Trotter v Police
[2024] NZHC 2376
•23 August 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2024-485-48
[2024] NZHC 2376
BETWEEN ISABELLA FLORENCE TROTTER
Applicant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 6 August 2024 Appearances:
L A Scott for Applicant
R S Bedggod for Respondent
Judgment:
23 August 2024
JUDGMENT OF BOLDT J
Application for leave to appeal against conviction
Solicitors / Counsel:
L A Scott, Barrister, Wellington Crown Solicitor, Wellington
TROTTER v POLICE [2024] NZHC 2376 [23 August 2024]
Introduction
[1] The applicant, Isabella Trotter, seeks leave to appeal out of time against her conviction for driving with excess blood alcohol.1 The proposed appeal is around five years out of time — Ms Trotter was convicted and sentenced on 3 May 2019, and she applied for leave to appeal on 13 June 2024.
[2] There is no dispute the offending occurred as alleged. The application for leave has arisen because Ms Trotter now wishes to argue that at sentencing her counsel should have sought, or the Court should have considered, a discharge without conviction under s 106 of the Sentencing Act 2002. She submits that if her lawyer had applied for a discharge it would, or should, have been granted, and accordingly that a miscarriage of justice has occurred. In arguing that the indirect consequences of her conviction have been out of all proportion to the gravity of the offence, Ms Trotter has produced evidence that she has experienced difficulties in securing employment and when travelling. She has also tendered evidence about her mental health.
Background
[3] Ms Trotter is now 28; she was 23 in 2019. She was sentenced on the basis of a brief summary of facts; in the outline that follows the facts in the summary are supplemented with evidence Ms Trotter has volunteered in her (commendably frank) affidavit.
[4]In her affidavit, Ms Trotter described the circumstances of her offending:
7.On 28 March 2019, I caught up with friends in Wellington City to watch a late movie. We went back to one of their flats to hang out and decided to then go out for some drinks together. I knew that I had to drive back home to Kapiti, so I stopped drinking a couple of hours before I had to drive home. I recall we went for a swim in the sea at some point that evening. Although I had not had any dinner apart from some popcorn at the movie, I felt clear headed and remember consciously thinking, “I think I’m alright to drive now”.
[5] Ms Trotter was stopped in Raumati at 3:42 am. She elected to give a blood sample, which returned a blood alcohol level of 113 milligrams of alcohol per
1 Land Transport Act 1998, s 56(2).
100 millilitres of blood. For Ms Trotter, who was over 20 years old, the legal limit was 50 milligrams, and she committed a criminal offence when it reached 80.
[6] Ms Trotter was summonsed to attend Court on 3 May 2019. She met with the duty solicitor, but described the conversation as brief. She accepted she had been drinking and had driven, and said her discussion with the duty solicitor confirmed, in those circumstances, that there was not a lot she could do. Ms Trotter says that she and the duty solicitor did not discuss possibility of a discharge without conviction. She pleaded guilty and was immediately convicted and sentenced.
[7] Judge I G Mill noted that Ms Trotter’s blood alcohol level was “not as high as some that come before the court but, of course, clearly over the limit.”2 He observed it was a “great shame” she was there, as a young person with no previous convictions, and that her experience would have served as “a considerable lesson to [her] as to how [she] should not drink and drive.”3 He noted Ms Trotter had completed an alcohol assessment, and it appeared there was a low risk of her reoffending. The Judge disqualified Ms Trotter from driving for six months, and fined her $450 plus court costs, medical expenses and an analyst fee.
Events since 2019
[8] In her affidavit Ms Trotter attested to the shame and remorse she felt upon realising what she had done. She did not tell her family or seek their help. She paid her fine and resolved to put the episode behind her and never speak of it again, assuming it would “eventually just be a blip in [her] history.”
[9] Ms Trotter described the conviction as having been “a painful burden to carry for the past five years.” There is no suggestion the direct consequences of the offending — the fine and the disqualification — were unduly severe. Rather, she outlined a number of indirect consequences, and invites me to conclude that, considered together, they are out of all proportion to the gravity of the offence.
2 New Zealand Police v Trotter [2019] NZDC 26843 at [1].
3 At [2].
[10] First, Ms Trotter described consequences when she went travelling. She is a musician, and in 2020 was part of a band which set off to tour Europe. When transiting through Australia she was detained at the border while officials decided whether to allow her to proceed; she said she was there for what “felt like” hours. But she was allowed to travel onwards with her band, and travelled to four countries before the tour was cut short by the COVID-19 pandemic. Ms Trotter said she felt nervous at every border, but did not give evidence of any further problems.
