Ryan-Morris v Police
[2024] NZHC 953
•29 April 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-42
[2024] NZHC 953
BETWEEN LIAM MICHAEL RYAN-MORRIS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 24 April 2024 Appearances:
A M S Williams for Appellant
B W D Alexander for Respondent
Judgment:
29 April 2024
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 29 April 2024 at 9.45 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
RYAN-MORRIS v NEW ZEALAND POLICE [2024] NZHC 953 [29 April 2024]
Introduction
[1] Liam Michael Ryan-Morris pleaded guilty to two charges; one of driving with excess breath alcohol1 and one of careless driving.2
[2] He was sentenced in the District Court to a 28-day disqualification under s 65AC of the Land Transport Act 1998, which is the interlock scheme and was ordered to obtain an alcohol interlock licence. This requires him to have an alcohol interlock device fitted to the vehicle(s) he drives. After 12 months he could then apply for a zero-alcohol licence. The appellant was also ordered to pay reparations of
$10,148.74 to the owner of the vehicle he damaged.
[3] Mr Ryan-Morris appeals his conviction and sentence on the ground that the Court was unintentionally misled when incorrect information was communicated to the police prosecutor during the hearing by a representative of Mr Ryan-Morris’ employer. Had the correct information been conveyed, he argues a discharge without conviction should have been allowed.
Facts
[4] On 3 June 2023 at about 9.57 pm, Mr Ryan-Morris was driving west on Yaldhurst Road in Christchurch, in a grey Audi station wagon. Mr Ryan-Morris collided with the rear of a Toyota Hiace van.
[5] Mr Ryan-Morris stopped his vehicle and began speaking to the victim, however when Mr Ryan-Morris realised the victim was calling the police, he got back in his vehicle and left the scene.
[6] Someone else who had witnessed the accident followed Mr Ryan-Morris to his address. Mr Ryan-Morris drove up his driveway. Police conducted a door knock at the address and located the vehicle parked behind a shed on the property.
1 Land Transport Act 1998, s 56(2) — maximum penalty of three months’ imprisonment.
2 Section 37(1) — maximum penalty of $3000 fine.
[7] Mr Ryan-Morris spoke to police and was required to undergo breath screening procedures for alcohol. An evidential blood test returned a result of 181 milligrams of alcohol per 100 millilitres of blood.
District Court Decision
[8] Judge Gilbert acknowledged the vehicle Mr Ryan-Morris crashed into required significant costs to fix and ordered reparations of $10,148.74 to be paid at
$50 per week.3
[9] The Judge then acknowledged Mr Ryan-Morris’ application for a community-based sentence under s 94 of the Land Transport Act 1998 in lieu of disqualification on the basis that he had an exception that applied because he did not have possession of a vehicle to which an alcohol interlock device could be fitted.4
[10] Despite Mr Ryan-Morris’ submission that he did not have possession of a vehicle to which an alcohol interlock device could be fitted, the Judge found that Mr Ryan-Morris would have access to a vehicle which was recently transferred from his to his partner’s name, as well as lawful access to work vehicles, as he worked as a driver for Parks Towing, which was the reason for the s 94 application.
[11] The Judge acknowledged Mr Ryan-Morris’ ‘checkered past’ in which he was in and out of prison but recognised since release three and a half years before, he had “got [his] act together”.5
[12] The Judge found Mr Ryan-Morris was eligible under the interlock regime and that his employer had agreed to get interlocks fitted on his work vehicles, following the police prosecutor discussing this with Mr Ryan-Morris’ employer on the day of the hearing.
3 New Zealand Police v Ryan-Morris [2024] NZDC 3843.
4 Although Mr Williams says a discharge without conviction was another option which was to be pursued in the District Court, the written submissions filed in that Court only address the s 94 application.
5 New Zealand Police v Ryan-Morris, above n 3, at [7].
[13] The Judge noted he had little discretion as Parliamentary policy is clear that people who drink and drive in similar circumstances need to be subjected to the alcohol interlock regime. Therefore, the s 94 application was declined as he was subject to the interlock regime.
[14] Further, Mr Ryan-Morris’ fines were cancelled due to his financial circumstances and the significant amount of reparations that had been ordered.
Principles on appeal
[15] An appeal against a refusal to grant a discharge without conviction is a composite appeal against both conviction and sentence.6
[16] Section 232 of the Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.7 In this section, a trial includes a proceeding in which the appellant pleaded guilty.8
[17] The appeal proceeds by way of rehearing and this Court is required to form a view of the facts.9 If this Court reaches a different view on the evidence, it follows the trial judge necessarily will have erred and the appeal must be allowed.10 The onus is on the appellant to show that an error occurred.
