Schollum v Police - [2019] NZHC 1452

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-120

[2019] NZHC 1452

BETWEEN
JONATHAN SCHOLLUM

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 25 June 2019

Appearances:

P J Boylan for the Appellant R S Ching for the Respondent

Judgment:

25 June 2019

ORAL JUDGMENT OF PALMER J

Counsel/Solicitors:
P J Boylan, Barrister, Auckland Crown Solicitor, Auckland

SCHOLLUM v NEW ZEALAND POLICE [2019] NZHC 1452 [25 June 2019]

What happened?

[1] On the morning of Saturday 2 June 2018, Mr Jonathan Schollum, aged 65, had breakfast and drove down to the marina to pick up his boat. On the way, in downtown Auckland, he was stopped at a Police checkpoint. He says he had five rum and cokes before dinner the night before, as sailors might do, and a glass of wine with dinner. He was surprised his blood alcohol reading was 117 milligrams per 100 millilitres of blood, which is more than double the legal limit. So, he says, was the police officer who suggested he investigate whether there is a medical explanation. I accept the Police’s submission that Mr Schollum’s opinion that the Police officer was surprised is opinion evidence. Mr Schollum has three previous convictions for drink driving in 1982, 1984 and 1988 and other driving convictions in that period and before. This time he was charged with driving with excess alcohol for a third or subsequent time, the maximum penalty for which is two years’ imprisonment or a fine not exceeding
$6,000 and disqualification from holding a driver’s licence for more than one year. Mr Schollum pleaded guilty and applied for a discharge without conviction.

[2] On 31 January 2019, in the Auckland District Court, Judge A J Fitzgerald declined the application, convicted Mr Schollum, fined him $550 and disqualified him from holding a driver’s licence for one year and one day.1 The Judge took into account the historical nature of Mr Schollum’s previous convictions, the serious nature of drink-driving, the lack of driving fault and moderate level of alcohol. He assessed the gravity of the offending as at the high end of the low range.2 He had regard to Mr Schollum’s remorse and guilty plea and his attendance at alcohol counselling. The Judge considered submissions that Mr Schollum’s business as a truck importer would suffer from his travel overseas being inhibited and his reputation being diminished. He considered his business relationships overseas were mature and doubted they would be damaged. He considered, taken at their very worst, the consequences of Mr Schollum’s conviction were not out of all proportion to the gravity of the offending, which is a very high test.3

1 Police v Schollum [2019] NZDC 2955.
2 At [6].
3 At [9].

Submissions

[3] Mr Boylan, for Mr Schollum, submits the Judge erred in assessing the gravity of the offending because he says Mr Schollum did not knowingly or intentionally drive under the influence of alcohol and the aggravating factor of his previous convictions…

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.

Keep reading for free

Create a free CaseChat account to read Schollum v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NZHC 1452
Decision Date: 25 June 2019

CaseChat Overview and Summary

The case of Schollum v Police involves Jonathan Schollum, who was charged with driving with excess alcohol, a third or subsequent offence, after being stopped at a police checkpoint. Schollum had a history of drink-driving convictions dating back to 1982, 1984, and 1988. Schollum pleaded guilty and applied for a discharge without conviction, which was declined by the Auckland District Court, resulting in a conviction, a fine, and a one-year disqualification from holding a driver's licence. Schollum appealed against the conviction and sentence, arguing that the historical nature of his previous convictions and the consequences of conviction, particularly regarding his ability to travel overseas for business, should have warranted a discharge without conviction.

The court had to determine whether the consequences of conviction would be out of all proportion to the gravity of the offence, as per section 106 of the Sentencing Act 2002. The court considered the gravity of the offence, the direct and indirect consequences of a conviction, and whether those consequences were out of all proportion to the gravity of the offence. The court also considered that discharges without conviction for drink-driving offences should be exceptional, as drink-driving is an inherently serious offence with reference to its potential consequences and the pervasiveness of alcohol abuse in New Zealand society.

The court found that while Schollum's travel for business was important, there was no evidence of a real and appreciable risk that his conviction would necessarily preclude him from doing so. The court concluded that the consequences of conviction were not out of all proportion to the gravity of the offending, and therefore dismissed the appeal. The court did not consider the circumstances exceptional enough for Schollum to be discharged without conviction for drink-driving. The court wished Schollum well with his investigation of possible medical issues.

The final orders of the court were to dismiss the appeal against conviction and sentence, upholding the decision of the Auckland District Court. Schollum's appeal was dismissed, and the conviction, fine, and one-year disqualification from holding a driver's licence remained in place.

Orders