Ovtcharenko v Police

[2017] NZCA 65

IN THE COURT OF APPEAL OF NEW ZEALAND

CA595/2016
[2017] NZCA 65

BETWEEN	DANEEL OVTCHARENKO Applicant
AND	NEW ZEALAND POLICE Respondent

Court:

Brown, S France and J Williams JJ

Counsel:

C Mitchell for Applicant
J Cheng for Respondent

Judgment:

(On the papers)

20 March 2017 at 12.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to file the application for leave to bring a second appeal is granted.

BThe application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

1. In the early hours of 16 April 2016 the applicant, Mr Ovtcharenko, drove a motorcar on the Northern Motorway near Orewa for some five kilometres, travelling at a speed in excess of 200 kilometres per hour.  Eventually he was stopped by the police.  An evidential breath test returned a result of 525 micrograms of alcohol per litre of breath. 

2. Mr Ovtcharenko entered pleas of guilty in the District Court at North Shore to one charge of driving with an excess breath alcohol concentration and one charge of driving with an unnecessary exhibition of speed.  His application for discharge without conviction was declined by Judge Hinton.[1]  His appeal against that decision was dismissed by Heath J.[2]  Mr Ovtcharenko now seeks leave to bring a second appeal against the refusal to grant a discharge without conviction.

   [1]Police v Ovtcharenko [2016] NZDC 16460.

   [2]Ovtcharenko v Police [2016] NZHC 2572.

3. The application for leave is opposed by the respondent.  Winkelmann J directed that the application for leave be determined separately from the proposed appeal and on the papers.  An application to review the mode of hearing direction was declined.[3]

   [3]Ovtcharenko v Police [2017] NZCA 43.

4. Mr Ovtcharenko’s application for leave was filed out of time.  The delay being minimal, we grant Mr Ovtcharenko an extension of time to file his application for leave to bring a second appeal.

Application for leave

1. An appeal against a refusal to discharge a defendant without conviction under s 106 of the Sentencing Act 2002 is properly characterised as an appeal against both conviction and sentence.[4]  Both ss 237(2) and 253(3) of the Criminal Procedure Act 2011 state that this Court must not give leave for a second appeal unless satisfied that either the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred or may occur unless the appeal is heard.

   [4]Jackson v R [2016] NZCA 627.

2. Mr Ovtcharenko’s application invoked both limbs of the statutory prerequisites for a grant of leave.  With reference to the former, Mr Mitchell for Mr Ovtcharenko properly acknowledged this Court’s decision in McAllister v R, drawing attention to the observation that an illustration of a matter of general or public importance is one raising an important question of law having broad application beyond the circumstances of the particular case.[5]  However, the case advanced in support of leave focused primarily on two aspects of the High Court’s consideration of the evidence.

   [5]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].

3. First it was contended that Heath J overstated the gravity of the offending in describing the incident as a “chase” of some five kilometres.  Secondly it was said that Heath J had erred in concluding that the evidence of prejudice to the applicant from a conviction was not compelling, attention being drawn in particular to the evidence of Messrs Robertson and Ward, two Chartered Accountants who provided affidavit evidence as to the effect of a conviction on recruitment processes.

Analysis

1. We agree with Ms Cheng’s submission for the respondent that the question of when Mr Ovtcharenko became aware that the police were pursuing him was not critical to Heath J’s assessment of the gravity of the offending.[6]  The Judge’s conclusion that it was irresponsible and dangerous to drive in the manner in which Mr Ovtcharenko did was open to him irrespective of whether Mr Ovtcharenko was being chased by a police officer.

   [6]Ovtcharenko v Police, above n 2, at [21].

2. Secondly the evidence of Messrs Robertson and Ward, which was well canvassed in the High Court, was considered by Heath J to have little probative value, both witnesses accepting that an employer would expect to be informed of any conviction.  As Heath J remarked, it is the act undertaken by the potential employee that raises the questions of character and judgement that would concern a future employer.[7]

   [7]At [24].

3. In further submissions directed to the review of the mode of hearing direction, Mr Mitchell advanced the proposition that lower court judges are determining the question of the consequences of a conviction in “unique and varied ways” which on occasions do not follow the guidance provided in Iosefa v Police[8] and Alshamsi v Police[9] and adopted by this Court in DC (CA47/2013) v R.[10]

   [8]Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005.

   [9]Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007.

   [10]DC (CA47/2013) v R [2013] NZCA 255 at [43].

4. However, as Ms Cheng submitted, it is unclear why Mr Ovtcharenko considers that further guidance is required from this Court on the correct approach determining the consequences of conviction, given that he appears to accept that there is an established approach (albeit one which he submits was not followed in this case) and he fails to cite cases where lower courts have followed an approach different from the established approach.

5. Consequently we do not consider that the proposed appeal involves a matter of general or public importance.  Nor on the facts is there any appearance of a miscarriage of justice. 

Result

1. The application for an extension of time to file the application for leave to bring a second appeal is granted.

2. The application for leave to bring a second appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent