Trotter v Police - [2024] NZHC 2376

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.…

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: [2024] NZHC 2376
Decision Date: 23 August 2024

CaseChat Overview and Summary

Isabella Trotter applied for leave to appeal her conviction for driving with excess blood alcohol, seeking a discharge without conviction under s 106 of the Sentencing Act 2002. Trotter was convicted in 2019 and sentenced to a fine and a six-month disqualification from driving. She now seeks to argue that her counsel should have sought, or the court should have considered, a discharge without conviction, as the indirect consequences of her conviction have been out of proportion to the gravity of the offence. Trotter's application for leave to appeal is out of time, having been made five years after her conviction and sentencing. The court considered the merits of the appeal, including the gravity of the offence, the consequences of the conviction, and the appropriate threshold for a s 106 discharge. The court found that while Trotter's case was unremarkable, the consequences she has faced, including difficulties in securing employment and psychological effects, are not unusually severe. The court concluded that the indirect consequences of Trotter's conviction are not out of proportion to the gravity of the offence, and denied leave to appeal out of time.

Orders