleaded guilty to charges of driving a motor vehicle carelessly and driving with excess blood alcohol level of 96 milligrams of alcohol per 100 millilitres of blood. Judge Hinton in the District Court described the facts in this way:1
[6] So dealing first with the facts, at about 4.40 am on 16 April you were driving your BMW north on State Highway 1 on the Northern Motorway. You were observed weaving across three lanes of traffic. As you passed the Oteha Valley Road off ramp you drifted onto some grass area on the left shoulder, you swerved to the right and over-corrected. You crossed three lanes of motorway and collided with the concrete centre median barrier. You collided with such force that a segment of the barrier was pushed over into the southbound lanes. You were taken to hospital with a minor cut to your hand. In explanation you told the police that you were texting and driving: “I lost concentration.”
1 Police v Maraj [2015] NZDC 17515.
[5] The Judge also referred to the affidavit evidence produced by Mr Maraj. The
Judge explained:
[9] Now briefly, you had gone in the evening in question for a break at about 8.30. You had gone to see some friends and you had had five bottles of beer or so during the evening. You decided to stay, you had gone to sleep for a few hours, you had got up again at about 4.00 am. You believed at the time that you were over the effects of the beer which you had consumed and that you were in a position where you could drive. You were then distracted by the text message coming in and that resulted in the accident.
[6] The Judge described drink driving as inherently serious and adopted observations by Miller J in Linterman v Police2 that drink driving is a pervasive social problem. And that:
[13] …Drink-driving creates a risky environment with the potential for huge loss and damage.
[7] Overall the Judge’s assessment was that the gravity of the offending was in
the moderately serious basket.3
[8] As to consequences, the Judge observed:
[16] You aspire to a career in medicine. You are first doing an undergraduate degree, which is a BSC, at Auckland University in Biomedical Science before the MBChB course. You will then as I understand it apply for post-graduate entry to the MBChB at Auckland. I understood from Mr Davison in his submissions this morning, which I had not appreciated from the written submissions that you may intend to apply to overseas universities for the MBChB degree or equivalent. …
[17] Certainly from the perspective of entry to Auckland University for the MBChB, the fact of the matter is that you are not barred, technically, from entry into medicine if a conviction were entered. In Mr Davison’s submissions I think at paras (28), (29), he refers to the relevant exhibits that are contained in your affidavit from personnel at Auckland University. There is certainly a requirement to go through what is described as police clearance, and the actual quotation in the University of Auckland response was that: “certain type of criminal conviction may bar the student from completing some clinical components of the programme”. There is no elaboration on what those types of criminal convictions might be. Sensibly perhaps. Furthermore, the second relevant piece refers to a fitness to practice issue, which would arise, attracting the attention o the Fitness to Practice Committee. If you applied to the United States for entry you would be subject to what is described as criminal background checks, and you refer to those in your affidavit.
2 Linterman v Police [2013] NZHC 891.
3 New Zealand Police v Maraj [2015] NZDC 17515 at [14].
[9] The Judge acknowledged that a conviction will be of a disadvantage to Mr Maraj, particularly when compared to an equally meritorious applicant with no conviction history. Reference was also made to difficulties that would be presented for Mr Maraj in terms of travel and/or study in Canada, a place where the Judge observed the family has links. The Judge referred to the affidavit of Mr Ryken, who observed that entry would be restricted into Canada probably for a five year period. Reference was also made to travel difficulties to Asia.
[10] As to the consequences for Mr Maraj the Judge found:
[24] I do not think that any conviction is a bar, Mr Maraj, to your aspirations to study medicine and to qualify in medicine, and to later pursue research opportunities overseas if that eventuates. You are young and of good character. Research opportunities that you aspire to now must be several years down the track, and they may not eventuate. A lot has to fall into place. Moreover, there is room for application to the Canadian authorities, and indeed other Asian countries with respect to any future volunteer work, that you can make. You can make sure you are, as I have no doubt will be the case, in a good position then to put your best foot forward.
