SEAN JOSEPH PATTERSON AND NEW ZEALAND POLICE

[2024] NZHC 2758

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-137

[2024] NZHC 2758

BETWEEN

SEAN JOSEPH PATTERSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	18 September 2024
Appearances:	C C Gullidge for Appellant M W Fulton for Respondent
Judgment:	24 September 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 24 September 2024 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

PATTERSON v NEW ZEALAND POLICE [2024] NZHC 2758 [24 September 2024]

Introduction

[1]    On 3 May 2024, Sean Patterson was convicted of driving while suspended having pleaded guilty to that charge.1 Although Mr Patterson sought a discharge without conviction, he was sentenced to a six-month licence disqualification (backdated    to    31 October 2023)    by  Judge   Callaghan.2  He now appeals Judge Callaghan’s refusal to grant a discharge without conviction.

[2]    The crux of the appeal is that Mr Patterson was directed by his employer to drive in breach of his suspension. While the employer was granted a discharge without conviction on a charge of being a party to the appellant’s driving while suspended, Mr Patterson’s application was declined.3 The appellant submits this gives rise to a miscarriage of justice.

[3]    Leave is sought to adduce the summary of facts relating to the employer’s offending as fresh evidence. That is not opposed and the evidence is relevant to the appeal, so leave is granted to admit it.

Factual background

[4]    On 12 September 2023, Mr Patterson was suspended from driving for 28 days for travelling more than 40km/h over the speed limit. This suspension was in effect until 10 October 2023.

[5]    On 28 September 2023, Mr Patterson was the driver of a truck, travelling at 64 km/h in a 50 km/h zone. He admitted his licence was suspended and explained he was driving the vehicle due to his work as a mechanic.

[6]    Mr Patterson’s employer was charged with aiding a person to drive while their licence was suspended.  The  summary  of  facts  states  that  the  employer  knew  Mr Patterson’s licence had been suspended but he instructed Mr Patterson to drive to

1      Land Transport Act 1998, ss 32(1)(c) and 32(3) – maximum penalty of three months’ imprisonment or $4,500 fine. Mandatory licence disqualification of six months.

2      Police v Patterson [2024] NZDC 9594.

3      Police v Van der Zee DC Christchurch CRI-2024-009-863, 25 June 2024.

pick up a heavy motor vehicle. The employer explained to police that he did not have enough staff and he just hoped everything “went well”.

[7]    When the employer pleaded guilty to that charge, the Community Magistrate hearing the charge determined that the gravity of the offending was either at the low end of moderately serious or low to moderately serious. However, the consequence of the conviction for the employer would be the closure of his three businesses and also hardship to his wife as he could no longer transport her to appointments and check-ups for her cancer. The consequences were assessed as being out of all proportion to the gravity of the offending and a discharge without conviction was granted.

Principles on appeal

[8]    An appeal against a refusal to grant a discharge without conviction is a composite appeal against both conviction and sentence.4

[9]    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.5 In this section, a trial includes a proceeding in which the appellant pleaded guilty.6

[10]   The appeal proceeds by way of rehearing and this Court is required to form a view of the facts.7 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.8 The onus is on the appellant to show that an error occurred.

4      Noori v Police [2023] NZHC 3799 at [12].

5      Criminal Procedure Act 2011, s 232(4).

6      Section 232(5).

7      Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].

8 At [38].

[11]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act and must be determined in accordance with s 250. An appeal against 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.9

District Court decision

[12]   At sentencing, Judge Callaghan first dealt with the gravity of the offence, accepting that Mr Patterson was not out joyriding, instead driving the vehicle while he was at work. The only relevant aggravating feature of the offending was the fact he was stopped because he was driving nearly 15km/h over the speed limit. However, the Judge accepted that this cannot be double counted, given Mr Patterson had already received an infringement notice for that offence.

[13]   Turning to Mr Patterson’s personal circumstances, the Judge noted that while Mr Patterson had no prior convictions, his prior infringement offences demonstrate a failure to abide by road rules. That said, he also  noted that Mr Patterson was only  20 years of age, had pleaded guilty at the earliest opportunity, immediately explained the situation and had, since the offending, gained his heavy vehicle licence and undertaken a defensive driving course at his own referral. He had also completed the Right Track programme which the Judge acknowledged was a significant step towards rehabilitation. The cumulative effect of these factors meant that the gravity of the offending was low.

[14]   Turning to the consequences of a conviction, the Judge considered various cases which held that disqualification was a consequence of conviction and that this may weigh in the analysis for a discharge without conviction.10 The Judge was satisfied that a likely consequence of conviction would be that Mr Patterson would be disqualified from driving, lose his current job and have difficulty finding and transferring his apprenticeship.

9      Criminal Procedure Act, ss 250(2) & 250(3).

10  Ryan v Police HC Christchurch CRI-2008-409-282, 4 December 2008; Chowdhery v Police   [2021] NZHC 1061; Kairau v Police HC Wellington CRI-2005-485-154, 9 December 2005; Brown v Police [2013] NZHC 2190; Turner v Police [2016] NZHC 2198.

[15]   When undertaking the balancing assessment, the Judge determined that given the significant effect of disqualification on Mr Patterson’s current employment, a conviction would be out of proportion to the gravity of the offending if the imposition of the disqualification took effect at sentencing. Therefore, while the Judge convicted Mr Patterson, he backdated the six-month disqualification to 31 October 2023.11

Submissions

Appellant’s submissions

[16]   In relation to the gravity of the offending, Mr Gullidge, counsel for the appellant, first submits that the Judge did not address the impact of the employer’s actions on Mr Patterson’s culpability and the gravity of the offending. Counsel could not find any recent cases dealing with an analogous situation.  However, he cited  two cases submitted to be “broadly analogous” in which discharges without conviction were granted to individuals charged with dangerous driving in the course of their employment.12

[17]   The Court in G v Police noted that the appellant there was “essentially operating under orders, and there is an element of unreality to suggestions that he was in any meaningful way able to make his own decisions as to the matter in which he drove.”13 While counsel for the appellant accepts that these two cases involved an aspect of “emergency” circumstances which are not present in Mr Patterson’s situation, he submits Mr Patterson was a young man, working in a role he had had trouble securing and was told by his employer (who knew his licence was suspended) to pick up a vehicle and therefore, his culpability should be considered lower, reducing the gravity of the offending.

[18]   The second ground of appeal relates to the impact of conviction on the appellant’s employment prospects. Counsel cites Meijler v R in which the Court observed:14

11     Under s 85(1) Land Transport Act 1998.

12     G v Police HC Timaru CRI-2005-476-19, 19 December 2005; Vincent v Police HC Timaru CRI-2006-476-4, 31 August 2006.

13     G v Police, above n 11, at [88].

14     Meijler v R [2021] NZCA 472 at [20].

unskilled or semi-skilled work… is likely to require employers to filter applications without further enquiry… The consequences of a conviction may therefore be severe if it conveys on its face a disqualifying trait that does not accurately reflect the person’s actual offending or his or her level of culpability.

[19]   Counsel for the appellant submits that, over and above the usual stigma and shame associated with a conviction, the appellant could be prevented from securing new employment.

[20]   The third ground  of  appeal  is  the  lack  of  parity  with  the  sentence  of  Mr Patterson’s employer. Counsel submits it seems “incongruous to the point of unjustifiability” that an experienced employer, directing his young employee to drive in breach of a licence suspension, should receive a discharge without conviction while the employee does not. Rather than youth, the employer had the benefit of 45 years as an adult without appearing before the Courts to prove his good character, and counsel submits that reductions for youth can be much greater than for older individuals with unblemished character.

Respondent’s submissions

[21]   Addressing the gravity of the offence, Ms Fulton, for the respondent, submits the cases relied on by the appellant can be distinguished from the present offending. The Court in Vincent held that the “appellants were trained drivers, one of them a specialist, acting under orders for a specific public purpose…”. This is not the case here and, further, it is clear the Judge had considered the employer’s part when assessing the gravity of the offending.