[18] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against
6 Noori v Police [2023] NZHC 3799 at [12].
7 Criminal Procedure Act 2011, s 232(4).
8 Section 232(5).
9 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].
10 At [38].
sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.11
Submissions
Appellant’s submissions
[19] Mr Williams, for the appellant, submits that the conviction and sentence were determined on the basis of a factual error. The Court was unintentionally misled when incorrect information was communicated to the police prosecutor during the hearing by a representative of Mr Ryan-Morris’ employer. Specifically, he says the employer is unable to support Mr Ryan-Morris in his employment if he is subject to an alcohol interlock licence, and an order to pay reparations.12
[20] As there is limited discretion when the alcohol interlock regime applies, Mr Williams submits that Judge Gilbert began to consider whether the appropriate outcome may be to discharge Mr Ryan-Morris without conviction given his personal circumstances. However, after the police prosecutor made a telephone call to Mr Ryan-Morris’ employer, it was confirmed that the company would support an alcohol interlock order and install interlocks in company vehicles. Consequently, as the Judge was satisfied that as Mr Ryan-Morris was not going to lose his employment, the appropriate outcome was a conviction and disqualification, with an order to apply for an alcohol interlock licence, and an order to pay reparations.
[21] After receiving the sentence, Mr Williams says Mr Ryan-Morris visited his place of employment. He was informed he could not retain his employment if he was unable to drive and under no circumstances would the company have their vehicles fitted with interlock devices. The staff member who had spoken to the police prosecutor was relatively new, had misunderstood the situation and unintentionally misled the court.
11 Criminal Procedure Act 2011, ss 250(2) and 250(3).
12 The incorrect statement being referred to by Judge Gilbert in New Zealand Police v Ryan-Morris,
above n 3, at [9]-[10].
[22] Mr Williams has now filed an affidavit from the individual that was spoken to by the police prosecutor on the day. She states that:
(a)she said she needed to speak with management first but was told a decision was required immediately, making her feel under pressure to give an answer straight away;
(b)she has now spoken to the manager and has become aware the company would not install interlock devices on the vehicles; and
(c)the reasons the company says it is not an option include that they would need to be installed in multiple vehicles, it would impact on the company’s insurance arrangements and there is concern about reputational issues for the company if interlocks are installed on the company’s vehicles.
[23] For completeness, I accept this is evidence which should be admitted on appeal in the interests of justice. It is central to the grounds of appeal and, as it relates to events which occurred on the day of sentencing, it could not have been filed in advance of sentencing.
[24] Mr Williams submits Mr Ryan-Morris should be discharged without conviction as this is the least restrictive option and it is open to the court as there is no required minimum sentence for the offences, only a mandatory disqualification, which he says is a court order, not a minimum sentence.
[25]Mr Williams set out the test for the sentence of discharge without conviction:13
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.
[26] Mr Williams submitted that Mr Ryan-Morris’s early guilty plea, remorse and offers to pay reparations reduce the gravity of the offending.14 Further, as
13 Sentencing Act 2002, s 107.
14 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [11].
Mr Ryan-Morris was under emotional pressure at the time of offending, having just learned about his father’s poor health and being concerned that leaving his vehicle overnight would result in theft, and as he only has two, relatively dated, previous convictions for driving with excess breath alcohol, there is no significant risk of reoffending.
[27] While Mr Ryan-Morris has a history of serious convictions, he has demonstrated his ability to rehabilitate and reintegrate in the community and has found stable employment, and this was accepted by the District Court Judge.
[28] The test for the consequences of conviction is whether “there is a real and appreciable risk that such consequences would occur”.15
[29] The most pertinent consequence of conviction would be the loss of Mr Ryan-Morris’ employment, as a conviction would require the court to impose an alcohol interlock, which his employer will not implement in the employer’s vehicles, and so will result in the termination of his employment.
[30] A loss of employment would be very significant for Mr Ryan-Morris and his family. His stable employment at Parks Towing has assisted in his reintegration into society and has kept him away from previous negative influences. If he loses his employment, there is a real risk that he will struggle to find other employment given his significant criminal history which, in turn, could destabilise his life.
[31] Mr Ryan-Morris has put a lot of effort, time and money into earning several classes of licences, he has invested in his career in driving, and a driving conviction would place a very large risk on him being able to obtain future employment.