[25] So far as your accessing the MBChB course at Auckland University is concerned, you are simply not precluded by any conviction. There is no detail before me of a “type of criminal conviction” that may preclude entry, or be relevant so far as a fitness to practice test later down the track. Moreover, as Sergeant Gallagher emphasises in the police submissions, there is a substantial body of authority to suggest that admission decision of this ilk should be left to the authority with expertise and responsibility to decide, and the Court should not effectively shortcut the process.
[11] The Judge concluded that the consequences of a conviction in this case are not sufficiently concrete enough and then if they were, the consequences are not at a serious enough level, the Judge found, that would entitle the Court in a principled way to say that the consequences of conviction would be out of all proportion. Discharge under s 106 of the Sentencing Act 2002 (the Act) was declined.
Jurisdiction
[12] An appeal against the decision not to discharge without conviction is an appeal against a substantive assessment under s 107 of the Act rather than an
exercise of discretion. Therefore, the normal appellate principles in Austin Nichols
& Co Inc v Stichting Lodestar4 apply to the s 107 analysis.5
Statutory framework
[13] Section 107 of the Sentencing Act 2002 states:
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.
[14] The relevant threshold test for the purposes of s 107 was recently stated by the Court of Appeal in Z(CA447/2012) v R.6 The Court stated:
[27] For our part, we consider that there is much to be said for the approach adopted by the Divisional Court in A(CA747/2010). That is: when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).
(Footnotes omitted.)
Grounds for appeal
[15] Mr Maraj appeals against conviction on the following grounds:
(a) The Judge assessed the gravity of Mr Maraj’s offending as more serious than was justifiable by reference to both the nature of the offence and the circumstances of Mr Maraj’s offending.
(b)In doing so the learned Judge erred by making reference to, and relying upon, a summary of facts other than that which had been
4 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
5 See R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 [66]. See also Reng v NZ Police [2014] NZHC 2586; Morgan v New Zealand Police [2015] NZHC 1910.
6 Z(CA447/2012) v R [2013] NZCA 599, [2013] NZAR 142 at [27].
agreed between the parties and which had provided the agreed factual basis for the entry of pleas.
(c) The Judge applied a standard higher than that required by law when assessing whether the various consequences of a conviction referenced by Mr Maraj were likely to occur.
(d)The Judge minimised the likelihood of Mr Maraj’s professional and personal ambitions occurring and, in turn, the effect a conviction(s) is likely to have on those ambitions.
(e) The Judge wrongly concluded, as a consequence of (a) to (d) above, that the consequences of a conviction for Mr Maraj were not out of all proportion to the gravity of the offending.
[16] I propose to address these grounds of appeal within the frame provided by Z v
R,7 namely:
(a) Step 1 – Assess the gravity of the offending including aggravating and mitigating factors personal to the offender;
(b)Step 2 – Assess the direct and indirect consequences of conviction on the offender;
(c) Step 3 – Assess whether the consequences are out of all proportion to the offending.
Step 1 – Aggravating and mitigating factors
[17] Mr Davison submitted that the Judge was wrong to assess the offending in
this case in “the moderately serious basket”, emphasising:
(a) The maximum penalty in this case is three months’ imprisonment, a fine not exceeding $4,500 and disqualification from driving for at least six months.
(b)Contrary to the Judge’s finding, Mr Maraj did not plead guilty to the assertion that he weaved across three lanes of traffic or that he was texting and driving.
(c) Mr Maraj did not immediately drive after his drinking episode, but stayed at his friend’s house until he woke at about 4am. His decision to drive was therefore a matter of misjudgment at the low end of the culpability scale.
(d) Mr Maraj is only 19 and a person of good character.
[18] Ms Gibson supports the sentencing judge’s assessment. While Mr Maraj’s youth and positive characteristics are accepted, he was three times the limit for a person younger than 20,8 and there were several seriously aggravating features to the driving – swerving, crossing three lanes, checking a text message and crashing into a median barrier.
