Rigg v Police - [2016] NZHC 3135

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000346 [2016] NZHC 3135

BETWEEN
BARBARA TERESA NOWACKI RIGG

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 12 December 2016

Appearances:

C Mitchell for Appellant
K Eastwood for Respondent

Judgment:

19 December 2016

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 19 December 2016 at 3.30 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date…………………………

RIGG v NZ POLICE [2016] NZHC 3135 [19 December 2016]

Introduction

[1] At about 12.35 am on 13 December 2015 Barbara Rigg was stopped at a Police checkpoint on Whangaparaoa Road in Auckland. She returned a positive evidential breath test and the subsequent evidential blood test returned a result of 113 mg of alcohol per 100 millilitres of blood (the relevant limit being 80 mg of alcohol per 100 millilitres of blood). Ms Rigg pleaded guilty to one charge of driving with
excess blood alcohol.1 A community magistrate declined her application for a

discharge without conviction under s 106 of the Sentencing Act 2002. Ms Rigg was convicted, disqualified from driving for six months and fined $650.

[2] Judge P J Sinclair dismissed Ms Rigg’s appeal against the community magistrate’s refusal to grant a discharge without conviction.2 Ms Rigg wishes to appeal Judge Sinclair’s decision. Under s 230 of the Criminal Procedure Act 2011 she requires leave to do so. Under s 237 leave must not be granted unless the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred or may occur unless the appeal is heard.

[3] The Court’s discretion under s 106(1) of the Sentencing Act 2002 to grant a discharge without conviction to a person who has either been found guilty or has pleaded guilty to an offence (unless the relevant statute requires the imposition of a minimum sentence) is subject to s 107, which provides that:

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.

[4] The approach required by s 107 is well settled. The Court must first assess the gravity of the offence, then identify the direct and indirect consequences of a conviction and, finally, determine whether those consequences are out of all proportion to the gravity of the offence.3

[5] The proposed grounds of appeal are that the Judge:

(a) failed to properly assess the gravity of the offending by failing to take relevant circumstances into account; and

1      Land Transport Act 1998, s 56(2).
2      Police v Rigg [2016] NZDC 22875.
3      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11]; Z v R [2012] NZCA 599 at [8].

(b)wrongly applied the law as to assessing the direct and indirect consequences of a conviction.

[6] Neither of these grounds involves a matter of general or public importance. If leave is to…

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 Rigg v Police

Details

AGLC: Rigg v Police [2016] NZHC 3135
Case: [2016] NZHC 3135
Decision Date: 19 December 2016

CaseChat Overview and Summary

In the case of Rigg v Police, the appellant, Barbara Rigg, was stopped by the Police at a checkpoint on 13 December 2015 and returned a positive evidential breath test. The subsequent evidential blood test indicated a blood alcohol level of 113 mg per 100 millilitres of blood, exceeding the legal limit of 80 mg. Rigg pleaded guilty to driving with excess blood alcohol, and was convicted, fined and disqualified from driving. The community magistrate declined her application for a discharge without conviction under section 106 of the Sentencing Act 2002. Rigg appealed this decision but was unsuccessful and seeks leave to appeal further.

The court considered the grounds of appeal, which were that the Judge failed to properly assess the gravity of the offending and wrongly applied the law as to assessing the direct and indirect consequences of a conviction. The court found that neither ground involved a matter of general or public importance and could only be considered on the basis of a miscarriage of justice. The court assessed the gravity of the offending, finding it to be moderate and took into account all relevant circumstances. The court also assessed the direct and indirect consequences of conviction, finding that although there would be some consequences, there was no real and appreciable risk of consequences that would have a significant or lasting effect.

The court concluded that there was no miscarriage of justice and granted leave to appeal but dismissed the appeal. The court found that the process triggered under the Health Practitioners Competence Assurance Act 2003 by a conviction was a real consequence but could not be equated to a real and appreciable risk of suspension. The court found that the grant of a section 106 discharge was a matter for the Court's discretion and an important consideration in exercising that discretion was whether it was appropriate in any given case that a regulatory body established to ensure the fitness of professional people to practice should be deprived of the opportunity to make those decisions with the benefit of all the relevant information.

Orders