Sayers v Police
[2023] NZHC 2362
•28 August 2023
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 Court must not discharge an offender without conviction unless it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.5
[8] In Z (CA447/12) v R, the Court of Appeal set out a three-stage test to be applied by the Court when considering applications for a discharge without conviction.6 Firstly, when considering the gravity of the offence, the Court should consider all aggravating and mitigating factors relating to the offence and the offender. The Court should then consider the direct and indirect consequences of a conviction and consider whether those consequences are out of all proportion to the gravity of the offence. Finally, if the Court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge, noting that it will be rare for the Court to refuse a discharge in such circumstances.
Approach on appeal
[9] An appeal against a refusal to discharge without conviction is an appeal against both a conviction and a sentence.7
4 Sentencing Act 2002, s 106.
5 Sentencing Act 2002, s 107.
6 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27].
7 Jackson v R [2016] NZCA 627; Ovtcharenko v Police [2017] NZCA 65 at [5].
[10] To the extent that the appeal relates to the court’s weighing of consequences of conviction against gravity of offending, it proceeds by way of rehearing. The appellate court makes its own assessment of whether the criteria for discharge without conviction are met.8 Unless satisfied that a miscarriage of justice has occurred, this Court must dismiss Ms Sayers’ appeal.9 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.10
District Court decision
[11] As noted, due to a technical error, the decision of Judge Glubb in the District Court could not be transcribed.
[12] Both counsel appear to agree that the Judge assessed the gravity of the offending as being in the low to moderate range of seriousness. Both also agreed that given that the appeal proceeds by way of a rehearing, it is for this Court to make its own assessment of whether the criteria for discharge without conviction are met.11
[13] In any event, there are a number of critical and relevant factors (discussed below) which the parties agree the Judge did take into account. Ultimately, no prejudice arises from the lack of a written District Court decision.
Analysis and decision
The offending
[14] Mr Rhodes submitted that the Judge erred in assessing the gravity of the offending as being in the low to moderate range. He contended that the Judge placed significant weight on the level of Ms Sayers’ breath alcohol reading without properly taking into account the mitigating features personal to Ms Sayers; they are relevant to the overall assessment of the gravity of the offending.12
8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141; R v Hughes
[2008] NZCA 546, [2009] 3 NZLR 222 at [11].
9 Criminal Procedure Act 2011, s 232(3).
10 Jackson v R, above n 7, at [12].
11 Austin, Nichols & Co Inc v Stichting Lodestar, above n 8; R v Hughes, above n 8.
12 Muatabu v Police [2022] NZHC 2535.
[15] Mr Rhodes accepted that the moderately high reading of Ms Sayers’ blood alcohol level is an aggravating feature of the offending but sought to distinguish it from the most serious of cases of this type that come before the Court. He also contended that due to the absence of any other aggravating features present, and because she was genuinely unaware that her blood alcohol reading could remain high after drinking the night prior, Ms Sayers’ “recklessness” in driving after drinking was at a low level. Mr Rhodes also relied on the fact Ms Sayers had lost a significant amount of weight at the time, thus making her more sensitive to alcohol. She was unaware of that fact. One of Ms Sayers’ friends who was in the car with her at the time confirms in a letter to the Court that Ms Sayers weighed approximately 45 kilograms.
[16] Therefore, Mr Rhodes submitted that the offending itself sits at the lower end of moderate.
[17] The starting point in assessing the gravity of Ms Sayers’ offending is the features of the particular offending.13 As the Court of Appeal held in J (CA32/21) v R, an assessment of the gravity is informed by the culpable conduct, to be determined on an assessment of the facts, rather than the nature of the charge.14
[18] I accept that Ms Sayers may genuinely have had good reason to believe that her blood alcohol level was not over the limit. However, ignorance of one’s alcohol level is not a defence. As the Court of Appeal affirmed in Basnyat v Police, there are important public safety reasons for this:15
Drink-driving is a pervasive social problem which has brought many good citizens into the dock and caused the legislature to respond with a sentencing policy that emphasises personal and general deterrence.
[19] The maximum penalty upon conviction for Ms Sayers’ charge of driving with excess blood alcohol is three months’ imprisonment and/or a $4,500 fine, and a mandatory minimum of six months’ disqualification from holding or obtaining a driver
13 See Taylor v R [2018] NZHC 688 at [46]; Babich v R [2018] NZHC 2324 at [7].
14 J (CA32/21) v R [2021] NZCA 690 at [36].
15 Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344 at [16], citing Linterman v Police [2013] NZHC 891 at [9].
licence.16 While Ms Sayers’ blood alcohol reading does not place her in the most serious category of offending of this nature, a reading of 146 milligrams per 100 millilitres of blood is significantly above the legal limit of 80 milligrams. That is a critical and unavoidable fact in determining the gravity of the offending. As Heath J held in Ovtcharenko v Police, the nature of the social problem that the blood alcohol legislation is intended to address is something that goes to an assessment of the gravity of the offending.17
Overall gravity assessment
[20] Mr Rhodes submitted that there were five mitigating factors arising from Ms Sayers’ personal circumstances: previous good character, remorse, efforts towards rehabilitation, offer of reparation, and guilty plea. He emphasised the cumulative effect of all of these factors. Mr Gibson, on behalf of Police, acknowledges Ms Sayers’ mitigating factors but says that none of them are exceptional.
