Nattrass v The King
[2024] NZHC 2091
•30 July 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-000129 [2024] NZHC 2091
BETWEEN RYLEE ANN NATTRASS
Appellant
AND
THE KING
Respondent
Hearing: 23 July 2024 Appearances:
J A T Ross for Appellant
A M Harvey for Respondent
Judgment:
30 July 2024
JUDGMENT OF EATON J
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
NATTRASS v R [2024] NZHC 2091 [30 July 2024]
Introduction
[1] Rylee Nattrass pleaded guilty to one charge of driving with excess breath alcohol.1 Her application of a discharge without conviction was declined by the presiding Judge.2 Ms Nattrass appeals.
Background
[2] Ms Nattrass was at a family barbeque near Winton on 8 December 2023. She had been drinking vodka RTD stubbies but ceased drinking around 9:30 pm. Around midnight she was asked by her father’s friend to drive him home. Others had advised him against walking down a rural road at night. While acknowledging that this was a terrible choice, in an affidavit filed for sentencing, Ms Nattrass deposed “I felt level-headed and competent, as some hours had passed since my last drink. I also felt I was the most sober and felt obliged to do this favour for my father’s friend”.
[3] Around 12:12 am on 9 December 2023, Ms Nattrass was driving on Winton Substation Road, with her father’s friend as a passenger when she was stopped at a Police checkpoint. An evidential breath test revealed her breath alcohol level was 701 micrograms (mcg) of alcohol per breath.
[4] Ms Nattrass entered a prompt guilty plea and applied to be discharged without conviction. Her sentencing affidavit confirmed she was 18 years old as at the date of the offending, that she had been Head Girl at her High School where she achieved academic excellence and where she had engaged in a number of community activities. She confirmed that she was now in her second year of Law and Criminal Justice degrees at the University of Canterbury, achieving outstanding academic results. Her affidavit expressed her remorse, addressed her learnings from the Right Track programme she had completed and confirmed she had made a $700 donation to that programme.
1 Land Transport Act 1998, s 56(1); maximum penalty three months’ imprisonment.
2 Police v Nattrass [2024] NZDC 9630.
[5] Her affidavit recorded her concern that a conviction would hamper her future choices and potential, and, in particular, would negatively impact her ability to obtain scholarships, employment and to travel.
[6] In support of her application to be discharged Mr Ross, for Ms Nattrass, had filed several character references and authorities.
District Court decision
[7] In assessing the gravity of the offending, the Judge referred to observations of the Supreme Court that drink driving is “very serious offending”.3 The Judge considered the seriousness of the appellant’s offence was reduced because she had stopped drinking hours before she drove, she had not intended to drive and she was influenced by adults who she thought she could trust and who considered it too dangerous for her father’s friend to walk home. Further, the Judge observed that there was no suggestion the appellant’s driving was dangerous.
[8] On the other hand, the Judge stressed Ms Nattrass’ high breath alcohol reading, noting she was almost triple the adult limit of 250 mcg and that Ms Nattrass held a zero-alcohol license.
[9] The Judge accepted Ms Nattrass was remorseful as evidenced by her apology, her completion of the Right Track programme and her donation. The Judge accepted that youth was a “plainly relevant” factor and that the supporting affidavit and references indicated the offending was out of character. The Judge was satisfied Ms Nattrass presented no risk of repeat drink driving.
[10] Overall, the Judge described the mitigating factors of both the offending and the offender as significant, such that the seriousness of the offending “falls to a moderate level”.4
3 New Zealand Law Society v Stanley [2020] NZSC 83, [2020] 1 NZLR 50 at [72] and [102]; Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].
4 Police v Nattrass, above n 2, at [29].
[11] The Judge next addressed the direct and indirect consequences to Ms Nattrass of her conviction. The Judge found there to be a lack of evidence to suggest Ms Nattrass would be prohibited from undertaking a study exchange with an overseas university, or that a conviction would otherwise influence her education. The Judge accepted that a conviction would hinder Ms Nattrass’ employment prospects in the short to medium term. The Judge was not satisfied a conviction would prevent Ms Nattrass from travelling but accepted that it would make it more difficult for her to do so. Overall, the Judge accepted the general effects of a conviction on a person of Ms Nattrass’ age would be significant.
