Vandenbrink v Police
[2021] NZHC 1630
•2 July 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2021-404-139
[2021] NZHC 1630
BETWEEN MARTIN PAUL VANDENBRINK
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 28 June 2021 Appearances:
M Timmins for the Appellant
A Mackenzie for the Respondent
Judgment:
2 July 2021
JUDGMENT OF CAMPBELL J
This judgment was delivered by me on 2 July 2021 at 3:00 pm
Registrar/Deputy Registrar
VANDENBRINK v NEW ZEALAND POLICE [2021] NZHC 1630 [2 July 2021]
Introduction
[1] Mr Vandenbrink pleaded guilty to a charge of driving while impaired.1 He applied to be discharged without conviction. In the District Court, Judge B A Gibson declined his application. He convicted Mr Vandenbrink, fined him and disqualified him from driving for six months.2
[2] Mr Vandenbrink appeals. Primarily, he seeks to be discharged without conviction under s 106 of the Sentencing Act 2002. Alternatively, he asks for a community-based sentence under s 94 of the Land Transport Act 1998, in substitution for disqualification.
Facts
The offending
[3] On 20 August 2020, at 3.25 pm, Mr Vandenbrink was driving his car on an Auckland motorway at 120 kilometres per hour. The speed limit was 100 kilometres per hour. A Police officer observed the speeding, and then saw Mr Vandenbrink change lane without indicating. The officer stopped Mr Vandenbrink, and when speaking to him noticed a strong smell of cannabis.
[4] Mr Vandenbrink failed to complete an impairment test in a satisfactory manner. Later ESR results confirmed the presence of THC in Mr Vandenbrink’s blood. A search of Mr Vandenbrink’s car revealed small amounts of cannabis, MDMA and LSD.
[5] Mr Vandenbrink was charged with driving while impaired. He was also charged for possession of the drugs, but those charges were withdrawn after Mr Vandenbrink successfully completed the requirements of a Police diversion scheme.
1 Land Transport Act 1998, s 57A(1). Penalty: three months’ imprisonment or fine not exceeding
$4,500, and disqualification for six months or more.
2 Police v Vandenbrink [2021] NZDC 5707.
Events after the offending
[6] As noted, Mr Vandenbrink pleaded guilty to the charge of driving while impaired. He expressed genuine remorse and took steps to try to deal with any issues he has with drugs by undertaking an eight-week drug and alcohol counselling course. He also completed a four-week defensive driving course.
[7] Mr Vandenbrink presented character references which indicated he is well respected. He made a donation of $510 to a local surf lifesaving club. He volunteers at two such clubs.
Consequences of convictions for Mr Vandenbrink
[8] Mr Vandenbrink made an affidavit for the sentencing in the District Court. He said he works as a service technician for a coffee company. Part of his job involves driving to various businesses around Auckland. He said that if he were unable to drive he would be unable to fulfil his employment obligations and would therefore lose his employment.
[9] Mr Vandenbrink explained that his employer has a strict drug policy. He exhibited a copy of his employment contract. Clause 19 confers a discretion on his employer to terminate employment in the event Mr Vandenbrink is convicted of an offence. The employer has a motor vehicle policy. This provides that if an employee is stopped by Police, and has been taking drugs and is convicted, “disciplinary action may follow up to and including dismissal”. The car Mr Vandenbrink was driving at the time of his offending was his employer’s car.
District Court judgment
[10] Section 106 of the Sentencing Act confers on the Court a discretion to grant a discharge without conviction. However, the discretion is subject to s 107, which provides that the Court must not grant such a discharge unless it is satisfied that “the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.”
Judge Gibson followed what is now a standard approach to s 106 applications:3
(a)First, assess the gravity of the offending. This involves consideration of the seriousness of the actual offending, but also includes any aggravating and mitigating factors that apply to the offender.
(b)Secondly, identify the direct and indirect consequences of a conviction.
(c)Finally, consider whether those consequences are out of all proportion to the gravity of the offence.
