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 be granted it could only be on the basis of a miscarriage (or potential miscarriage) of justice.  Ms Rigg, a dietician, says that a conviction poses a real and appreciable risk of her being suspended from  practice which would have grave consequences for both her and her clients, and that this would result in a miscarriage of justice.

First proposed ground: gravity of the offending

[7]      In considering the gravity of the offence the Court ought to consider all the aggravating and mitigating factors relating to both the offending and the offender.4

The Judge referred to Ms Rigg’s blood alcohol level and identified the following circumstances as relevant:

Here, Ms Rigg made a deliberate decision to drive after drinking.   There were no other aggravating features involved with her driving and while the level was not extremely high, it was moderately high and decisively over the legal limit.

Ms Rigg is 60 years old with no previous convictions.  It appears from her affidavit she is of good character and was co-operative with the Police on that evening.  In my view, the gravity of the offending in the round sits at the moderate level.

[8]      Mr Mitchell, for Ms Rigg, submitted that the Judge had not taken all the relevant circumstances into account and that, had she done so, the gravity of the offending overall could be regarded as less than moderate.  The additional factors that he identified were that Ms Rigg did not have a drinking problem, that she had exhibited genuine remorse and that she had a number of clients who relied on her in managing their health.

[9]      There was no evidence one way or the other as to whether Ms Rigg has a drinking  problem  but,  assuming  she  does  not,  that  fact  is  encompassed  by  the Judge’s acceptance of her good character.  Aside from the plea of guilty, which was taken into account, there is nothing particular to indicate remorse that would justify

further consideration.  As to Ms Rigg’s professional responsibilities, they have no

4      Z v R above n 3.

logical relevance for the purposes of assessing the gravity of the offending.  I cannot see any basis on which to find that the Judge’s assessment of the gravity of the offending as moderate was either wrong or likely to lead to a miscarriage of justice.

Second proposed ground of appeal: identification of the direct and indirect consequences of conviction

[10]     The correct approach to assessing the consequences of conviction is that described by Randerson J in Iosefa v Police:

It is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur.  It is sufficient if the Court is satisfied that there is a real and appreciable risk that such consequences would occur.

[11]     Before Judge Sinclair, Ms Rigg argued that the provisions of the Health Practitioners Competence Assurance Act 2003 (HPCA) meant that there was a real and appreciable risk of her being suspended by her organisation, with the result that she would lose her livelihood and that the approximately 60 clients that she cares for would be left without the professional support they need.

[12]     The Judge did not accept that there was a real or appreciable risk of these things happening:

There is a possibility she may be suspended but, on the other hand, there is a

possibility she will not. …

Under s 69(2)(a) Health Practitioners Competence Assurance Act, there is no mandatory provision of suspension, it is a discretionary power on a responsible authority as to whether it will suspend the applicant’s practicing certificate.

[13]     Mr Mitchell argued that the Judge had wrongly applied the law regarding the direct and indirect consequences of conviction.   On his argument a real and appreciable risk of suspension existed by virtue of s 69(2) of the HPCA.  However, s

69 seems to me to apply only to allegations of conduct relevant either to a pending criminal proceeding or a pending investigation, rather than the situation where the conduct has been proved and a conviction entered.

[14]     Under s 67 of the HPCA a court registrar who is aware of a conviction is required to send a notice of conviction to the responsible authority if the conviction is  of  a  certain  type.     Relevantly,  that  includes  any  offence  punishable  by

imprisonment for a term of three months or longer. The charge against Ms Rigg is such an offence.   When notice of conviction is given, s 68 requires the relevant authority to  refer  the  notice  of  conviction  to  a  professional  conduct  committee (PCC). The PCC’s role is to investigate the information it receives that raises questions about a practitioner’s conducts or safety to practise.   If, during its investigations, a PCC has reason to believe that the practitioner’s conduct poses a risk of serious harm to the public, s 79 requires it to inform the responsible authority and  if  it  believes  that  those  reasons  justify the  suspension  of  the  practitioner’s practising certificate it may recommend that the authority take the appropriate action. In completing its investigation, the PCC must allow the practitioner a reasonable opportunity to make submissions before making any decision and, upon completion

of its investigation must make recommendations and/or determinations.5   These can

include  recommendations  that  the Authority  review  the  practitioner’s  fitness  to

practice, counsel the practitioner or take no further action.6

[15]     Whether the relevant power to suspend arises under s 69(2) or s 79, it is clear that no suspension will take effect before the practitioner has been advised of the reasons that such an order may be made and given a reasonable opportunity to be heard.

[16]     There is no doubt that there will be consequences following a conviction. At the least, the matter will be referred to a PCC.  The Judge did not recognise this fact. But given Ms Rigg’s previous good character, the circumstances of the offending and the fact that she will have the opportunity to be heard before a PCC it could not be said that there is a real and appreciable risk that she will be suspended from practicing.  The process triggered under the HPCA by a conviction is, itself, a real consequence but that process cannot be equated to a real and appreciable risk of suspension.

The Judge did not properly apply the proportionality test

[17]     Having concluded that there was not a real or appreciable risk of Ms Rigg losing her right to practice or being suspended, the Judge said:

5      Health Practitioner Competence Assurance Act 2003, ss 74 and 80(4).

6      Health Practitioner Competence Assurance Act 2003, s 80(1)–(3).

I consider it is not appropriate for the Court to hide potentially relevant information from a prospective employer.  That in my view would involve the Court usurping the body or committee under the Health Practitioners Competence Assurance Act’s responsibilities and own assessment in determining and deciding this matter.  I consider consequences claimed are matters that should be left to the Health Practitioners body.

I have formed the view that the direct and indirect consequences do not outweigh the gravity of the offending and therefore the proportionality test has not been reached.

[18]     This aspect of the decision lacked specific reasons and, given that there will be some consequences of a conviction, there ought to have been an assessment of those consequences against the gravity of the offending.  But this error did not result in any risk of a miscarriage of justice.  The offending was moderately serious and although there will be consequences of a conviction there is no real and appreciable risk of consequences that will have significant or lasting effect.

[19]     Finally, the grant of a s 106 discharge is, ultimately, a matter for the Court’s discretion and an important consideration in exercising that discretion is whether it is 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.  That is not to say that  such  persons  are  inevitably  precluded  from  obtaining  a  discharge  without

conviction but it is a matter that a Judge is entitled to consider.7   Judge Sinclair made

no error in taking it into account.

Result

[20]     I am not satisfied that any miscarriage of justice occurred as a result of Judge

Sinclair’s decision.  Leave to bring the appeal is granted but the appeal is dismissed.

P Courtney J

7      Franks v Police [2013] NZHC 3556; referring to Fowlie v Ministry of Social Development HC Auckland CRI-2001-404-64, 27 July 2001; Craig v Police HC Rotorua CRI-2004-470-11, 3

June 2004.