[22]   The respondent cites Cowan v Police as being more analogous.15 In that case, the appellant was driving while suspended in order to attend a job interview and a meeting with her children’s lawyer. The Judge concluded the offence was moderately serious, noting the appellant made a conscious decision to drive, and declined a discharge without conviction. Counsel submits it was also open to the Judge to assess the gravity of the offending as moderately serious in this case.

15     Cowan v Police [2016] NZHC 3012.

[23]   When considering the consequences of conviction, the respondent says these can be put to one side given the Judge circumvented any such consequences by backdating  the  disqualification  to  the  entry  of  the  appellant’s  guilty  plea  on  31 October 2023. The entire disqualification period had passed prior to the sentencing date. Further, while the appellant may have had difficulty procuring his current position, counsel for the respondent submits that by the time he wishes to progress his career he will have had the experience of an apprenticeship, practical job experience and a reference from his current employer. His chosen field does not fall within the “unskilled or semi-skilled” category discussed by the appellant and there is no evidence that a conviction would negatively impact the appellant’s future career prospects.

[24]   When undertaking the proportionality enquiry, the respondent submits the overall gravity of the offence is low, the consequences on employment are limited and accordingly, the consequences of conviction cannot be seen to be out of all proportion to the gravity of the offending.

[25]   Finally, when considering parity, the respondent notes that there often will be legitimate reasons for disparate sentences between co-offenders.16 The respondent accepts that as the appellant’s employer he should have known better. However, regardless, the question of parity must be viewed through the application of the discharge without conviction principles to the particular individual’s circumstances. The respondent submits that in this situation, there was a middle-aged man instructing an employee to drive while suspended and a young man who drove within three weeks of having his licence suspended for “gross speeding”, so the behaviour constituting the offending was not the same. Further, it is clear that the direct and indirect consequences arising from a conviction are far greater for the employer than for the appellant. In those circumstances, the disparity of outcome for the offenders is justifiable.

16     R v Kohey CA345/02, 11 March 2003.

Analysis

Discharge without conviction

[26]   The discretion to discharge under s 106 Sentencing Act 2002 is guided by s 107 which states:

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.

[27]The threshold under this section requires the court to:17

(a)assess the gravity of the offence, taking into account the aggravating and mitigating factors of both the offending and the offender;

(b)identify the direct and indirect consequences of conviction; and

(c)whether those consequences are “out of all proportion” to the gravity of the offence.

[28]   If it is determined that the consequences are out of all proportion, the court must still consider whether it should exercise its residual discretion to grant a discharge.18

Gravity of the offence

[29]   As outlined by Judge Callaghan, assessing the gravity of the offence involves first, an initial grading of the actual offending and secondly a broad analysis of all relevant considerations including aggravating and mitigating factors.19 The Judge assessed the seriousness of the offending as low, taking into account the appellant’s age, guilty plea and his actions since the offending.

17     R v Taulapapa [2018] NZCA 414 at [22].

18     Z (CA447/12) v R [2012] NZCA 599 at [27].

19     Mathieson v Police [2019] NZCA 406 at [16].

[30]   I consider the Judge generally considered all relevant factors going to the gravity of the offending, except for the fact that, as is now known, Mr Patterson’s employer knew that Mr Patterson was suspended and nevertheless directed him to drive. The Judge had assumed Mr Patterson chose to drive of his own volition thinking he would not  get  charged.  I  accept  that  this  is  an  additional  factor  reducing  Mr Patterson’s culpability. It also puts a different light on the employer’s advice to the Judge that he would terminate Mr Patterson’s employment if he were convicted and lost his licence.

[31]   I accept Mr Gullidge’s submission that, although not strictly analogous to the cases in G v Police and Vincent v Police, the power imbalance between employer and employee, and Mr Patterson’s desire to retain his employment, made it very difficult for him to resist this instruction. Thus, while I acknowledge the Judge assessed the overall seriousness of the offending as low, this factor adds to that assessment and minimises Mr Patterson’s culpability even more.

