Snellex v Police
[2017] NZHC 1792
•31 July 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2017-404-178 [2017] NZHC 1792
BETWEEN SCOTT SNELLEX
Appellant
AND
NEW ZEALAND POLICE Defendant
Hearing: 31 July 2017 Appearances:
S Blake for the Appellant
R M Gibbs for the CrownJudgment:
31 July 2017
ORAL JUDGMENT OF MUIR J
Counsel/Solicitors:
S Blake, Barrister, Mission Bay
R M Gibbs, Kayes, Fletcher Walker, Manukau
SNELLEX v NEW ZEALAND POLICE [2017] NZHC 1792 [31 July 2017]
Introduction
[1] Scott Snellex pleaded guilty to driving with excess breath alcohol in the Papakura District Court on 12 December 2016. Community Magistrate Lemalu refused his application for a discharge without conviction. He appealed against that decision. On 24 May 2017, Judge Winter in the District Court dismissed the appeal.
[2] Mr Snellex now applies for leave to appeal against the decision of Judge
Winter.1 He is required to do so because it is a second appeal.
Background
Charge and summary of facts
[3] The police say that at about 11.00pm on 1 October 2016, Mr Snellex’s vehicle was observed on Hibiscus Coast Highway swerving within its lane (and in fact crossing the centre line). The police stopped Mr Snellex. He exhibited signs of recent alcohol consumption. He admitted consuming alcohol before driving. Breath test procedures were carried out and Mr Snellex’s breath alcohol was found to
contain 652 micrograms of alcohol per litre of breath.2 In explanation he said that he
had had a few beers at work before heading home. He now says that he had had eight beers over a five hour period.
Personal circumstances
[4] Mr Snellex is 24 years old. He is a young helicopter pilot. He has no previous convictions. He has provided several reference letters, all of which attest to his good character and passion for his career in aviation. I accept all such advices as accurately describing this young man and his prospects.
[5] He states that he is highly remorseful and very much regrets his decision to drive that night. He has shown the maturity and character to acknowledge his
1 Criminal Procedure Act 2011 ss 237 and 253.
2 If over 400 micrograms of alcohol per litre of breath, it is an offence. If between 250 and 400 micrograms of alcohol per litre of breath, it is an infringement offence. See Land Transport Act, s 56.
offending and to plead guilty at the earliest available opportunity. He appears to be a young man of very considerable ability, commitment, ambition and resolve.
[6] On the recommendation of his able counsel Mr Blake he was referred to Recovery Resources, an agency offering drug and alcohol assessment and diagnosis. He took a number of tests, including an intensive clinical interview, and was assessed as having no substance dependence or substance abuse disorders. The report states that Mr Snellex’s pattern of alcohol use does not constitute an unacceptable risk in respect of road or air safety.
[7] This was aberrant behaviour by an otherwise good citizen and of good prospects. How the Court is to deal with such a situation involves difficult issues of judgment.
Community Magistrate’s decision
[8] On 12 December 2016, Community Magistrate Lemalu declined Mr Snellex’s application to be discharged without conviction under s 106 of the Sentencing Act 2002.3
[9] The Community Magistrate viewed Mr Snellex’s offending as moderately serious, observing that there was a public safety concern and his driving was impaired to the extent it was noticed by police. He did however point out that no- one had been injured and that Mr Snellex was, as all judicial officers concerned with this case have remarked, otherwise of good character.
[10] As for the consequences of a conviction, the Community Magistrate accepted that a conviction would create some challenges for his employment, but considered that they were not out of all proportion to the gravity of the offending. It was necessary, he said, that Mr Snellex be held accountable for his actions.
[11] Having declined the s 106 application, the Community Magistrate convicted
Mr Snellex of driving with excess breath alcohol and ordered him to pay a fine of
3 Police v Snellex DC Papakura CRI-2016-044-3571, 12 December 2016.
$460 (which incorporated a discount for his early guilty plea). He also ordered him to pay court costs of $130 and disqualified him from driving for six months.
Judge Winter’s decision
[12] On appeal Judge Winter proceeded on the basis that what he was being required to determine was a general appeal against conviction4 and therefore whether a miscarriage of justice had occurred by virtue of a material error on entry of the conviction.