[12] In conducting the proportionality assessment, the Judge, noted that discharges are not often granted for drink driving offences.5 The Judge, “by a fine margin”, was not satisfied that the consequences of a conviction were out of all proportion to the gravity of the offending.6 Ms Nattrass was convicted and disqualified from driving for six months.
Principles on appeal and law
Section 107 of the Sentencing Act 2002 provides:
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 test is well established.7 First, the Court must assess the gravity of the offence, by reference to the aggravating and mitigating factors both in relation to the offence and to the offender. Then the Court must assess the direct and indirect consequences of a conviction. In determining whether something is a ‘consequence’, it is not necessary for the Court to be satisfied that the outcome is inevitable. All that is required is a ‘real and appreciable risk’ of it occurring.8 The third step requires the Court to consider whether the consequences would be out of all proportion to the
5 Simpson v Police [2020] NZHC 2255 at [28]; Linterman v Police [2013] NZHC 891.
6 Police v Nattrass, above n 2, at [50].
7 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142.
8 DC (CA47/2013) v R [2013] NZCA 255 at [43]; R v Taulapapa [2018] NZCA 414 at [46].
gravity of the offence. If they are, the Court may discharge the offender without entering a conviction.
[15] Discharge without conviction appeals have been characterised as “composite appeal[s] against conviction and sentence”.9 The appeal is by way of rehearing, meaning this Court must make its own assessment of whether the criteria for discharge without conviction is met.10 Ms Nattrass bears the onus of satisfying this Court that its interference in the District Court’s decision is justified.11
Submissions
Appellant submissions
[16] Mr Ross for Ms Nattrass, submits the Judge erred in the gravity assessment and that the refusal to discharge the appellant was at odds with a number of similar cases in the Otago Southland region. He referred to nine District Court cases where a discharge without conviction was granted for similar or, he submits, more serious offending, in that region.12 He relies on a further six cases where discharges were granted to first time offenders, mostly young persons, some of whom had participated in the Right Track programme.13
[17] Highlighting the early guilty plea, Ms Nattrass’ age, her substantial participation in the Right Track programme and her donation of $700, Mr Ross submits the Judge erred in categorising the gravity of the offending as moderate and not as low. He relies on Millar, a case said to have many similarities both in relation to the offence and the offender, where the gravity of the offending was assessed as low. Mr Ross submits that the gravity assessment of Ms Nattrass’s offence and the refusal to discharge the appellant offends against the sentencing consistency principle.
9 Jackson v R [2016] NZCA 627, (2016) 28 FRNZ 144 at [16].
10 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].
11 Austin Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4].12 Police v Murphy [2021] NZDC 12373; Police v James-Everton [2021] NZDC 8935; Police v Mudiyanselage Invercargill District Court, 1 June 2018; Police v Hamilton [2020] NZDC 10097; Police v Harrison [2023] NZDC 12584; Police v Jordan CRI-2021-012-838, 27 May 2022; Police v Owen [2022] NZDC 14301; Police v Ola CRI-2021-012-1683.
13 Police v Millar [2024] NZDC 13000; Police v Gourlie [2024] NZDC 233; Police v Leask DC Invercargill CRI-2023-017-000154, 19 October 2023; Police v Pearson [2022] NZDC 23273, 23 November 2022; Police v Nimkovsky [2022] NZDC 23273.
[18] Mr Ross refers to the Judge’s acknowledgement that the consequences of a conviction “will be significant” for Ms Nattrass.14 He contends that in other recent cases, negative effects on plans to travel were taken into account as a general consequence of conviction, despite the lack of concrete plans to travel.15 Mr Ross submits the Judge erred in failing to assess the consequences of the offending as out of all proportion to its gravity.
[19] Mr Ross seeks to offer further evidence on appeal, namely a further memorandum of the appellant and, as an attachment to counsel’s memorandum, a flyer from the University of Canterbury seeking expressions of interest for a congressional internship programme. Relevantly, the document expressly states: “Expressions of interest are sought from students who are New Zealand citizens (with no criminal record)…”.