[21] For prior good character, Mr Rhodes relied on Ms Sayers’ lack of criminal convictions, a driving history limited to two discrete minor speeding tickets, the business she co-owns with her husband, and the volunteering she has done over the last seven years to improve local community basketball. I agree with Mr Rhodes that Ms Sayers can be accurately described as an upstanding member of her community.
[22] Ms Sayers has expressed her remorse for her offending, particularly for the fact she may have put other road users at risk, as well as her friends who were in the car with her. Ms Sayers has also undertaken positive efforts towards rehabilitation including completing defensive driving and practical driving courses. She says in her affidavit that these courses have helped her learn about the potential for alcohol to remain in the system and the impact of alcohol on driving for a much longer period than she was initially aware of.
[23] Ms Sayers has paid the fine and court costs ordered by the Judge, and has also offered willingly to pay the analyst fees and medical expenses sought by Police even
16 Land Transport Act, s 56(2), (3)(a) and (b).
17 Ovtcharenko v Police [2016] NZHC 2572 at [20]. This “cautionary” language was endorsed by the Court of Appeal in Basnyat v Police, above n 15, at [21].
if she is discharged without conviction. She has further offered a donation to Police to be put towards alcohol harm reduction and education.
[24] Mr Rhodes lastly relied on Ms Sayers early guilty plea at the case review hearing.
[25] These are undoubtedly all positive factors demonstrating Ms Sayers’ overall good character.
[26] Overall, I consider that in assessing the gravity of the offending as in the low to moderate range, the Judge correctly balanced the positive mitigating factors with the high blood alcohol reading and deterrence required for this kind of offending. There was no error in the Judge’s conclusion. While I am sympathetic to Ms Sayers’ explanation of the personal circumstances that led to the charge, I cannot ignore the fact that even a genuine unawareness of one’s alcohol level is not a defence.
Consequence of conviction
[27] The second stage of the test requires the Court to assess the direct and indirect consequences of a conviction.18
[28] I agree with Mr Rhodes that discharges for this kind of offending are not restricted to exceptional cases. Applications for discharges without conviction in alcohol-related driving cases are to be scrutinised with care but exceptionality is not the key criterion. Rather, it is the consequences themselves which must be clear; the statutory test must be applied, namely “out of all proportion”.19
[29] Mr Rhodes submitted that the following consequences arise in this case: loss of licence, impact on volunteer work, and the shame and stigma associated with a conviction. Ms Sayers affirmed an affidavit in the Auckland District Court in support of this.
18 Z (CA447/12) v R, above n 6, at [27].
19 Basynat v Police, above n 15, at [20] and [21].
[30] As to the consequences of a loss of licence, Mr Rhodes pointed to the impact this would have on her ability to carry out work necessary for the operation of her business, and on her ability to attend basketball trainings, games and other volunteer- related commitments. However, Mr Rhodes correctly acknowledged that these consequences have been somewhat mitigated because the Judge back-dated Ms Sayers’ disqualification from driving for just over a month. That enabled her to successfully apply for a limited licence on the same day she was sentenced. Mr Rhodes referred to some administrative delays in Ms Sayers being issued the limited licence and submits that she still faces consequences in the form of not being able to travel to the supermarket, to see friends and family, or for other personal reasons.
[31] Mr Rhodes further submits that Ms Sayers may be barred from future volunteer work opportunities as a result of a conviction on her record. He points to the fact that Ms Sayers has in the past been required to complete a Police check, which is commonly required when volunteering to work with young people. Mr Gibson says that there is no evidence of Ms Sayers being barred from future volunteer work and no evidence that one drink-driving conviction would bar her from volunteer coaching. He further submits that because Ms Sayers is seemingly well-respected and a valuable member of the community, she is likely to be able to continue in her role regardless of this conviction.
[32] Lastly, Mr Rhodes relies on Ms Sayers’ deep embarrassment to be in the position she is and the devastating stigma she would receive having this conviction. Mr Gibson submits that this kind of general stigma which attaches to a conviction of this kind is not exceptional and therefore does not warrant Ms Sayers receiving a discharge without conviction.
[33] Despite the consequences identified by Ms Sayers, I find that the consequences of a conviction in this case would not be out of all proportion to the gravity of the offending. That is so for the following reasons:
(a)Ms Sayers was able to obtain a limited licence on the day she was sentenced which enables her to travel to work and basketball trainings.
The restrictions she still faces until the end of the six months, namely driving for other reasons, are not consequences out of all proportion.
(b)A drink-driving conviction would not be of the kind to prevent Ms Sayers from continuing her volunteer work, particularly as a basketball coach. While Police checks are common for those working with young people, the presence of this conviction would not lead to any consequences out of all proportion to Ms Sayers’ offending.
(c)Ms Sayers’ embarrassment and fear of the stigma associated with the conviction is not out of the ordinary. I appreciate that Ms Sayers has demonstrated good character all her life and contributes to her community. However, the stigma or shame associated with this conviction does not on its own or in combination with the other factors, meet the statutory threshold of “out of all proportion” to the gravity of the offence.
Conclusion and result
[34] Overall, I have come to the same conclusion as Judge Glubb in the District Court. I find that the direct and indirect consequences of Ms Sayers’ offending are not out of all proportion to the gravity of her offending. That gravity I assess as within the low to moderate range.
[35]Accordingly, the appeal is dismissed.
Andrew J
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