Legal Research
Cases
Simpson v Police

Simpson v Police

Case [2020] NZHC 2255 1 September 2020

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000200

[2020] NZHC 2254

BETWEEN
MICHAEL SIMPSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 August 2020, further evidence filed on 27 August 2020 and further submissions filed on 31 August 2020

Appearances:

Z Reid for Appellant

F Sulikosky for Respondent

Judgment:

1 September 2020

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 1 September 2020 at 12.30 pm
Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:
Z Reid, Auckland
Crown Solicitor, Auckland

SIMPSON v NEW ZEALAND POLICE [2020] NZHC 2254 [1 September 2020]

Introduction

[1] On 13 October 2019, the appellant, Michael Simpson, was stopped by the police on College Hill in Auckland at 2.15pm in the afternoon. He had been speeding. He was given a breath screening test. He was driving with 965 micrograms of alcohol per litre of breath (more than twice the then limit of 400 micrograms of alcohol per litre of breath). Mr Simpson was charged with driving with excess breath alcohol. He entered a guilty plea at the first available opportunity. Mr Simpson sought a discharge without conviction, pursuant to s 106 of the Sentencing Act 2002. That application was declined by Judge Dawson in the District Court at Auckland on 12 May 2020.1 Judge Dawson went on to impose a fine of $500 on Mr Simpson and to disqualify him from driving for eight months.

[2] Mr Simpson appeals Judge Dawson’s decision declining his application for a discharge without conviction. The appeal was advanced on the basis that the Judge erred when undertaking the proportionality assessment required by s 107 of the Sentencing Act, and that he failed to give proper consideration to the consequences of a conviction for Mr Simpson. Mr Simpson also sought to adduce fresh evidence that has become available following the hearing of the matter which, he says, is relevant to the proportionality assessment.

[3] The respondent submits that the Judge’s decision was correct. It argued the Judge did not err in his consideration of the consequences of the conviction on Mr Simpson’s future employment prospects, that Mr Simpson’s further evidence does not advance the issue, and that the consequences of the conviction are not out of all proportion to the gravity of the offence.

The District Court decision

[4] The Judge noted that Mr Simpson had entered a guilty plea to the charge and he recited the relevant facts. He referred to s 106, and then turned to consider the gravity of Mr Simpson’s offending. He noted that there was a risk of harm to the public due to the very high level of alcohol in Mr Simpson’s system. He also noted

1 Police v Simpson [2020] NZDC 8173.

that Mr Simpson was speeding at the time. He acknowledged mitigating factors, including Mr Simpson’s early guilty plea, his remorse and that he is otherwise a person of good character. The Judge nevertheless referred to Supreme Court authority, noting that drink…

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.

Continue reading Simpson v Police

Details

AGLC: Simpson v Police [2020] NZHC 2254
Case: [2020] NZHC 2255
Decision Date: 1 September 2020

CaseChat Overview and Summary

The case of Simpson v Police involves Michael Simpson, who was charged with driving with excess breath alcohol. Simpson appealed the District Court’s decision to deny his application for a discharge without conviction under s 106 of the Sentencing Act 2002. The appeal was based on the argument that the District Court erred in its assessment of the proportionality of the consequences of a conviction on Simpson’s future employment prospects, and that Simpson's additional evidence, which became available post-hearing, should be considered. The legal issues before the Court were whether the District Court erred in its assessment of the proportionality of the consequences of a conviction and whether the fresh evidence should be admitted.

The Court considered the gravity of Simpson's offence, which involved driving with a very high level of alcohol in his system and speeding, and the mitigating factors such as his early guilty plea, remorse, and efforts to rehabilitate himself. The Court found that the District Court did not sufficiently consider the real and appreciable risk that Simpson’s career in the advertising and marketing industry would be significantly impacted by the conviction. The Court admitted the fresh evidence as it was deemed credible and relevant to the proportionality assessment. In balancing the gravity of the offence against the consequences of a conviction, the Court concluded that the consequences for Simpson were out of all proportion to the gravity of the offence, and that granting a discharge without conviction would be the most appropriate outcome.

The appeal was allowed, and Simpson was discharged without conviction, with the fine and disqualification period set aside.

Orders