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 should fade given their historical nature. He submits the Judge erred in accepting Mr Schollum would face only delay in entering other countries, rather than prohibition which would have severe consequences on his business especially in countries where the culture is to be submissive to authority. He says there is no evidence that Mr Schollum would only be delayed just as there is no evidence there are difficulties. He submits the difficulties in entering some countries are well-known but acknowledges there is no evidence of that. He says, from the bar, the relevant countries are in South- East Asia, like Indonesia, as well as the United States. He submits there does not need to be absolute proof a bar to entry is going to happen, just a real and appreciable risk. He submits the previous offences were historic, committed when he was youthful. He submits Mr Schollum would not risk being denied entry so would not go overseas, to the cost of his business. He submits the sentence would be far more than what Parliament intended and it is important people see that good behaviour gives the chance to restart the clock. He submits the criteria for discharge without conviction are met here.

[4]    Ms Ching, for the Police, submits Judge Fitzgerald did not err in assessing the gravity of the offending or the consequences of conviction. She notes intention is not an element of this offence and should not go to the gravity of the offending. Although his last conviction was in 1988, she submits driving under the influence remains an issue for Mr Schollum and the seriousness of the offending should be assessed as at the lower end of the scale. She submits the evidence of the consequences of conviction he has produced amounts to general consequences that apply to anyone and are vague and speculative. She notes his plans to travel overseas are tentative though she accepts I could infer an intention to do so. She points out there is no evidence why this conviction would prevent him from travelling when his previous convictions did not. She points to law in the United States that a sentence of imprisonment is required to bar entry absolutely and the law in Canada takes into account discharges without conviction as well as convictions. She submits he has been able to travel overseas

with driving-related convictions in the past and submits, at its highest, the likely consequence of conviction is an administrative burden prior to travelling or some delay at border security. Ms Ching submits these consequences are not extraordinary and it is not for the Court to usurp the role of other nations’ immigration services in assessing whether entry should be granted. She submits the Court cannot be satisfied the consequences of conviction would be out of all proportion to the gravity of the offending.

Decision

[5]    This is an appeal, by way of rehearing, against conviction and sentence.4 Under s 232(2) of the Criminal Procedure Act 2011, I must allow the appeal of the conviction if satisfied a miscarriage of justice has occurred by virtue of a material error in entering the conviction or in applying s 107. Otherwise I must dismiss the appeal. A miscarriage of justice is defined to mean “any error, irregularity, or occurrence in or in relation to or affecting the trial” (including a proceeding in which the appellant has pleaded guilty) that “has created a real risk that the outcome of the trial was affected” or “has resulted in an unfair trial or a trial that was a nullity”.

[6]    Under s 106 of the Sentencing Act 2002 a court may discharge without conviction a person who is found or pleads guilty if, under s 107, the court is satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. I must consider:5 the gravity of the offence; the direct and indirect consequences of a conviction; whether those consequences are out of all proportion to the gravity of the offence. The applicant must demonstrate there is a real and appreciable risk any identified consequences will occur,6 rather than speculate about matters of present fact. That includes facts about travel restrictions said to preclude travel.7 In Linterman v Police, the High Court held that discharges without conviction for drink driving offences ought to be exceptional.8 In Basnyat v Police the Court of Appeal endorsed Linterman, characterising drink driving as a moderately

4      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.

5      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8]; Z (CA447/12) v R [2012] NZCA 599,

[2013] NZAR 142 at [8].

6      DC (CA47/2013) v R [2013] NZCA 255 at [43].

7      Edwards v R [2015] NZCA 583 at [25].

8      Linterman v Police [2013] NZHC 891.

serious offence with reference to its potential consequences and the pervasiveness of alcohol abuse in New Zealand society.9

[7]    It would not be obvious to me that drinking the amount Mr Schollum says he did, at the time he says he did, would necessarily result in the blood alcohol reading at the level his did. But it did. I agree the gravity of his offending is at the low end but, as the courts have said, drink driving is an inherently serious offence. Responsibly, Mr Schollum pleaded guilty. The question is whether the consequences of conviction are out of all proportion to the gravity of the offending. I do not consider there is evidence which suggests they are, as Mr Boylan frankly acknowledged. No doubt Mr Schollum travels overseas for business and no doubt that is important for him and his business. But there is no evidence of a real and appreciable risk his conviction will necessarily preclude him from doing so. He has had three drink driving offences in the past. There are procedures by which other nations assess the implications of past convictions, and perhaps discharges without conviction, for eligibility for entry. That is their right. There is no evidence before me that that amounts to a complete bar to entry by Mr Schollum to the countries with which he does business.

[8]    I do not consider the circumstances here are exceptional enough that Mr Schollum should be discharged without conviction for drink-driving. I do not consider the consequences of conviction are out of all proportion to the gravity of the offending. I do not consider there has been a miscarriage of justice, so I must dismiss the appeal. I do wish him well with his investigation of possible medical issues.

Palmer J

9      Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344 at [19].