McDonald v Police - [2017] NZHC 732

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2017-485-007 [2017] NZHC 732

RICHARD JORDAN CHRISTOPHER MCDONALD

v

NEW ZEALAND POLICE

Hearing: 11 April 2017

Counsel:

L C Ord for Appellant
R M A Kós for Crown

Judgment:

12 April 2017

JUDGMENT OF WILLIAMS J

Introduction

[1] On 8 February 2017, Judge Mill in the District Court declined to discharge

Mr McDonald without conviction on a charge of driving with excess blood alcohol.1

He appeals that decision.

Facts

[2] At 11.44 pm on Friday 17 September 2016 Mr McDonald was stopped at a police checkpoint. An evidential breath test gave a reading of 493 micrograms of alcohol per litre of breath, and a subsequent blood test gave a result of 100 milligrams of alcohol per 100 millilitres of blood. He told police at the time he
thought he would be okay to go and pick up his friend.

1 Police v McDonald [2017] NZDC 2324.

MCDONALD v NEW ZEALAND POLICE [2017] NZHC 732 [12 April 2017]

[3] Mr McDonald swore an affidavit saying that on that evening, he had had a few vodka premixes with dinner. He decided to drive because he did not feel that the alcohol had affected him at all. He went to pick up a friend who required assistance, having lost his wallet. He was not guilty of any (other) driving offence, having been randomly stopped by the police. He was co-operative.

[4] Mr McDonald had been working as a bus driver for Go Wellington. He resigned, as he was told that he would not be able to keep the job if he was disqualified.

District Court decision

[5] The Judge first considered the seriousness of the offence. He said that the charge itself is serious. There was nothing exceptional about this case: it was a random stop; the appellant’s alcohol level was over the level justifying prosecution, and much higher than the legally permitted 250 micrograms. The mitigating factors argued by Ms Ord were: he was young, it was a routine test, he was co-operative with police, he had not known he was over the limit, it was at the lower end of the scale, he had eaten dinner with the alcohol, he had driven in order to assist a friend, accepted responsibility and was remorseful. The Judge found that most of these were not mitigating factors, but also that there were no aggravating factors. In particular, the Judge noted that the appellant was “relatively young” at 25 but also that he should be reasonably mature and able to make sensible decisions. He did however consider that the lack of previous convictions, guilty plea and remorse were mitigating factors. He concluded that the offending was not serious of its type, but nor was it trivial or minor.

[6] Turning to consequences, the Judge noted that Mr McDonald had just resigned from employment with a bus company he had held for five and a half years. He had been a relief duty supervisor which required him…

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 McDonald v Police

Details

AGLC: McDonald v Police [2017] NZHC 732
Case: [2017] NZHC 732
Decision Date: 12 April 2017

CaseChat Overview and Summary

Richard Jordan Christopher McDonald appeals against the District Court's decision to decline his application for a discharge without conviction on a charge of driving with excess blood alcohol. The District Court found the consequences of a conviction were not out of proportion to the seriousness of the offence. McDonald argues that the District Court erred in its assessment of the gravity of the offence and the consequences of a conviction. He claims that he was at the lower end of the scale of drink-driving and that the consequences of a conviction would be disproportionate.

The legal issues in this appeal revolve around the interpretation and application of s 107 of the Sentencing Act 2006, which governs the discretion to discharge without conviction. The key issues are whether the District Court correctly assessed the gravity of the offence and the consequences of a conviction, and whether the consequences were out of all proportion to the gravity of the offence.

Williams J held that the District Court's decision cannot be faulted. The judge correctly assessed the gravity of the offence and the consequences of a conviction. The court found that McDonald's alcohol reading was at the lower end of the scale, but this alone is not sufficient to justify a discharge without conviction. The judge also considered the consequences of a conviction, including the loss of employment and potential difficulties in obtaining future employment or a visa for Australia. The court found that the consequences were not out of proportion to the gravity of the offence. The judge's assessment of the consequences was reasonable and took into account the speculative nature of some of the appellant's arguments. The appeal was dismissed.

The final orders of the court were that the appeal be dismissed, and the District Court's decision be upheld.

Orders