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 like this needs to take responsibility for meeting the requisite standards for behaviour.   He noted that overseas aircraft jurisdictions would seek disclosure not only of convictions but of charges faced. Therefore, a conviction would not necessarily be a significant disadvantage over a discharge.  Furthermore, a conviction was not an impenetrable barrier to becoming a pilot, but a hurdle to be overcome.

[7]      In addressing the issue of disproportionality, he held that the consequences of a conviction were not out of all proportion to the gravity of the offending.  Future employers were entitled to know about his actions and that, by this decision, the Judge had:

not closed the door … to your becoming an international pilot, at least as far

as New Zealand is concerned and I suspect, most Commonwealth countries where there is a sense of fair play that operates.

[8]      Finally, the Judge noted that the appellant had demonstrated his remorse and had voluntarily made donations and done community work.  Therefore, apart from a six-month disqualification, the Judge did not impose a penalty.

Principles on appeal

[9]      The procedure for granting a discharge without conviction is governed by

ss 106 and 107 of the Sentencing Act 2002. Section 107 confers to the Court the ability to grant a discharge without conviction if it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[10]     An appeal against a refusal to discharge a defendant without conviction is characterised as an appeal against both conviction and sentence.3   It is not treated as an appeal against a judicial discretion so normal appellate principles therefore apply.4

The reasoning behind this was articulated in R v Hughes:5

3      Jackson v R [2016] NZCA 627 at [9].

4      And thus I must apply the approach as set out in Austin, Nichols & Co v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

5      R v Hughes [2008] NZCA 546 at [11].

The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles… The discretionary power of the court to discharge without conviction under s 106 arises and exists only if the Court is satisfied that the s 107 threshold has been met.

Submissions

Appellant’s submissions

[11]     The  appellant  submits  that  the  Judge  mischaracterised  the  offending  as moderate to serious and failed to bring to bear mitigating factors personal to the appellant in making that assessment, including the steps he took following the incident to mitigate his offending such as completing community work and attending alcohol counselling.   Counsel submits that the Judge’s minimising of these actions is inconsistent with the approach taken in Godoy v R.6

[12]   Counsel also submits that the Judge erred by incorrectly applying the Churchward v R principles relating to the reduced culpability in young people as a mitigating factor.7  The gaps in the appellant’s foresight reflect his immaturity.

[13]     The appellant claims that the Judge erred in stating that the appellant was not yet a pilot and gave irrelevant consideration to a sense of “fair play’ by Commonwealth employers.  Counsel submits this is speculative and there was clear evidence before the Judge that a conviction would be a barrier to employment for him.

[14]     The appellant also submits that the Judge erred by inferring that evidence of an “impenetrable barrier” to employment was necessary for a discharge, saying this misstates the law.  The Court is to make up its mind on reasonable grounds, but does not require proof beyond reasonable doubt.8  Discharges without conviction for a drink driving charge can be given in less than exceptional circumstances.9   Therefore the

Judge mischaracterised the test and erred in not granting a discharge.

6      Godoy v R [2017] NZHC 2172 at [33]-[34].

7      Churchward v R [2011] NZCA 31 at [53].

8      Cook v Police [2014] NZHC 282 at [26].

9      Ovtcharenko v Police [2016] NZHC 2572 at [20].

Respondent’s submissions

[15]     The respondent submits that Judge did not err in his determination.   The offending is properly characterised as medium to serious given the gravity of driving while well above the relevant limit.  The Judge did take personal mitigating factors into account as demonstrated by paragraphs [8] - [11] of his decision.

[16]     The  respondent  argues  there  was  no  misapplication  of  the  Churchward principles regarding the appellant’s youth. The Judge was clearly aware of the impact maturity has on decision-making, and considered this issue, but decided it did not detract materially from the gravity of the offending in this case.

[17]     In the respondent’s submission, the Judge was entitled to evaluate remorse as he did.  While taking it in to account, he also commented that he must be cautious about what factors prompted the appellant’s remorse. However, he clearly considered that the voluntary work was something very much in the appellant’s favour. This was consistent with the approach taken in Godoy v R which was also about the need to factor in voluntary work into the assessment of the offending.

[18]     Regarding the consequences of conviction, the respondent submits that any mischaracterisation of the appellant’s position as a pilot did not cause a miscarriage of justice. The Judge was clearly aware that the appellant was in training and on the cusp of his career as a commercial pilot.

[19]     The respondent submits that the proportionality test is concerned with the cogency of the suggested impact of a conviction.  In this case, given the nature of the affidavit evidence, it was appropriate for the Judge to focus on the New Zealand context, and the evidence regarding the impact of a conviction on overseas employment was too brief to be given much weight. The respondent submits that there is no evidence that the appellant’s career in New Zealand will be directly impacted.

[20]     The reference to  “fair  play”  by employers was  not  an  irrelevancy.    The respondent submits that it was appropriate to acknowledge that employers in an industry involving public safety are entitled to transparency about their employee’s

past conduct, but would be capable of judging any adverse information fairly and in context.

