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Sayers v Police

Sayers v Police

Case [2023] NZHC 2362 28 August 2023

Appeal

Criminal Liability

Discharge without Conviction

Sentencing

Mitigating Factors

Consequences of Conviction

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000275

[2023] NZHC 2362

BETWEEN
ANNETTE CLARE SAYERS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 21 August 2023

Appearances:

J Rhodes for Appellant

J L Gibson for Respondent

Judgment:

28 August 2023

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 28 August 2023 at 4.00 pm
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date ………………………..

SAYERS v NZ POLICE [2023] NZHC 2362 [28 August 2023]

Introduction

[1] Ms Annette Sayers pleaded guilty to one charge of driving with excess blood alcohol.1 On 24 May 2023, at the Auckland District Court, Judge K J Glubb declined Ms Sayers’ application for a discharge without conviction. She was convicted and fined $700 as well as $130 in court costs, and disqualified from driving for six months.2

[2] Ms Sayers now appeals against the Judge’s refusal to discharge her without conviction. She contends that the gravity of the offending should be assessed as low, and the Judge did not properly take into account the consequences of conviction. She also says that she is at a potentially unfair disadvantage because in the absence of Judge Glubb’s written decision she cannot identify a specific error.3 She submits that the appeal be approached afresh, and a decision made on the evidence available.

[3] The Police oppose the appeal on the grounds the Judge made no error and the consequences of conviction identified are of a speculative nature.

The offending

[4] At around 1.55 pm on 28 October 2022, Ms Sayers was stopped at a police checkpoint and recorded a blood sample of 146 milligrams of alcohol per 100 millilitres of blood. The legal limit is 80 milligrams of alcohol per 100 millilitres of blood.

[5] Ms Sayers explained to Police that she had not had anything to drink since about 10.00 pm the prior evening.

1      Land Transport Act 1998, s 56(2), (3)(a) and (b). Maximum penalty: 3 months’ imprisonment and/or $4,500 fine; and mandatory minimum 6 months’ disqualification from holding or obtaining a driver licence.
2      The commencement date of the disqualification was backdated by just over a month to 19 April 2023 to reflect the period of time that Ms Sayers had already been suspended from driving.
3      Due to a technical error, Judge Glubb’s decision was not transcribed.

Personal circumstances

[6] Ms Sayers is 57 years old. She has no previous convictions. She lives in Drury and co-owns a business with her husband, Bitumen Equipment. The business performs maintenance work for customers, including design work, maintenance and engineering. Ms Sayers also spends considerable time volunteering to improve local community basketball and to develop young players and teams. Her two adult children live in Australia.

Legal principles

Discharge without conviction

[7] If a person pleads guilty to an offence, the court may, instead of imposing a sentence, direct that the offender be discharged without conviction.4 The…

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 Sayers v Police

Details

AGLC: Sayers v Police [2023] NZHC 2362
Case: [2023] NZHC 2362
Decision Date: 28 August 2023

CaseChat Overview and Summary

In Sayers v Police, Ms Annette Sayers appeals against the decision of the Auckland District Court, where Judge K J Glubb refused her application for a discharge without conviction for driving with excess blood alcohol. Ms Sayers contends that the gravity of the offence was assessed as low and that the consequences of conviction were not properly considered. The Police oppose the appeal, arguing that the Judge made no error and that the consequences of conviction are speculative. The appeal hinges on whether the consequences of conviction would be out of all proportion to the gravity of the offence.

The High Court, Justice Andrew, conducted a rehearing to determine whether the criteria for discharge without conviction were met. The Court found that the Judge correctly assessed the gravity of the offence as low to moderate, balancing the high blood alcohol reading with Ms Sayers' mitigating personal circumstances. The Court emphasised that ignorance of one's alcohol level is not a defence and that the deterrence required for this type of offending must be considered. The direct and indirect consequences of a conviction, including the loss of licence, impact on volunteer work, and the shame and stigma, were also evaluated. The Court concluded that these consequences were not out of all proportion to the gravity of the offence, affirming the Judge's decision.

Therefore, the appeal was dismissed, and the conviction and sentence imposed by the District Court were upheld. The Court found no material error in the Judge's decision and no miscarriage of justice occurred.

Orders