Snellex v Police - [2017] NZHC 1792

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 Crown

Judgment:

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…

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.

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Details

Case: [2017] NZHC 1792
Decision Date: 31 July 2017

CaseChat Overview and Summary

Scott Snellex appeals against the decision of the District Court to dismiss his appeal against the decision of the Papakura District Court not to grant him a discharge without conviction for driving with excess breath alcohol. Snellex argues that the District Court erred in concluding that the consequences of conviction would not be out of all proportion to the gravity of the offence. The Crown contends that the District Court was correct to dismiss the appeal. The Court of Appeal must not grant leave for a second appeal unless it is satisfied that a miscarriage of justice may have occurred unless the appeal is heard. The Court must first consider the gravity of the offence. The Court found that Snellex's offending was moderately serious. Next, the Court must consider the consequences of conviction. The Court found that while Snellex faced a real and appreciable risk of difficulties in his chosen career, there was no bar as such to his doing so. Finally, the Court must weigh the gravity of the offending against the consequences of conviction. The Court found that the consequences of conviction were not out of all proportion to the gravity of the offending. The Court refused leave to appeal.

Orders