[13] After summarising the parties’ submissions, his Honour set out the now well established methodology for dealing with s 106 applications. The Court must, he said:
(a) identify the gravity of the offending by reference to the facts of the particular case;
(b) identify the direct and indirect consequences of the offending; and
(c) determine whether the consequences of a conviction would be out of all proportion to the gravity of the offending.
[14] In doing so, the Court was, he said, required to have regard to the wider purposes and principles of the Sentencing Act 2002.
[15] Starting with the gravity of the offending, Judge Winter cited from Whata J’s decision in LJP v Police where his Honour observed that the seriousness of the offending is not assessed only by reference to penalty:5
… there are significant public policy reasons for taking a firm line in relation
to driving while intoxicated.
[16] Judge Winter then rejected defence counsel’s submission that the relevant driving and level of alcohol in Mr Snellex’s breath did not raise road safety concerns.
4 Snellex v Police [2017] NZDC 10764.
5 LJP v Police [2012] NZHC 1840 at [84].
He noted Mr Snellex was 250 micrograms over the 400 microgram limit and over twice the limit for an infringement offence. He was swerving in his lane and crossed the centre line. The Judge concluded the Community Magistrate correctly found the offending was moderately serious.
[17] The Judge next turned to the consequences of the offending. He referred to defence counsel’s submissions that Mr Snellex held a commercial pilot’s license and that if he was to be convicted of drink driving, it would be extremely difficult for him to obtain employment. However, the Judge also noted that Mr Snellex had advised the Civil Aviation Authority (CAA) of the charge and had been suspended from flying for ten days, but that his suspension had not been extended beyond that date. He noted that he continued to fly and accrue flight experience as at the date of the appeal and that his pilot’s license had not been cancelled.
[18] The Judge distinguished the case from LJP v Police, where the defendant held a senior position as manager of the Helicopter and Agricultural Unit of the CAA itself and had furnished opinion evidence of the impact of an excess breath alcohol conviction on his seniority within that organisation. The Judge noted that no such evidence had been placed before the Court in this case. He noted that there were statements in various letters referring to the possibility of suspension from flying, but that given that he continued to fly, there was insufficient evidence of such outcome occurring.
[19] Defence counsel had also submitted that a conviction would prevent Mr Snellex from working in Canada, a destination to which Mr Snellex had expressed a long term desire to travel. Judge Winter was satisfied that Mr Snellex could apply for ‘rehabilitation’ of his immigration status and that, in the interim, he could continue to accrue his flight hours in New Zealand.
[20] In summary, his Honour accepted that Mr Snellex would likely face limitations and difficulties progressing his chosen career as a result of the conviction but said it would not “obliviate” it altogether. He concluded that the Community Magistrate’s assessment in relation to the consequences of conviction was correct.
[21] As for proportionality, the Judge considered that there was a low risk that Mr Snellex would have his commercial civil aviation career terminated, ratings refused or seniority delayed as a consequence of the conviction. Moreover, a conviction for excess breath alcohol would be relevant to the broad determination the Director of Civil Aviation makes when he decided whether Mr Snellex was a fit and proper person to hold a commercial pilot’s license.
[22] As for the limitations on travel to Canada, the Judge endorsed Whata J’s comments in LJP that limitations on international travel are a proportionate consequence for a conviction for excess breath alcohol offending. He noted that the limitations were temporary, in that rehabilitation was possible after five years.
[23] Finally, the Judge commented that the many cases referred to by defence counsel to support a discharge simply showed that every case had to be assessed on its own merits.
[24] Accordingly the Judge concluded that there had not been a miscarriage of justice in entering a conviction for driving with excess breath alcohol, and dismissed the appeal.
Analysis
Approach to application
[25] The Court of Appeal has held that an appeal against a refusal to discharge a defendant without conviction under s 106 of the Sentencing Act 2002 is properly characterised as an appeal against both conviction and sentence.6
[26] Mr Snellex seeks leave to bring a second appeal. Sections 237 and 253 of the Criminal Procedure Act 2011 govern leave to bring a second appeal against conviction and sentence respectively. Both state that the Court must not give leave for a second appeal unless satisfied that either the appeal involves a matter of general
or public importance, or a miscarriage of justice may have occurred or may occur
6 Ovtcharenko v Police [2017] NZCA 65 at [5]; Jackson v R [2016] NZCA 627, (2016) 28 CRNZ
144 at [8].
unless the appeal is heard. Mr Blake who appears for Mr Snellex relies on the second limb, namely miscarriage of justice.