[21]     Finally, the respondent submits that the Judge did not apply a test of an “impenetrable barrier” to employment. The Judge properly focused on whether there was cogent evidence of future impacts to employment.   The affidavit evidence indicated that a conviction would not preclude the appellant from his intended work, although it would limit him from some employers. Any impact of the offending would be a hurdle but not a barrier.   Therefore, he found, as he was entitled to, that the consequences of the offending would not be out of all proportion to the seriousness of the offence.

Analysis

Gravity of the offending

[22]     The orthodox approach in assessing whether a discharge should be granted begins with an assessment of the gravity of the offending.  In doing this, “the Court should consider all the aggravating and mitigating factors relating to the offending and the offender…”.10

[23]     In this case, the appellant considers the Judge failed to consider the mitigating factors personal to the appellant, resulting in a mischaracterization of the gravity of the offending.  It is clear, though, from the structure of the Judge’s decision, that he weighed these factors in the mix when considering the gravity of the offending. However, in the end, it must be inferred that he decided they could not reduce the gravity of the offending below it being “moderate to serious”.

[24]     I note that that assessment was in keeping with other decisions involving drink-driving convictions.  For example, in Linterman, Miller J said:11

… under settled principles the offender’s explanation and good character may be considered when assessing the gravity of the offence and exercising the discretion under s 106 of the Sentencing Act 2006, although the weight

10     Z v R, above n 2, at [27].

11     Linterman v New Zealand Police [2013] NZHC 891 at [10].

accorded these things must be affected by the legislative policy that I have just discussed.

In that case, despite it not being a bad offence of its kind  and the defendant’s culpability being assessed as “low”, Miller J considered her drink-driving offence was “serious almost by definition”.

[25]     Similarly, in Snellex v Police, where the appellant, a young helicopter pilot, was found to have 652 micrograms of alcohol per litre of breath, the gravity was also assessed as being at a moderate to serious level.12   There, too, the offending was out of character and the defendant pleaded guilty promptly and expressed genuine remorse.

[26]     I also do not consider that the Judge minimised the mitigatory nature of the voluntary work done by the appellant.  He considered that it went very much in his favour.  The Judge also took into account the expressed remorse (although noting it could be motivated by the subsequent realisation of the consequences of the offending).  He concluded that Mr Redai was a “decent young man”, a conclusion I endorse.

[27]     Contrary to the appellant’s submission, I consider this is consistent with Godoy v R.  In Godoy, the first instance Judge focused on the circumstances of the offending in order to reach a conclusion on the gravity of it, and did not adequately consider the way in which the appellant had accepted responsibility for her offending and demonstrated her remorse for what had happened, including by doing community work.   Here the Judge did consider this as a factor relevant to the gravity of the offending, although, by inference, he did not consider it could bring the seriousness of the offending below “moderate to serious”.

[28]     I also find the Judge did consider the appellant’s youth, and the impact it has on decision-making in accordance with Churchward.   However, he 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.

12     Snellex v Police [2017] NZHC 1792.

I am satisfied, therefore, that he turned his mind to youth as a mitigating factor but, for good reason, chose not to put any real weight on this factor in this particular case.

[29]     Overall, my only concern is that the Judge did not articulate how factors that went in Mr Redai’s favour were factored into the assessment of the gravity of the offending.  In my view, they took this from relatively serious offending to offending of moderate seriousness.

Consequences of the offending

Direct and indirect consequences of the offending

[30]     The appellant identified the consequences of a conviction as being:

(a)       career hindering impacts on employment applications and therefore on gaining a foothold in his chosen career as a commercial pilot;

(b)      travel restrictions when travelling to some countries; and

(c)       potentially,  investigation  from  the  New  Zealand  Civil  Aviation

Authority.

[31]     The appellant made a number of criticisms of the Judge’s assessment of these consequences.  I address these briefly below.  However, in the end, the appeal does not turn on these issues, but on whether I consider the test in s 107 has been met.

[32]     I do not consider that there was any error in not seeking to hear further evidence from Mr Sparks, who provided affidavit evidence in support of the application.  The key points that Mr Sparks wished to make were contained in his affidavit evidence, and there was no obligation on the Judge to seek further evidence unless, perhaps, some unanticipated issue arose which could be authoritively resolved by hearing from that witness. That was not the case here.

[33]     The appellant also suggests that the Judge erred in stating that the appellant was not yet a pilot and that this error “downplays the real and appreciable risk that a conviction poses to the appellant”.  However, it is clear from reading the judgment

that the term “pilot” was used as shorthand for being employed as a commercial pilot. There is no suggestion that the Judge did not consider the appellant’s ambition to be a commercial pilot as genuine and likely to be affected by a conviction for drink-driving.

[34]   The next criticism of the Judge’s assessment of the direct and indirect consequences of a conviction is that the Judge gave irrelevant consideration to the fact that “New Zealand is a fair society and employers are very forgiving … of youthful frailty”.13     He also extended that sense of “fair play” to  “most Commonwealth countries”, although acknowledging it would be “different in some other countries”.

[35]     In the present case, the Judge’s comments, at least insofar as they apply to New Zealand employers, reflected the observation by the Court of Appeal in Edwards v R, that employers would look beyond the bare fact of a conviction to consider its circumstances and mitigating factors, especially where the offender is generally a person of good character.14    I therefore do not consider it an error of the Judge to assume this approach would apply in New Zealand and a large number of Commonwealth countries when making his assessment of the direct or indirect consequences of a conviction.

[36]     Leaving aside these issues, however, I must be satisfied that the assessment of the consequences of a conviction for Mr Redai is appropriate.   This includes an analysis of the nature and seriousness of the consequences, and of the likelihood of those consequences occurring.15     I accept, as Mr Walker submitted, that it is not necessary for me to be satisfied that the identified consequences would inevitably or probably occur.   It is sufficient if there is a real and appreciable risk that such consequences would occur.16  However, the higher the likelihood and the more serious the consequences, the more likely it is that the statutory test can be satisfied.17

[37]     In this case, there is affidavit evidence from Mr Peter Hendriks, who runs

Wanaka Flight Training and is its chief flying instructor. He is also a commercial pilot

13 At [18].

14     Edwards v R [2015] NZCA 583 at [18].

15     R v Hughes, above n 5 at [82].

16     Iosefa v New Zealand Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34].

17     R v Hughes, above n 5 at [82].

and an examiner for the Civil Aviation Authority.  He speaks highly of Mr Redai and his promising career as a commercial pilot. His evidence is that a conviction will have both direct and indirect implications on his future as a commercial pilot.  These will include “issues with visa applications while working overseas as a pilot” and with future job applications, although he does not detail those difficulties.

[38]     The second affidavit is from Mr Allan Sparks, who has flown internationally and has an extensive background in pilot training.   He notes that candidates for a commercial pilot’s licence or an airline transport pilot’s licence must meet the “fit and proper person” test.  The same requirement applies to persons who hold positions of responsibility under an aviation operator’s certificate.  By implication, the conviction could prevent Mr Redai from meeting this requirement. However, given that Mr Redai has disclosed this event to the Civil Aviation Authority, as I consider he is obliged to do, this will already been taken account of in whether Mr Redai meets the fit and proper person requirements.  I do not see that a conviction will materially alter the factors that must be considered. Thus, I do not see this as being a material consequence of a conviction.

[39]     The next consequence of a conviction which Mr Sparks provides is that there are a range of airlines which have a “no convictions upon entry policy”. A conviction would therefore affect his ability to apply for a cadetship with Jetstar, Qantas Australia, Cathay Pacific, Emirates and Qatar Airways. Mr Sparks notes that “this is a significant employment opportunity restriction to a young aspiring international pilot”.

[40]     He also comments that work experience is vital to gain experience for airline entry levels and young pilots often travel offshore to gain work experience to build hours.   He says a conviction would preclude the applicant from obtaining a work permit in certain countries, citing Canada, Papua New Guinea and Australia. However, there is no information to support this assertion and, from a perusal of other cases, it is clear that this conviction is not an absolute barrier to obtaining a work permit in Canada and Australia. Accordingly, I place minimal weight on this evidence.

[41]     Finally, there is an  affidavit from Mr Wayne Swinburne, an airline pilot instructor and flight examiner who says:

While it is not categorical that a drink driving conviction in all cases will preclude Nathan from some aviation appointments, it would still be an impediment.

Aviation is very competitive.   A conviction would require ongoing explanations and consequently become part of Nathan’s pilot curriculum vitae.  Nathan will be required to document in detail the offence, conviction and the punishment.

[42]     He, too, considers that “Nathan should not have his ability to be considered a fit and proper person brought into question by this momentary lapse in judgment”.

[43]     I accept that a conviction will impose a significant long lasting burden on this young man and that the evidence shows it will be an impediment to the ease with which he can progress his aviation career and, thus, the consequences of a conviction will outweigh the gravity of the offending.  However, as the Court of Appeal has said in Smythe, “significantly more is required”.18   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.

[44]     While the appellant is critical of the Judge concluding that this conviction will not close the door to him becoming an international pilot, I consider this was a relevant consideration.  Had that been the case, then it is clear that the consequences would be disproportionate to the offending.  However, on the evidence before me, I can not conclude that there will  be such disproportionate effects as a consequence of a conviction.

[45]     The relevance of this offending to the fit and proper purpose person test is already engaged and is not a consequence of the entry of a conviction. The conviction is a hurdle, but not a barrier to working overseas to build up hours as a pilot. While I accept Mr Sparks’ evidence that it will preclude Mr Redai from cadetship with some airlines, he is still able to pursue a career as a commercial airline pilot.

[46]     For  these  reasons,  I have  independently come  to  the  view  that,  while  a conviction for this young man will have consequences which are greater than for many

18     R v Smythe [2017] NZCA 530 at [12].

other people of his age, they are not so serious that they are out of all proportion to the gravity of the offending.

[47]     Accordingly, there is no jurisdiction to grant a discharge without conviction and the appeal must fail.

Solicitors:

Todd & Walker Law, Queenstown
Preston Russell Law, Invercargill