Nange v Police

[2024] NZHC 2504

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000255

[2024] NZHC 2504

RICHARD NANGE

v

NEW ZEALAND POLICE

Hearing:	2 July 2024
Appearances:	A Kala and E Mahoney for the Appellant S Vreeburg for the Respondent
Judgment:	3 September 2024

JUDGMENT OF WALKER J

This judgment was delivered by me on 3 September 2024 at 12 pm Registrar/Deputy Registrar

Solicitors:

A Kala, PDS, Auckland
S Vreeburg, Meredith Connell, Auckland

NANGE v POLICE [2024] NZHC 2504 [3 September 2024]

Introduction

[1]                 In the early hours of 29 April 2023, Richard Nange was stopped by police in Grey Lynn, Auckland. Police say his manner of driving attracted their attention. His breath alcohol reading was found to be 650 micrograms of alcohol per litre of breath.

[2]                 Mr Nange’s explanation is that he does not drink alcohol; this was the first occasion on which he had done so, after being out with friends for dinner and drinks after a rugby game. Perhaps due to his inexperience with alcohol, he had judged that after consuming food and given the time that had passed, he would be under the breath alcohol limit. Mr Nange admits to having made an error of judgment and is deeply remorseful.

[3]                 Mr Nange pleaded guilty to one charge of driving with excess breath alcohol.1 On 3 May 2024, Judge N R Dawson declined Mr Nange’s application for a discharge without conviction.2 Instead, he convicted Mr Nange, sentenced him to 72 hours of community work (which Mr Nange had already voluntarily completed before sentencing) and disqualified him from driving for six months.

[4]                 Mr Nange now appeals Judge Dawson’s refusal to grant him a discharge without conviction.

[5]The respondent opposes the appeal.

Law

[6]                 Section 106 of the Sentencing Act 2002 (the Act) provides that the Court may discharge an offender without conviction following a plea or finding of guilt. To grant a discharge without conviction, the Judge must be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.3

1      Land Transport Act 1998, s 56(1) and (3)(a) and (b). Maximum penalty: three months’ imprisonment or $4,500 fine; and mandatory minimum six months’ disqualification from holding or obtaining a driver licence.

2      New Zealand Police v Nange [2024] NZDC 9805.

3      Sentencing Act 2002, s 107.

[7]                 That assessment is made in accordance with a three-step approach, as set out by the Court of Appeal in Z (CA447/2012) v R:4

(a)identifying the gravity of the offending, considering all aggravating and mitigating factors of the offending and the offender;

(b)identifying the direct and indirect consequences of a conviction for the offender; and

(c)considering whether those consequences are “out of all proportion” to the gravity of the offending.

[8]                 Even if the Court determines that the consequences are out of all proportion to the gravity of the offending, it must still consider whether it should exercise its residual discretion to grant a discharge. It would be rare for the Court to refuse a discharge in those circumstances.5

Approach on appeal

[9]                 An appeal against a refusal to discharge without conviction is an appeal against both a conviction and sentence.6 To the extent this appeal relates to the Court’s weighing of consequences against gravity, it proceeds by way of rehearing. The appellate court makes its own assessment of whether the criteria for discharge without conviction are met.7 It is for the appellant to show that an error has been made.

[10]             This Court must dismiss Mr Nange’s appeal unless it is satisfied that a miscarriage of justice has occurred.8 In the context of a discharge without conviction, a miscarriage of justice means a “material error” or that the Judge “erred in applying the principles” for discharging an offender without conviction.9

4      Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].

5 At [27].

6      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144; and Ovtcharenko v Police [2017] NZCA 65 at [5].

7      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] NZLR 141.

8      Criminal Procedure Act 2011, s 232.

9      Jackson v R, above 6, at [12].

District Court decision

[11]             Judge Dawson began by describing the offence to which Mr Nange pleaded guilty. He noted that Mr Nange has no previous convictions. He set out the sentencing factors he was required to consider. These were promoting a sense of responsibility, denouncing the conduct, and emphasising the risk both to Mr Nange and to other people. He observed that protection of the community is paramount.

[12]             He noted the only aggravating factor was the breath alcohol level which he described as “moderately high”. He noted Mr Nange’s remorse, guilty plea and self-directed rehabilitation efforts by way of attending a defensive driving course and the TUPU programme.

[13]             In terms of the application for discharge without conviction, the Judge’s reasons for declining that application are encapsulated in the following paragraphs:

[6]        … the consequences outlined are your future employment opportunities. I do note, however, that you already are working in HR, working as a resources co-ordinator and you are in employment and there is no evidence to indicate that it would follow that future employment opportunities would be closed to you. This would be a natural consequence that it may be a factor to take into account. There is no evidence it would prevent you obtaining future employment.