Respondent submissions
[20] Mr Harvey for the Police submitted the Judge did not err in his assessment of gravity, given the high alcohol reading and the consequent risk posed by the offending. Counsel referred to Basnyat v Police where the Court of Appeal said: “[d]rink driving is a moderately serious offence when seen by reference to its potential consequences and to the pervasiveness of alcohol abuse in our society.”16
[21] Mr Harvey contends that the cases relied on by the appellant can be factually distinguished and refers to a case where, in broadly similar circumstances, a discharge was not allowed. 17 He submitted that assessing whether a discharge without conviction should be granted is a highly fact specific exercise18 referring to Luteru v Police, where Harland J held:19
…each application for a discharge without conviction must be considered on its facts. The nature of each person's situation is highly variable. It is not binding or even highly persuasive where one applicant receives a discharge without conviction, and another does not for offending of this kind.
14 Police v Nattrass, above n 2, at [41].
15 Police v Millar, above n 13; Police v Murphy and Police v James-Everton, above n 12.
16 Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344 at [19].
17 Redai v Police [2017] NZHC 3173.
18 Ovtcharenko v Police [2016] NZHC 2572 at [27].
19 Luteru v Police [2023] NZHC 2508 at [26].
[22] Mr Harvey offers no opposition to the appellant relying on the flyer advertising the overseas internship but submits the appellant’s affidavit is not fresh and says a miscarriage would not arise if that affidavit were found to be inadmissible on appeal. He maintains that the consequences of conviction advanced by Ms Nattrass are speculative.
Analysis
Gravity
[23] In assessing the gravity of the offence, the Judge referred to the Supreme Court decision in New Zealand Law Society v Stanley and the observation that drink driving is “very serious offending”.20 In Stanley the Court was considering the fit and proper person status of an applicant under the Lawyers and Conveyancers Act 2006.
[24] From a “very serious offending” starting point, the Judge then assessed the mitigating factors particular to Ms Nattrass and her offence to be “significant”, such that “the seriousness falls to a moderate level”.21
[25] In support of the Judge’s end assessment of this offending as moderately serious, Mr Harvey relies on the observation of the Court of Appeal in Basnyat v Police: 22
Drink driving is a moderately serious offence when seen by reference to its potential consequences and to the pervasiveness of alcohol abuse in our society. That means the proportionality scales to be applied at stage three of Z (CA447/2012) v R are, to an extent, tipped by that level of seriousness. The consequences of a conviction must also therefore be relatively significant before they are “out of all proportion” to the moderate seriousness of the offence. It would be different if drink driving were a minor offence, but it is not.
[26] The Court of Appeal in Basnyat was not considering the gravity categorisation of drink driving for the purposes of a s 106 application, but whether cases such as Linterman v Police23 had put a gloss of the statutory test for a discharge thereby
20 New Zealand Law Society v Stanley, above n 3, at [102].
21 Police v Nattrass, above n 2, at [29].
22 Basnyat v Police, above n 16, at [19].
23 Linterman v Police, above n 5.
leading sentencing courts to bypass the Z(CA447/12) v R24 test. The Court of Appeal rejected that argument.
[27] The issue in Basnyat, in the High Court, was whether the sentencing Judge had fully assessed the consequences of a conviction.25 In this Court the gravity of Mr Basnyat’s offence was assessed as “lower end of the moderate range”,26 not moderately serious.
[28] The Court of Appeal in Basnyat confirmed that the Z(CA447/12) v R test applied to a case of drink driving. The first step in that test is to “consider all aggravating and mitigating factors of the offence and offender to establish the gravity of the offence”.27 I do not think the Court was suggesting that the gravity of the offence of drink driving, is informed by the nature of the offence itself as opposed to a careful evaluation of the aggravating facts of the offending and the offender.
[29] In my view, the Judge erred in taking a starting point gravity assessment of Ms Nattrass’ offending as “very serious”.
