Ovtcharenko v Police - [2016] NZHC 2572

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2016-404-265 [2016] NZHC 2572

BETWEEN
DANEEL OVTCHARENKO

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 25 October 2016

Counsel:

C Mitchell for Appellant
A Park for Respondent

Judgment:

27 October 2016

JUDGMENT OF HEATH J

This judgment was delivered by me on 27 October 2016 at 4.00pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Auckland
Counsel:
C Mitchell, Takapuna

OVTCHARENKO v NEW ZEALAND POLICE [2016] NZHC 2572 [27 October 2016]

The appeal

[1] 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 of driving at an excessive speed. Although he sought to be discharged without conviction,1 Judge Hinton declined that application. Instead Mr Ovtcharenko was convicted, fined $300, and disqualified from driving for six months.2

[2] Mr Ovtcharenko appeals against conviction and sentence on the grounds that the Judge erred in not granting a discharge without conviction. If that appeal were unsuccessful, there is no challenge to the sentence imposed in the District Court.

The facts

[3] In the early hours of 16 April 2015, a concerned motorist reported to the Police that a car was travelling at an excessive speed on the Northern Motorway, near Orewa. A police officer located the vehicle and attempted to stop it. The driver of the motor vehicle did not comply.

[4] A chase ensued over a distance of some five kilometres. During that period, the speed at which the vehicle was travelling exceeded 200 km/h. When the vehicle eventually stopped, Mr Ovtcharenko was found to be the driver.

[5] At the time of his apprehension, Mr Ovtcharenko was 18 years old and exhibited signs of recent alcohol intake. An evidential breath test was undertaken and returned a result of 525 micrograms of alcohol per litre of breath. As an 18 year old, the legal limit was nil.3 Indeed, the breath alcohol concentration level exceeded
by 125 micrograms the adult limit of 400 micrograms of alcohol per litre of breath.4

1      Sentencing Act 2002, ss 106 and 107.
2      Police v Ovtcharenko [2016] NZDC 16460.
3      Land Transport Act 1998, s 57(1A). However, a conviction may only be entered if the breath alcohol concentration exceeds 150 micrograms of alcohol per litre of breath: see s 57(1).
4      Ibid, s 56.

Sentencing in the District Court

[6] Having pleaded guilty to the two offences, counsel for Mr Ovtcharenko submitted that his client should be discharged without conviction. The power to grant such a discharge springs from ss 106 and 107 of the Sentencing Act 2002. Relevantly, they provide:

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…

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.

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Details

Case: [2016] NZHC 2572
Decision Date: 27 October 2016

CaseChat Overview and Summary

The appeal in Ovtcharenko v Police was heard by Heath J in the High Court of New Zealand. Mr Ovtcharenko appealed against his conviction and sentence in the District Court, where he had been found guilty of driving with an excess breath alcohol concentration and driving at an excessive speed. The District Court Judge, Judge Hinton, declined Mr Ovtcharenko's application to be discharged without conviction and imposed a fine and a driving disqualification. The central issue in the appeal was whether Judge Hinton erred in not granting a discharge without conviction.

The legal issues in the case were twofold. The first was whether the consequences of a conviction would be out of all proportion to the gravity of the offence. The second was whether, assuming the first hurdle was overcome, the Court should grant a discharge in any event. The appeal focused on the first issue.

The court found that the District Court Judge was correct in his conclusion. The gravity of the offending was marked, as Mr Ovtcharenko had driven at excessive speeds while consuming alcohol to the extent that his breath alcohol concentration was significantly above the legal limit. Although Mr Ovtcharenko had no previous convictions, good character, and remorse, the court held that the direct and indirect consequences of a conviction were not out of all proportion to the gravity of the offending. The court emphasised that the underlying act of irresponsible and dangerous driving was what raised questions of character and judgment for potential employers, rather than the conviction itself.

The appeal was dismissed. The court held that the District Court Judge was correct to refuse the application for discharge without conviction.

Orders