[11] Next, Ms Trotter described difficulties she encountered in securing employment. It appears she was in gainful employment from 2019 (when she was working for a Canadian website company) to the end of 2023, when she was made redundant from a good job teaching ceramics and working in a studio. Since then, she has struggled to find a suitable job. She has sought roles with the Council and in Government departments but has, of course, had to declare her conviction. She gave evidence that, as of early July, she had not been offered an interview. She is currently working in a café.
[12] Ms Trotter highlighted one experience in particular. Late last year a recruiter contacted her and suggested she seek a role with the Department of Corrections. Ms Trotter says her conversation with the recruiter changed the moment she disclosed her conviction, and the recruiter said she could not put Ms Trotter forward either for the job with Corrections or for any other Government role. She said the recruiter stopped trying to place her after that.
[13] Finally, Ms Trotter described the psychological consequences of her conviction. She says that after her band returned from Europe in 2020, she suffered a steady low mood, feeling more pessimistic about her future and generally reclusive. She says she has been “much less outgoing and optimistic about life”, which has been exacerbated by her recent difficulties in securing employment. She says she feels stuck, deeply ashamed, and anxious about disappointing people when she discloses her conviction.
[14] Ms Trotter’s affidavit appended a detailed report from her psychologist, Mr Nev Trainor. The report does not indicate that the conviction itself has caused any
psychological consequences, though Ms Trotter’s existing personality schema contributed to her decision not to tell her parents about her offending at the time. Mr Trainor assessed Ms Trotter as being at very low risk of reoffending. He described her as pro-social, with strong family support, a good network of friends and significant remorse for her offending.
The appeal
[15] First, Ms Scott seeks leave to bring the appeal out of time and to tender fresh evidence. She notes Ms Trotter was not made aware of the possibility of a s 106 discharge in 2019, and that it was only after she told her father about the offending, years later, that she realised there may have been an alternative option available if she had taken more detailed advice before entering her plea.
[16] Ms Scott emphasised the merits of the appeal, noting Ms Trotter has suffered a number of negative indirect consequences of the offending, and that she continues to do so. Ms Scott placed particular emphasis on the submission that, if Ms Trotter’s offending occurred today, there would be every likelihood she would have been dealt with in the Young Adult Court in Porirua where she would likely have received a discharge without conviction.4 Ms Scott described discharges without conviction as “exceptionally common” in that court.
[17] Ms Scott applied for leave to tender fresh evidence in the form of Ms Trotter’s own affidavit and Mr Trainor’s report. Ms Scott emphasised that the actual record of the consequences of Ms Trotter’s conviction provides the best possible evidence when seeking to weigh consequences against gravity.
[18] Turning to the merits of the appeal, Ms Scott emphasised Ms Trotter’s youth at the time of the offending. She submitted that Ms Trotter was, and still is, ashamed, tearful and remorseful, and that her case emphasises the profound effects a conviction can have for a young person. Ms Scott did not suggest that Ms Trotter was too young to exercise mature judgement about whether she was fit to drive, but rather that the
4 The Young Adult Court opened in Porirua in 2020. It would not have been available to Ms Trotter in 2019.
consequences of a conviction for a young person, who is just entering the workforce and whose twenties provide an invaluable foundation for their later livelihood, are likely to be considerably greater than they might be for an older person whose career is already established.
[19] Ms Scott submitted that courts no longer require “exceptional” adverse consequences for a discharge without conviction, and that the only question is whether the test set out in s 107 of the Sentencing Act is met. She submitted the fact Judge Mill did not expressly consider a discharge without conviction means the sentence did not comply with s 11 of the Sentencing Act. That section requires a sentencing Judge, before entering a conviction and passing sentence, to consider whether the offender would more appropriately be dealt with by a discharge without conviction, a conviction and discharge or an order to come up for sentence if called upon.
[20] Ms Scott broadly acknowledged the gravity of Ms Trotter’s offending. She accepted the seriousness of driving with excess blood or breath alcohol per se, and agreed that Ms Trotter’s offending was at least a moderately serious example. Ms Trotter’s blood alcohol level was more than twice the 50 milligram limit, and she had embarked on a long drive. Rather less convincingly, Ms Scott sought to persuade me that the reduced speed limits along parts of the pre-Transmission-Gully State Highway 1 meant the drive should not be regarded as an especially hazardous one. For someone as intoxicated as Ms Trotter, a 40-minute drive along that old road was very dangerous. It is fortunate no-one was injured.
