Simpson v Police
[2020] NZHC 2255
•1 September 2020
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 driving is a relatively serious offence, because it puts at risk not only the offender’s life and safety, but also that of other people. He considered that the gravity of Mr Simpson’s offending was at a moderate level.
[5] The Judge next addressed the direct and indirect consequences to Mr Simpson of his conviction. He noted that Mr Simpson was not then working, and that he was looking for employment in the advertising and marketing industry. He referred to the affidavit evidence, noting that it indicated that “it would be difficult for [Mr Simpson] to get a job in that industry with a conviction”. The Judge however stated “it is not an absolute bar to you getting a job. It may impact on your future employment possibilities but it does not necessarily stop you from obtaining a job in your chosen profession”.2 The Judge commented that, while a conviction might adversely affect applications for jobs that Mr Simpson might make, this was a predictable consequence of the offending. He commented that the stigma of the conviction is real, but that it is a common and intended consequence; it is part of the deterrence aspect of discouraging people from drinking and driving.
[6] The Judge concluded that the consequence was not out of proportion to the gravity of the offending, and accordingly declined Mr Simpson’s application for a discharge without conviction.
The appeal
[7] Under ss 229 and 244 of the Criminal Procedure Act 2011, Mr Simpson has a general right of appeal against both his conviction and his sentence.
[8] Mr Simpson’s appeal was brought pursuant to ss 232 and 244 of the Criminal Procedure Act 2011 and it was advanced as an appeal against conviction. Section 232 deals with appeals against conviction. It provides that the first appeal Court must
2 At [7].
allow the appeal if it is satisfied, inter alia, that a miscarriage of justice has occurred for any reason.3
[9] The Court of Appeal has held that an appeal against refusal against s 106 of the Sentencing Act is properly categorised as an appeal against both conviction and sentence.4
[10] As I have noted, Mr Simpson has a right to appeal his sentence, and I treated his appeal as being both against his conviction and sentence. Under s 250(2) of the Criminal Procedure Act, the Court must allow the appeal if it is satisfied that, for any reason, there is an error in the sentence imposed on conviction and that a different sentence should be imposed.
Submissions
[11] Ms Reid, on behalf of Mr Simpson, focused on the consequences to Mr Simpson of having the conviction on his record. She referred to his two affidavits, and to the affidavit of Matthew Jackson, a Human Resources Business Partner. She argued that the Judge erred in concluding that the evidence indicated that “it would be difficult” for Mr Simpson to gain employment and in effect mischaracterised Mr Jackson’s evidence. She pointed out that, on Mr Jackson’s evidence, it will be all but impossible for Mr Simpson to gain future employment in his chosen field and that this is borne out by Mr Simpson’s experiences since Judge Dawson’s decision. She argued that there is a real and appreciable risk that Mr Simpson will not be able to progress in the advertising and marketing industry with the conviction on his record, and that the Judge overstated matters when he suggested that the test was whether Mr Simpson faced an “absolute bar” to gaining employment.
[12] Ms Sulikosky, for the Crown, submitted that the Judge did not err in his consideration of the consequences of the conviction on Mr Simpson’s future employment prospects. She referred to relevant authority, noting that the social stigma that any conviction carries naturally affects a person’s career, and that this
3 Criminal Procedure Act 2011, s 232(2)(c).
4 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222; Jackson v R [2016] NZCA 627 at [12];
Ovtcharenko v Police [2017] NZCA 65 at [5].
consequence must normally yield to an employer’s right to know. She further argued that Mr Simpson’s additional evidence should not be admitted on the basis that it is not cogent. It was her submission that the consequences of the conviction relied on are not out of all proportion to the gravity of the offence.
Analysis
Fresh evidence
[13] The Court can receive further evidence if the interests of justice require it. It must be credible and fresh.5
[14] Initially Mr Simpson filed one additional affidavit only. There were some difficulties with this affidavit. Mr Simpson said that, since being convicted, he has applied for some 30 jobs in the advertising and marketing industry and that he has received interviews for five different positions. However, he has not been offered employment. He did not say however whether he was required to disclose his conviction in all or any of his job applications. Without this information the further evidence did not assist.
[15] I sent out a minute asking Ms Reid to obtain a further affidavit from Mr Simpson clarifying the position. She has done so. Mr Simpson has now explained that he did not use a recruitment agency, because such agencies require proof of a clear criminal record before putting a candidate forward for a position. Rather, he applied for jobs through on-line sites, such as LinkedIn and Seek. He was not required to disclose his conviction on every job application. He did apply for numerous roles in the banking sector. All applications for positions in this sector required him to disclose whether he had a conviction; he did so and he did not receive either responses or interviews for any of those roles.
[16] The proposed evidence is both credible and fresh and it is in the interests of justice that I should receive it. It bears directly on the issue I have to consider. I rule that the fresh evidence is admissible.
5 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273; Bain v R [2007] UKPC 33, [2007] 23 CRNZ
71.
Did the Judge err in declining to discharge Mr Simpson without conviction?
