Sharma v New Zealand Police

[2018] NZHC 2471

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000182

[2018] NZHC 2471

BETWEEN

VIVEK SHARMA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	10 September 2018
Appearances:	O Martell for the Appellant H T Reid for the Respondent
Judgment:	20 September 2018

JUDGMENT OF HINTON J

This judgment was delivered by me on 20 September 2018 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

Owen Martell, Barrister, Auckland Meredith Connell, Auckland

VIVEK SHARMA v NEW ZEALAND POLICE [2018] NZHC 2471 [20 September 2018]

[1]    In the evening of 28 May 2017, Vivek Sharma was caught by police driving a motor vehicle on Queen Street with a blood-alcohol level of 86 mg of alcohol per 100 ml of blood.1 He told the police he had consumed one can of “strong beer”. He pleaded guilty on 5 October 2017 to one charge of drink-driving. His application for a discharge without conviction was declined by Judge R G Ronayne on 4 May 2018.2 Mr Sharma now appeals against that decision.

District Court decision

[2]    Judge Ronayne applied the well-accepted approach to an application for a discharge without conviction set out by the Court of Appeal in Z (CA447/12) v R. First, the gravity of the offence is assessed. Second, the direct and indirect consequences of a conviction are assessed. And third, it is considered whether those consequences are out of all proportion to the gravity of the offence.3

The gravity of the offending

[3]    Judge Ronayne assessed Mr Sharma’s offending as “moderate”. In doing so his Honour took into account the following:

(a)Drink-driving is an “inherently relatively serious offence” regardless of the maximum sentence for such offending being only three months’ imprisonment.

(b)The reading produced by the blood-alcohol test was “relatively low”.

(c)Mr Sharma has two prior convictions:

1      The limit prescribed by s 56(2) of the Land Transport Act 1998 is 80 mg per 100 ml of blood. This means Mr Sharma was 7.5 per cent over the legal limit. Mr Martell submitted that the correct reading was 82 mg. Both the summary of facts and the District Court decision refer to 86 mg. In either event, the reading was just over the limit.

2      Police v Sharma [2018] NZDC 12168.

3      Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8].

(i)first, for drink-driving which involved a “very high” breath-alcohol reading of 943 mcg of alcohol per litre of breath4 and took place on 15 September 2013; and

(ii)second, for driving whilst disqualified from driving in connection with the above offending,  which  took  place  on 28 March 2014.

(d)Mr Sharma has completed a defensive driving course. (However, the Judge considered this to be skills-based as opposed to something directed towards Mr Sharma’s repeated offending.)

(e)Mr Sharma had attended a Community Alcohol & Drugs Services (CADS) programme and a One for the Road course, and had completed 312 hours of voluntary community work.

(f)Mr Sharma pleaded guilty in circumstances that would have attracted in the normal course a 20 per cent discount on sentence.

The consequences of a conviction

[4]    As for the consequences of a conviction, Mr Sharma argued before the Judge that, having gained residency in New Zealand as a citizen of India and having first held a residence class visa on 13 August 2013, his visa would be revoked under s 161 of the Immigration Act 2009.5

[5]    The Judge did not accept it was inevitable Mr Sharma would have his residence visa revoked. Rather, his Honour considered that Mr Sharma’s liability for deportation may be reactivated following which a new liability for deportation notice would be served on him.

4      The limit prescribed by s 56(1) of the Land Transport Act 1998 is 400 mcg of alcohol per litre of breath. This means Mr Sharma was at more than double the legal limit.

5      The relevant section was in fact s 172 of the Act, as discussed subsequently.

Whether the consequences are out of all proportion

[6]    The Judge identified two features as readily apparent from Mr Sharma’s offending:

(a)First, Mr Sharma was on notice of the possible consequences of further offending.

(b)Second, there is no certainty of outcome either way should a conviction be entered.

[7]    The Judge declined to identify actual deportation as a consequence in respect of which there was a real and appreciable risk, on the basis that there was no evidence of such a risk.

[8]    Taking into account decisions such as Linterman v Police6 and Livingstone v Police,7 the Judge observed that discharges ought to be “exceptional” for drink-driving offending. In addition, the Judge said that it is well-established that the courts should not usurp the function of Immigration New Zealand in deciding whether a person should be deported or not.

