Newing v Police
[2019] NZHC 772
•10 April 2019
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 suggested consequences were speculative. The Community Magistrate was not satisfied on the evidence that there was a real and significant risk the suggested consequences of travel delay and refusal would occur.
The appeal to the District Court
[7] Judge Blackie approached the appeal as one against the exercise of a discretion, where the appellate court will only interfere if satisfied that the discretion was exercised on the basis of wrong facts, proceeded on mistaken facts, applied incorrect legal principle, took into account irrelevant considerations, or failed to take into account relevant considerations.4 The appeal proceeded entirely on the evidence that was produced before the Community Magistrate.
[8] The District Court Judge stated that a discharge without conviction for drink driving would be granted only in exceptional circumstances.5 In relation to overseas travel consequences, the Judge referred to the Court of Appeal’s approach in Edwards v R.6 The Court must be satisfied that the consequences of conviction are out of all proportion with the gravity of the offence. It is settled law that an applicant for a discharge need only point to a real and appreciable risk, but it does not follow that a Court will permit an applicant to speculate. A Court will ordinarily expect to be satisfied under the law and practice of the jurisdiction concerned that:7
(a)the conviction must be disclosed but, assuming a discharge is given, the fact that the offence was committed need not be;
4 May v May [1982] 1 NZFLR 165 (CA).
5 Linterman v Police [2013] NZHC 891 at [9]. 6 Edwards v R [2015] NZCA 583 at [24]-[26]. 7 At [26].
(b)as a consequence of the conviction, the applicant is prima facie inadmissible and for how long; and
(c)there is no alternative entry process available, or if there is it is unreasonably difficult and uncertain in all the circumstances.
[9] The Judge considered the evidence spoke only in general terms: there was nothing specific by way of visa restrictions or otherwise in any of the countries to which Mr Newing may be required to travel. Mr Newing relied on his understanding based on enquiries to various Consulates that a drink drive conviction is a criminal offence and would mean that the visa process would be prolonged and he would need to apply for a visa to countries where, without a conviction, one is not required.
[10] The Judge also noted that there was nothing in the evidence to explain why Mr Newing’s travel arrangements need to be made in such haste. The Judge considered the evidence adduced to be far from convincing, finding himself in the same position as Brewer J in Basnyat v Police.8 Brewer J had found that the evidence did not establish any material consequences that met the standard set out in the case law.
[11] The Judge found there was nothing which could lead to a conclusion that the Community Magistrate had proceeded upon mistaken facts, had applied incorrect legal principle, or had taken into account irrelevant considerations in relation to his finding as to Mr Newing’s travel. Similarly, there was nothing to persuade the Judge that the Community Magistrate was mistaken as to facts relating to Mr Newing’s future employment. The Community Magistrate was entitled to make the findings that he expressed in his decision. There was no error in legal principle. The appeal was dismissed.
Further evidence
[12] Mr Mitchell, counsel for Mr Newing, sought to file two further affidavits in the High Court in March 2019 dealing with travel consequences. The first affidavit
8 Basnyat v Police [2018] NZHC 51.
largely repeated Mr Newing’s 2017 affidavit. Mr Newing also stated the appeal is the only reason his employment has not been terminated. He referred to a proposed trip to Iran, which one of the owners of the business had to undertake in his place because the Iranian Embassy advised that his visa would take weeks to consider because of the conviction. He also referred to the company’s purchase of a business with a factory in Canada and the need to visit the factory. The affidavit exhibited Canadian Government website information indicating that if persons have committed or been convicted of a crime, minor or serious (including driving under the influence of drugs or alcohol), they may not be allowed into Canada.
[13] The second affidavit also largely repeated the previous affidavits. In addition, Mr Newing stated that he is due to attend a conference in Sydney and the Australian Consulate had advised there could be problems. He also explained that the reason he sometimes needs to make urgent travel arrangements is that he is responsible for product quality claims.