[21] Ms Scott submitted that Ms Trotter’s status as a first time offender, her youth, her remorse and guilty plea, and her compliance with her sentence means that overall the gravity of the offence was low.
[22] In any event, Ms Scott submitted that the combination of Ms Trotter being excluded from employment, held at the border, and her ongoing anxiety and low mood are indirect consequences of her offending which are out of all proportion to its gravity.
[23] Ms Bedggood, for the Police, submitted it is possible to infer, despite the lack of any express mention of a discharge without conviction, that the Judge turned his
mind to that option. I doubt that. Five years ago there was little variety in sentences for driving with excess blood and breath alcohol, especially for a first offender like Ms Trotter.
[24] As I discuss in more detail below, in 2019 discharges without conviction were rare in drink-driving cases, and the mandatory disqualification provisions mean the other non-punitive options mentioned in s 11 are unheard of. But the critical question on appeal is whether a s 106 discharge is the appropriate outcome, not whether the sentencing Judge mechanically considered and discarded the three non-punitive options.
[25] Ms Bedggood was on firmer ground in submitting that the offending was aggravated by the distance Ms Trotter drove and the time she must have been driving before she was apprehended.
[26] On the other side of the ledger, Ms Bedggood submitted that, at 23, Ms Trotter was not that young, and that none of the consequences she described are unusually severe. Ms Trotter was detained briefly in Australia but was allowed to continue her tour. She has never been denied entry to another country. She has been employed for most of the five years since the offending. And the psychologist’s report disclosed a generally well-adjusted and likeable young woman. Shame and embarrassment, which appear to be the principal ongoing psychological consequences of the offending, are very common (though no less significant on that account). In the end, Ms Bedggood submitted it is impossible to describe the indirect consequences of Ms Trotter’s offending as out of all proportion to the gravity of the offence.
Leave to appeal
[27] M v Police was another application for leave to appeal, many years out of time, with a view to securing a discharge without conviction. Duffy J summarised the threshold for leave as follows:5
5 M v Police [2023] NZHC 995 citing R v Knight [1998] 1 NZLR 583 (CA) at 587; R v Lee [2006] 3 NZLR 42 (CA) at [95]–[99]; and Smith v R [2020] NZCA 221 at [3]–[4]. Footnotes omitted.
[35] … this Court has jurisdiction to hear an appeal against conviction where a discharge without conviction is sought despite it not having been sought at first instance.
[36] Section 231(2) of the [Criminal Procedure Act 2011] requires a first appeal against conviction to be brought within 20 working days after the date of sentence for the conviction appealed against. However, s 231(3) provides the first appeal court may, at any time, extend the time allowed for commencing an appeal against conviction.
[37] The principles relevant to such extensions of time are well established. They are to be found in the Court of Appeal’s decisions in R v Knight and R v Lee. The touchstone is the interests of justice with the appeal court being required to balance a number of factors including:
… the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedies sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.
[38] Subsequently in Smith v R the Court of Appeal said the reasons for the delay in bringing an appeal and the merits of the proposed appeal are of particular significance, with the latter likely being determinative of the interests of justice and therefore the application for leave.
[28] Because the merits of the case are the main factor I must consider when determining whether to give leave to appeal, I have considered the fresh evidence Ms Trotter asks me to admit. If leave were granted, the evidence could properly be regarded as relevant and cogent.6 Moreover, in the context of an application for a s 106 discount, five years after the offending, it is far more relevant to consider the actual consequences Ms Trotter has suffered, rather than to try and recreate the potential consequences that may have been foreseeable at sentencing.
[29] An appeal against a refusal to grant a discharge without conviction is a composite appeal against conviction and sentence. The decision to enter a conviction is the principal focus.7 Section 107 of the Sentencing Act provides the statutory gateway. It reads:
6 M v Police, above n 5, at [45] citing R v Little CA48/82 24 February 1983; R v Moriarty CA109/84, 10 August 1984; and Richardson v New Zealand Police [2015] NZHC 1431.
7 Jackson v R [2016] NZCA 627 at [15]–[16].
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.
In R v Taulapapa, the Court of Appeal observed:8
[22] It is settled law that a court considering a discharge should: examine the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender; identify the direct and indirect consequences of conviction; and consider whether those consequences are “out of all proportion” to the gravity of the offence. Only then does it move to considering the residual discretion under s 106. There must be a “real and appreciable” risk that any given consequence will happen: this standard recognises that the court is assessing the likelihood of something that may happen in the future.