Assessment
[19] I acknowledge that the Judge inadvertently erred in referring to matters that were not included in the summary of facts subject to a guilty plea. It appears that the Judge may have had an earlier version of the summary of facts. It was not available to the Judge to find that Mr Maraj had been “texting” and “swerving”. I also accept that the statutory penalty is indicative of the seriousness of the offending. Be that as it may, I agree with the Judge that drink driving combined with careless use (i.e. reading a text) is inherently dangerous and commensurately serious. The fact that no one was injured (so that Mr Maraj was not facing more serious charges) was simply fortuitous. This observation accords with the view expressed by me in another
judgment9 and by the Court of Appeal in R v Skerrett.10 The starting point for the assessment therefore is that the offending was serious.
[20] However, the broader context of the offending, together with Mr Maraj’s personal characteristics substantially mitigate its gravity overall. This is not a case of a reckless decision to drive after drinking, and his texting involved a momentary loss of concentration. They, as Mr Davison put it, are errors of judgment rather than conscious disregard for the well being of others. Furthermore, Mr Maraj’s personal characteristics and background are such that I am confident that this is an isolated incident only – it was an anomalous act of a young man with an otherwise exemplary personal history. None of this was disputed by the Crown.
[21] Accordingly, drink driving and careless use of a vehicle is serious offending. But I consider that the gravity of offending overall sits at the lower end of the spectrum in terms personal culpability, extent of harm and ongoing risk to the public.
Step 2 – the consequences
[22] In terms of consequences Mr Davison submits that the Judge underplayed the difficulty in gaining advancement in medical studies and professional development:
(a) While Mr Maraj would not be precluded from applying for entry into a medical programme at the University of Auckland, his conviction would be treated as a fitness to practice issue and Mr Maraj would be required to declare the existence of his excess blood alcohol conviction.
(b)Were Mr Maraj were to apply to the course in the United States, he would be subject of a “Criminal Background check”, a major disadvantage in a highly competitive application process.
(c) There is a real and appreciable risk that Mr Maraj will suffer significant ongoing adverse consequences for at least the early stages
of his medical career and he will time and again be confronted with the same obstacle to his professional development.
(d)The Judge tended to minimise not only the likelihood of Mr Maraj’s stated professional and personal ambitions, but also the effect of conviction on those ambitions: citing the Court of Appeal decision in Rodrigo v Police11 (involving convictions for supply of Class B drug Ritalin) where the Court acknowledged the consequences of a conviction for his travel overseas.
[23] Mr Davison also noted that his family regularly visits Canada and it is Mr Maraj’s parent’s intention that they divide their time between Canada, the United States and the West Indies. Mr Maraj’s intention is to explore all biomedical research opportunities in Canada. A conviction renders Mr Maraj provisionally inadmissible to Canada and while he may be able to apply for a temporary resident permit, there remains a real possibility he will be unable to enter Canada for the
foreseeable future.12
[24] Ms Gibson responds:
(a) Criminal checks follow acceptance, so the convictions will not affect entry;
(b)The convictions are not an absolute bar to Mr Maraj continuing his studies;
(c) Available information suggests that:
(i) Each case will be assessed on its merits;
(ii) Mr Maraj will have the opportunity to state his case.
Assessment
[25] The proper threshold test for consequences is whether there is a real and appreciable risk that the claimed consequence will occur.13 It is not necessary to show that the convictions will be an absolute bar to advancement. Rather the nature and seriousness and the degree of likelihood of specified consequences occurring will be material to whether those consequences would be out of all proportion to the gravity.14
[26] I accept the thrust of Mr Davison’s submissions that the convictions may operate as a fetter on his advancement both within academic institutions and in the medical profession generally. The purpose of criminal checks is to enable those institutions and or the profession to remove or exclude persons whose criminal history makes them unsuitable or less suitable that another applicant to study or to practice medicine. For example, the Association of American Medical Colleges (AAMC) recommends that all US medical schools procure a national criminal background check on applicants upon their initial, conditional acceptance to medical school. The rationale for this is “based on the need to enhance the safety and wellbeing of patients and to ascertain the ability of accepted students to eventually
become licensed physicians.”15
[27] But, based on the information available to me, I assess the overall probability of exclusion from advanced study in medicine in Mr Maraj’s case as low, provided he maintains his high academic and personal standards, for the following reasons:
(a) Mr Maraj’s criminal history will not affect his eligibility for entry into medical school – conditional acceptance appears to depend primarily on grades and interview processes.
