Singh v Police
[2024] NZHC 3581
•27 November 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-540
[2024] NZHC 3581
BETWEEN LOVEDEEP SINGH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 November 2024 Appearances:
J Wall for Appellant
R Vercoe for Respondent
Judgment:
27 November 2024
JUDGMENT OF BLANCHARD J
This judgment was delivered by me on Wednesday, 27 November 2024 at 4:15 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
Solicitors: Kayes Fletcher Walker Ltd (Office of the Crown Solicitor), Manukau Counsel: J Wall, Auckland
SINGH v POLICE [2024] NZHC 3581 [27 November 2024]
[1] Yesterday I issued a results judgment dismissing this appeal with reasons to follow.1 These are my reasons.
[2] Mr Singh appeals against a decision of Judge G T Winter dated 2 September 2024 refusing an application for discharge without conviction under s 106 of the Sentencing Act 2002.2 The application was in respect of a charge of driving with excess breath alcohol,3 to which Mr Singh pleaded guilty. Mr Singh was convicted and ordered to pay a fine of $500, to pay court costs of $143, and disqualified from driving for six months.
[3] The basis for the application was that the recording of a conviction would affect Mr Singh’s business operating liquor stores, specifically that it would impact on his ability to renew his manager’s certificate under the Sale and Supply of Alcohol Act 2012.
The offending
[4] Mr Singh was stopped at a routine checkpoint on the evening of 22 December 2023. He co-operated with police and returned a breath alcohol reading of 488 micrograms of alcohol per litre of breath. A guilty plea was entered at the first opportunity.
Mr Singh’s business
[5] Mr Singh is the owner or part owner of five liquor stores around New Zealand. Approximately 20 people are employed at the stores. Each of the stores must at all times be managed by a person with a manager’s certificate under the Sale and Supply of Alcohol Act. Accordingly, a number of people working in the business, including Mr Singh, have manager’s certificates.
[6] Mr Singh and two of his employees, Bhupinder Singh and Davinder Singh, are in the process of establishing a new liquor store in Christchurch. Like Mr Singh, they
1 Singh v Police [2024] NZHC 3555.
2 Police v Singh [2024] NZDC 21122.
3 Land Transport Act 1998, s 56(1); maximum penalty three months’ imprisonment or fine of $4,500 and a minimum six months’ disqualification.
have manager’s certificates. Each liquor store must have its own off-licence, so the new business will need to apply for an off-licence under the Sale and Supply of Alcohol Act.
Legal principles for discharge without conviction
[7] The Court must not grant a discharge without conviction unless it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.4 This requires consideration of three factors:5
(a)the gravity of the offence;
(b)the direct and indirect consequences of a conviction; and
(c)whether those consequences are out of all proportion to the gravity of the offence.
[8] The Court of Appeal in Z (CA447/2012) v R held that when considering the gravity of the offence, the court should consider all aggravating and mitigating factors relating to the offending and the offender.6
[9] If the court determines that the consequences of a conviction are out of all proportion to the gravity of the offence, it must still consider whether it should exercise its residual discretion to grant a discharge, although it will be a rare case where a court will refuse to grant a discharge in such circumstances.7
Decision under appeal
[10]The Judge applied the three-step approach set out by the Court of Appeal in
Z (CA447/2012) v R.8
4 Sentencing Act 2002, s 107.
5 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].
6 At [27].
7 At [27] citing Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13].
8 Police v Singh, above n 2, at [3].
[11] In relation to the gravity of the offence, the Judge was influenced by LJP v Police.9 In that decision Whata J set out the underlying policy concerns in respect of drink driving offences.10 In view of those concerns, the Judge considered that the offending should be treated “seriously”.11 However, the Judge also took into account the fact that Mr Singh’s breath alcohol reading was “low,” Mr Singh had a “mature attitude to the provision of alcohol in society”, and he had successfully participated in alcohol counselling.12 Taking everything into account, the Judge concluded that the gravity of Mr Singh’s offending was “in the upper end of low into moderate, as opposed to seriously grave offending”.13
[12] Next, the Judge turned to the consequences of a conviction for Mr Singh. The Judge referred to the impact that a conviction could have on the renewal of Mr Singh’s manager’s certificate. He had regard to an affidavit from an expert on liquor licensing, John Young. Mr Singh’s manager’s certificate is up for renewal. Based on Mr Young’s evidence, the Judge concluded that a consequence of a conviction was that Mr Singh would not be able to renew his manager’s certificate for “an indeterminate time”.14 However, the Judge also noted that, even if Mr Singh was discharged, the police would still have the right to apply for suspension or cancellation of his manager’s certificate under s 285 of the Sale and Supply of Alcohol Act.15
[13] Finally, the Judge considered whether the consequence was out of all proportion to the gravity of the offence. He concluded that it was not. He noted that the offending was at the “very lower end of the scale” of this kind of offending as Mr Singh’s breath alcohol result was “modest”.16 However, because of the policy considerations referred to by Whata J in LJP v Police, it could not be said that the consequence was out of all proportion to the gravity of the offence.17
9 At [5] citing LJP v Police [2012] NZHC 1840.
10 LJP v Police, above n 9, at [84]–[85].
11 Police v Singh, above n 2, at [7].
12 At [7]–[8].
13 At [10].
14 At [16].
15 At [15].
16 At [17].
17 At [17].
Approach to appeal
[14] A decision in relation to a s 106 application involves a judicial assessment, not exercise of a discretion. Accordingly, a decision in relation to s 106 is subject to appeal on normal appellate principles.18
Further evidence on appeal
[15] Mr Singh seeks to rely on a further affidavit he has sworn since the hearing in the District Court. He also seeks to rely on an affidavit sworn by Bhupinder. The affidavits relate to the new business opportunity in Christchurch.