[31] The present application is somewhat different from the usual run of appeals against refusals to enter a s 106 discharge. Five years have passed since Ms Trotter’s offending. In Taulapapa, the Court noted the need to conclude there is a “real and appreciable risk” of a particular consequence. Here the application for leave is based on actual and realised consequences.
Discussion
[32] In Basnyat v Police,9 the Court of Appeal explained the correct approach to applications under s 106 of the Sentencing Act in cases of driving with excess blood or breath alcohol. In that case the applicant criticised Linterman v Police, in which Miller J observed:10
[9] I agree that discharges ought to be exceptional for this offence. It is illuminating to reflect on the several reasons why that might be so. First, in the hands of a drunk a car is a dangerous thing. Second, good character and extenuating personal circumstances normally count for little. Drink-driving is a pervasive social problem which has brought many good citizens into the dock and caused the legislature to respond with a sentencing policy that emphasises personal and general deterrence. Notably, the court may relieve an offender of the minimum disqualification period only for special reasons relating to the offence. Special reasons relating to the
8 R v Taulapapa [2018] NZCA 414 citing Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR
142 at [27].
9 Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344.
10 Linterman v Police [2013] NZHC 891.
offender will not do. Nor is ignorance of one’s alcohol level a defence; a driver who chooses to drink at all takes the risk that for whatever physiological or other reason her level will prove higher than she thought. Third, an applicant must identify some extraordinary consequence of conviction, which is difficult when the ordinary consequences are unpleasant. A drink-driving conviction always carries a social stigma and the offender must normally disclose it to a prospective employer, who may wonder whether it evidences poor judgement or undue fondness for drink, and to immigration authorities, who may categorise it as evidence of antisocial tendencies.
[33]The Court of Appeal in Basnyat referred to Linterman and observed:
[19] Properly construed, Linterman is not a gloss on the statutory test, but rather a statement of the practical consequence of the application of the sections. Drink driving is a moderately serious offence when seen by reference to its potential consequences and to the pervasiveness of alcohol abuse in our society. That means the proportionality scales to be applied at stage three of Z (CA447/2012) v R are, to an extent, tipped by that level of seriousness. The consequences of a conviction must also therefore be relatively significant before they are “out of all proportion” to the moderate seriousness of the offence. It would be different if drink driving were a minor offence, but it is not.
[20] But judges must not treat Linterman as if it were a proxy for the statutory test, and they must not exercise their discretion as if the word “exceptional” is to be found in s 107. By and large they do not, as shown in the survey of 15 High Court decisions referred to in the article by Mr Conder which was cited by Mr Mitchell in argument. The learned author concluded as follows:
A close reading of these cases show[s] that exceptionality is not the key criterion. Rather it is the consequences themselves which must be clear. This is consistent with the language of s 107, which requires an explicit balancing act between a moderately serious offence like drink driving and the consequences which flow from a conviction. …
…
[22] The legislative directive is that a proportionate response to driving with a blood alcohol level above 80 milligrams per 100 millilitres of blood will ordinarily be the entry of a conviction. All other things being equal that will be the inevitable result. It will therefore be necessary to identify factors either in the offending or the consequences of a conviction for the offender that show that result is wholly disproportionate. … There will also be factors personal to the offender, often related to the offending itself, which will go to gravity. These might include the use before deciding to drive of faulty personal breath alcohol checking devices or the need to drive to assist others in an emergency, and the like. Youth will also be a relevant factor under this heading.
[34] As I discuss in more detail below, there is nothing especially unusual about Ms Trotter’s case, either in the gravity of the offence or in the indirect consequences she has encountered in the last five years. I asked Ms Scott whether an inevitable consequence of a decision to allow this appeal would be that almost any
relatively-young person, seeking to establish a career, would also be entitled to a discharge without conviction in a drink-driving case.
[35] Ms Scott did not shrink from acknowledging that if Ms Trotter’s case warrants a s 106 discharge then many, if not most, drink-driving offenders aged in their mid-20s or below would be entitled to a discharge without conviction on the same basis. And, she added, that would be a good thing. It is wrong, she submitted, to blight the lives of young people because of a single (albeit serious) mistake.
[36] That submission cannot be reconciled with the extract from Basnyat, and especially paragraph [22] of that decision, reproduced above. That said, recent statistics support Ms Scott’s submission that s 106 discharges have become far more common in drink-driving cases in recent years. Ministry of Justice figures show that while the number of drink-driving charges has remained relatively stable, at around 17–20,000 per year, the number of discharges without conviction has grown exponentially, from 117 in 2014 to 1,028 in 2023. The number of s 106 discharges almost doubled between 2022 and 2023.11
[37] It was appropriate for the Court in Basnyat to remind sentencing Judges that s 106 discharges are not reserved for exceptional cases. In the same way, it may also be timely to reiterate that discharges without conviction must not become a standard or routine response to this kind of offending.