[9]    The Judge observed that Mr Sharma’s affidavit made no attempt to explain his decision to drive after consuming alcohol. The Judge therefore considered it safe to assume that Mr Sharma had simply made a deliberate decision to drink and drive.

[10]   The Judge considered that even if he was wrong about there being no sufficient evidence establishing a real and appreciable risk of deportation, there was at its highest no more than a risk of exposure to that consequence, which is a normal and fully expected consequence of conviction in Mr Sharma’s case.

[11]   Mr Sharma’s application was accordingly dismissed. The Judge reduced what would otherwise have been a  $750  fine  to  $500  to  reflect  the  positive  things  Mr Sharma had done, and ordered him to pay court costs of $130, an analyst’s fee of

6      Linterman v Police [2013] NZHC 891.

7      Livingstone v Police HC Auckland CRI-2011-404-167, 2 August 2011.

$109.25, and medical expenses of $100. Mr Sharma was disqualified from driving for eight months and the Judge made a zero-alcohol licence order.

Approach to appeal

[12]   Mr Martell says the Judge erred in assessing the gravity of the offending, and that the Judge should have granted a discharge without conviction given the potential for adverse impact on Mr Sharma should he be convicted.

[13]   An appeal against a refusal to grant a discharge without conviction is an appeal against conviction. Mr Sharma must therefore establish:8

(a)that a miscarriage of justice has occurred by virtue of a material error by the Judge in entering a conviction; or

(b)that the Judge has erred in applying the principles for discharging an offender without conviction found in s 107 of the Sentencing Act 2002 (Act).

[14]   The proportionality assessment in s 107 of the Act is a matter of judicial evaluation rather than the exercise of a discretion. Therefore, the appeal proceeds by way of general appeal.9

[15]I consider each ground in turn.

Did the Judge err in assessing the gravity of the offending?

[16]   Mr Martell submits that the Judge erred in assessing Mr Sharma’s offending as moderate. That is firstly, because the reading was only just over the limit and secondly, because the Judge failed to sufficiently consider the steps taken by Mr Sharma to address the issues which led to his offending. In particular, Mr Sharma’s affidavit notes that he will do his best never to appear before the New Zealand courts again for any charges; that he has completed the AA Defensive Driving course; that he has

8      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12].

9      H (CA680/11) v R [2012] NZCA 198 at [30].

completed the two-day New Zealand Red Cross “First Aid” programme; that he has completed the eight-week “Getting started” programme with CADS; that he has completed the One for the Road programme at Harmony Trust, which involved a two-day assessment followed by a further 10 hours of counselling; and that he has volunteered with the Auckland Sikh Society Inc, and completed a little over 300 hours of volunteer work at the temple.

[17]   Drink-driving is not a minor offence. New Zealand has a serious problem with drink-driving offending, particularly in relation to recidivist offenders. Discharges without conviction in the drink-driving context are accordingly far from commonplace, as Mr Martell acknowledged. This policy was referred to by Miller J in Linterman v Police:10

[9] I agree that discharges ought to be exceptional for this offence. It is illuminating to reflect on the several reasons why that might be so. First, in the hands of a drunk a car is a dangerous thing. Second, good character and extenuating personal circumstances normally count for little. 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. Notably, the court may relieve an offender of the minimum disqualification period only for special reasons relating to the offence. Special reasons relating to the offender will not do. Nor is ignorance of one's alcohol level a defence; a driver who chooses to drink at all takes the risk that for whatever physiological or other reason her level will prove higher than she thought. Third, an applicant must identify some extraordinary consequence of conviction, which is difficult when the ordinary consequences are unpleasant. A drink-driving conviction always carries a social stigma and the offender must normally disclose it to a prospective employer, who may wonder whether it evidences poor judgement or undue fondness for drink, and to immigration authorities, who may categorise it as evidence of antisocial tendencies.

[18]   None of this is to suggest that a discharge without conviction will never be granted to a person for a drink-driving offence. However, it is important to recognise that the risk undertaken by persons who choose to drink and drive is a serious one, even if no tangible consequences arise from the offending on a particular occasion.