[12] As to the gravity of the offending, the Judge said this was a serious offence, as it put other road users at risk. He took into account that there was no accident and that Mr Vandenbrink had been cooperative. He assessed gravity as “just under the mid range type of seriousness for this offence”.4
[13] In terms of consequences, Judge Gibson noted that a conviction would simply give Mr Vandenbrink’s employer a discretion whether to dismiss him. He nonetheless accepted that there was a real prospect that Mr Vandenbrink might lose his job, and that obtaining alternative employment might be problematic given Mr Vandenbrink’s age (61 years).5
[14] The Judge said the employer had made it absolutely clear that it wished to know whether its employees were driving company cars in breach of the alcohol and drug impairment provisions of the Land Transport Act. That was a matter an employer was entitled to know, and the Court ought not be in the business of suppressing those matters simply for the purpose of keeping them from an employer.
[15] The Judge therefore concluded that the consequences of a conviction were not out of all proportion to the gravity of the offence.
3 Z (CA 447/2012) v R [2012] NZCA 599, [2013] NZAR 14 at [27]; and Mathieson v Police [2019]
NZCA 406 at [8].
4 Police v Vandenbrink [2021] NZDC 5707 at [10].
5 At [14] and [15].
[16] The Judge’s written reasons for his decision did not address the possibility of a community-based sentence, in substitution for disqualification, under s 94 of the Land Transport Act. Mr Timmins, who appeared for Mr Vandenbrink, told me the Judge dealt with this orally, saying that this issue would be better dealt with by way of a limited licence.
Appeal
[17] Whether the test under s 107 of the Sentencing Act has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which is subject to appeal on normal appellate principles. The appeal against the Judge’s refusal to discharge Mr Vandenbrink without conviction is by way of rehearing with the appellate court making its own assessment of the merits.6
[18] A decision whether to substitute a community-based sentence for disqualification under s 94 is a discretionary decision. The appeal against that decision is therefore a more limited appeal. Mr Vandenbrink must show that Judge Gibson erred in law, failed to take into account relevant matters, took into account irrelevant matters or was plainly wrong.7
Decision: discharge without conviction
Gravity of the offending
[19] Mr Timmins challenged the Judge’s assessment of the seriousness of the offending as just under the “mid range”. He said this did not take sufficient account of Mr Vandenbrink’s steps to address his offending, his remorse, his guilty plea, his character and his community work.
[20] I disagree. I acknowledge the steps taken by Mr Vandenbrink since the offending. But I accept the submissions of Mr Mackenzie, for the Police. The offending was inherently dangerous. In addition, not only did Mr Vandenbrink fail the
6 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].
7 Hall v Police HC Hamilton CRI-2009-419-76, 9 December 2009 at [11], applying May v May
(1982) 1 NZFLR 165 (CA).
impairment test, before being pulled over he was speeding and was seen to change lanes in a careless manner. The Judge’s assessment was right.
Consequences of the convictions
[21] Turning to the consequences of the convictions, Mr Vandenbrink does not have to establish that the consequences would occur as a matter of fact. It is sufficient to show there is a “real and appreciable risk” of the consequences occurring.8
[22] Mr Timmins submitted that there was a real and appreciable risk that two consequences would occur from a conviction. The first was of Mr Vandenbrink losing his current employment. The second was of Mr Vandenbrink thereafter being unable to obtain future employment. Mr Timmins submitted that Judge Gibson gave insufficient weight to these consequences.
[23] I first consider the risk of loss of current employment from a conviction. I have the advantage, which Judge Gibson did not, of seeing how that risk has played out since Mr Vandenbrink was convicted on 29 March 2021 (just over three months ago). In his written submissions, Mr Timmins said that Mr Vandenbrink had obtained a limited licence, but “is still at real risk of losing his current employment”. At the hearing I asked for clarification. Mr Timmins informed me that Mr Vandenbrink obtained a limited licence on 13 May 2021. Mr Vandenbrink has informed his employer that he lost his licence and has obtained a limited licence, but has not told his employer the reasons for the loss of licence.