[27] Under s 106 of the Sentencing Act 2002, the Court has a discretion to discharge a person without conviction. However, that discretion is subject to s 107 of the Sentencing Act:
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.
[28] The three-step approach required by s 107 is well settled and was accurately summarised by the District Court Judge.7
[29] Unless the s 107 test is met, the discretion to discharge without conviction under s 106 cannot be invoked. The Court of Appeal has confirmed that for the purposes of appellate review, the s 107 test is a matter of fact requiring judicial assessment.8 This means it is subject to normal appellate principles, and the appellate court can come to its own view on the merits.9
Gravity of the offence
[30] In assessing the gravity of the offence, the Court of Appeal has indicated that it is appropriate to consider all the aggravating and mitigating factors relating to the offending and to the offender.10
[31] Ms Gibbs for the Crown submits that Judge Winter was correct to assess the offending as moderately serious. I accept that submission. The courts have
7 Rigg v Police [2016] NZHC 3135 at [4]; see also Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8].
8 See Maraj v Police [2016] NZCA 279 at [11]; H (CA680/11) v R [2012] NZCA 198 at [30];
Edwards v R [2015] NZCA 583 at [6].
9 See Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
10 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27]–[28].
frequently commented on how seriously society views drink driving.11 The Supreme
Court has observed:12
Every driver of a motor vehicle on the roads of this country should by now be aware that driving after consuming more than a small amount of alcohol is dangerous, illegal and socially unacceptable.
[32] It was irresponsible of Mr Snellex to drink eight beers after a long day at work, having eaten little, and then to assume his ability to drive home would not be impaired. As I have indicated his breath alcohol level was some 250 micrograms above the 400 microgram limit, and twice the infringement level of 250 micrograms and his driving was sufficiently impaired to draw attention to it by the police. He is fortunate that no other driver happened to be in the opposing lane when he swerved unexpectedly across the centre line.
[33] On the other hand, I accept that this offending was indeed out of character for Mr Snellex. He has no previous convictions and promptly acknowledged responsibility, with an admission to police that he had been drinking and an early guilty plea. He expressed remorse for his actions, which I accept as genuine.
[34] Overall the offending is properly assessed as moderately serious. In any event, Mr Blake does not challenge Judge Winter’s assessment of the gravity of the offending, in my view responsibly so.
Consequences of conviction
[35] The second step is an assessment of the consequences of a conviction for Mr Snellex. This includes an analysis of the nature and seriousness of the consequences, and the degree of likelihood of those consequences occurring.13 As the Court of Appeal has noted, the “higher the likelihood and the more serious the consequences,
the more likely it is that the statutory (disproportionality) test can be satisfied”.14
11 See Franks v Police [2013] NZHC 3556 at [13]; Simmonds v Police [2014] NZHC 2488 at [25]–
[26].
12 Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].
13 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [82]; Iosefa v New Zealand Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [35].
14 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [82]; Iosefa v New Zealand Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [35].
[36] As to the likelihood of consequences occurring:
... it is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient if the Court is satisfied there is a real and appreciable risk that such consequences would occur.15
[37] Mr Blake focuses on the following consequences of conviction:
(a) the general consequences of embarrassment, loss or pride and self- esteem;16 and,
(b)more significantly, circumstances that uniquely affect Mr Snellex, namely:
(i) difficulty in obtaining employment, accruing the necessary
1000 flying hours to advance his career, and in consequence of both factors, servicing his student loan of $180,000; and
(ii) barriers to working in Canada.
[38] Mr Blake submits that the Judge made an error in considering that the primary basis of the application for discharge without conviction was the risk that the CAA would cancel Mr Snellex’s commercial pilot’s license. Mr Snellex accepted from the outset that he could not hide this incident from the CAA and has been open in his reporting to it. The real basis for the application, says Mr Blake, is that a conviction would raise a real and appreciable risk in terms of Mr Snellex’s ability to obtain/retain employment and to advance his career in the aviation industry, without which he would not be able to service what is now a substantial student debt.