[7]        It is also submitted that you may wish to be applying for permanent residency and a citizenship application. I note you are a citizen of Papua New Guinea. There is no evidence that a conviction of drink-driving would prevent those applications from proceeding and there is no reason to conceal this matter from a decision-maker on those applications. It is not a major criminal conviction by any means, but it is something that can and should be taken into account by any person making those decisions. The general consequence is a natural consequence and do not follow.

[8]        The direct and indirect consequences of a conviction are not out of proportion to the gravity of this offending which in my view is moderately serious given the public safety and given that the police submissions indicate you drove through two red lights before they stopped you.

Submissions

[14]             Ms Kala, for Mr Nange, submits that the Judge erred in his assessment of the gravity of the offending as “moderately serious”. She contends that Mr Nange’s actions since the offending operate to decrease the gravity of the offending which

should be considered low in the circumstances. She referred the Court to three decisions all involving comparable offending, or offending more serious than the present case, in which that offending was assessed to be of mid-to-low gravity.10

[15]             The second ground advanced is that the Judge erred in his assessment of the consequences of conviction for Mr Nange. She noted that Mr Nange is currently studying toward a master’s degree and submitted that a conviction would seriously impact prospects of future employment. His position as a migrant to New Zealand and cultural factors are also said to be engaged.

[16]             I pause to interpolate that at the outset of the hearing Ms Kala explained that because of the very recent landslide disaster in Papua New Guinea, and ensuing stress and challenges caused by such to Mr Nange, he was unable to produce evidence relevant to the immigration issues. When asked whether Mr Nange nonetheless wished to continue with the appeal hearing or adjourn it, Ms Kala confirmed that he wished to proceed.

[17]             Ms Vreeburg, for the respondent, submitted that the Judge did take into account Mr Nange’s exemplary actions since the offending as part of his assessment as to gravity. She contended that drink-driving is inherently serious, the breath test result was moderately high, and that it was open to the Judge to assess the gravity of the offending as moderately serious. She further submitted there was no material error in terms of identified consequences of conviction in view of the lack of evidence.

Discussion

[18]             Drink-driving is a moderately serious offence when seen by reference to its potential consequences and to the pervasiveness of alcohol abuse in New Zealand society.11 The sentencing Judge’s classification of Mr Nange’s offending as moderately serious is at the sterner end, having regard to the cases cited to the Court and others.12  But, even if the classification had been low, the difference is not material.

10     Prakash v R [2023] NZHC 391; Vandenbrink v Police [2021] NZHC 1630; and Sayers v Police

[2023] NZHC 2362.

11     Linterman v Police [2013] NZHC 891 at [9].

12     Song v New Zealand Police [2023] NZHC 3324; Prakash v R, above n 10; Vandenbrink v Police,

This remains so, even if the submission that Mr Nange drove through two red lights is disregarded. As that was not part of the summary of facts to which Mr Nange pleaded guilty, I put it to one side. It ought not be taken into account.

[19]             The problem Mr Nange faces is that there is no cogent evidence identifying special consequences of conviction in relation to future employment or immigration status. The Court is entitled to consider the general consequences of a conviction but there must be something which takes the case out of the ordinary so as to outweigh the gravity of the offending.13

[20]             One drink-driving conviction is not likely to be considered a “substantial criminal record”. The Court of Appeal is clear that a court will not permit an applicant to speculate about matters such as travel restrictions or immigration.14 A conviction is not an automatic bar to residency and citizenship, and courts are hesitant to pre-empt the decisions of immigration authorities, who are assumed will act rationally.15

[21]             While Mr Nange is to be commended for the responsible way in which he has responded to this one error of judgment by completing a defensive driving course, a programme related to alcohol use and has apparently abstained from further drinking alcohol, I am unable to reach the conclusion that the consequences of conviction are out of all proportion to the gravity of the offending.

[22]               This is notwithstanding that Ms Kala made all the arguments available in a forceful and compelling way. There is no evidence from current employers, or those in his industry, that Mr Nange’s opportunities would be limited by a drink-driving conviction. The consequences he identifies are at best a mere possibility and are common to all those convicted of similar drink-driving offences. They do not meet the threshold of posing a real and appreciable risk of being unable to work in his chosen field.

above n 10; Sayers v Police, above n 10; and Basnyat v Police [2018] NZCA 486.

13     J (CA32/21) v R [2021] NZCA 690.

14     Edwards v R [2015] NZCA 583 at [25].

15     Gasu v Police [2021] NZHC 2948; and Anufe v Police [2021] NZCA 253.

Result

[23]Accordingly, I dismiss the appeal.

............................................................

Walker J