Sooula v Police
[2025] NZHC 368
•3 March 2025
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 of community work, a community alcohol and drugs course, and had abstained from alcohol — intended to be a permanent abstinence. These are, of course, highly commendable steps.
Legal principles
[10] The Court may grant a discharge without conviction if satisfied the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending.5
[11] The accepted course is to assess the gravity of the offending having regard to all relevant aggravating and mitigating factors; to identify the direct and indirect consequences of conviction of which there is a real and appreciable risk; and to determine whether those consequences are out of all proportion to the gravity of the offending.6
Judgment under appeal
[12] 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. However, that he was stopped for speeding was an aggravating factor. The Judge also took into account, as
5 Sentencing Act, ss 106 and 107.
6 Z (CA447/2012) v R [2012] NZAR 599, [2013] NZAR 142 at [27]; and DC (CA47/2013) v R
[2013] NZCA 255 at [43].
mitigating factors, Mr Sooula’s early guilty plea, voluntary community work, remorse, (difficult) personal circumstances and a letter attesting to his good character.
[13] The point relevant to this appeal is the Judge’s assessment of whether a conviction would be likely to affect any future application Mr Sooula may make to the NZLS to enable him to practise law. The Judge acknowledged that a conviction would be likely to cause the NZLS 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 consequence would be out of all proportion to the gravity of the offending and was satisfied the NZLS could be relied upon to make a comprehensive assessment of Mr Sooula’s application.
Submissions
[14] Mr Vaai, counsel for Mr Sooula, submits that the Judge erred in declining the discharge sought. That is principally because it will an adverse effect on Mr Sooula’s anticipated future application to the NZLS.
[15] The respondent opposes the appeal. Ms Vercoe, counsel for the respondent, submits that there are a number of reasons why the appeal should be dismissed. These include that, if the Court were to grant a discharge, Mr Sooula would maintain his clean slate and that would subvert Parliament’s intention. Parliament’s intention is that a subsequent offence will reinstate the prior convictions, at least for a period.
[16] Also, in determining whether a person is fit and proper to be admitted as a barrister and solicitor of the High Court, the NZLS may take into account any matters it considers relevant.7 In particular, the NZLS may take into account whether the person is of good character, and any prior offending, and the age at which it was committed. Conviction or not, the NZLS may make such inquiries regarding the applicant as it sees fit. The gist of the respondent’s submission on this point is that, even if the discharge is granted, the NZLS may learn of Mr Sooula’s offending.
7 Lawyers and Conveyancers Act 2006, s 55.
Discussion
[17] Driving with excess breath alcohol is a serious offence. It puts the driver, any passenger, and all other road users at risk. This is so whatever the roadway, whatever the time of day or night, and however fast the driver is or is not travelling.
[18] The consequences of conviction on which Mr Sooula relies do not come close to being out of all proportion to the gravity of the offending, especially for a third offence. Mr Sooula knew better than to do as he did. Given that, I must dismiss this appeal.
[19] That said, it is to be hoped that Mr Sooula will continue with his studies, and that he will succeed in getting his degree. If it is of any assistance to him, he will not be the first person with a conviction for driving with excess breath alcohol to be permitted to practise law. It is far from a foregone conclusion that the NZLS would refuse to issue a practising certificate as a result of Mr Sooula’s offending. The NZLS can be relied upon to undertake a comprehensive assessment of Mr Sooula’s application, as Judge Aitken said.
Result
[20]I dismiss this appeal.
Peters J
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