Simmonds v Police

[2014] NZHC 2488

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000145 [2014] NZHC 2488

BETWEEN

KAREN LEE SIMMONDS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	6 October 2014
Counsel:	R K Treloar for the Appellant S R Jacobs for the Respondent
Judgment:	10 October 2014

JUDGMENT OF DUFFY J

[Re Appeal Against Refusal to Grant Discharge Without Conviction]

This judgment was delivered by Justice Duffy on 10 October 2014 at 3.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:    Ministry of Justice (Public Defence Service), Manukau, Auckland

Meredith Connell, Auckland

SIMMONDS v POLICE [2014] NZHC 2488 [10 October 2014]

[1]      The appellant was convicted with driving with excess blood alcohol under s 56(2) of the Land Transport Act 1998.   The maximum penalty is three months’ imprisonment, or a fine of $4,500 and disqualification for six months or more.  The appellant appeals against the District Court decision not to grant a discharge without conviction.

Background facts

[2]      At  8.20  pm  on  Friday,  1  November  2013,  the  appellant  was  driving  in Papakura when the vehicle was stopped by police.  The appellant exhibited signs of recent alcohol intake.   A blood sample was taken, containing 115 milligrams of alcohol per 100 millilitres of blood.  The limit is 80 milligrams of alcohol per 100 millilitres of blood.

[3]      The appellant is 43 years of age.  She is the mother and custodial parent of a seven year old boy.

District Court decision

[4]      The appellant was sentenced on 23 May 2014 by Judge Harvey.  The Judge referred to the appellant’s prior conviction for drink driving in 2010 where her breath alcohol level was 944 micrograms per litre of breath.   On that occasion, she was fined and disqualified for six months.

[5]      In terms of gravity of the offending, the Judge said that the appellant was caught drink driving and that the tests proved positive. There were no aggravating or mitigating factors in relation to the circumstances of the offending.  In regards to the consequences of a conviction, the Judge referred to the impact that a conviction would have on the appellant’s family and work responsibilities, but opined that those consequences are no different from what any other person  would suffer from a conviction.     Accordingly,  the  Judge  concluded  that  the  consequences  of  the conviction did not disproportionally outweigh the gravity of the offence.

[6]     The Judge expressed another concern with granting discharges without conviction for drink driving offences.  His concern was related to the increase in the maximum penalty for third of subsequence offences and that if the appellant was discharged  on  a second  offence,  the true nature of the offending would  not  be apparent if the appellant offends again.

[7]      The  Judge  then  turned  to  s  94  of  the  Land  Transport Act  and  whether disqualification should be substituted for a community-based sentence.  The Judge noted that the appellant’s circumstances were not unique and that the effects on her of a further disqualification were no different from any other person that…