[17]Relevantly, ss 106 and 107 of the Sentencing Act provide as follows:
106 Discharge without conviction
(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2)A discharge under this section is deemed to be an acquittal.
…
107 Guidance for discharge without conviction
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.
[18] The approach to s 107 was set out by the Court of Appeal in Z (CA447/2012) v R.6 The Court must:
(a)consider all aggravating and mitigating factors of the offence and the offender to establish the gravity of the offence;
(b)identify the direct and indirect consequences of the conviction for the offender; and
(c)consider whether those consequences are out of all proportion to the gravity of the offence.
If the Court is satisfied of these various matters it must then go and decide whether to exercise its discretion to the discharge without conviction under s 106.
[19] It is settled law under s 107, that the Court need only be satisfied that there exists a real and appreciable risk that the relevant consequence will happen,7 and that application of the disproportionality test under s 107 requires consideration of all
6 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [8].
7 DC (CA47/2013) v R [2013] NZCA 255 at [43]; R v Taulapapa [2018] NZCA 414 at [45].
relevant circumstances of the offence, the offending and the offender, and the wider interests of the community, including the factors required by the Sentencing Act to be taken into account under ss 7, 8, 9 and 10.8
[20]I consider first the gravity of the offending.
[21] Driving while impaired due to alcohol is inherently dangerous and it can result in serious injury and death. The Supreme Court has observed that, in itself, such offending is “very serious offending”.9 In addition, there were some aggravating factors to the offending in this case. First, Mr Simpson was speeding at the time. Secondly, his level of breath alcohol was extremely high – over two times the then applicable limit and over four times the present limit. There were no mitigating factors to the offending. There were however mitigating factors personal to Mr Simpson. He has been driving for approximately 14 years without any significant incident and he has no previous convictions of any sort. According to his affidavit, which is unchallenged, he attended a work-related cocktail function on the night before he was apprehended by the police. He had arranged to spend the night at his parents’ home, which was across the road from where the function took place, to ensure that he would not be driving anywhere after drinking. He duly went to bed at his parents’ house, before waking up the following afternoon. He felt hungover, but assumed that he would be safe to drive himself home. He had however not eaten for some time. He failed to appreciate the level of his intoxication. Mr Simpson accepts unequivocally that he has no excuse or good reason for driving after consuming excess alcohol. It is noteworthy that he cooperated fully with the police, entered a guilty plea to the charge of drink driving at the earliest opportunity, promptly advised his then employer that he had been charged with driving with excess breath alcohol and was candid with his family and friends about the incident. Since the incident, he has maintained a zero alcohol level at all times when intending to drive and when driving. He has completed the New Zealand Advanced Driver Training Course and he made a charitable donation of $1,000 to Womens’ Refuge. He is extremely remorseful for the danger that he
8 R v Hughes, above n 4 at [41].
9 NZ Law Society v Stanley [2020] NZSC 83 at [72] and [102]; Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].
caused, both to himself and to members of the public. He has assured the Court that he is very unlikely to put himself or members of the public in a similar position again.
[22] Judge Dawson did not articulate all of these various matters, but he concluded that Mr Simpson’s offending was moderately serious. No issue was taken with Judge Dawson’s assessment. Indeed, Ms Reid expressly accepted that the Judge’s assessment was accurate. I agree with the Judge’s assessment. There was no error in this regard.
[23]I now turn to deal with the direct and indirect consequences of the conviction.
[24] The only consequence asserted before me was the effect that the conviction will likely have on Mr Simpson’s ability to obtain a job in the advertising and marketing industry. On the evidence, Mr Simpson is 30 years old. He has approximately a decade’s experience in the advertising and marketing industry, and he has completed tertiary studies in this field. He was employed by an advertising and design company for some six years. He then co-founded an online platform designed to help build and strengthen football communities around the world. From early 2018 until early 2020, he was employed as a client services director by a creative production studio, with a number of significant clients. As noted, when he was charged in October 2019 for the drink driving offence, he promptly advised his then employer. No immediate action was taken but, in February 2020, he was advised that the company was being restructured. He was made redundant in late February 2020, and as a result, has been unemployed since. He is concerned that should the conviction remain on his record, the consequences will be devastating to his future career. He asserts that the advertising and marketing industry is extremely competitive and says that he has been advised by more senior colleagues that a criminal conviction of this nature is likely to halt his career altogether and prevent him from obtaining employment in the industry going forward.
[25] Mr Jackson has filed an affidavit. As noted, he is a Human Resources Business Partner who works in human resources and recruitment industry. His experience involves recruiting candidates for positions in the advertising and marketing industry. He has confirmed that the industry is extremely competitive and that, as a result, it is
common practice for both recruiters and employers to have zero tolerance towards criminal convictions when selecting candidates for interview and potential employment. He said that it has been and remains his practice to cull job applicants by immediately eliminating those with any form of criminal conviction. He then said as follows:
I can say unequivocally that the applicant will be overlooked for employment opportunities within the advertising and marketing industry should he obtain a criminal conviction of this nature on his record.
And further:
… the applicant will be extremely unlikely to progress in the advertising and marketing industry if he obtains a criminal conviction on his record.
