Ramage v Police - [2017] NZHC 75

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2016-412-000037 [2017] NZHC 75

BETWEEN
SIOBHAN BRIAR RAMAGE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 2 February 2017

Appearances:

R D Checketts for Appellant
M J Grills for Respondent

Judgment:

3 February 2017

JUDGMENT OF GENDALL J

Introduction

[1] The appellant, Ms Ramage, pleaded guilty in the District Court to one charge of driving with excess blood alcohol with a reading of 98 milligrams of alcohol per
100 millilitres of blood. Being the appellant’s first driving with excessive breath alcohol charge, the maximum penalty is three months imprisonment or a fine not exceeding $4500 together with licence disqualifications.1

[2] On 10 November 2016, conviction was entered by Judge Crosbie in the District Court at Alexandra and the appellant was fined $500, and ordered to pay Court costs of $130 and medical expenses of $182.72. She was also disqualified from driving for the minimum mandatory period of six months.

[3] Prior to the sentencing hearing, the appellant had applied for a discharge without conviction. The application was declined on 10 November 2016, with

1 Land Transport Act 1998, s 56(2).

RAMAGE v NZ POLICE [2017] NZHC 75 [3 February 2017]

reasons to follow. Judge Crosbie’s reasoning was delivered on 12 December 2016.2

The appellant now appeals against that decision to refuse to grant a discharge without conviction.

Leave to appeal out of time

[4] The appellant first seeks to appeal out of time. Under s 231(2) of the Criminal Procedure Act 2011 (CPA), a notice of appeal must be filed within 20 working days after the date of sentence. This deadline expired on 6 December 2016. The first appeal court may, at any time, extend the time allowed for filing a notice of appeal. The reason for the delay in this case was that Judge Crosbie’s reasons were not available until after the deadline day. The Crown does not oppose the application for leave to appeal out of time, and clearly no party has been prejudiced. The application to appeal out of time is therefore granted.

Jurisdiction

[5] On 20 December 2016, the Court of Appeal in Jackson v R issued directions as to the nature of an appeal on a refusal to grant a discharge without conviction. The Court held:3

[7] The power to discharge without conviction a person who is found or pleads guilty to a charge is contained in s 106(1) of the Sentencing Act 2002. By virtue of s 106(2), the discharge is deemed to be an acquittal. On discharging an offender under s 106(1) the court may make a range of orders for costs or compensation for any order that the Court is required to make on conviction. Before the enactment of the Criminal Procedure Act 2011 (the CPA) rights of appeal against conviction or sentence imposed in the District Court were governed by pt 4 of the Summary Proceedings Act 1957 (the SPA). The consensus of authority in the High Court was that an appeal under…

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 Ramage v Police

Details

AGLC: Ramage v Police [2017] NZHC 75
Case: [2017] NZHC 75
Decision Date: 3 February 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Ms Siobhan Briar Ramage appealed against the decision of the District Court to refuse a discharge without conviction in respect of her conviction for driving with excess blood alcohol. The maximum penalty for the offence was three months imprisonment or a fine not exceeding $4500 together with licence disqualifications. The District Court imposed a fine of $500, ordered the payment of Court costs of $130 and medical expenses of $182.72, and disqualified Ms Ramage from driving for six months. The appellant had applied for a discharge without conviction prior to sentencing. This application was declined by Judge Crosbie with reasons to follow. Ms Ramage appeals against the decision to refuse a discharge without conviction.

The court was required to decide whether the District Court erred in refusing to grant a discharge without conviction, and whether the consequences of a conviction would be out of all proportion to the gravity of the offending.

The court held that an appeal against a refusal to grant discharge without conviction must, at the very least, be characterised as an appeal against conviction. The essence of the challenge is to the entry of a conviction; that is the nature of the decision against which the appeal is brought. The setting aside of the conviction is both the necessary prerequisite to and objective of the appeal. The court must come to its own decision on the merits. The court is entitled to place such weight as it considers appropriate on the judgment in the lower court but an independent assessment is nevertheless required.

In assessing the gravity of the offending, the court found that the offence was serious but not the worst of its kind. The consequences of a conviction were minor to moderate. The court found that a conviction would not be disproportionate in the circumstances. The court held that the Court should be cautious when called upon to exercise its discretion to discharge without conviction in order to conceal criminal wrongdoings from employers. The same reasoning also applies to border authorities of foreign nations.

The appeal was dismissed.

Orders