[16] Further evidence will be allowed on appeal if it is fresh, credible, and cogent.19 The police accept that the evidence is fresh. There is nothing to suggest it is not credible. However, the cogency of the evidence is questioned. It is submitted that it is unlikely to have altered the Judge’s assessment of the application.
[17] Despite challenging the cogency of the further evidence, the police’s submissions rely on parts of the evidence. In particular, the police place reliance on documents that are exhibited to Mr Singh’s further affidavit. These documents, which I discuss below, are clearly relevant to the appeal.
[18]In the circumstances, I grant the application to adduce further evidence.
Grounds of appeal
[19]Mr Singh advances three grounds of appeal:
(a)the Judge incorrectly assessed the gravity of the offending by applying disproportionate weight to public policy considerations;
(b)the Judge incorrectly assessed the severity of the consequences of the conviction; and
18 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].
19 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
(c)the Judge failed to properly balance the gravity of the offending against the consequences of a conviction in the circumstances.
Gravity of the offending
[20] Mr Wall argues that the Judge’s reliance on LJP v Police caused him to fail to correctly assess the gravity of the offending. Specifically, he submits that the Judge’s reliance on the policy considerations referred to by Whata J caused him to treat the offending as more serious than it in fact was.
[21] However, I see no error here. The Court of Appeal has said that drink driving is a “moderately serious offence when seen by reference to its potential consequences and to the pervasiveness of alcohol abuse in our society”.20 The Supreme Court has also observed that this type of offending is “very serious offending”.21 In the circumstances, despite Mr Singh’s low breath alcohol reading and his mitigating personal circumstances, the Judge’s conclusion regarding the gravity of the offending was justified.
Consequences of a conviction
[22] Mr Wall submits that a consequence of a conviction will be that Mr Singh will not be able to renew his manager’s certificate for two years. As I have said, the Judge accepted that a consequence of a conviction would be that Mr Singh would not be able to renew for “an indeterminate time”.22 In fact, the evidence of Mr Young suggests that, in a case at the very low end of the scale like this one, the period of time will be two years.23
[23] Mr Wall’s submission focusses on the effect of a conviction. However, I agree with Ms Vercoe that the two-year standdown period is actually a consequence of the offending, rather than a consequence of a conviction. This is because, as the Court of Appeal said in the recent decision of B v R, the licensing authority:24
20 Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344 at [19].
21 New Zealand Law Society v Stanley [2020] NZSC 83, [2020] 1 NZLR 50 at [102]. See also Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].
22 Police v Singh, above n 2, at [16].
23 See also Ahmed v Police [2022] NZHC 769 at [26] and [28].
24 B v R [2024] NZCA 539 at [58].
…looks behind a discharge without conviction to assess the factual context of the offending and its effect on suitability, in order to establish whether it warrants cancellation or suspension of the relevant licence or certificate.
[24] Mr Wall submitted that, if I were to grant the application, the offending would not come to the attention of the licensing authority, but this is not the case.
[25] If I were to grant the application, Mr Singh would not have a conviction to disclose when he applies to renew his manager’s certificate. However, it does not follow that the offending would not come to light. As the Judge noted, the police could apply for an order cancelling or suspending Mr Singh’s manager’s certificate under s 285 of the Sale and Supply of Alcohol Act. This would bring the offending to the attention of the licensing authority. Further, as the “Alcohol licensing guidelines” attached to Mr Singh’s further affidavit show, when Mr Singh applies to renew his manager’s certificate, the police would be given the opportunity to provide a report on the application and to oppose it.
[26] Mr Wall submitted that there is no guarantee that the police would in fact bring the offending to the attention of the licensing authority or oppose the application. However, I think I can infer from the fact that the police are opposing Mr Singh receiving a discharge without conviction that that is incorrect.
[27] As I have explained, the new liquor store in Christchurch will need to have its own off-licence. Mr Singh’s further affidavit attaches a copy of the application form that will be used to apply for this off-licence. The application form requires that any “[c]onvictions of Company Directors, Partners, or individuals” must be disclosed. It is intended that the business will be operated through a company. Mr Singh understandably wishes to be a director of the company. Accordingly, unless I were to grant the application, a conviction would have to be disclosed in the application. Mr Singh considers that this would reduce the chances of the application being successful.
[28] However, again I do not think it is correct that, if I were to grant the application, the offending would not come to the attention of the licensing authority. As Ms Vercoe points out, the off-licence application form makes it clear that the application will be
provided to the police for their input. Accordingly, as with the application to renew Mr Singh’s manager’s certificate, even if Mr Singh did not have a conviction to disclose, the offending would come to the attention of the licensing authority. Thus, I do not think it is correct that a discharge without conviction would improve the chances of the application by the new business being successful.
[29] For the above reasons, my conclusion is that the matters raised by Mr Singh are consequences of the offending, not consequences of the conviction.
Proportionality assessment
[30] The argument here is the same or very similar to the one made in relation to the first ground of appeal. It is submitted that the Judge’s reliance on what Whata J said in LJP v Police caused him to fail to correctly carry out the proportionality assessment required. However, for the reasons I have given above, I do not consider that the reliance on LJP v Police was wrong or that the Judge made any error here.
[31] In any case, even if I were wrong that the Judge’s reliance on LJP v Police was justified, the appeal would still not succeed because of my conclusion that the matters raised by Mr Singh as consequences of the conviction are in fact consequences of the offending.
Result
[32]The appeal is dismissed.
Blanchard J
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