[14] Mr Mortimer, counsel for the respondent, acknowledged that the Court would wish to deal with the leave application on the basis of all the evidence and the respondent abides the Court’s decision. Despite the delay and the nature of the application, I accepted the further affidavits.
The arguments on appeal
[15] Mr Mitchell, counsel for Mr Newing, submitted that the District Court Judge did not make a proper assessment of the consequences of conviction, namely termination of employment because of the risk he cannot travel, and therefore did not properly apply the proportionality test in s 107 of the Sentencing Act 2002 (the Act). In particular, Mr Mitchell submitted that it is highly unlikely Mr Newing will be allowed into Canada.
[16] The respondent opposes leave on the grounds that the arguments do not satisfy the test for leave to bring a second appeal. The respondent acknowledged two aspects of the Judge’s decision that might be considered in error. First, treating the appeal as an appeal from a discretion. This is only the case in respect of the final discretion
under s 106, not the evaluation under s 107.9 The respondent submitted, however, that the Judge did in fact go on and undertake his own assessment of the evidence. Secondly, the respondent acknowledged the Judge’s reference to “exceptional circumstances” citing Linterman,10 which has now been clarified by the Court of Appeal.11 However, the respondent submitted that the proposed appeal raises no matters of general or public importance and no miscarriage of justice arises.
Approach on application for leave to bring second appeal
[17] An appeal against a refusal to grant a discharge without conviction is an appeal against conviction and sentence.12 The Court must not grant leave for a second appeal unless satisfied that the appeal involves a matter of general or public importance (which is not suggested here) or a miscarriage of justice may have occurred or may occur unless the appeal is heard.13
[18] A miscarriage of justice is any error, irregularity or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.14
The approach to discharges without conviction
[19] Since Judge Blackie’s decision, the Court of Appeal has dismissed the application for leave to appeal in Basnyat v Police and the Supreme Court has also declined leave to appeal.15 In that case, the Court of Appeal summarised the approach to the regime in ss 106 and 107.16 Section 107 provides the threshold test for discharges 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.
9 Edwards v R [2015] NZCA 583 at [6].
10 Linterman v Police [2013] NZHC 891 at [9].
11 Basnyat v Police [2018] NZCA 486 at [19]-[20].
12 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [9].
13 Criminal Procedure Act 2011, ss 237 and 253.
14 Section 232(4).
15 Basnyat v Police [2018] NZCA 486; and Basnyat v Police [2019] NZSC 21.
16 Basnyat v Police [2018] NZCA 486 at [14]-[15].
[20] There is then a residual discretion under s 106 which uses the word “may”, although once the threshold is met, a discharge will usually follow.17 The correct approach to the s 107 test was set out by the Court of Appeal in Z (CA447/2012) v R where Arnold J described a four-stage analysis for sentencing courts:18
(a)consider all aggravating and mitigating factors of the offence and offender to establish the gravity of the offence;
(b)identify the direct and indirect consequences of conviction for the offender;
(c)consider whether those consequences are out of all proportion to the gravity of the offence; and
(d)consider whether, in exercise of the residual discretion in s 106, a discharge should nonetheless be declined.
[21] The Court of Appeal in Basnyat v Police also made it clear that the reference to “exceptional circumstances” in Linterman is not a gloss on the statutory test but rather a statement of the practical consequences of the application of the sections. Judges must not treat Linterman as if it were a proxy for the statutory test, and they must not exercise their discretion as if the word “exceptional” is to be found in s 107.19
Decision
[22] Driving with excess breath alcohol is a moderately serious offence.20 As the Supreme Court has stated, every driver of a motor vehicle on the roads of this country should by now be aware that driving after consuming more than a small amount of alcohol is dangerous, illegal and socially unacceptable.21 In this case, the breath alcohol level (707 micrograms of alcohol per litre of breath, significantly more than the limit of 250 micrograms of alcohol per litre of breath) and the related driving
17 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.
18 Z (CA447/2012) v R [2012] NZCA 599 at [27].
19 Basnyat v Police [2018] NZCA 486 at [19]-[20].
20 At [19].
21 Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].
