Ramage v Police
[2017] NZHC 75
•3 February 2017
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 RespondentJudgment:
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 the SPA against a refusal to discharge without conviction was properly characterised as an appeal against both conviction and sentence, even where it was filed technically against sentence alone.
[8] We agree with the line of authority and its rationale, which applies equally to the CPA. If it is considered in conceptual terms, without examining the relevant statutory provisions, an appeal against the refusal to 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
2 New Zealand Police v Ramage [2016] NZDC 25227 [reasons for dismissal of application for s
106 discharge without conviction].
3 Jackson v R [2016] NZCA 627.
brought. The setting aside of the conviction is both the necessary prerequisite to and objective of the appeal.
[6] It follows that an appeal against refusal to grant discharge without conviction proceeds as an appeal against conviction and sentence. An appeal against a decision under s 107 Sentencing Act is not an appeal against the exercise of a discretion in the lower Court, but instead is a general appeal: see R v Hughes.4 This Court as the appellate Court must accordingly come to its own decision on the merits: Austin Nichols & Co Inc v Stichting Loadstar.5 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.
District Court Decision
[7] In giving his decision here, Judge Crosbie adopted the orthodox three step approach as set out by the Court of Appeal in Blyth v R6 and R v Hughes.7 In considering whether a discharge without conviction is to be granted, the Court is asked to:
(a) Identify the gravity of the offending in its particular factual context; (b) Identify the direct and indirect consequences of a conviction; and
(c) Assess whether the consequences of a conviction would be out of all proportion to the gravity of the offending.
[8] Finally, the Court is also required to assess the principles and purposes of the Sentencing Act when considering whether the residual discretion of the Court is to be exercised.
[9] In identifying the gravity of the offending in its particular factual context, Judge Crosbie held that the offending was serious but not the worst of its kind. Judge
Crosbie held that, in all respects, this is a typical, first time, drink driving offence.
4 R v Hughes [2008] NZCA 546.
5 Austin Nichols & Co Inc v Stichting Loadstar [2007] NZSC 103.
6 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.
7 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.
[10] When considering the direct and indirect consequences of a conviction, Judge Crosbie only found there to be a “possibility” of the appellant not obtaining employment overseas in Canada. His Honour held:8
[17] To the extent that there are consequences, then I find them in this case to be minor. There would appear to be many other options for this defendant, including in fact getting her full licence back, obtaining work through other means or working in other countries. Indeed, it may be argued as wrong of this Court to effectively hide this conviction from prospective employers – parents of young children – who should have a right to know and then satisfy themselves by raising it with the defendant.
[11] Finally, when asked to assess whether a conviction is out of proportion with the direct and indirect consequences of gravity of the offending, Judge Crosbie, citing Miller J in Linterman v Police and Whata J in LJP v Police held that any consequence is minor and, even if it were greater, it is not out of proportion to the gravity of the offending.
Law
[12] The power of the Court to grant a discharge without conviction is governed by sections 106 and 107 of the Sentencing Act 2002. Section 107 offers guidance as to when a s 106 discharge should be granted:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[13] The section requires a balancing exercise between the gravity of the offence and the seriousness of the consequences of a conviction, in accordance with the three stage approach outlined above.
Analysis
[14] It is convenient to address the appellant’s submissions on appeal in those three stages.
Gravity of the offending
[15] The appellant submits that while the offence is a serious one, her offending is on the low end of the spectrum. Her counsel directed the Court to the case of Police v Paki, where in overruling the decision to discharge without conviction Woolford J categorised offending involving a breath alcohol level of 761 micrograms per litre of breath as “low to moderate in gravity”.9 This is submitted as a comparison to the appellant’s level of 440 micrograms. The appellant has no previous convictions, has cooperated with the authorities at each stage, and is clearly ashamed of her offence.
