McDonald v Police
[2017] NZHC 732
•12 April 2017
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 CrownJudgment:
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 to have a current passenger endorsement. The Judge found that Mr McDonald was of good character. Mr McDonald had accepted employment in Australia with Trans Dev, which he was due to start four days after the sentencing. The employer was accommodating,
saying that they would find administrative tasks for him to do until the disqualification expired.
[7] The Judge noted Mr McDonald’s concerns about getting a work visa for Australia. The process requires an assessment of good character, and Mr McDonald said the conviction would be prevent, restrict or delay his ability to enter, travel and work in Australia. The police on the other hand suggested a drink-driving conviction was no substantial bar to employment and it was unlikely he would be considered to lack good character. The Judge essentially agreed. He noted that the appellant would not pass the character test for entering Australia if he had a substantial criminal record, which was not the case here. The visa requirement was similar. While an application would need to be made, the Judge was of the view that there would be no substantial bar, although he accepted that a conviction may delay the process somewhat.
[8] Mr McDonald had also previously worked as a bar manager, and may seek such employment in the future. This would require a police check, and, he said, his conviction would mean he would be unlikely to be considered. The Judge found that Mr McDonald demonstrated no immediate intention to apply for a manager’s certificate. In any case, the police could oppose such an application regardless of whether a drink-driving conviction was entered.
[9] Accordingly, the Judge found that the consequences of the conviction would not be out of all proportion to the gravity of the offending. The application was dismissed. Mr McDonald was convicted and fined $400, plus Court costs, medical expenses and analyst’s fees. He was also disqualified for six months.
Appellant’s submissions
[10] Mr McDonald only appeals against the decision not to discharge without conviction. The other aspects of the decision are not challenged. This is a general appeal, so the appellant has appropriately focused on the Judge’s assessment of the merits.
[11] In careful and comprehensive submissions, Ms Ord argued that the Judge erred in his assessment of gravity for the following reasons:
(a) there are mitigating factors which demonstrate that the offending was at the lower end of the spectrum and did not amount to a serious traffic offence. The Judge did not properly weigh these factors or treat them as mitigating, and in particular, wrongly treated Mr McDonald’s age as aggravating.
(b)his alcohol reading was at the lower end of the scale. The Judge was mistaken in stating the offence was “much higher than the legally permitted level of 250 micrograms of alcohol”, because:
(i)he was in fact charged with having a blood alcohol level over the legal limit. The limit is 80 milligrams and he had 100 milligrams;
(ii)250 micrograms is the threshold for an infringement offence, while 400 micrograms is the threshold for a criminal offence. At 493 micrograms, he was not “much higher” than the criminal threshold;
(iii) comparable cases (468 micrograms2 and 102 milligrams)3
have been described as at the lower end of the scale; and
(c) the Judge did later say he was at the lower end of the scale, but did not properly apply this at the balancing stage.
[12] As to consequences, counsel submitted that the Judge did not properly take them into account. Specifically:
(a) loss of previous employment: the employer had no other positions
available, notwithstanding Mr McDonald’s good work record. This
2 Brown v Police [2013] NZHC 2190.
3 Papuni v Police [2013] NZHC 1958.
corroborates the likely consequences going forward – something the
Judge did not factor in;
(b)Trans Dev employment: the Judge was advised that this employment was subject to a clean criminal record or satisfactory police check but the Judge did not assess the potential consequence that a conviction could have on this employment. The fact that Trans Dev was willing to allow Mr McDonald to work in an administrative role while his licence was suspended does not mean they would necessarily continue to employ him if he had a drink driving conviction. There is a real risk that a conviction will result in the termination of his employment, or hinder his chances of promotion;
(c) future employment in the bus industry: the Judge did not consider this. Employers increasingly require police clearances. This would make finding other work in the industry difficult, particular because employers in the bus industry are sensitive to driving convictions. Mr McDonald’s affidavit provided examples of job applications that require police checks;
(d)hospitality employment: Mr McDonald may seek hospitality work if he is between jobs in the bus industry. The Judge focussed on the delay and expense in obtaining a bar manager’s licence, but not on the difficulty of getting work itself;
(e) employment generally: the consequences on getting work generally were not discussed by the Judge; and
(f) travel: New Zealand citizens wishing to enter Australia are normally eligible for a Special Category visa, allowing them to work and live there without restriction. However, if someone has a criminal conviction, they are required to obtain written confirmation from the Department of Immigration and Border Protection. This requires a disclosure of previous convictions, and, potentially, a visa application
which can take up to three weeks. Visa applications require a good character assessment. There was a real risk Mr McDonald could be denied a visa, or there would be delay. He needed to travel to Australia on the evening of the sentencing, to start work the following Monday. In the interim, however, Mr McDonald has been able to travel to Australia, pending the appeal.