[38] As the Court of Appeal noted in Basnyat, a conviction, with all its attendant consequences, is the ordinary and proportionate response for anyone found driving with excess blood or breath alcohol. Normal everyday consequences of a drink-driving conviction, including the embarrassment of having to disclose it to prospective employers for the next seven years,12 will rarely meet the s 107 threshold. To repeat the Court’s observation in Basnyat, it would be different if drink driving were a minor offence, but it is not.
11 There were 523 discharges without conviction in 2022. There were 234 in 2019, the year Ms Trotter was sentenced. See Matryn Sharpe “Massive increase in number of drink drivers avoiding conviction” (22 August 2024) Stuff < Criminal Records (Clean Slate) Act 2004, ss 7 and 14.
This case
[39] I mean no disrespect to Ms Trotter when I say that a striking feature of her offending is how unremarkable it was. As the Judge noted, her blood-alcohol level was lower than many that come before the court, but neither was she only just over the limit. The offending was aggravated by the distance she drove, at night, while quite intoxicated, but she did not have or cause an accident. She posed a very real danger to herself and other motorists, but nobody was hurt.
[40] Similarly, the consequences she has faced since her conviction, while undoubtedly frustrating and embarrassing, are far from unusual. The evidence discloses that her ability to travel has been barely affected; she was stopped at the border once, for what “felt like” hours. But she and her friends were in transit, and she did not miss her connecting flight. Her conviction did not disrupt her subsequent travels in Europe.
[41] As to employment, there is no evidence Ms Trotter was unable to secure satisfying and meaningful work until late 2023, when she lost her job for reasons unrelated to her offending. Even now she is working in a café, though that is plainly not her first choice as a career.
[42] None of the psychological factors discussed in Mr Trainor’s report have arisen as a result of the offending. And Ms Bedggood is right that the shame Ms Trotter continues to experience is far from unusual. Ms Trotter’s mortification reflects well on her, as it indicates genuine remorse, but it cannot be described as a disproportionate consequence.
[43] The need to allow a young person to move on from a single mistake is the reason the Criminal Records (Clean Slate) Act 2004 was passed. As Ms Scott acknowledges, Ms Trotter will not have to declare her conviction once seven years have passed, and that milestone is now less than two years away. That Act recognises, among other things, that old convictions can have an ongoing effect on employment prospects. It selected seven years as the appropriate point at which offenders can formally move on and have an unblemished record (largely) restored. Ms Scott submits that seven years is too long for Ms Trotter to wait, and that she should be
entitled to put this offending behind her now. But seven years is the threshold Parliament chose for someone in Ms Trotter’s position.
[44] It follows I am not satisfied the indirect consequences of Ms Trotter’s conviction are out of all proportion to the gravity of the offence. No genuinely-disproportionate consequence could have been foreseen at the time she was sentenced, nor have the actual consequences of her conviction proved unexpectedly severe.
Conclusion
[45] The dangers posed by intoxicated drivers have not diminished in recent years.13 The relatively high threshold in s 107 — consequences that are “out of all proportion” to the gravity of the offence — has not changed, nor has the need to denounce and deter a form of offending that remains a serious danger to the community.
[46] While youth is plainly a relevant factor, the courts’ wider comments in Linterman and Basnyat remain relevant. All drivers, however old they are, and at whatever stage their lives have reached, must understand they are likely to be convicted if they drink and drive, and that they will face lasting consequences.
[47] Ms Trotter continues to suffer moderate consequences as a result of committing a moderately serious offence. In less than two years that burden will be lifted, but there is no basis for the Court to disturb her conviction. Accordingly, I do not consider it would be in the interests of justice to give leave to appeal out of time.
[48] As an addendum, I record that the material before me shows Ms Trotter to be a reliable, talented and creative person, who is ashamed of a mistake which was plainly out of character. It is disappointing if some recruiters or employers have discarded her as a candidate simply because of her conviction. Others, I hope, will be able to put her offending into its proper perspective.
13 Ministry of Transport figures disclose that in 2022, 178 people died in motor vehicle crashes involving alcohol, compared with 73 in 2013, and 157 in 2019: see Te Manatū Waka | Ministry of Transport “Safety — Annual statistics | Te Marutau — Ngā tatauranga ā-tau”
< align="left">[49]The application for leave to appeal is dismissed.
Boldt J
0
0