[39] In the District Court Mr Snellex filed an affidavit in which he noted the difficulties he would face in forging a career in the aviation industry with a
15 Iosefa v New Zealand Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34], cited with approval in Maraj vPolice [2016] NZCA 279 at [10].
16 He does not focus on these general consequences in his submissions, and I consider they should carry very little weight.
conviction for driving with excess breath alcohol. He attached letters indicating that a conviction of this type places his career in jeopardy.
[40] In particular, Ms Rachel Button, a helicopter pilot with Volcanic Air, stated:
Scott has after serious dedication and commitment, got his first flying role, which is incredibly hard to achieve in the aviation industry. If he is convicted, then this could largely affect his current job and future career opportunities here in New Zealand and overseas.
[41] Flight instructor Nicole Harris indicated that this offence “would have a considerable effect on Scott’s career progression” and John Punshon, General Manager of North Shore Aero Club, made the following comments:
With any change to a Pilot’s Fit and Proper Status (including criminal convictions) the New Zealand Civil Aviation Authority (CAA) must be informed. This potentially risks the loss of the Pilot’s Licence if he is deemed no longer a Fit and Proper Person.
Furthermore, the Pilot’s Medical Certificate will be reassessed and if a red flag is raised, the Medical Certificate may be revoked. Without a Medical Certificate a Pilot cannot fly. If he cannot fly, he cannot do his job as an instructor. His employer can and likely will dismiss Scott to find another pilot to take over his flying role.
The aviation industry is a very small community not only in New Zealand but overseas as well. Because of this it is a very demanding industry to be in, with massive competition for any job advertised and each pilot must have extra skills in order to get ahead of the pack. If Scott was to have a criminal record due to his conviction, this would put him at a significant disadvantage, potentially rendering him unemployable ... a criminal conviction would jeopardise Scott’s flying career in an industry which is highly competitive.
[42] Roy Crane of North Shore Helicopter Training and Flights, Mr Snellex’s
former employer, stated in his letter of 31 January 2017:
If Scott is disqualified from driving, not only will he not be able to get work, the CAA will more than likely withdraw his medical and therefore he will not be able to fly.
If he cannot fly, then unfortunately I will have to find a replacement instructor and Scott will [lose] his position with our company.
... If convicted, it will have a very negative impact on his career where the
Civil Aviation Authority may suspend his pilot’s license.
[43] Like the District Court Judge, I am hesitant about accepting the evidence of Ms Button and Ms Harris, neither of whom provide much in the way of reasoning for their conclusory statements. While they work in the aviation industry, they do not appear to be in the position of employers able authoritatively to comment on such matters.
[44] I give more weight to the letters provided by Mr Punshon and Mr Crane, both of whom are experienced industry professionals and employers. However, both refer to Mr Snellex’s “ability” to fly, namely whether or not he retains his pilot’s license, as the most significant factor in terms of his future employment. I accept that as logical. However, the reality is that the CAA chose simply to stand Mr Snellex down for a short period but not to withdraw his license on fit and proper grounds. In that respect it made what I regarded to be a mature assessment of his overall personal qualities in the context of the offending.
[45] I accept Mr Punshon also comments on the general difficulty that Mr Snellex will face in obtaining employment in the future, even with a pilot’s license. He says, and I accept, that the aviation industry is highly competitive and that conviction would place Mr Snellex at a significant disadvantage in terms of future employment prospects.
[46] Judge Winter appears to have likewise accepted this evidence. He recognised that Mr Snellex faced “limitations and difficulties with pursuing advancement as a helicopter pilot”, and that there was a “significant risk of these adverse consequences following a conviction”.17 However, he noted that “these limitations and difficulties may retard but not obliviate his career”.18 In my view these conclusions were correct. While the evidence established that there was a real and appreciable risk of
difficulties in advancing his career, it was not a case where a conviction meant an
“absolute bar” to entry into the profession of his choice, or even a temporary bar.19
17 At [36].
18 At [36].
19 In the words of Roberts v Police (1989) 5 CRNZ 34 (HC) at 36, cited in Maraj v Police [2016] NZCA 279 at [28].
[47] For the purposes of this appeal Mr Snellex has provided a further affidavit. In that he says that:
As a result of being convicted for driving with excess breath alcohol … my employment with North Shore Helicopter Training and Flights came to an end.
