O'Brien v Police
[2025] NZHC 2083
•29 July 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2025-409-125 [2025] NZHC 2083
BETWEEN JAKE MADISON O’BRIEN
Appellant
AND NEW ZEALAND POLICE
Respondent
Hearing: 24 July 2025 Appearances: J A Poff for Appellant
M W Fulton for Respondent
Judgment: 29 July 2025
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 29 July 2025 at 10 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
O’BRIEN v NEW ZEALAND POLICE [2025] NZHC 2083 [29 July 2025]
Introduction
[1] On 23 May 2025, Jake Madison O'Brien was convicted of one charge of driving while licence suspended.1 Although Mr O’Brien sought a discharge without conviction, the application was declined and he was sentenced to pay a $300 fine and to a six-month licence disqualification period from the date of the judgment delivered by Judge Couch.2 He now appeals the Judge’s refusal to grant a discharge without conviction.
Background
[2] Mr O’Brien is aged 29 and the sole employee of his building company. He is married with two young children, aged seven and three.
[3] On 6 September 2024, Mr O’Brien received a demerit suspension notice from Waka Kotahi informing him that his driving privileges would be suspended for three months beginning 10 September. Shortly after the suspension began, Mr O'Brien applied for a limited licence to drive a specific vehicle. This application was reviewed by police, who used number plate recognition software as part of their assessment.
[4] Police observed via CCTV that on the morning of 13 September 2024, Mr O'Brien drove his motor vehicle off a Christchurch petrol station forecourt. The vehicle was towing a trailer. Prior to leaving, Mr O’Brien can be seen driving the vehicle on the forecourt of the service station, parking beside the petrol pumps before entering the shop. When he left the shop, he got back in the driver’s seat before driving off.
[5] When questioned, Mr O'Brien explained that he moved the vehicle for his partner, who found it difficult to drive with a trailer.
1 Land Transport Act 1998, s 32(1)(c) and s 32(3); maximum penalty three months’ imprisonment or $4,000 fine and six months minimum disqualification.
2 Police v Obrien [2025] NZDC 11312.
District Court decision
[6] The Judge outlined the three-stage test for applications for discharge without conviction: first an assessment of the gravity of the offending; secondly, an assessment of the consequences of conviction; and thirdly, determination of whether those consequences are out of all proportion to the gravity of the offending.
[7] The Judge noted Mr O’Brien and his wife’s sworn affidavits and observed the offence of driving while suspended is a “relatively modest one” given the maximum penalty of three months’ imprisonment and that the gravity of the offending was “relatively low”. However, the Judge considered the offence aggravated by the fact this was Mr O'Brien's third suspension for excess demerit points, mostly for speeding, and that he had not learned from previous suspensions.
[8] In response to the main consequences raised by Mr O'Brien, being the impact of mandatory disqualification from driving on his one-person building business and on family life, the Judge observed that disqualification is a normal and proportionate consequence of conviction for this offence, as mandated by s 32 of the Land Transport Act 1998 and that Parliament intended this to apply in all but exceptional cases which he found did not apply in the present case.
[9] The Judge considered Mr O’Brien had “brought the current situation of suspension on himself” and “having taken the risk, it [was] somewhat hollow for him now to rely on the consequences of what he could readily have avoided.”
[10]Accordingly, the application was declined.
Principles on appeal
[11] An appeal against a refusal to grant a discharge without conviction is properly characterised as an appeal against both conviction and sentence.3
[12] Section 232 of the Criminal Procedure Act 2011 (the CPA) provides that the High Court may only allow an appeal against conviction if satisfied that the trial judge
3 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.
“erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.4 In this section, a trial includes a proceeding in which the appellant pleaded guilty.5
[13] The appeal proceeds by way of rehearing and this Court is required to form a view of the facts.6 If this Court reaches a different view on the evidence, it follows the trial judge necessarily will have erred and the appeal must be allowed.7 The onus is on the appellant to show that an error occurred.
[14] Appeals against sentence are allowed as of right by s 244 CPA and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.8
Leave to file fresh evidence
[15] Mr O’Brien and Ms O’Brien both filed affidavits before the District Court, and both seek to file a second affidavit on appeal (the further evidence). The further evidence requires leave to be filed.
[16] In order to adduce new evidence in the context of an appeal against conviction and sentence, the evidence should be credible and fresh. If the evidence is credible but not fresh, the appellate court should assess its strength and its potential impact on the sentence.9
[17] The further evidence provides additional information about the consequences of the conviction. Most of it could, and should have been adduced at the first instance
4 Criminal Procedure Act 2011, s 232(4).
5 Section 232(5).
6 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.
7 At [38].
8 Criminal Procedure Act, ss 250(2) and 250(3).
9 Mark v R [2019] NZCA 121 at [16].
hearing (albeit it would have been addressing predicted consequences not actual consequences). However, as the consequences of conviction are at the heart of this appeal, I consider it is in the interests of justice to allow the further affidavits to be filed. Leave is granted.