(exceeding the 50 kilometres per hour speed limit and failing to comply with a red traffic signal) were aggravating features. The only mitigating feature was the guilty plea.
[23] In relation to the consequences of conviction, the concern is the risk Mr Newing cannot travel overseas and its effect on employment. Even taking into account the further evidence, I do not consider there is a real and appreciable risk of these consequences for the following reasons.
[24] Mr Mitchell said that the Canadian Government immigration website documents exhibited to Mr Newing’s affidavit were the same or at least similar to those provided to the Court of Appeal in Basnyat, although he could not be sure. The documents appear to be to the same effect as those Mr Mitchell submitted to the Supreme Court with his application for leave in that case, which he also provided to this Court. In Basnyat, the Court of Appeal concluded:22
As for travel, Mr Mitchell’s argument was unconvincing. He pointed to entry constraints in Canada where Mr Basnyat might wish to travel for business conferences or work. But a perusal of the Immigration Canada website, details of which were provided by Mr Mitchell, indicates that a person in Mr Basnyat’s situation is very likely to be granted entry albeit not as of right. The inconvenience for him will be that he must apply for entry. This is hardly disproportionate to the moderate seriousness of this offending.
[25] Without assuming they are the same documents, taking the approach in Edwards,23 I consider that the evidence in this case does not indicate there is a real and appreciable risk that the alternative entry process in Canada is unreasonably difficult or uncertain. Mr Mitchell referred me to Kardos v NZ Police, where it was accepted that a drink driving conviction would bar the appellant from entering Canada, but the evidence in this case does not indicate that.24
[26] Mr Newing’s correspondence with the Australian Consulate also indicates that Mr Newing is very likely to be granted entry into Australia, albeit not as of right. As Mr Mortimer submitted, the tenor of the correspondence does not suggest a serious impediment.
22 Basnyat v Police [2018] NZCA 486 at [28].
23 Edwards v R [2015] NZCA 853 at [24]-[26]. See also MacDonald v R [2019] NZCA 91 at [29].
24 Kardos v NZ Police [2014] NZHC 3023 at [40].
[27] Mr Mitchell referred to the strict alcohol laws operating in some Middle East countries but the only evidence related to Iran, and simply indicated that the delay involved in obtaining a visa for Mr Newing meant that someone else had to make that particular trip. The evidence does not reach the level of cogency required by the Court of Appeal in Edwards. Similarly, Mr Newing’s concern about travel to other countries is not sufficiently substantiated.
[28] Even if entry to any of the countries Mr Newing has identified is unreasonably difficult and uncertain, the issue here is the consequence for his employment. Mr Hall’s February 2017 affidavit considered in the District Court stated that if Mr Newing were convicted the company would have no option but to terminate his employment immediately. There has, however, been no updating or more specific evidence from Mr Newing’s employer despite the Community Magistrate’s conclusion that there was not a real and appreciable risk that Mr Newing would lose his job, the Judge’s comments on appeal as to the inadequacy of the evidence, the fact that Mr Newing’s employment was not terminated after his conviction or unsuccessful appeal, and the length of time that has passed since then. I note Mr Newing’s further affidavit stating that the appeal is the only reason his employment has not been terminated. Even so, given Mr Newing’s senior role and importance to the business, I expect his employer would seek to manage the situation and the position would likely depend on which particular country Mr Newing could not enter. Here also the evidence does not reach the level of cogency required by the Court of Appeal. The consequences are not as acute as in Moyes v NZ Police,25 which Mr Mortimer responsibly drew to my attention.
[29] In any event, I am not satisfied in this case that the consequences of conviction would be out of all proportion to the gravity of the moderately serious offence.
[30] Even taking into account the further evidence, I do not consider there is any miscarriage of justice. This is not an appropriate case for a second appeal.
25 Moyes v NZ Police [2018] NZHC 582.
Result
[31]The application for leave to bring a second appeal is dismissed.
Gault J
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