[48] He says that since then he has been unable to obtain long-term employment within the aviation industry. Ms Gibbs points out and I agree that this advice appears on the face of it inconsistent with the correspondence earlier received from Mr Crane in which he said that only in the event that Mr Snellex was unable to fly would he have to find a replacement instructor and Mr Snellex therefore lose his position with the company.
[49] In these circumstances, what I would have expected would have been detailed evidence from Mr Snellex as to the circumstances of his termination, including what was said at any termination meeting, whether he was supplied with a letter recording the termination and whether he had received any warnings in advance of so doing.
[50] Mr Blake says, and I accept, that in this context it may be too much to expect an affidavit from the employer for fear that this might invite employment law consequences. However, I regard Mr Snellex’s bare statement in his affidavit of 12
July 2017 as an inadequate basis for concluding that his employment was terminated on account of his conviction and for the submitted inference that future employment will be impossible.
[51] As to employment in Canada, Mr Blake submits that the five-year stand down period for rehabilitation of Mr Snellex’s immigration status is more than just an “inconvenience”, as Judge Winter described it. He submits that such a period can have a disproportionate effect on a young person who is about to embark on their
career. He relies on two related cases of R v M and R v Q.20
20 R v M [2014] NZHC 1848; R v Q [2014] NZHC 550. Both related to charges of assault with intent to injure following a school fight. The defendants were 15 and 17 respectively and their youth appears to have been a significant factor in the result. I do not consider the cases particularly apposite.
[52] He further exhibits an email from Robert Thorne, Operations Manager of a Canadian helicopter company. Mr Thorne indicates that it would be difficult for a candidate with a criminal record to obtain a work permit and to obtain clearance to work on contracts with some federal agencies requiring a security clearance. He also notes that depending on the infraction, it may be difficult to obtain a Canadian pilot’s license. However, as Ms Gibbs points out, Mr Thorne does not say that there would be any absolute bar to Mr Snellex obtaining work in Canada or a Canadian pilot’s license and it is clear from his statement that he was not aware of the specifics of Mr Snellex’s offending. I do not consider his brief email particularly persuasive.
[53] Moreover, as Judge Winter noted (and I accept) the evidence fell short of demonstrating a clear plan or present ability to move to Canada. The circumstances therefore bear some similarity to Maraj v Police,21 where it was noted that there was no such plan to move to Canada in the short term.
[54] I therefore conclude that the evidence relating to possible employment difficulties in Canada is not in the overall circumstances of this case decisive.
Proportionality assessment
[55] Having assessed the gravity of the offending and the consequences of conviction, the final step is to weigh one against the other and determine whether the consequences of conviction are “out of all proportion” to the gravity of the offending.
[56] Mr Blake points out that Judge Winter accepted that Mr Snellex had “established a prima facie case of risk namely a significant risk of those adverse consequences following conviction”. In those circumstances, and taking into account that the offending was entirely out of character for Mr Snellex, he submits a conviction was out of all proportion to the gravity of the offending. He further submits that Judge Winter did not provide any analysis as to why a conviction was nevertheless warranted despite there being a “significant risk” of adverse
consequences.
21 Maraj v Police [2016] NZCA 279 at [34].
[57] Mr Blake cites a number of what he says are comparable cases and says that Judge Winter failed to take into account s 8(e) of the Sentencing Act, which requires the Court to consider the “general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances”.
[58] He further submits that the Judge failed to take into account that the disproportionality test under s 107 of the Act requires consideration of all the relevant circumstances of the offence, the offending and the offender, and the wider interests of the community, including the factors to be taken into account under ss 7,
8, 9 and 10 of the Sentencing Act.22
[59] I do not accept the submission that Judge Winter failed to take into account all the circumstances of the offending, including mitigating factors personal to Mr Snellex. The Judge appropriately referred to these matters in determining the gravity of the offence, and it influenced his assessment that the offending was “moderately serious”. He also gave careful consideration to the mitigating factors recorded earlier in this judgment.