Affidavits in support of application/appeal
Mr O’Brien’s affidavits
[18] Mr O’Brien reiterates the two biggest reasons for seeking a discharge without conviction are the impacts on his livelihood and hardship to the family household due to the fact he cannot drive. He owns and operates a small building business as the sole employee meaning he relies on driving to worksites. His wife has an ongoing health condition that means at times she requires transport in emergencies to hospital. Mr O’Brien states he needs to be able to pick his children up from school in the case his wife cannot leave work or is hospitalised. He says losing his licence could jeopardise the family’s financial (and housing) stability, given the family heavily relies on his income. Mr O’Brien refers to a time when he was “previously suspended” and the financial hardship was immense, as he had to pay for a driver to take him to and from work sites.
[19] He updates the court that, since the offending, he has again had to hire a driver to transport him to the worksite and that some days he cannot work because he either cannot afford to pay someone to drive, or there is no one available to drive him which has had a large impact on the financial status of the family. It effectively means he makes no profit from his business. Furthermore, they cannot drive his truck.
[20] Mr O’Brien also cites the risk present in being unable to take machinery off- site, leaving it at risk of being stolen. He provides evidence of an injury he has suffered which he believes has arisen from being on the worksite for lengthy periods, given at times he does not know when he will next return to a worksite.
[21] Mr O’Brien finally refers to the strain his conviction and not being able to work has put on his marriage, and the impact of longer periods at the worksite have had on his children.
Ms O’Brien’s affidavits
[22] Ms O’Brien’s affidavit covers similar evidence to that of her husband. She says the consequences of the conviction (being her husband’s inability to drive) and the consequent inability for Mr O’Brien to assist in the children’s daily lives, is “not just a mere inconvenience, but a demonstrably difficult burden.” Ms O’Brien says that her husband not having a licence is impacting her work. She has to start late to drop the children off and to drop him off to work when she can. She says she has already had to cut her hours to accommodate her husband and the children. She also outlines the medical conditions she suffers from which, since the conviction, have caused her to be hospitalised twice. She says the consequences of the conviction and loss of licence are such that her physical and mental wellbeing are being severely affected. She points to other difficulties of raising a family when only she can drive. For example, trying to plan for how the children will be transported when she is away for a three-day conference in September. She also points out that the family has had incur the costs of after school care to accommodate the lack of flexibility caused by her husband’s loss of licence. She is currently engaging in counselling sessions to manage the effects of the stress caused by the loss of licence.
Submissions
Appellant’s submissions
[23] Mr Poff, counsel for Mr O’Brien submits the Judge erred by not granting the s 106 discharge without conviction application. Mr Poff contends the Judge incorrectly assessed the gravity of the offending, placed insufficient weight on the consequences of conviction and erred in finding that the consequences of the offending were not out of all proportion to the gravity of the offence.
[24] Mr Poff submits these were material errors that resulted in a miscarriage of justice.
Respondent’s submissions
[25] Ms Fulton opposes the appeal and submits the Judge did not err in his decision to decline to discharge the appellant without conviction. She contends the relevant
principles were applied in a considered manner and there was no miscarriage of justice. Further, she submits the consequences of the conviction which are ordinary, speculative or otherwise unsubstantiated are not out of all proportion to the gravity of the offending.
Analysis
The test for a discharge without conviction
[26] Under s 106 of the Sentencing Act 2002 a sentencing judge has the discretion to grant a discharge with a conviction. That section provides:
106 Discharge without conviction
(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2)A discharge under this section is deemed to be an acquittal.
…
[27] Section 107 provides that a court must not grant a discharge without conviction unless it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. There must be a “real and appreciable” risk that any given consequence will occur.10
[28] The well-established three-step process for determining whether a discharge without conviction should be granted requires the judge to assess:11
(a)the gravity of the offending, taking into account all aggravating and mitigating factors of the offending and the offender;
(b)the direct and indirect consequences of a conviction; and
10 R v Taulapapa [2018] NZCA 414 at [22].
Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [7]–[14]; R v Hughes [2008] NZCA 546,
[2009] 3 NZLR 222; Z v R [2012] NZCA 599, [2013] NZAR 142 at [27]; and R v Taulapapa,
above n 11, at [22].
(c)whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.
Gravity of the offending
[29] Mr Poff submits the gravity of the offending assessment should pertain to the offending presently before the court and while the Judge was entitled to consider Mr O’Brien’s demerit history, the previous suspensions and the fact the defendant offended while the limited licence was not yet granted, none of those aspects should have increased the gravity beyond “relatively low” as the Judge initially assessed.
[30] Mr Poff argues the offending was low-level given the context of the offending which involved no driving risk and which was only discovered because police ran a plate-recognition test to see if the plate had been spotted anywhere, following Mr O’Brien’s application for a limited licence, which was subsequently granted.