[26] The Judge summarised Mr Jackson’s evidence, by saying that it indicated that it “would be difficult” for Mr Simpson to get a job in the advertising and marketing industry with a conviction. With respect, Mr Jackson did not say this. Rather, Mr Jackson said plainly that Mr Simpson will “be overlooked” for employment opportunities and that it is “extremely unlikely” that Mr Simpson will progress in the industry if the conviction remains on his record. I also have the benefit of the further evidence which was not before the Judge. It bears out in large part Mr Jackson’s observations. Mr Simpson did not receive a response let alone an interview from any of the prospective employers to whom he disclosed his conviction. I acknowledge however the point made by Ms Sulikosky – Mr Simpson was not offered a job even when he did not disclose his conviction, and he seems to discount the possibility that he may be less qualified or suitable than other candidates. Nevertheless, on the basis of the evidence which is before me, I am satisfied that there is a real and appreciable risk of Mr Simpson’s future career prospects in his chosen field being frustrated as a result of the entry of the conviction. In my view, the Judge understated this risk and erred in so doing.
[27] I now turn to consider whether this real and appreciable consequence is out of all proportion to the gravity of the offence.
[28] Discharges without conviction are not often granted for drink driving offences. As was noted by Miller J in Linterman v Police,10 there are several reasons for this. First, in the hands of a drunk, a car is a dangerous thing. Secondly, good character and extenuating personal circumstances normally count for little. Drink driving is a pervasive social problem and the legislature has responded with a sentencing policy that emphasises personal and general deterrence. Thirdly, an application 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 the conviction to a prospective employer, who may wonder whether it evidences poor judgment or an undue fondness for drink, as well as to immigration authorities, who may recognise it as evidence of anti-social tendencies.
[29] Miller J suggested that discharges without conviction for the offence of driving with excess breath or blood alcohol should be granted only in “exceptional circumstances”.11 This observation has been somewhat diluted in more recent cases.
[30] Sections 106 and 107 still apply to drink driving convictions. The inherently serious nature of the offence means that the proportionality scale applied at stage 3 of the s 107 inquiry is, to an extent tipped by this level of seriousness. As the Court of Appeal has put it:12
The consequences of a conviction must also therefore be relatively significant before they are out of all proportion to the moderate seriousness of the offence.
[31] While I have accepted that there is a real and appreciable risk that Mr Simpson’s future career in the advertising and marketing industry will be frustrated, the fact remains that any conviction, and in particular a conviction for drink driving, carries social stigma, which can affect an offender’s career. The Courts have held that this consequence must normally yield to the employer’s right to know.13 This consequence can be severe, if prospective employers are unwilling to look behind the
10 Linterman v Police [2013] NZHC 891 at [8]-[9].
11 At [9].
12 Basnyat v Police [2018] NZCA 486 at [19]; and see Ovtcharenko v Police [2016] NZHC 2572.
13 R v Taulapapa [2018] NZCA 414 at [42(a)].
conviction to consider the person’s merits. The Courts generally assume that employers will not be blinded to an applicant’s merits by a conviction.
[32] In the present case, the evidence before me is that the advertising and marketing industry is very competitive and that recruiters will cull out applicants with a conviction, without further inquiry. Further, it is the view of Mr Jackson, as an experienced HR specialist, that Mr Simpson will be overlooked for employment opportunities and that he is extremely unlikely to progress in the advertising and marketing field. This is now borne out at least in part by the further evidence which I have admitted. It is evidence of the attitude of some prospective employers.
[33] I am satisfied on the basis of Mr Jackson’s evidence and the further evidence from Mr Simpson, that potential employers are very likely to exclude Mr Simpson from consideration because of his conviction. Mr Simpson has spent some time in the advertising and marketing industry, and he has undertaken and obtained qualifications in that industry. He is 30 years old, and at a stage in his career where it is not easy to change occupation, or seek employment in some other industry. I have considered the wider interests of the community. While there is an obvious need to condemn drink/driving offending, there is also a community interest in people being able to obtain gainful employment in their chosen field. I have also considered the various principles set out in ss 7-10 inclusive of the Sentencing Act 2002. In my judgment, granting a discharge without conviction is likely to best assist Mr Simpson’s rehabilitation, and is the most appropriate (least restrictive) outcome in the particular circumstances of this case. By a very fine margin, I am satisfied that the consequences of the conviction for Mr Simpson are out of all proportion to the gravity of the offending, notwithstanding that it is moderately serious offending.
[34]I now turn to the exercise of the discretion conferred by s 106.
[35] Mr Simpson has, but for the matter before the Court, an unblemished record. I accept that he is genuinely remorseful and that he has completed endeavours to rehabilitate himself since the incident. I also mindful of the donation he made to Womens Refuge. Insofar as I can gauge, the offending was wholly out of character.
In my judgment it is appropriate to allow the appeal and grant Mr Simpson a discharge without conviction.
[36] The appeal is allowed and the fine and period of disqualification imposed by the Judge are set aside. Mr Simpson is discharged without conviction.
Wylie J
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