[60] As for the submission about maintaining consistency with comparable cases, I accept, of course, that it is necessary to have regard to similar case law and I will refer now to the authorities on which Mr Blake places particular emphasis.23
Ultimately, however, every application for discharge without conviction is a balancing exercise that must turn on its own unique combination of facts and policy considerations.
[61] In Amstad v Police,24 Whata J granted a discharge without conviction on multiple charges, including unlawfully taking a motor vehicle; driving with excess breath alcohol; failing to stop for police; and dangerous driving. His Honour
commented:25
22 Citing R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [41].
23 Mr Blake also attaches numerous District Court decisions, which are of course not binding on this Court. I have read and considered them, but ultimately do not find them particularly persuasive given that the circumstances in each one vary from the present case.
24 Amstad v Police HC Auckland CRI-2011-404-161, 6 September 2011.
25 At [24] and [26].
This is not simply about lost work opportunity. This is about setting the pathway forward for a young man who demonstrably aspires to joining the armed forces. Conviction is an extremely severe consequence for the appellant ...
The lifelong consequences of conviction for the appellant and his family and the community would be out of all proportion to the severity of the foolish yet relatively brief offending by the appellant.
[62] I note however that Mr Amstad was 19 at the time of the offending, and the convictions would have barred him from joining the armed forces. The consequences were therefore greater than the present case: while Mr Snellex may face serious difficulties in obtaining employment, he is not barred from a career in the aviation industry. On the other hand, Mr Amstad faced a total of four charges, making his offending more serious than the present case.
[63] In Papuni v Police,26 Duffy J granted a discharge without conviction to Mr Papuni, who was charged with driving with excess blood alcohol. Her Honour was influenced by the fact that a conviction would cause him to lose his employment at Chipmunks, a childcare franchise, and would have a detrimental impact on his ability to travel overseas to participate in international dance competitions and events. Duffy J noted that he had worked very hard to pursue his dancing career and had considerable talent. He had no previous convictions and had used his talents to help others. Her Honour concluded:
[37] I am satisfied that the offending was out of character for Mr Papuni. He made a serious error of judgement, but it is understandable how he found himself in the situation that led to the conviction. This is not a case where a young man has gone out partying all night, drank alcohol to excess and then been found to be driving with an excess blood alcohol. It is the combination of working long hours, not eating anything and then having a quiet after- work drink on an empty stomach that has led to him being over the permitted limit. His offending does not involve a flagrant intentional breach of the law against drink driving. I am sure that he has learned from this mistake and is most unlikely to repeat it.
[64] Mr Blake submits that the present case is comparable: Mr Snellex finished work as a flight instructor at 5.00pm. He was invited by senior pilots to socialise at the next door Aero Club. Given his relatively junior status, this was regarded as not
an invitation he should accept. He had not eaten much during the day on account of
26 Papuni v Police [2013] NZHC 1958.
his flying commitments. I accept also that there are parallels between Mr Snellex and Mr Papuni, in that both are first-time offenders who are unlikely to repeat their mistake.
[65] In Boonen v Police, Mr Boonen was aged 17 at the time of the offending and had hoped to work overseas as a rugby coach. Evidence from recruitment experts indicated that a criminal conviction would seriously disadvantage his employment prospects. Wild J granted a discharge without conviction, observing:27
The huge and lasting impact of a conviction in terms of overseas travel, but particularly job prospects, has persuaded a number of High Court Judges to allow appeals such as this. That is, appeals by basically decent young people with bright prospects who have committed aberrant offences blotting an otherwise clean copybook.
[66] Mr Blake also refers to Brown v R,28 where Mr Brown (a taxi driver) had committed a minor assault on a passenger whom he thought was escaping without paying his fare. The Court of Appeal held:
[31] Even though this offending is very near the bottom of the scale of gravity for common assault, it appears unlikely that this would be taken into account by prospective employers. Rather, the conviction is likely to present a barrier to the appellant's employment. Given his stage of life and the fact that he will have completed a further degree with a view to employment in that sector, this would be an extremely severe consequence and one which, in our view, would be out of all proportion to the gravity of the offence that he has committed.
[67] Mr Blake submits that here, the conviction will also present a significant
barrier to Mr Snellex’s career.
