[1] Ms M appeared in the Gisborne District Court on 30 January 2013, and pleaded guilty to a charge of driving a motor vehicle while the proportion of alcohol in her breath exceeded 400 micrograms of alcohol per litre of breath. Her reading was 801 micrograms, twice the legal limit.

[2] After hearing counsel, Judge Hubble discharged the respondent without conviction and made an order for permanent suppression of her name.

[3] The informant, now the appellant in this Court, filed in the Gisborne District Court a notice of intention to appeal by way of case stated on a question of law, pursuant to s 107 of the Summary Proceedings Act 1957 (the Act). Judge Hubble settled the case stated by posing the following questions of law for the determination of this Court:

1.Did the Judge correctly identify the test for a discharge without conviction under s 107 of the Sentencing Act 2002, which requires a sentencing Judge to engage in a three step process?1

2.Was there sufficient material before the Judge to support a finding that there were direct and indirect consequences of a conviction for the respondent that would be out of all proportion to the gravity of the offence?

3.Did the Judge correctly identify the test in s 200(2)(a) of the Criminal Procedure Act 2011 which requires that the Court can suppress the name of the respondent only when it is satisfied that publication would be likely to cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence?

4.Was there sufficient material before the Judge to support a finding that publication of the respondent’s name would be likely to cause extreme hardship to the defendant?

[4] Ms M’s appearance before Judge Hubble for sentence was her third

appearance on this charge. She had entered a guilty plea on the first occasion. The

Judge asked Ms Insley, who appeared for Ms M, whether there was anything special

1 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 190; Z(CA447/12) v R [2013] NZCA 599, [2013] NZAR 142 (CA).

about the case and whether she could pay a fine. At that point, Ms Insley embarked upon a detailed and lengthy plea in mitigation, which covered Ms M’s offence-free record, her family and sporting background and her employment history. During the course of those submissions,…

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 Police v M

Details

AGLC: Police v M [2013] NZHC 1101
Case: [2013] NZHC 1101
Decision Date: 15 May 2013

CaseChat Overview and Summary

The appellant, the Police, sought leave to appeal from a decision of Judge Hubble in the Gisborne District Court. The respondent, Ms M, had pleaded guilty to a charge of driving a motor vehicle with the proportion of alcohol in her breath exceeding 400 micrograms of alcohol per litre of breath. The respondent's reading was 801 micrograms, twice the legal limit. After hearing counsel, Judge Hubble discharged Ms M without conviction and made an order for permanent suppression of her name. The Police filed a notice of intention to appeal by way of case stated on a question of law, pursuant to s 107 of the Summary Proceedings Act 1957. Judge Hubble settled the case stated by posing four questions of law for the determination of the High Court. The first question was whether the Judge correctly identified the test for a discharge without conviction under s 107 of the Sentencing Act 2002. The second was whether there was sufficient material before the Judge to support a finding that there were direct and indirect consequences of a conviction for the respondent that would be out of all proportion to the gravity of the offence. The third was whether the Judge correctly identified the test in s 200(2)(a) of the Criminal Procedure Act 2011 which requires that the Court can suppress the name of the respondent only when it is satisfied that publication would be likely to cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence. The fourth was whether there was sufficient material before the Judge to support a finding that publication of the respondent’s name would be likely to cause extreme hardship to the defendant. The court found that the first question should be answered "Yes", while the remaining three should be answered "No". The proceeding was remitted to the District Court for reconsideration.

Orders