(b)The discretionary fetter on full acceptance into a programme for medical study, medical practice or advanced medical research appears
tailored to the specific risk presented by persons with a drink driving
13 Iosefa v New Zealand Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34].
14 At [35].
history; that is to assess whether it is symptomatic of a deeper flaw. As Warwick Bragg, an Associate Professor of Medicine at the University of Auckland, noted:
Driving with excess blood alcohol is considered a critical Fitness to Practise issue and often reflects an underlying problem of excess alcohol use. This is viewed very seriously by the University and medical students are required to attend a Fitness to Practise committee meeting. At such a meeting, a decision is made on what is required in order to keep the public safe. A rehabilitative approach is usually taken. A medical student with a conviction is usually required to participate in appropriate rehabilitation, such as, by way of example, participating in programs run by Community Alcohol and Drug Services. Any subsequent similar conviction may result in exclusion from the medial program.
(c) The screening processes that Mr Maraj would undergo appear to take into account youth, low culpability, and ongoing risk, mitigating the prospect of unfair exclusion from practice or advanced study. To illustrate, the School of Medicine at the University of Virginia approaches the screening assessment in this way:16
For all criminal convictions, consideration will be given to the nature and seriousness of the offense; the age of the person when the offense was committed; whether the offense was an isolated incident or part of a habitual, repetitive pattern; and the length of time that has elapsed since the offense was committed. Serious deliberation will be conducted as to whether the offense(s) may indicate a future jeopardy to patient care and well being.
[28] I accept however that I cannot discount the residual risk that some Universities may use a conviction history as a vetting tool and that this is a factor to be weighed.
[29] I therefore proceed on the basis that there is low risk overall that Mr Maraj’s advancement in medical study and practice will be precluded by convictions for drinking driving and careless use. I accept that the convictions may be a disadvantage to him in relation to some programmes. I also accept that the
convictions provide further hurdles to Mr Maraj’s travel, particularly to Canada.
16 University of Virginia Criminal Background Check Policy.
Step 3 – Out of all proportion
[30] Mr Davison emphasised that Mr Maraj’s personal culpability was at the low end – drinking with friends the night before the accident, no intention of driving, a momentary lapse of judgment and no basis to find that he was ‘weaving’ as assumed by the Judge. Furthermore Mr Maraj can expect to have strong prospects of access to the leading medical institutions here and overseas based on his academic record and otherwise good character. The exclusion from such courses then he says, simply because of his singular misjudgment, would be an utterly disproportionate outcome. Similarly, he says that the fetter on Mr Maraj’s travel to Canada would be a disproportionate impact both on him and his family, arising from the conviction.
[31] Ms Gibson responded that there is no evidence that Mr Maraj will be barred from medical study or the profession and that the problems with travel are a universal consequence of convictions.
Assessment
[32] I am not satisfied that the fetter on Mr Maraj’s travel overseas is out of all proportion to the gravity of the offending. As an Australian citizen Mr Maraj currently enjoys visa free travel to many countries. I acknowledge that his family regularly travel overseas, including to Canada and Trinidad to visit family. I also understand that with their second child likely to attend university in the United States in September 2016, the Maraj family intend dividing their time from mid-2016 between Canada/USA and the West Indies. With the convictions, Mr Maraj may need discretionary approval to visit Canada and the West Indies. But the evidence of
a fetter on this family travel is opaque17 and over the medium to long-term
(especially following the application of the “clean slate” legislation or on application
under the Canadian rehabilitation programme18) is unlikely to be a problem at all.
17 David John Ryken (an immigration specialist) stated that Mr Maraj would need to apply for a Temporary Resident Visa involving a discretionary assessment and a risk of refusal. An opinion attached to his affidavit states that Mr Maraj should prepare for the possibility that he will be unable to enter Canada.
18 Mr Maraj may apply for entry under the rehabilitation programme after five years if, in short, he has not been convicted of a subsequent proscribed offence.