[32] Mr Ryan-Morris is very dedicated to his work, before the accident working 70 hours a week. He is also a committed parent and relies on his employment to provide for his two-year old son.
15 Iosefa v New Zealand Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34].
[33] Mr Williams draws the court’s attention to Brown v New Zealand Police where Mr Brown was a truck driver charged with driving with excess breath alcohol.16 His breath levels were 468 micrograms of alcohol per litre of breath the morning after drinking. He had not intended on driving so soon after drinking but received a call from his employer requiring the goods he was transporting to be moved earlier than expected. The Judge accepted he would lose his employment and career in the trucking industry, would have significant problems obtaining other work and needed to keep employment to support his family. On appeal, the High Court quashed the conviction and the disqualification.
[34] Mr Williams cited further cases where the Court ordered a discharge without conviction where employment prospects were central.17
[35] He also notes the Court can impose reparation orders where the appellant is discharged without conviction under s 106(3)(b) of the Sentencing Act. It is submitted this would be appropriate and would provide for the owner of the damaged vehicle without undoing the hard work Mr Ryan-Morris has put into rehabilitation.
Respondent’s submissions
[36] Mr Alexander acknowledges that with the affidavit of Ms Brewster-Lewis, who works for Parks Towing in a human resources capacity, there is evidence to support the submission that the Judge was provided with incorrect information.
[37] However, he also provided the Court with the response of the Sergeant who rang Ms Brewster-Lewis, her affidavit differing in some respects in her recollection of the call. In particular, Sergeant Brown says Ms Brewster-Lewis did not suggest she was concerned about discussing the issue without speaking to management first and she denies saying that Mr Ryan-Morris would lose his licence if the company did not agree to install the alcohol interlock device.
16 Brown v New Zealand Police [2013] NZHC 2190.
17 Thompson v New Zealand Police [2019] NZHC 2833; Rozhdestvensky v New Zealand Police [2023] NZHC 1919; Woller v New Zealand Police [2022] NZHC 270; and Simpson v New Zealand Police [2020] NZHC 2254.
[38] Regardless, though, of whether there was a misunderstanding about the position of Mr Ryan-Morris’ employer, Mr Alexander maintains that a discharge without conviction would not be appropriate in the circumstances of this offending. He submits that discharges without conviction for drink driving are only granted in exceptional circumstances, and that the consequences of conviction must be “relatively significant” before being “out of all proportion” to the gravity of offending.18
[39] Turning to the gravity of the offending, Mr Alexander refers to the aggravating factors of a blood alcohol reading of 181 milligrams of alcohol per 100 millilitres of blood, the risk to the public and the attempts to avoid apprehension.
[40] While Mr Alexander recognises the early guilty plea as mitigating, he submits limited weight should be given to remorse as Mr Ryan-Morris had yet to make any payment of reparations at 9 April 2024 and that his reasons for drink driving, being news of his father’s illness and wanting to avoid theft of tools in his vehicle, are unverified and the Crown questions the veracity of his affidavit filed in the District Court.
[41]Overall, Mr Alexander submits the gravity is at the high end of moderate.
[42] On assessing the consequences of conviction, Mr Alexander submitted that even if I was satisfied the evidence demonstrated Mr Ryan-Morris would lose his job, that did not meet the threshold for granting a discharge without conviction.
Discussion
[43] The starting point is to determine whether the Judge was operating under an erroneous understanding of the attitude of Mr Ryan-Morris’ employer to having an alcohol interlock device fitted.
[44] While I accept Ms Brewster-Lewis may have not accurately reported some aspects of the conversation, there is no reason to believe her evidence on the critical
Linterman v Police [2013] NZHC 891 at [9]; Simmonds v Police [2014] NZHC 2488 at [40]-[43];
McDonald v Police [2017] NZHC 732 at [17]-[19]; and Basnyat v Police [2018] NZCA 486.
issue cannot be relied on. I accept, therefore, that while she understood the employer would accommodate installing an alcohol interlock device on the relevant vehicle or vehicles, that is not the case.
[45] Accordingly, I accept that the Judge proceeded to sentence Mr Ryan-Morris on an incorrect understanding of the consequences of conviction. He assumed Mr Ryan-Morris would retain his employment as a driver for Parks Towing. With the combination of the evidence that was before the District Court, and Ms Brewster-Lewis’ affidavit, I am now satisfied that is not the case. Accordingly, I must now consider whether, on the facts as now known, had an application for discharge without conviction been pursued, whether it should have been granted.
