Rozhdestvensky v Police - [2023] NZHC 1919

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-132

[2023] NZHC 1919

BETWEEN
ILYA ROZHDESTVENSKY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 3 July 2023

Appearances:

D Young for Appellant G Young for Respondent

Judgment:

21 July 2023

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Friday, 21 July 2023 at 11:00 am.

Registrar/Deputy Registrar

Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland Counsel: G Young, Auckland

ROZHDESTVENSKY v NEW ZEALAND POLICE [2023] NZHC 1919 [21 July 2023]

[1] At about 12:15 am on 23 July 2021, Ilya Rozhdestvensky drove with excess breath alcohol on Apollo Drive, Rosedale, Auckland. His breath alcohol reading was 600 micrograms of alcohol per litre of breath. In explanation, he stated he had consumed some beers, wine, and some gin at his workplace before driving home to take food to his kids.

[2] On 2 March 2022, Mr Rozhdestvensky pleaded guilty to one charge of driving with excess breath alcohol. He sought a discharge without conviction. On 16 March 2023, Judge A M Fitzgibbon declined a discharge.1 Instead, she convicted and fined him $700 with Court costs of $130 and disqualified him from driving for six months. Mr Rozhdestvensky now appeals against the refusal to grant him a discharge without conviction.

Approach on appeal

[3] An appeal against a refusal to discharge without conviction is an appeal against both a conviction and a sentence.2 To the extent this appeal relates to the Court’s weighing of consequences against gravity, it proceeds by way of rehearing whereby the appellate court makes its own assessment of whether the criteria for discharge without conviction are met.3

[4] This Court must dismiss Mr Rozhdestvensky’s appeal unless it is satisfied that a miscarriage of justice has occurred.4 In the context of a discharge without conviction, a miscarriage of justice means a “material error” or that the Judge “erred in applying the principles” for discharging an offender without conviction.

District Court decision

[5] At the outset, the Judge noted she had read Mr Rozhdestvensky’s affidavit, an affidavit filed by Thomas Furlong, and the affidavits of Adrian Van de Wetering and also Wes Schwalje, CEO.

1      New Zealand Police v Rozhdestvensky [2023] NZDC 5178.
2      Jackson v R [2016] NZCA 627; Ovtcharenko v Police [2017] NZCA 65 at [5].
3      Austin, Nichols & Co Inc v Stitching Lodestar [2008] 2 NZLR 141; [2007] NZSC 103.
4      Criminal Procedure Act 2011, s 232.

[6] The Judge then set out the three steps she must consider when dealing with an application for a discharge without conviction under s 106 of the Sentencing Act 2002:

(a)assess the gravity of the offending;

(b)establish the direct and indirect consequences of a conviction; and

(c)determine whether the consequences will be out of all proportion to the gravity of the offending.

[7] In assessing the gravity of the offending, the Judge noted that drink driving is in general regarded as a moderately serious…

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.

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Details

Case: [2023] NZHC 1919
Decision Date: 21 July 2023

CaseChat Overview and Summary

Ilya Rozhdestvensky appealed against the refusal by Judge A M Fitzgibbon to grant him a discharge without conviction for driving with excess breath alcohol. He argued that the consequences of a conviction would be out of proportion to the gravity of the offence, which the Judge had assessed as moderate. The Crown submitted that the Judge’s assessment was correct and that a conviction was justified. The High Court allowed the appeal, finding that the consequences of a conviction would be out of proportion to the gravity of the offence. Mr Rozhdestvensky was the co-founder of Air Guard Limited, an innovative start-up venture. He was seen as well suited for the challenging start-up technology sector and very effective in pushing forward complex innovation, team leadership and capital raising. He would lose everything he had worked for and the continuing opportunities such innovation offered if he was dismissed as co-CEO of the company. That would be out of all proportion to the gravity of the offence. The appeal was allowed. Mr Rozhdestvensky’s conviction and fine was quashed, and he was discharged without conviction. The disqualification from driving for six months remained in place.

The Court exercised its residual discretion in favour of Mr Rozhdestvensky. The earlier offence was 16 years ago when Mr Rozhdestvensky was a recently arrived immigrant with a young family. The present offending took place two years ago. Mr Rozhdestvensky has not reoffended subsequently. He has also completed a short eight-week CADS Action programme. He is an active member of the Auckland Hebrew Congregation. He has also applied to do voluntary work for the hospice where his wife died of cancer, leaving him a solo parent of two teenage boys. He has supplied many references as to his good character.

Orders