[19]   Judges must still, as I have to here, bring a critical mind to the precise features of the offending. As Lang J observed in Backhouse v Police:11

10     Linterman v Police [2013] NZHC 891.

11     Backhouse v Police [2015] NZHC 1178.

[18] This Court has held that driving with excess breath alcohol is a moderately serious offence. The seriousness of the offending obviously depends, however, on both the extent to which the offender has exceeded the legal limit and the circumstances in which the offending occurred. The former speaks for itself; the higher the blood or breath alcohol reading the more serious the offending will be. The latter may assume significance where the circumstances of the offending involve added culpability. That may be the case, for example, where the offender is apprehended after driving in a dangerous manner or after having been involved in an accident.

(footnotes omitted)

[20]   Mr Martell relies in particular on Dunningham J’s decision in Glenn v Police, to suggest that the gravity of the offending in this case ought to be regarded as low. In that case, the appellant was an adventure tourism student who had pleaded guilty to a charge of drink-driving as a youth.12 He had driven with a breath-alcohol level of  400 mcg per litre of breath when the legal limit for youth at the time was 150 mcg per litre of breath. Mr Glenn’s reading was “on the cusp of being over the adult level”,13 and had he been a year older no offence would have occurred.14 Dunningham J assessed the gravity of Mr Glenn’s offending as low:

[21]    I accept that driving with excess breath or blood alcohol can have serious consequences, and is to be deterred on a policy basis. However, in this case the only blameworthy aspect of Mr Glenn’s behaviour was that he chose to drive, with an alcohol level that exceeded the youth limit, and was close to, but did not exceed, the adult limit. No other aspect of this offending contributed to the gravity of it. Instead, they go to mitigate the gravity of it when viewed in totality. In particular, the appellant’s guilty plea, and his voluntary steps to address the issues which led to the offending, are all mitigating factors. I assess the gravity of the offence as low.

[21]               In this case, Mr Sharma was only just over the legal limit and there were no additional elements of driving-offending. However, his offending must be seen in a wider context. That context is that he has offended in this manner before. Over a period of around four years, he has twice been found drink-driving, and has been found driving while disqualified. On the first drink-driving charge, he was well over the limit. In between his earlier offending and the present offending, he was served with a deportation liability notice, and yet he has continued to take unnecessary risks. I therefore consider this case to be quite different to that of Glenn.

12     Glenn v Police [2016] NZHC 928.

13 At [6].

14 At [16].

[22]               In terms of the mitigating steps Mr Sharma has taken, the Judge expressly had regard to those features when assessing the gravity of Mr Sharma’s offending. To the extent Mr Martell suggests the Judge erred in the weight he assigned to these features, I do not agree. Although the steps taken by Mr Sharma must rightly be considered mitigating, there are ample countervailing features of Mr Sharma’s offending upon which a finding of moderate severity could be made.

[23]               The recidivist aspect of Mr Sharma’s offending is important in this context. This factor, in combination with the general denunciation of drink-driving more generally, provides an ample basis for the Judge’s conclusions regarding the gravity of the offending as being moderate.

Did the Judge err by not granting a discharge without conviction in light of the consequences of conviction for Mr Sharma?

[24]               Mr Martell submits the Judge also erred in assessing the consequences of conviction for Mr Sharma. The Judge said there was no real and appreciable risk of deportation for Mr Sharma, only of being subject to a process which may lead to deportation.

[25]               Mr Martell submits the effect of s 161 of the Immigration Act 2009 is  that Mr Sharma is liable for deportation following conviction.

[26]               He points also to a letter dated 20 April 2016 by a Delegated Decision Maker for the Minister of Immigration following Mr Sharma’s prior offending several years ago. The letter is not referred to in the District Court Judge’s decision. The letter, addressed to Mr Sharma, said his liability for deportation was suspended on the following terms:

Although I am satisfied that you meet the criteria  for  deportation  from New Zealand, I have decided to suspend your liability for deportation for a period of three years, pursuant to section 172(2) of the Act. The suspension period begins on the date the enclosed deportation liability notice is served, or deemed to be served.

The suspension of your liability for deportation is subject to your compliance with the following condition:

·That you are not convicted, in New Zealand or elsewhere, of any offence committed during the suspension period.

If you comply with this condition, your liability for deportation will be cancelled at the end of the suspension period. Should you fail to comply with this condition, your liability for deportation may be reactivated and a new deportation liability notice would be served. You would have no new right of appeal and would be required to leave New Zealand within 28 days of service of the notice.

[27]               Mr Martell submits that  the true effect of that letter and the law,  is that     Mr Sharma will inevitably be deported by reason of conviction. He says, as the letter does, there will be no new right of appeal and so Mr Sharma’s position is absolute.

