Redai v Police - [2017] NZHC 3173

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2017-425-44 [2017] NZHC 3173

BETWEEN
NATHAN JONATHAN REDAI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 11 December 2017

Appearances:

M R Walker for the Appellant
R W Donnelly for the Respondent

Judgment:

15 December 2017

JUDGMENT OF DUNNINGHAM J

Introduction

[1] The appellant was charged with driving with excess alcohol. He was convicted and sentenced on 18 September 2017 in the District Court at Queenstown.1 The Judge refused to grant him a discharge without conviction. He now appeals that decision on the following grounds:

(a) the Judge took into account irrelevant factors and omitted to consider relevant factors when assessing the gravity of the offending;

(b)the Judge erred in determining that the consequences of a conviction would not be out of all proportion to the gravity of the offending; and

1 Police v Redai [2017] NZDC 21141.

(c) the Judge did not correctly apply the proportionality test.

Background facts

[2] On 27 May 2017, shortly after midnight, the defendant was stopped by police on Ballantyne Road, Wanaka. As he exhibited signs of recent alcohol intake, he was breath tested. His breath was found to contain 622 micrograms of alcohol per litre of breath.

[3] The appellant is 18 years old, and employed as a parachute packer. However, he has his private pilot’s licence and is working towards obtaining his commercial pilot’s licence. He hopes to embark on a career in commercial aviation.

District Court decision

[4] The Judge noted that an application had been made under s 106 Sentencing Act

2002 for a discharge without conviction. This required him to go through a three-step process, as set out in Z(CA447/12) v R.2 The first step required a consideration of the gravity of the offending. The Judge noted that the Courts have consistently recognised drink driving as a serious offence. While there was no evidence here of any accident, the reading was high (one and half times the adult limit), especially for a young man. However, he also noted that the appellant was co-operative with the police. He pleaded guilty promptly. He has demonstrated remorse and he had done a number of things which were very much in his favour. Despite that, the Judge also recognised that drinking and driving was a dangerous activity and, overall, he put the offending in the “moderate to serious” category.

[5] The Judge then turned to the direct and indirect consequences of the offending. He noted that the general stigma of the conviction was really “no more or less than what offending against legislation does in any case”, but that the Criminal Records (Clean Slate) Act 2004 would operate after a period of time.

[6] In terms of the impact the conviction could have on his chosen career, he noted this was something that the appellant should have been aware of before committing

2 Z(CA447/12) v R [2012] NZCA 599.

the offence, as someone with aspirations…

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 Redai v Police

Details

AGLC: Redai v Police [2017] NZHC 3173
Case: [2017] NZHC 3173
Decision Date: 15 December 2017

CaseChat Overview and Summary

The appellant, Nathan Jonathan Redai, appeals against a decision of the District Court which refused him a discharge without conviction for driving with excess alcohol. The appellant argues that the District Court Judge took into account irrelevant factors and omitted to consider relevant factors when assessing the gravity of the offending and erred in determining that the consequences of a conviction would not be out of all proportion to the gravity of the offending. The respondent argues that the offending was properly characterised as moderate to serious and that the Judge was entitled to evaluate remorse as he did. The Judge was also entitled to acknowledge that employers in an industry involving public safety are entitled to transparency about their employee’s past conduct.

The court found that the Judge considered the mitigating factors personal to the appellant when considering the gravity of the offending. However, the court found that the Judge did not articulate how factors that went in the appellant's favour were factored into the assessment of the gravity of the offending. The court also found that the Judge did consider the appellant’s youth, and the impact it has on decision-making in accordance with Churchward. However, the court found that the appellant’s youth was not a strongly mitigating factor given the clear legislative message against drink-driving, including by imposing a zero limit for young drivers.

The court found that the consequences of a conviction for the appellant will be an impediment to the ease with which he can progress his aviation career and that the consequences of a conviction will outweigh the gravity of the offending. However, the court found that the consequences must be out of all proportion to the gravity of the offending before the Court has jurisdiction to grant a discharge without conviction. The court found that, while a conviction for this young man will have consequences which are greater than for many other people of his age, they are not so serious that they are out of all proportion to the gravity of the offending.

The appeal is dismissed.

Orders