[16] There are two components to the gravity inquiry: the gravity of the offence itself, and the gravity of the particular offending in the particular circumstances. Quoting Miller J in Linterman v Police,10 Judge Crosbie labelled driving with excess blood alcohol as serious “almost by definition”. I agree that the offence is by its nature serious. It puts members of the public in danger. Parliament have clearly signalled that a hard line is to be taken with this kind of offending with the aim of
addressing what is undoubtedly a pervasive and costly social problem.
[17] I accept that compared with other instances of the offence Ms Ramage’s offending is at the low end of the spectrum. The level of alcohol was comparatively low, and the offending came to the notice of the authorities through a routine check rather than any reckless driving. Nevertheless, that does not detract from the fact that the starting point with any offence of this kind is that it is serious.
Consequences of a conviction
[18] The appellant’s submissions on the consequences of a conviction revolve primarily around its impact on her career prospects. Ms Ramage is a nanny and has previously been employed in New Zealand, Australia, and the United Kingdom in this capacity. From the references submitted to the Court it is clear she is well regarded by the families she has worked for. In May 2016, she was granted a visa to travel to Canada to engage in similar work. Ms Ramage submits that if convicted of
the offence, it is unlikely if not impossible that she will be permitted to work in
9 Police v Paki [2014] NZHC 3112 at [34].
10 Linterman v Police [2013] NZHC 891.
Canada as she intends to. In her submission she stated that she would be “criminally unable to enter Canada”, and that she would be subject to a five year stand-down period before being able to apply for a working visa again. Further it is submitted that at the end of the five year period, at age 31, Ms Ramage would be ineligible for a working visa under current Canadian legislation.
[19] The appellant has provided no real evidence to indicate the likelihood that these consequences will come about. This must cause me some concern.
[20] A related consequence is the possibility that the appellant will not be able to find work as a nanny because she will not have a clean drivers’ licence. There is supporting evidence of this in the form of a letter from a nanny agency which confirms that the agency requires nannies they employ to have a clean driving licence.
[21] Counsel also refer to a statement of Whata J in Amstad v Police that an offender’s youth must be a primary consideration.11 In that case the offender was 19 years old. I do not accept that, at 26 (or at 25 at the time of the offending), Ms Ramage’s youth is an especially relevant factor here.
[22] On the basis that not being able to obtain employment in Canada was a “possibility”, Judge Crosbie found here that the consequences of a conviction were minor. On that understanding of the situation I tend to agree. If the appellant’s submissions are correct and the likelihood of not being able to obtain employment in Canada is closer to being certain, the consequences are somewhat higher. However, I find that they are at most moderate. Being able to find employment of a chosen kind in a chosen country must be seen at one level as a privilege. It is not an entitlement. Difficulties in employment and other areas of life arising out of the stigma of having a conviction are merely the ordinary consequences of offending behaviour. Ms Ramage has not advanced any reasons why it is particularly important in her circumstances that she pursues only one particular career in Canada. Although finding work as a nanny may be more difficult than it would be without a conviction and a clean license, it does not appear that it will be impossible.
Would the consequences of a conviction be out of all proportion to the gravity of the offending?
[23] Given that I have concluded that offences of this kind are serious and the consequences of a conviction for Ms Ramage are minor to moderate, the inevitable conclusion is that a conviction would not be disproportionate in the circumstances.
[24] Counsel for the respondent directed the Court to the following statement of
Wild J in R v Martin:12
I subscribe to what is now a solid body of authority that Courts should not conceal (by discharging without conviction) criminal wrongdoings on the ground that it might affect future employment prospects. Rather, I agree with many other Judges who regard it as important that the authorities should know applicants’ backgrounds, and be able to make fully informed decisions.
[25] I agree with Wild J 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. There are legitimate reasons why employers and border authorities want to know about offending behaviour, and the Court should only seek to deny them access in exceptional circumstances.
Result
[26] For all the reasons I have outlined, I find that Judge Crosbie did not err in refusing to discharge the appellant without conviction.
[27] The appeal is dismissed.
...................................................
Gendall J
Solicitors:
Checketts McKay Law, Dunedin
RPB Law, Dunedin
6
0