[46] The starting point is that drink driving is “a moderately serious offence when seen by reference to its potential consequences and to the pervasiveness of alcohol abuse in [New Zealand] society”.19 Furthermore, the appellant’s offending was aggravated by:
(a)the relatively high blood alcohol reading returned;
(b)the fact he was involved in a collision; and
(c)the fact, when he realised the police were being called, he fled and then parked his vehicle behind a shed to reduce the risk of being apprehended.
[47] I also take into account that, as part of his previous criminal history, Mr Ryan-Morris has a previous conviction for exceeding the breath alcohol limit for persons under 20 back in 2007 and in 2011, for driving with excess blood alcohol.
[48] Factors which go to mitigate his offending include the early guilty plea, and his expressed remorse and willingness to pay reparations. While Mr Alexander was critical of the fact he had not yet made any reparation payments, enquiries of Mr Ryan-Morris in Court revealed that he was currently stood down from working for
19 Basnyat v Police, above n 18, at [19].
Parks Towing and was receiving no income. He would, however, be in a position to commence and complete payment if the application were granted.
[49]Overall, I consider the gravity of the offending is moderate.
[50]I now turn to the consequences of conviction.
[51] The Court of Appeal in R v Taulapapa, provided the following guidance for assessing the consequences of conviction when employment is at risk:20
[46] When determining the effects of conviction on employment the court must identify the consequence, assess the evidence for it, evaluate the risk that the consequence will happen to the particular applicant, and form an overall assessment of seriousness. These are matters of judicial judgement [sic]. We make three points about this:
(a)When assessing the evidence offered, the court may find that the stated consequence for a given career or job is a question of present fact that is capable of proof in the normal way.
(b)For this reason, where an applicant points to the effect of conviction on a specific career it is usually necessary to provide the court with entry criteria establishing that the stated effect exists.
(c)Evidence of the attitude of employers may not be reasonably available, and in that case the court will do the best it can on the evidence available. Judicial notice of facts may be taken where appropriate.
(footnotes omitted)
[52] Here, I accept that Mr Ryan-Morris will lose his current employment, at least for the period during which he is on an alcohol interlock sentence. In other words, he will lose his current job for a period of at least a year. Loss of a job does not necessarily mean loss of any form of employment. However, I accept that here, Mr Ryan-Morris has a reasonably extensive criminal history, encompassing a wide range of offending, including driving offending, dishonesty offending, violence offending and one drug-related offence. It is not a record which many employers would be prepared to take a chance on. I also accept Mr Williams’ submission that Mr Ryan-Morris has, for a period of nearly five years, not offended until this current relapse. Instrumental to that improvement, is the fact he has held down a full time job with Parks Towing and,
20 R v Taulapapa [2018] NZCA 414.
as he has explained in his affidavit, he now holds the following classes of licence: 2, 3, 4, 5, W, T, R, 6, F, OSH Forklift, and training class 5. As he says, “I thoroughly enjoy my job and it has given me a purpose. It has become a lifestyle for me and kept me away from negative influences that were previously part of my life.” Loss of his job will also compromise his ability to be able to provide financially for himself and his four children. He also expresses remorse and embarrassment for his offending saying “it has been a significant wake up call”, and that he has “learnt [his] lesson”.
[53] I am satisfied that this is one of those cases where the consequences of conviction for Mr Ryan-Morris would be out of all proportion to the gravity of the offending. This is particularly so when I consider Mr Ryan-Morris can still be ordered to make reparation payments to his victim, thus addressing the primary harm caused by his offending.
[54] I am satisfied that there is a real and appreciable risk that a conviction would impact the progress he has made to stabilise his life and cause him to lose his employment, with only limited prospects of finding alternate employment. It would certainly, in my view, derail his employment prospects in the driving industry in which he has invested so much time and money. It would also likely damage any prospect of Mr Ryan-Morris being able to pay the Court-ordered reparations.
[55] Accordingly, I find the consequences of conviction would be out of all proportion to the gravity of the offence and the s 107 threshold is met.
Result
[56] The appeal is allowed. Mr Ryan-Morris is discharged without conviction on the charges of driving with excess breath alcohol and careless driving. Pursuant to s 106(3)(b), he is ordered to pay $10,148.74, payable at $50 per week, to the victim of his offending.
Solicitors:
Crown Solicitor, Christchurch
Copy to:
A M S Williams, Barrister, Christchurch
0
2
1