Rowlings v Police

[2020] NZHC 564

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-10

[2020] NZHC 564

BETWEEN

BECKIE VALERIE ROWLINGS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	19 March 2020
Appearances:	CA Gentleman for Appellant SH Sheridan for Respondent
Judgment:	19 March 2020

JUDGMENT OF WALKER J

This judgment was delivered by me on 19 March 2020 at 2.30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

ROWLINGS v NEW ZEALAND POLICE [2020] NZHC 564 [19 March 2020]

[1]Ms Rowlings pleaded guilty on 17 October 2019 to the following charges:

(a)Refusing an officer’s request for a blood specimen;1 and

(b)Possession of cannabis.2

[2]                On 29 January 2020, Judge Bidois granted Ms Rowlings’ application for discharge without conviction in relation to the possession charge. Ms Rowlings now appeals Judge Bidois’ decision to refuse her application for a discharge without conviction in relation to her second charge - refusing an officer’s request for a blood specimen.

Alleged Facts

[3]                At about 5.00pm on Tuesday 9 April 2019, Police found Ms Rowlings sitting in a Nissan car parked in a layby off Otarawairere Road in Whakatane.

[4]                When the police came and spoke to Ms Rowlings, they saw a small bag of cannabis sitting in the driver foot well of the car. They invoked a search of the vehicle under the Search and Surveillance Act 2012. Police located numerous small zip lock bags containing cannabis in one of Ms Rowlings’ bags. They found approximately 2 grams of cannabis in total.

[5]                Police suspected Ms Rowlings had consumed cannabis, and so they required her to complete an impairment test. She failed to complete that test to a satisfactory level so was required to submit a blood specimen. She refused to allow the Police to take a blood specimen.

[6]                She told the Police that the cannabis in the bag was hers, but that she didn’t know about the cannabis under the driver’s seat. She also told the Police that she refused to take the blood specimen test as she does not like needles.

1      Land Transport Act 1998, s 60(1)(a).

2      Misuse of Drugs Act 1975, ss 7(1)(a) and 7(2).

District Court Decision

[7]                In assessing whether Ms Rowlings should be discharged without conviction, Judge Bidois first assessed the gravity of the offending in respect of each offence. He was satisfied that the gravity of the possession charges was low. However, he considered the gravity of Ms Rowlings’ failure to co-operate with the police with respect of the blood testing was high, as she was suspected to have driven while under the influence of cannabis and possibly alcohol.

[8]                The Judge then turned his attention to the consequences of conviction. Ms Rowlings submitted that there would be serious consequences to her ability to become an air hostess with a conviction. The concern was that a criminal conviction would jeopardise her aviation security clearance. Judge Bidois was satisfied that there were significant impacts on her prospects of becoming an air hostess in relation to the drug charges. However, he was not so persuaded in relation to refusing the blood test which he treated as of a different character. He considered that she could provide an explanation for the conviction, and it would not necessarily impact on her suitability as an air hostess.

[9]                Finally, in the exercise of his discretion, the Judge considered that the drug conviction would result in disproportionate consequences for Ms Rowlings. He was not satisfied in relation to a conviction for refusing the blood sample. This was because of the seriousness and importance of the provisions relating to drug testing, and because the impacts of a conviction on her ability to become an air hostess were speculative.

Relevant Law

[10]            The legal principles for an application for a discharge without conviction are well settled. The Court must consider whether the threshold under s 107 of the Sentencing Act 2002 has been met. That requires the Court to carry out a three-step analysis, considering:

(a)The gravity of the offence, taking into account all aggravating and mitigating factors of the offending and offender;

(b)The direct and indirect consequences of a conviction (there must be a “real and appreciable” risk that any given consequence will happen); and

(c)Whether those consequences are all out of proportion to the gravity of the offence.

[11]            If the offender meets the s 107 threshold, the Court may go on to consider whether to exercise its residual discretion under s 106.

[12]            An appeal against a refusal to grant a discharge is an appeal against conviction and sentence.3 The proportionality test under s 107 is a matter of fact requiring judicial assessment. As such, it is subject to appeal on normal appellate principles, requiring me to undertake that assessment myself in order to determine whether or not the decision was correct.4 I note that on a fresh consideration, there is no onus on an offender to establish the disproportionality test has been met.5

Gravity of offending

[13]            Ms Gentleman for Ms Rowlings first submits that Judge Bidois overstated the gravity of the offending by incorrectly relying on matters inherent to the charge, such as being the likely driver of the vehicle and failing an impairment test. These matters, she says, are always present in respect of a charge of failing to give a blood specimen.

[14]            The offence to which the appellant pleaded carries a relatively low maximum penalty – either three months’ imprisonment or a fine not exceeding $4,500. I agree with Ms Rowlings’ counsel that this is not a ‘high gravity’ offence of itself but, in my view, it has more serious public safety consequences than the cannabis possession charge. There are also aggravating features that elevate its seriousness in this case:

(a)Ms Rowlings provided no reason for failing the impairment test. Even taking her youth into account, this suggests her failure to submit to

3      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [8]–[9] and [16].

4      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].

5      R v Hughes, above n 4, at [49].

blood testing was coloured more by a wider unwillingness to co-operate with police than a fear of needles alone.