[13] As to balancing, Ms Ord submitted the Judge was wrong because previous cases establish that to discharge Mr McDonald without conviction would be consistent with previous law.
Analysis
[14] Section 107 is a threshold which must be met before the discretion can be exercised under s 106. It requires the Court to be “satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence”. While s 106 requires an exercise of discretion, this discretion is best described as residual. It will generally be exercised in favour of the offender if the s 107 threshold is met.
[15] DC v R sets out the approach to s 107 as follows:4
(a) first, when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender;
(b)second, the court should identify the direct and indirect consequence of conviction for the offender; and
(c) third, it must assess whether those consequences are out of all proportion to the gravity of the offence. This is a question of fact, not
a discretionary decision as Judge Mill suggested.
4 DC (CA47/13) v R [2013] NZCA 255
[16] Because these are questions of fact requiring judicial assessment, an appeal against a refusal to grant a discharge is an appeal on ordinary appellate principles, not an appeal against the exercise of discretion.5 An appellant must show that a miscarriage of justice has occurred by virtue of a material error by the Judge in entering the conviction, or that a miscarriage of justice has occurred because the Judge has erred in applying the principles for discharge without conviction.6
[17] In my view Judge Mill’s decision cannot be faulted. It has long been the case that discharges without conviction for drink-driving are rare. Miller J in Linterman v Police set out succinctly why this should be so:7
[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. Special reasons relating to the offender will not do. Nor is ignorance of one’s alcohol level a defence; a driver who wishes 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 consequences 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 in evidence is poor judgement or undue fondness for drink, and to immigration authorities, who may categorise it as evidence of anti-social tendencies.
[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. 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. 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. Further, the cases indicate that disruption to travel or study plans may justify a discharge if sufficiently proved, 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-drinking.
5 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [63]-[66]; Maraj v Police [2016] NZCA
279 at [11].
6 Jackson v R [2016] NZCA 627 at [12]; Criminal Procedure Act 2011, s 232.
7 Linterman v Police [2013] NZHC 891.
[18] Consistently with these remedies, discharges have been granted for particularly exceptional circumstances such as self-testing with a faulty breathalyser8, acceding to a request from an employer to drive following consumption of alcohol9, or sleeping at an acquaintance’s flat (to avoid drink-
driving) and driving home in the morning while unexpectedly still over the limit.10
[19] Thus, personal background factors are unlikely to count for much and nor is a simple miscalculation about degree of intoxication. Low levels of alcohol will affect penalty, if above the legal limit, but are unlikely to justify a discharge without more.
[20] It is true as Ms Ord submits that the appellant lost his job. But he has another one in Australia with a transport company called Trans Dev. The company has proved to be a very accommodating employer. The company has agreed that the appellant can work in a non-driving administrative position while disqualified. The appellant has filed an updating affidavit with respect to his Australian employment. Tellingly, he specifically does not depose that a conviction will lead to termination. Rather, he says he does not know what the effect of a conviction will be.
[21] Ms Ord attempted to draw a distinction between disqualification and conviction, suggesting that Trans Dev’s accommodating approach was on the basis that no conviction would be entered. But I see no evidence of this distinction being made by that Australian employer.
[22] Thus actual consequences cannot be said to be disproportionate or even known. That assessment would have required evidence direct from the employer in these circumstances. Much in addition was made of other possible impacts in relation to potential future jobs in New Zealand in the transport or hospitality industries, but I agree with the Crown, these are really speculative impacts. Such speculative possibilities are very weak factors in the disproportionality weighing exercise that the courts must undertake. If they were to carry the day in this case,
there would be many more s 106 discharges than are currently the position.
8 Waight v Police HC Auckland CRI-2006-404-465, 24 May 2007.
9 Brown v Police [2013] NZHC 2190.
10 Wood v Police HC Wellington CRI-2009-485-6, 30 April 2009.
[23] In truth, the facts in this case must be seen in perspective. The appellant made an error of judgement that caused him to drive while above the legal limit. While this initially affected his employment, he has found new work. The Judge, understandably, accepted the police submission that a drink-driving conviction would not operate as a bar to either entry into Australia or his proposed employment there. The worst that could be said was that there was likely to be some delay in having to process a visa. The Judge rightly treated this as a matter of inconvenience rather than disproportionate consequence. All other impacts were little more than speculative. They were attempts by the appellant to identify possible futures in which a drink-drive conviction would have negative consequences.
[24] As Miller J said, discharges without conviction for drink-driving must be seen as an exceptional result. If the appellant’s arguments were accepted in this case, they would become far more usual.
[25] The appeal is dismissed accordingly.
Williams J
Solicitors:
Ord Legal, Barristers & Solicitors, Wellington for Appellant
Crown Solicitor Office, Wellington for Respondent
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