[68] For her part Ms Gibbs cites a number of cases in which discharges without conviction have not been granted.29 Rather than engage in a detailed comparison of the facts of those cases with the present, I turn to the factor that I have ultimately found to be the most persuasive: I accept Ms Gibbs’ submission that it is in the public interest to ensure that employers in the aviation industry, both in New Zealand and overseas, have all the information they need to make fully informed decisions,
given that public safety is at stake. Ms Gibbs cites Lawrence v Police, where
27 Bowen v Police HC Wellington CRI-2003-485-41, 14 October 2003.
28 Brown v R [2012] NZCA 197.
29 See Linterman v Police [2013] NZHC 891; Maraj v Police [2016] NZCA 279.
Thomas J commented that it is “not for the Courts to hide potentially relevant information from prospective employers”.30 Similarly, Wild J said in R v Martin:31
I subscribe to what is now a solid body of authority that Courts should not conceal (by discharging without conviction) criminal wrongdoing on the ground that it might affect future employment prospects.
[69] Likewise in Ramage v Police Gendall J stated that:32
[25] I agree with Wild J that the Court should be cautious when called upon to exercise its discretion to discharge without conviction in order to conceal criminal wrongdoings from employers. The same reasoning also applies to border authorities of foreign nations. There are legitimate reasons why employers and border authorities want to know about offending behaviour, and the Court should only seek to deny them access in exceptional circumstances.
[70] While I am reluctant to elevate these comments to an overarching principle, as the courts have in other cases granted discharges without conviction in light of the detrimental impact on the offender’s job prospects,33 I consider that the nature of the aviation industry in particular is one where prospective employers should be fully informed of an applicant’s history. In that sense it is similar to the medical profession and other highly skilled professions where persons are placed in positions of considerable trust and confidence.34 This factor distinguishes the present case, in my view from those like Papuni v Police and Boonen v Police.
[71] The District Court Judge recognised this when he said:35
... his conviction for drinking and driving is of a type that would be relevant to the broad determination to be made by the Director of Civil Aviation as to whether he was a fit and proper person to hold the relevant commercial pilot’s license or grading. That assessment in my view should be properly made by the appropriate institution and not be the subject of speculation by this Court.
[72] Although Mr Blake attempts to divert me from this point by emphasising that
Mr Snellex has made a full disclosure to the Civil Aviation Authority, the entity
30 Lawrence v Police [2016] NZHC 148 at [24].
31 R v Martin HC Whanganui CRI-2003-083-432, 30 April 2004 at [22].
32 Ramage v Police [2017] NZHC 75.
33 See for example Boonen v Police HC Wellington CRI-2003-485-41, 14 October 2003 and the cases cited therein.
34 See comments in Maraj v Police [2016] NZCA 279 at [28].
35 At [41].
charged with deciding whether or not he should hold a pilot’s license, I believe the
Judge’s comments apply equally to prospective employers and not only the Director.
[73] In the final analysis, I consider the Judge was correct to conclude that the consequences of conviction were not out of all proportion to the gravity of the offending. In reaching this conclusion I am particularly influenced by the moderately serious nature of Mr Snellex’s offending, and the fact that prospective employers have a legitimate interest in knowing of his conviction for driving with excess breath alcohol. I also consider that while Mr Snellex faces an appreciable risk of additional difficulties in his chosen career as a result of the conviction there will be no bar as such to his doing so.
Result
[74] This is a finely balanced case. Although I am not ultimately satisfied that a miscarriage of justice may occur unless the appeal is heard and although I therefore refuse leave to appeal, it has not been without considerable reflection on my part, acknowledging as I do the potential consequences for this young man.
[75] I do make the following observations, however, I accept that the events leading up to this conviction appear to have been entirely out of character. Mr Snellex has presented this Court with numerous references attesting to his excellent work ethic and longstanding passion for aviation. It is to be hoped that those considering him for future employment will be able to place, in its necessary and proper context, what was relatively youthful offending by someone who otherwise demonstrates many or all of the qualities necessary to make a worthwhile contribution to the aviation industry. In that respect the approach adopted by the CAA to Mr Snellex’s conviction is, in my view, instructive.
[76] Mr Snellex has paid his penalty to society, or will do so on completion of his mandatory disqualification from driving, and the Court wishes him well for his future, hopeful that prospective employers will likewise recognise his potential and
talents.
Muir J
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