[30] The gravity assessment under s 107 of the Sentencing Act must focus on the offence committed, not the gravity of the type of offence,28 nor offending compared with other cases involving the same offence.29 As observed by the Court of Appeal in J(CA32/21) v R , gravity is informed by the culpability of the offender’s conduct and determined in an assessment of the facts.30
[31] So, what of Ms Nattrass’ offence? I accept without question that, given her zero alcohol license, her breath alcohol level was high. Otherwise, she presented with strong mitigating factors. There is no suggestion she drove poorly prior to being apprehended, unlike broadly similar offenders in Police v Hamilton31 and
24 Z(CA447/12) v R, above n 7.
25 Basnyat v Police [2018] NZHC 51, at [13].
26 At [12].
27 Basnyat v Police, above n 16, at [15], citing Z (CA447/12) v R, above n 7, at [27].
28 Taylor v R [2018] NZHC 688 at [46]; Babich v R [2018] NZHC 2324 at [7].
29 Z (CA447/12) v R, above n 7, at [31].
30 J(CA32/21) v R [2021] NZCA 690 at [36].
31 Police v Hamilton, above n 12.
Police v Murphy,32 both of whom received discharges without conviction. Although the Judge referred to Ms Nattrass driving on an open road, there is no reference in the summary of facts to speed. It is notable that Ms Nattrass drove at the request of her friend’s father, aware of the danger that he might face, walking down a rural road at night. I accept she was influenced by and trusted adults, friends of her parents.
[32] Beyond the facts of the offence, Ms Nattrass advanced powerful personal mitigating factors. As Mr Ross submitted, and Mr Harvey responsibly acknowledged, it is difficult to conceive what more Ms Nattrass could have done to atone for her offending. Ms Nattrass is young. Neurological factors will often reduce culpability.33 She acted appropriately at the time of her arrest, she voluntarily and successfully participated in the Right Start programme over several weeks, she donated $700 to that programme — a not insignificant sum for a young student. She pleaded guilty at the earliest opportunity.
[33] Ms Nattrass’ breath result of 701 mcg is an aggravating factor and, by itself, would place the offending squarely within the moderate band. However, the facts of the offending, her age and her very significant personal mitigating factors are highly relevant. Mr Ross submits the Judge wrongly assessed the gravity of Ms Nattrass’ offending as moderately serious. I agree. I assess the gravity of her offending to be no higher than the low to moderate level.
[34] I consider that assessment to address the sentencing principle of consistency. I agree with the observations of Harland J in Luteru that the fact of a discharge on one case cannot inform the appropriateness of a discharge in another.34 Nonetheless, assessments of the gravity of offending should be broadly consistent. Consistency in sentencing is an important principle. The Supreme Court in Berkland v R35 said:
Sentencing consistency, an important principle of sentencing, is often seen as being in natural tension with the requirements of individualised justice. But that is to misunderstand what consistency means. Section 8(e) says consistency requires that “similar offenders committing similar offences in similar circumstances” should receive similar treatment.
32 Police v Murphy, above n 12.
33 Churchward v R [2011] NZCA 531 at [81].
34 Luteru v Police, above n 19.
35 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [90].
(footnote omitted)
[35] In this context Mr Ross highlights Millar v Police.36 Ms Millar was sentenced by the same Judge as Ms Nattrass, about four weeks after Ms Nattrass. Ms Millar pleaded guilty to a charge of driving with excess breath alcohol. Her reading was 693 mcg of alcohol per litre of breath. She was an 18-year-old university student. She was stopped at around 12:50 am, having failed to stop at a red light in central Dunedin. Ms Millar completed the Right Track programme and donated $500 to that programme. She had no previous convictions.
[36] The Judge assessed the gravity of Ms Millar’s offending as low to moderate, but having regard to her personal mitigating factors, confirmed the gravity assessment as low. Ms Millar was studying viticulture with the intention of becoming a wine-maker, described as an international career that may require travel overseas. She had expressed her interest in studying at a university in Germany. The Judge accepted there was a real and appreciable risk that a conviction might lead to her scholarship not being renewed at university. The Judge recorded that he had heard Ms Millar’s speech at her graduation of the Right Track programme. He described it as moving and one of the best speeches he had heard. Ms Millar was discharged without conviction.
[37] Mr Harvey points to Ms Millar presenting with a lower breath alcohol reading, that she did not have a passenger and that was not driving on rural open roads where the speed limit is presumably higher. I am not persuaded those factors elevate Ms Nattress’ offence to a higher level of gravity. The small variance in breath alcohol levels (701 and 693) does not warrant distinction. That Ms Nattrass’ passenger was an adult family friend who sought a ride home neutralises that factor. The summary of facts makes no reference to Ms Nattrass’ speed. In my view, the fact Ms Millar ran a red light in a city centre would justify a finding, all else being equal, that her offending was more serious than the appellant’s. It is difficult to discern why the Judge assessed the gravity of Ms Nattrass’ offence as moderate and Ms Millar as low.