[31] Mr Poff submits the demerit history is dated, and Mr O’Brien has signed himself up for a defensive driving course, which mitigates the gravity of offending.
[32] Ms Fulton submits in relation to the offending, there are no aggravating or mitigating features. She highlights the aggravating features personal to the offender, in particular the appellant’s driving history including two previous suspensions for excess demerits. The respondent submits the appellant’s demerit history is not dated, given there are demerit points recorded up until 2024.
[33] I accept the respondent’s submission there are no aggravating mitigating features of the offending. In terms of Mr O’Brien’s explanation that he chose to drive for a short period of time, to move the vehicle out of the petrol forecourt and onto the road, this was clearly not an emergency situation and does not mitigate the offending. That said, I agree with the Judge that “in terms of the actual events which occurred, [the gravity] is relatively low”.
[34] In relation to Mr O’Brien, his demerit point and licence suspension history report reflects two suspensions that were imposed in 2014 and 2019, both arising from excess demerit points largely due to speeding, operating an unregistered vehicle and,
in relation to the first suspension, breaches of learner licence requirements. However, I note Mr O’Brien does not have any prior convictions for driving while suspended (or any other convictions). The two prior suspensions are reasonably dated, being from 11 and six years ago.
[35] In my view, the history of demerits, in particular the history of speeding (primarily giving rise to the 2018 suspension) is not directly relevant to the present charge of driving while licence suspended. Mr O’Brien was not speeding at the time of offending and the driving was unremarkable. On that basis I consider it appropriate to attribute the driving history limited weight.
[36] The Judge noted Mr O’Brien “has had the experience of suspension of his driver’s licence for excess demerit points twice before…but he has failed to learn the lesson involved.” That is, of course, correct. However, I also observe Mr O’Brien’s children are aged seven and three years old. At the time of earlier suspensions, the demands coming from family life would have been vastly different. This will be the first suspension where Mr O’Brien is experiencing the impact of licence suspension, as it relates to family logistics. He will be aware, should this discharge be allowed, that any further discharges would be most unlikely.
[37] It also appears Mr O’Brien takes suspension seriously. As noted in his affidavits, on the previous suspension he hired a driver to get him to and from work. At the time of offending, he had applied for a limited licence, which was subsequently granted.
[38] Taking all of those factors into account, while Mr O’Brien’s driving history is relevant to the s 107 analysis, I do not consider it elevates the offending beyond offending of low culpability.
Consequences of conviction
[39] As to the consequences of conviction, the Judge captured the consequences of conviction succinctly:12
12 At [6].
… the defendant and his wife have sworn affidavits. Their focus is on disqualification from driving. In essence, they say that the defendant operates a one-person business as a builder and that, if he is unable to drive, he will not be able to carry on his business. They say this will have serious financial consequences for the family. Other potential consequences of disqualification are also suggested. These include transporting children, should the defendant’s wife be unavailable, and transporting her should she suffer serious illness.
[40] The direct and mandatory consequence of a conviction of this kind is disqualification for a period of six months.13 That particular consequence is the significant difficulty caused to Mr O’Brien’s business, given the requirement he drive to worksites to generate money for his household. I accept the evidence that buses and Ubers are not an option as Mr O’Brien must transport his tools to worksites. Mr and Ms O’Brien have provided evidence regarding their financial situation, including Ms O’Brien working part-time hours, the additional costs of after-school care and the family’s reliance on Mr O’Brien’s income for necessities such as rent and childcare.
[41] I also accept the evidence regarding Ms O’Brien’s health requirements, and the consequences of the conviction being Mr O’Brien cannot drive his wife to hospital when needed, or transport children from to and from school. I accept that such consequences will likely have placed stress on them as a couple.
Proportionality test
[42] The Judge identified that disqualification is mandatory following conviction for driving while licence suspended and concluded disqualification “is a normal consequence of conviction and entirely proportionate to the offence, regardless of the gravity of the offence.”14 However, beyond stating the consequences claimed by the O’Briens, the Judge did not articulate how the particular consequences relied on to support the application were factored into the proportionality assessment. For that reason I have undertaken that assessment afresh.
[43] The consequences in this case flow primarily from the mandatory disqualification rather than the entry of the conviction. However, the two are so
13 Land Transport Act 1998, ss 32(1)(c) and (3)(b).
14 At [11].
connected they must be considered together. I am satisfied the totality of consequences flowing from the family circumstances is out of all proportion to the low gravity of offending. The combined effects of the inability of Mr O’Brien to be available to drive his wife to hospital at short notice, or to transport children to and from school, alongside the financial disadvantage that flows from him not being able to work every day and having to pay for afterschool care for the children, as well as the consequent stress on the couple, cumulatively satisfy the proportionality test.
Result
[44]For the reasons given above, the appeal is allowed.
[45] The application for a discharge without conviction is granted and the conviction and sentence are quashed.
Solicitors:
Crown Solicitor, Christchurch
Copy to:
J Poff, Barrister, Christchurch
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