(b)More importantly, the offending was committed while Ms Rowlings was on bail for cannabis, methamphetamine and careless driving offences.

[15]            Although Ms Rowlings was not driving when she was found by the police, the fact she was in the driver’s seat of the car strongly suggests that she had been driving while under the influence of cannabis and/or alcohol. Ms Gentleman submits that there was someone else in the car with her but the Police Summary of Facts in respect of which the guilty plea was entered does not record this and there is no other evidence of this.

[16]               Given this is the case, it is unclear how else Ms Rowlings could have been found in her car in the layby park if she had not driven it herself. That she had been driving that afternoon is a fair and pragmatic assumption.

[17]            I am satisfied that Judge Bidois did not overstate the seriousness of Ms Rowlings’ offending based on those aggravating features.

Consequences of conviction

[18]            Ms Gentleman then submits that the Judge placed insufficient weight on the consequences of a conviction. She says that this assessment was inconsistent with the way he approached the cannabis possession charge in terms of accepted consequences.

[19]            Ms Sheridan for the Crown submits that the Judge achieved the right balance by regarding the blood specimen offending, in this case, as more serious and the consequences lower because of their character.

[20]                 The consequences relied on primarily relate to Ms Rowlings’ desire to become an air hostess. The New Zealand Aviation Security Service advises that while there is no set list of security requirements to receive an AVSEC clearance, a criminal conviction is taken into account when a security check is completed. An adverse

security determination would mean that her security application would be declined, preventing employment as air crew. Ms Rowlings has already enrolled with the New Zealand School of Tourism and has moved to Auckland with her partner to commence the course. When she enrolled, the enrolment form declared that “a criminal conviction may also prevent the offer of employment with any company”.

[21]            A criminal conviction on Ms Rowlings’ record may well have some impact on her security clearance. However, a potential detrimental impact on an offender’s employment prospects is a natural and inevitable consequence of criminal offending. In fact, it is an important consequence. This is both because it acts as a deterrent against possible future offending, but also because it ensures the court does not usurp the right of a potential employer or, in this case, an authorised body, to decide the significance of a particular conviction. It is on this basis that courts have been reluctant to exercise their discretion under s 107.6

[22]            Therefore, the difficulty for Ms Rowlings is that apart from identifying the conviction on her criminal record as a potential obstacle to passing her security screening with the Aviation Security Service, she is not able to identify further specific circumstances to her that justify a discharge without conviction.

[23]            Ms Gentleman referenced some jurisdictions which take a particularly harsh view of drink driving offences. There are two problems with this. First, there is no specific evidence on which to rely. I have in mind the Court of Appeal’s guidance that detailed and reliable evidence is ordinarily required where a discharge is sought on the basis that a conviction will impede travel to a particular jurisdiction. Secondly, it is not the case that a drink driving offence is the same as a blood specimen offence.

[24]            A general risk to Ms Rowlings’ ability to obtain her desired employment is a generic and inevitable consequence of conviction. Further, it is important that the Aviation Security Service has the discretion to determine whether Ms Rowlings’ conviction should impact her ability to be an air hostess, particularly given the importance of public safety and security in the aviation industry.

6      Graham v Police [2018] NZCA 172 at [29]; Walker v Police [2016] NZHC 1450 at [23].

[25]            In any case, I do not consider the risk that her clearance would be declined based on this conviction alone is well-founded. I also agree with the respondent’s submission that any potential risk of her ability to travel in the future needed to be much more detailed and specific to carry any weight.7

[26]            I have taken due notice of the fact Ms Rowlings was only 17 when the offending occurred. She is 18 at the time of this appeal. I accept that youth is a primary consideration when assessing consequences and proportionality.8 However, her youth is not a free pass. It does not tip the balance with regard to the factors I have already considered.

[27]            This conviction is not so serious that Ms Rowlings would be unable to explain it to a potential employer in three years, when she has completed her training. The specific details of the offending should be closely examined by the relevant aviation authorities, and the existence of a conviction of this sort ought not, in my view, to result in an automatic and immediate rejection without further inquiry.

[28]            The evidence presented by Ms Rowlings of her communications with the Aviation Security Service indicates that even if she fails an initial screening test, her matter will be forwarded to a station manager. The station manager does not have to apply any set assessment criteria, and has discretion over their decision of whether the applicant poses a threat to aviation security. If Ms Rowlings’ application progresses to the station manager, the fact of conviction for the specimen blood offence at 17 years of age, alongside an otherwise clean criminal record (assuming that is the case) will demonstrate that it was an aberration and not reflective of her character. In short, she will likely have to do some explaining but that does not mean that the consequences of conviction are out of proportion to the gravity of the offending.

Conclusion

[29]            It follows that I am not satisfied Judge Bidois erred, either in his assessment of whether the appreciable risks of conviction were out of proportion to the gravity of

7      Edwards v R [2015] NZCA 583 at [26].

8      Amstad v Police Auckland HC CRI-2011-404-000161, 6 September 2011 at [20].

the offence, or in his application of s 107 of the Act more generally. In my view, the result was correct.

[30]Accordingly, the appeal is dismissed.

..........................................................

Walker J