36 Police v Millar above n 13.
[38] Mr Ross has referred to a number of other cases involving similar or more serious drink drive offending where the offender was discharged without conviction. I do not think it necessary to review other cases, other than observing that there does seem to be a pattern of young first offenders who fully participate on the Right Track programme being discharged without conviction.
[39] I am satisfied, having regard to the powerful mitigating factors considered against the sentencing principle of consistency, that the gravity of Ms Nattrass’ offending was no higher than low to moderate level.
Consequences
[40] There is no doubt that Ms Nattrass is a very high achieving second-year law student at the University of Canterbury. Her grades are exceptional.
[41] The Judge addressed the adverse consequences Ms Nattrass would face following conviction.
[42] The Judge acknowledged that Ms Nattrass may want to study overseas in some form while completing her degrees but did not consider that the material relied upon established that a conviction would prohibit participation in an overseas programme. The Judge was not satisfied a conviction would have an effect of the appellant’s education.
[43] With reference to R v Taulapapa the Judge took judicial notice of the negative impact a conviction for drink driving may have on a young person when applying for employment.37 The Judge also acknowledged the potentially greater consequences of a conviction for a young person who does not have a “foothold in a career”.38 The Judge was satisfied that Ms Nattrass’ prospects of securing employment in the short to medium term may be hindered by a conviction for drink driving.
[44] As regards consequences for travel, the Judge considered that Ms Nattrass did not have any concrete plans to travel and that any obstacles to travel were a general
37 R v Taulapapa, above n 8, at [42].
38 Police v Nattrass, above n 2, at [37], citing Walker v Police [2016] NZHC 1450 at [22].
consequence of conviction. The Judge accepted that any travel obstacles would mean additional cost and stress but was not satisfied on the evidence presented that Ms Nattrass would be unable to travel.
[45] The Judge acknowledged that the social stigma of a lifelong conviction for somebody who has established herself as a law-abiding citizen could be damaging to her career and self-esteem.
[46] Overall, the Judge assessed the general consequences of conviction for Ms Nattrass to be significant.
[47] In her affidavit filed for the appeal, Ms Nattrass seeks to address some of the issues raised by the sentencing Judge. First, she attaches a copy of the speech she gave at her Right Track programme graduation. As it transpires, she was on the same course as Ms Millar and made a speech on the same day. I have read her speech and it is impressive. I find it difficult to distinguish between Ms Millar’s speech as it was summarised by the Judge and the speech given by Ms Nattrass. Secondly, Ms Nattrass has produced examples of jobs that she considered applying for to help pay her way during her tertiary studies. They are jobs that require her to provide details of previous convictions. Thirdly, she has expressed concern about losing the benefit of accommodation and tuition scholarships that require adherence to the University of Canterbury’s code of conduct.
[48] As regards study abroad and a reference made in the material presented to the Judge as to her plans to study in Europe or North America, Ms Nattrass says she has conducted further research and discovered that for law students, the University’s partner countries are Denmark, Sweden, the Netherlands and the United States. She is confident she will meet the academic requirements for overseas study but is concerned that a conviction may cause difficulties to secure the necessary visa or acceptance by a foreign university.
[49] Finally, Ms Nattrass expresses concern that the Judge had not understood from her initial affidavit that her plan is to be a lawyer practising either in New Zealand or overseas. She confirms her intention to apply for internships with New Zealand law
firms during the course of her studies and is concerned that a conviction will disadvantage her against her peers.
[50] Since that affidavit was filed, Ms Nattrass has been alerted to a flyer posted at the University of Canterbury. That flyer confirms that the University offers an internship to two high achieving law students. The internship is in Washington DC. It is a fully funded eight-week internship at the United States Congress. The flyer expressly records that students must be New Zealand citizens with no criminal record. Mr Ross submits the flyer assumes some significance in light of the finding of the Judge that a conviction would not impact Ms Nattrass’s education.
