Newing v Police - [2019] NZHC 772

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-135

[2019] NZHC 772

BETWEEN
LANCE PHILLIP NEWING

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 8 April 2019

Appearances:

C Mitchell for the Appellant

M J Mortimer for the Respondent

Judgment:

10 April 2019

JUDGMENT OF GAULT J

This judgment was delivered by me on 10 April 2019 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Mr C Mitchell, Barrister, Auckland
Mr M Mortimer, Meredith Connell, Office of the Crown Solicitor, Auckland

NEWING v NZ POLICE [2019] NZHC 772 [10 April 2019]

[1] Mr Newing pleaded guilty to a charge of driving with excess breath alcohol. On 31 July 2017 Community Magistrate S Cole refused Mr Newing’s application for a discharge without conviction, entered a conviction and sentenced Mr Newing to a fine of $500, disqualification from driving for six months, and ordered Court costs of
$130.1

[2] Mr Newing appealed to the District Court. On 6 April 2018 Judge C S Blackie dismissed the appeal.2

[3] Mr Newing applies for leave to bring a second appeal against the refusal to discharge without conviction on the grounds that the District Court Judge failed to properly assess the overall gravity of the offending, did not make a proper assessment of the seriousness of the consequences of a conviction, and thus did not properly apply the proportionality test.

[4] The hearing was adjourned pending release of the Court of Appeal’s decision in Basnyat v Police.3

The facts

[5] Mr Newing was driving in a southerly direction along East Coast Road, Mairangi Bay, about 10:00 pm on Sunday 28 August 2016. He was stopped by police due to exceeding the 50 kilometres per hour speed limit and failing to comply with a red traffic signal. When spoken to by police he exhibited signs of recent alcohol intake. The police carried out breath test procedures and Mr Newing’s result was 707 micrograms of alcohol per litre of breath. In explanation, Mr Newing stated that he had had a couple of drinks prior to driving.

Sentence

[6] The Community Magistrate considered the offending was moderately serious. In relation to the consequences of conviction, the Community Magistrate referred to

1      NZ Police v Newing [2017] NZDC 16950.
2      Newing v NZ Police [2018] NZDC 5927.
3      Basnyat v Police [2018] NZCA 486.

Mr Newing’s need to travel overseas at short notice for his work as a trading manager and the concern that there will be difficulties in that regard, which would leave his employer with no option but to dismiss him, with a roll-on effect on Mr Newing’s ability to care for his son and pay maintenance. The Community Magistrate accepted that there was a possibility that Mr Newing may lose his job, but did not accept there was a real and appreciable risk of this occurring. In relation to the foreign travel consequences, the…

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 Newing v Police

Details

AGLC: Newing v Police [2019] NZHC 772
Case: [2019] NZHC 772
Decision Date: 10 April 2019

CaseChat Overview and Summary

Lance Phillip Newing was convicted of driving with excess breath alcohol and sentenced by a Community Magistrate to a fine of $500, a six-month driving disqualification, and ordered to pay court costs of $130. He appealed the refusal to discharge without conviction, arguing that the District Court Judge did not properly assess the overall gravity of the offending, did not make a proper assessment of the seriousness of the consequences of a conviction, and thus did not properly apply the proportionality test. The court considered whether there was a miscarriage of justice or whether the appeal involved a matter of general or public importance. The court found that the consequences of conviction, namely termination of employment because of the risk of not being able to travel, did not reach the level of cogency required by the Court of Appeal in Edwards. The application for leave to bring a second appeal was dismissed.

The court held that driving with excess breath alcohol is a moderately serious offence, with aggravating features such as the breath alcohol level and related driving offences. The court found that the evidence did not indicate there was a real and appreciable risk that the alternative entry process in Canada was unreasonably difficult or uncertain. The court also found that the evidence did not reach the level of cogency required by the Court of Appeal in Edwards, and that the consequences of conviction were not as acute as in Moyes v NZ Police. The court held that the consequences of conviction were not out of all proportion to the gravity of the moderately serious offence, and that there was no miscarriage of justice. The application for leave to bring a second appeal was dismissed.

Orders