Consequences of conviction

[32]   Turning now to the consequences of conviction, the Judge determined that the consequences of conviction for Mr Patterson would be:

(a)disqualification;

(b)loss of employment; and

(c)difficulty finding and transferring his apprenticeship to another employer.

[33]   The Judge then chose to ameliorate any consequence of this disqualification by backdating the period of disqualification by six months so that there was no period of disqualification for Mr Patterson, and thus no risk of losing his employment.

[34]   Under s 85(1) of the Act an order for disqualification “starts on the day the order is made unless the Court otherwise directs or [the relevant] Act otherwise provides.” This ability to backdate a period of disqualification has been described as

“an unfettered discretion”.20 However, as Gendall J explained in Hood v Police, “the purposes and principles of sentencing, of course, continue to apply to the exercise of a discretion under s 85(1).” 21

[35]   In the Hood decision, Gendall J traversed a number of examples of where backdating had occurred. In Prowse v Police, Hinton J did not consider there was any reason to backdate the disqualification.22 However, she gave an example of where backdating a disqualification may be appropriate as being:

Where a person was on bail prior to the sentencing and a condition of bail was that they not drive. Assuming they complied with that condition, the Court might reasonably backdate the disqualification to some extent, so as not to inadvertently punish someone for longer than was required.

[36]   In Hood Gendall J noted that “in the absence of having (actually or effectively) served the disqualification already, or some sort of procedural problem, courts have shown reluctance to backdate a disqualification period on appeal”.23

[37]   However, the Courts have not endorsed the use of the power to backdate to entirely avoid the impact of disqualification. For example, in Oldfield v Police, Andrews J backdated a disqualification by four months but refused to backdate it to a point where there would be nothing left to serve saying: “I cannot accept that it would be appropriate to backdate [the disqualification] to such an extent that there is virtually no period of disqualification left.”24

[38]   In Hood, the appellant argued that the disqualification period should have been backdated so that it had run its course by the time his prison sentence was served. However, Gendall J observed that this would have effectively amounted “to a conviction and discharge”, as it would have meant that the appellant incurred no penalty or consequence for the quite separate driving offending.25 This would have been inconsistent with the legislative intent behind a mandatory disqualification period and would arguably fail to meet the denunciation and deterrence principles of

20     Edwards v Police [2012] NZHC 1350 at [26].

21     Hood v Police [2022] NZHC 120 at [27].

22     Prowse v Police [2019] NZHC 307 at [27].

23     Hood v Police, above n 21, at [35].

24     Oldfield v Police [2013] NZHC 3206.

25     Hood v Police, above n 21, at [42].

sentencing. In the circumstances, the Judge declined to intervene and backdate the commencement of the disqualification period so that it would have terminated by the time of the appellant’s release.

[39]   In the present case, I consider the consequences of conviction should be assessed in light of the three factors identified by the Judge and not by artificially removing one so that the natural consequences of conviction are avoided. Here, taking into account the additional factor that the employer directed Mr Patterson to drive even though he knew Mr Patterson’s licence was suspended, the gravity of the offending is further decreased. When that is weighed against the natural consequences of conviction, being mandatory disqualification and the negative impacts of that, I am satisfied that the consequences of conviction were out of all proportion to the gravity of the offending. For this reason, the appeal is allowed and the conviction is set aside.

[40]   For completeness, I do not consider that issues of “parity” have any bearing in these circumstances. Discharges without conviction are, of necessity, very fact-specific. Here, while the charges faced by Mr Patterson and by his employer were connected, they were not the same. Furthermore, the consequences for each of them were different. While I accept that the employer’s offending could be seen as more serious than Mr Patterson’s, particularly given his position of authority, he was also able to identify very significant consequences flowing from conviction. Questions of parity only arise where defendants in generally comparable circumstances receive sentences which are so different that “a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice”.26 I do not consider that is the case here.

Result

[41]   For the reasons given above, the appeal is allowed. The application for a discharge without conviction is granted and the conviction and sentence are quashed.

Solicitors:

Crown Solicitor, Christchurch

Public Defence Service, Christchurch

26     R v Lawson [1982] 2 NZLR 219.