[51] The Court can receive further evidence if the interests of justice require it. It must be credible and fresh.39 I agree with both counsel that the internship flyer is properly admitted as relevant material on appeal. Mr Harvey is, of course, right that the appellant’s affidavit is not fresh and could have been put before the District Court Judge. However, I am concerned that the Judge did not appear to appreciate Ms Nattrass has her sights on a career in the law either here in New Zealand or overseas, and to travel both to study and for employment. I am satisfied this additional information could have given rise to a different outcome in the District Court and should be admitted on appeal.
[52] Mr Harvey contends that the evidence offered of the consequences of a conviction for Ms Nattrass is speculative. That is unfair to Ms Nattrass. The strength of her evidence reflects her youth, the very early stage of her tertiary studies and the reality that a modern world presents someone in Ms Nattrass’ position with many and varied opportunities. I acknowledge the challenges a young person may face in putting before the Court evidence, in support of an application for a discharge without conviction, regarding future hopes for travel and employment.
[53] I accept that the appellant is committed to completing her law and criminal justice degrees and that an overseas exchange or internship during the course of her studies is a very real prospect. The fresh material about the overseas internship goes
39 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273; Bain v R [2007] UKPC 33, [2007] 23 CRNZ
71.
some way to addressing the evidential void identified by the Judge. I consider Ms Nattrass to be very much on track to qualify for an overseas internship or study. A conviction will prohibit her eligibility for the Washington internship.
[54]Like the District Court Judge, I refer to the Court of Appeal’s finding in
R v Taulapapa that:40
The court may assume that applicants with convictions are likely to be excluded without inquiry where employers must filter many applications before arriving at a shortlist for interview…
[55]As the Court of Appeal observed, that consequence could of itself be severe.41
[56] While the consequences regarding employment are difficult to assess accurately on the evidence before me, I am satisfied that there is a real and appreciable risk that Ms Nattrass’ employment prospects, for part-time work and for work in her desired field, will suffer by virtue of conviction.42 That is a significant consequence.
[57] I agree with the Judge as to the consequences for travel more generally. While a conviction may result in some additional stress, there is nothing to suggest the appellant will be prohibited from travelling to a particular destination.
[58] Finally, I agree with the Judge’s finding in relation to the general consequence, the stigma of a conviction. At the time of offending, Ms Nattrass was 18 — a young person with her life ahead of her. As noted by the Judge, and as evidenced by the numerous favourable references attesting to her character, Ms Nattrass is a hard-working, talented and law-abiding young woman. A conviction of this nature carries social stigma that will be damaging to her career and general self-esteem.43 In Gaunt v Police the Court said:44
It is well-recognised that the black mark of a conviction alone is a significant consequence on an otherwise clean record, especially for a young person who does not yet have a foothold in a career…
40 R v Taulapapa, above n 8, at [42].
41 At [42].
42 Goggin v Police [2013] NZHC 2710 at [15].
43 Police v Nattrass, above n 2, at [41]; see also Simpson v Police, above n 5, at [31].
44 Gaunt v Police [2017] NZCA 590 at [14]–[15].
[59] I agree with assessment of the Judge that the consequences of a conviction for Ms Nattrass will be significant. The material now available confirms the likelihood of adverse consequences for her education.
Proportionality
[60] The consequences of a conviction must be relatively significant before they are out of all proportion to the offending.45 The Judge ultimately determined that the identified consequences of a conviction were not out of all proportion to the gravity of the offence as had been assessed by the Judge, but only by a “fine margin”.46 I think the Judge would have come to a different view in light of the further information now available.
[61] Having assessed the gravity of the offence at a lower level than that of the sentencing Judge and in reliance on the additional material, I am satisfied that Ms Nattrass has met the statutory threshold to be discharged.
[62] In exercising my discretion, I am particularly swayed by the fact Ms Nattrass, as a young person, was asked to drive an adult home; that her response to the offending has been impeccable; and that another offender who presented in such similar circumstances was discharged without a conviction.
Result
[63] The appeal is allowed. The appellant’s conviction for driving with excess breath alcohol is quashed. Ms Nattrass is discharged without conviction on that charge. The disqualification order remains.
...................................................
Eaton J
Solicitors:
Crown Solicitor, Christchurch
Counsel:
J A T Ross, Barrister, Invercargill
45 Basnyat v Police, above n 16, at [19].
46 Police v Nattrass, above n 2, at [50].
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