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…

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 Nange v Police

Details

AGLC: Nange v Police [2024] NZHC 2504
Case: [2024] NZHC 2504
Decision Date: 3 September 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Richard Nange appealed against the refusal of Judge Dawson to grant him a discharge without conviction. The appellant was found guilty of driving with an excess breath alcohol level and was sentenced to 72 hours of community work and a six-month driving disqualification. The sole issue on appeal was whether the Judge erred in his assessment of the gravity of the offence and the consequences of a conviction.

The court considered whether the consequences of conviction would be out of all proportion to the gravity of the offence. The court held that drink-driving is a moderately serious offence, and the classification of Mr Nange’s offending as moderately serious was not erroneous. However, there was insufficient evidence to show that the consequences of conviction were out of proportion to the gravity of the offending. The court was not persuaded by the appellant’s arguments regarding potential future employment and immigration issues, as these were speculative and common to all drink-driving convictions. The court concluded that the consequences of conviction were not out of all proportion to the gravity of the offending.

The appeal was dismissed.

Orders