Skakun v Police - [2024] NZHC 3914

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2024-425-20

[2024] NZHC 3914

BETWEEN
CHRISTOPHER CHARLES SKAKUN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 December 2024

Appearances:

T J Surrey for Appellant

M B Brownlie for Respondent

Judgment:

18 December 2024

JUDGMENT OF EATON J

(appeal against conviction and sentence)

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

SKAKUN v POLICE [2024] NZHC 3914 [18 December 2024]

Introduction

[1] Christopher Skakun pleaded guilty to a charge of driving with excess breath alcohol.1 On 13 February 2024, Judge C M Doyle declined his application to be discharged without conviction.2 Mr Skakun appeals against that decision.

The offending

[2] The facts are uncomplicated. At about 11.15 pm on 16 June 2023, Mr Skakun was stopped at an alcohol check point. He failed a breath screening test. An evidential breath test confirmed a breath alcohol level of 687 micrograms of alcohol per litre of breath. In explanation, Mr Skakun said he had four beers and a large meal and thought he was okay to drive.

The Judge’s decision

[3] Judge Doyle observed that on 19 June 2020, Mr Skakun had been convicted for driving with excess breath alcohol. On that occasion he was fined $500, ordered to pay court costs and disqualified from driving for a period of six months. The Judge observed that as a second qualifying offence within a five-year period, the offending triggered the alcohol interlock sentencing regime. Consequently, Mr Skakun must, upon disqualification, have a stand down period before he is then required to obtain an alcohol interlock licence, have a device fitted to his car and only drive in accordance with the rules pertaining to the alcohol interlock licence.

[4] The Judge undertook an orthodox s 106 assessment. The overall gravity of the offending was assessed as moderate, having regard to the prior conviction, the early guilty plea, a charitable donation demonstrating remorse and attendance at the Right Track Programme.

[5] The Judge identified the direct and indirect consequences of conviction as primarily turning on Mr Skakun’s immigration status. The Judge referred to evidence from a specialist immigration lawyer confirming that a conviction would potentially

1 Land Transport Act 1998, s 56(1)—maximum penalty of three months’ imprisonment or fine not exceeding $4,500 and mandatory disqualification for a period of six months or more.
2 Police v Skakun [2024] NZDC 2995.

raise difficulties for Mr Skakun in achieving permanent residency, he currently holding a resident’s visa.

[6] Employment consequences were also identified and in particular for Mr Skakun’s manager’s certificate held under the Sale and Supply of Alcohol Act 2012 (SSA).

[7] In reliance of observations made by Mander J in Yuan v Police3 to the effect that it is more appropriate for the relevant authorities to assess and determine immigration issues arising as a consequence of conviction, the Judge concluded that both immigration and…

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.

Keep reading for free

Create a free CaseChat account to read Skakun v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NZHC 3914
Decision Date: 18 December 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Christopher Charles Skakun, the appellant, appealed against the decision of Judge C M Doyle, who had declined his application to be discharged without conviction for the offence of driving with excess breath alcohol. Skakun's appeal was against both the conviction and the sentence imposed. The key issue before the court was whether the direct and indirect consequences of the conviction, particularly in relation to Skakun's immigration status and employment prospects, were out of all proportion to the gravity of the offence. The court assessed the gravity of the offence, taking into account factors such as the early guilty plea, charitable donation, and participation in the Right Track Programme, and determined it to be moderate. The court also considered the real and appreciable risk of deportation and its impact on Skakun's immigration status and employment, particularly his manager's certificate under the Sale and Supply of Alcohol Act 2012.

The court found that the consequences of the conviction, while serious, did not clearly outweigh the gravity of the offence, especially given that this was Skakun's second offence within a short period. The court relied on the principle that immigration consequences are typically matters for the immigration authorities, who have the institutional competence to assess such issues. The court concluded that the risk of deportation, while significant, did not render the consequences disproportionate to the gravity of the offence. Therefore, the appeal was dismissed, and the decision of the District Court was upheld.

Orders