[33] I am not as sanguine about the implications for Mr Maraj in his chosen career in medical study and/or practice. He is a young man (only 19 at the time of the offending) who has accumulated an excellent academic record19 that makes him eligible to engage in a highly specialised field of study.20 He is has also completed
18 months of a three year course in a Bachelor of Science (Biomedical Science) – a precursor to study in medicine. His referees speak of him in glowing terms. Against a backdrop where his personal culpability is at the lower end of the spectrum, and any ongoing risk to the public is negligible, exclusion from a programme in advanced medical study on the basis of his convictions alone would be disproportionate to the gravity of his offending.
[34] Balanced against that, medical professionals (including academics in medicine) are well placed to assess the professional, academic and policy factors that might justify Mr Maraj’s exclusion from advanced study or practice because of his convictions. The medical profession is legitimately interested in whether convictions of this nature reflect a deeper problem or flaw that might place the public at risk. Ordinarily, due deference will to be accorded to screening processes
that are designed to secure public health and safety in an fair way to applicants.21 In
this regard, the likelihood of exclusion from advanced medical study or practice in New Zealand (and it appears Virginia) will be commensurate with risk posed by Mr Maraj to the public at the time he is to be assessed. I do not consider this outcome per se to be out of all proportion to the consequences of conviction.22
[35] There is, as I have noted, the residual real risk that Mr Maraj may not be able to maintain a place in a programme in some North American Universities because of his convictions. This is also relevant because his family plans to travel and reside in that part of the world, raising the prospect that Mr Maraj may be forced to live apart from his family in order to undertake his medical studies. But the scale of this
disadvantage is difficult to quantify and in my view not so significant as to be out of
19 Mr Maraj achieved a UCAS score of 440 in maths, Chemistry, English and Biology in addition
to being awarded school prizes in Endeavour and Application and “First in Maths”.
20 Mr Maraj has twice sat the Undergraduate Medicine and Health Sciences Admission test (UMAT), which is a prerequisite for admission to a Bachelor of medicine and Bachelor of Surgery in Universities in New Zealand and Australia. Mr Davison advised that his test results were such that he could have entered medical school.
21 Roberts v Police (1989) 5 CRNZ 34 (HC) at 36.
22 Steventon v Police HC Auckland, A108/01, 2 November 2001 at [22].
all proportion to the gravity of the offending. The Maraj family is plainly an international family, and as is evident from the approach taken by Virginia University, study in a North American University remains a viable option for Mr Maraj.
[36] Overall therefore, while I am very sympathetic to Mr Maraj’s circumstances, I cannot say that the consequences of the conviction are likely to be out of all proportion to the gravity of his offending. There may be some disadvantage to him in terms of maintaining a placement in some North American universities, but I am satisfied overall that likelihood of exclusion from advanced medical study or practice will be proportionate to the risk presented by Mr Maraj at the time that he is to be assessed. If he maintains his current high academic and personal standards, acceptance into a medical programme should not be a problem for him.
[37] For completeness, I do not think that the consequences in this case are comparable to the consequences confronting Mr Rodrigo in Rodrigo v Police.23
Mr Rodrigo was involved in low level drug dealing in Ritalin for minimal profit. He was a young offender with undiagnosed and untreated Attention Deficit Hyperactivity Disorder, who had since taken steps to treat it and was unlikely to offend again. The Court found that a conviction would have precluded his travel to see relatives, all of whom live overseas, including his mother in Canada. Furthermore, medical institutions have a legitimate interest in conviction history of medical students.
Outcome
[38] I consider that the overall risk Mr Maraj might be diverted from a career in advanced medical research will be broadly commensurate with the risk posed by Mr Maraj to the public at the time he is to be screened. Accordingly, the convictions are not out of all proportion to the gravity of his offending.
[39] The appeal is dismissed.
23 Rodrigo v Police, above n 11.
Addendum
[40] I want to record and commend Mr Maraj for his considerable academic achievements in challenging circumstances, his excellent personal character and for the way he has conducted himself since his drink drive offending, which was an anomalous act of youthful misjudgement. He is clearly deserving of the opportunity to study medicine should he maintain his excellent academic record and high personal standards.
Whata J
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