[28]               However, while I agree that Mr Sharma’s liability for deportation will be reactivated, as opposed to “may be reactivated”, as stated in the letter,15 that does not mean it is inevitable he will be deported. Mr Sharma will still be able to request a further suspension under s 172, or that step may be taken by the Minister. Ms Reid accepted that appeared to be the position under the legislation.

[29]Section 172 provides:

172     Minister may cancel or suspend liability for deportation

(1)The Minister may at any time, by written notice, cancel a person’s liability for deportation.

(2)The Minister may at any time, by written notice, suspend a residence class visa holder’s liability for deportation—

(a)for a period not exceeding 5 years; and

(b)subject to the visa holder complying with any conditions stated in the notice (which take effect from the date specified in the notice, being a date not earlier than the date of notification).

(2A)The Minister may exercise his or her powers under this section whether or not the person who is liable for deportation—

(a)has given good reason under section 155(2), 156(2)(b), or 157(2) why the person should not be deported; or

(b)has purported to apply to the Minister for any other reason.

15     The letter is an explanatory document, rather than one of strict legal status.

(3)Where a person fails to comply with the conditions stated in a notice under subsection (2),—

(a)the Minister may reactivate the person’s liability for deportation by causing a deportation liability notice to be served on the person that sets out the grounds of the reactivation; and

(b)subject to section 175A(4), the person has 28 days from the date the deportation liability notice  is  served  to  leave  New Zealand.

(4)In the case of a person who has appealed against his or her liability for deportation, the Minister must notify the Tribunal if the person’s liability for deportation is cancelled, suspended, or reactivated under subsection (1), (2), or (3)(a).

(5)The decision to cancel or suspend a person’s liability for deportation is in the absolute discretion of the Minister.

(6)In the case of a person in imprisonment, the period referred to in subsection (2) commences on the date of the person’s release.

(7)The cancellation or suspension of a person’s liability for deportation does not prevent the person from becoming liable for deportation on other grounds.

[30]               Also, while it would seem there is no longer a right of appeal (Mr Sharma would have had to exercise this instead of relying on the letter of 20 April 2016), I expect he would still have a right to seek judicial review of whatever decision the Minister might still make. Ms Reid again accepted that was the likely position.

[31]               Having further considered these matters, Mr Martell agreed that the door was not closed on Mr Sharma.

[32]               I accept that the Judge may have understated the position when he said there is, at its highest, no more than a risk of deportation, but nonetheless, there is little evidence as to  the  approach likely to be taken by Immigration New Zealand to     Mr Sharma’s recent offending and the extent of the risk of deportation. It may be, for example, that Immigration New Zealand will approach the task in a similar way to its approach to the previous offending. In any event, I expect it will take into account the many factors raised in this case by both counsel, and more importantly, possibly other factors not known to, or before me. Ms Reid submits that Immigration New Zealand will make a “careful assessment”. There is no basis to conclude otherwise.

[33]               I consider it is appropriate in a case such as this that Immigration New Zealand evaluate Mr Sharma’s position.

[34]I agree with Brewer J’s comments in George v Police:16

[46] I do not hold that the risk of deportation is a factor that the Court  should never take into account in deciding the s 107 proportionality test. The section does not exclude effect on immigration status from consideration as a consequence. There will be situations where even the consequence of subjecting an offender to the scrutiny of Immigration New Zealand would be undue. But, in the usual run of cases, the Court should not take it upon itself to, in effect, decide immigration status.

[35]               The recidivist aspect of Mr Sharma’s offending must be regarded as significant. Repeated offending — even minor — cannot be justified on the grounds that there would be disproportionate consequence as against each individual offence. The offending must be seen in its wider context. I do not consider it out of all proportion for Mr Sharma to be subject to the statutory immigration process given this context. To the contrary, I consider it would not set a good precedent for a discharge without conviction to be granted in this case.

[36]               I also take into account that discharges without conviction on excess blood alcohol charges are rare.

[37]               For the above reasons, I do not consider the consequences of a conviction are out of all proportion to the gravity of the offence, such that a discharge should be granted.

Conclusion

[38]Mr Sharma’s appeal is dismissed.

---------------------------------------------

Hinton J

16     George v Police [2014] NZHC 1725.