Sooula v Police - [2025] NZHC 368

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-663 [2025] NZHC 368

BETWEEN
AMOSA SOOULA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 February 2025

Appearances:

A Vaai for Appellant

R H Vercoe for Respondent

Judgment:

3 March 2025

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 3 March 2025 at 4 pm

Registrar/Deputy Registrar

Date: ...................................

Solicitors: Vaai Law, Auckland
Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau

SOOULA v POLICE [2025] NZHC 368 [3 March 2025]

Introduction

[1] The appellant, Mr Sooula, appeals against a refusal by Judge E M Aitken to discharge him without conviction on one charge of driving with excess breath alcohol.1 Rather, the Judge convicted Mr Sooula of the offence, imposed a fine of $500 and disqualified him from driving for 12 months.

[2] An appeal against a refusal to grant a discharge without conviction proceeds as an appeal against both conviction and sentence.2

[3] Mr Sooula was before the Court on a charge of driving with excess breath alcohol.3

[4] Mr Sooula has two prior convictions for driving with excess breath alcohol. The first is in respect of offending committed in August 2005, and the second in September 2011.

[5] Up until this most recent offending, the effect of the Criminal Records (Clean Slate) Act 2004 was that Mr Sooula was deemed to have no criminal record. However, the effect of the conviction in respect of the August 2023 offending is to reinstate the convictions for the earlier offending.4

[6] The essence of Mr Sooula’s appeal is that, in assessing the consequences of conviction, the Judge placed insufficient weight on the adverse effect of conviction on any future application by Mr Sooula to the New Zealand Law Society (“NZLS”) to be permitted to practise law. Mr Sooula is a law student at the Auckland University of Technology. If all goes well, he will complete his studies in three years’ time. Mr Sooula is concerned that the NZLS will determine he is not a fit and proper person to hold a practising certificate as a result of this conviction, and that would be a consequence out of all proportion to the graving of the offending.

1      Sentencing Act 2002, s 106.
2      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [9].
3      Land Transport Act 1998, ss 56(1) and 56(4); Maximum penalty of 2 years’ imprisonment or a fine of $6,000.
4      Criminal Records (Clean Slate) Act 2004.

Facts

[7] In the early hours of the morning on 12 August 2023, the police stopped Mr Sooula on State Highway 1, for speeding. The officer administered an evidential breath test. Mr Sooula returned a positive result, his reading being 565 micrograms of alcohol per litre of breath.

[8] Mr Sooula was charged, pleaded guilty, and then sought to be discharged without conviction.

[9] In advance of his application to the District Court, Mr Sooula had undertaken 65 hours…

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.

Continue reading Sooula v Police

Details

AGLC: Sooula v Police [2025] NZHC 368
Case: [2025] NZHC 368
Decision Date: 3 March 2025

CaseChat Overview and Summary

Amusa Sooula appeals against the decision of Judge E M Aitken, who refused to discharge him without conviction for a charge of driving with excess breath alcohol. The judge convicted Mr Sooula, imposed a $500 fine, and disqualified him from driving for 12 months. The appeal against the refusal to grant a discharge without conviction proceeds as an appeal against both conviction and sentence. Mr Sooula was charged with driving with excess breath alcohol, having previously been convicted of the same offence in 2005 and 2011. The effect of the conviction in August 2023 was to reinstate the prior convictions. Mr Sooula argues that the judge placed insufficient weight on the adverse effect of conviction on any future application to the New Zealand Law Society to be permitted to practise law. The Court may grant a discharge without conviction if satisfied that the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending. In assessing the gravity of the offending, the judge considered Mr Sooula's breath alcohol level to be at the lower end of the scale but took into account the aggravating factor that he was stopped for speeding. The judge acknowledged that a conviction would likely cause the New Zealand Law Society to consider Mr Sooula’s application in greater detail and that this might delay the issue of the required practising certificate. However, the judge was not persuaded that this consequence would be out of all proportion to the gravity of the offending. Mr Vaai submits that the judge erred in declining the discharge sought. Ms Vercoe opposes the appeal, submitting that Parliament’s intention is that a subsequent offence will reinstate the prior convictions, at least for a period. The New Zealand Law Society may take into account any matters it considers relevant, including prior offending, and the age at which it was committed. The judge held that the consequences of conviction on which Mr Sooula relied do not come close to being out of all proportion to the gravity of the offending, especially for a third offence. The appeal is dismissed.

Orders