[24] Mr Timmins also told me that if Mr Vandenbrink obtained a discharge, he would inform his employer of the underlying offending. Mr Timmins took me to the terms of Mr Vandenbrink’s employment contract, which he said would oblige Mr Vandenbrink to make such disclosure to his employer. Mr Timmins submitted that the employer would then be at liberty to decide whether to terminate Mr Vandenbrink’s employment on the grounds of the underlying offending. In making that decision, Mr Timmins said, the employer would be assisted by this Court’s decision to grant a
8 Mathieson v Police [2019] NZCA 406 at [18], citing R v Taulapapa [2018] NZCA 414.
discharge (were a discharge to be granted), as that would signal to the employer that dismissal was out of all proportion to the offending.
[25] The events that have happened since Mr Vandenbrink’s conviction suggest that the risk of his losing his employment, as a result of a conviction, is low. The employer must already know that Mr Vandenbrink lost his licence as a result of a conviction. His employment nonetheless has not been terminated. It appears that if there is to be any loss of employment, that will arise from the underlying offending (if it is ever disclosed), rather than from the conviction itself.
[26] To be clear, I place no weight on the prospect of Mr Vandenbrink making disclosure to his employer in the event he is granted a discharge. That seems an unlikely prospect, given he has not yet disclosed the reasons he lost his licence. There is no evidence before me to satisfy me that such an unlikely prospect will eventuate.
[27] I now turn to consider the second consequence, that a conviction will jeopardise Mr Vandenbrink’s chances of obtaining future employment. This consequence was in large part based on the assumption that a conviction would lead to Mr Vandenbrink losing his current job. For the reasons I have just set out, I do not accept that assumption.
[28] Nonetheless, I recognise that at some point Mr Vandenbrink may, for reasons unrelated to the conviction, wish to seek alternative employment. Mr Timmins submitted there was a real and appreciable risk that a conviction would prevent Mr Vandenbrink from obtaining any future employment. Mr Vandenbrink has historical convictions in respect of which, until his recent conviction, he enjoyed the benefit of the scheme under the Criminal Records (Clean Slate) Act 2004 (the Clean Slate Act). The recent conviction means that, if any prospective employer asks whether he has convictions, he now must disclose those historical convictions. Mr Timmins submitted that, given Mr Vandenbrink is 61 years old, he will have difficulty finding future employment if he has to disclose his historical convictions.
[29] I accept that a consequence of the conviction is that Mr Vandenbrink will have difficulty in finding future employment. But, to be clear, I put it no higher than a
difficulty. I accept that some prospective employers may not be prepared to look beyond the convictions, but I am not prepared to assume that all or even most employers would behave in that way, especially where the offender is otherwise a person of good character (as Mr Vandenbrink appears to be). There was no evidence before me to suggest otherwise. This is in contrast to the case on which Mr Timmins relied, Simpson v Police,9 where there was independent evidence that the offender would be “extremely unlikely” to be considered if he were convicted.
Would these consequences be out of all proportion to the gravity of the offence?
[30] I have concluded there is only a low risk that Mr Vandenbrink will lose his current employment as a consequence of a conviction, and that a conviction will cause him some difficulty if he ever seeks future employment. I do not regard these consequences as out of all proportion to the gravity of the offence. His offending was inherently dangerous. The consequences are ordinary and natural consequences of a conviction of this sort. The low risk to his current employment is proportionate, given that his employment involves driving a car, and that his employer (understandably) has policies about driving company cars under the influence of drugs. Any difficulties that might arise for future employment are largely a consequence of Mr Vandenbrink losing eligibility under the Clean Slate Act. That is likewise a proportionate response. That legislation confers a privilege, but on the condition the privilege will be lost if the person commits an offence: s 8. The loss of that privilege is therefore an intended, as well as a natural, consequence of a conviction.
[31] I conclude Judge Gibson was correct to dismiss Mr Vandenbrink’s application for a discharge.
Decision: community-based sentence instead of disqualification
[32] Section 94 of the Land Transport Act provides that the court can impose a community-based sentence if it “considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver licence”.10 Mr Timmins submitted it would be in the interests of justice for Mr Vandenbrink not to be
9 Simpson v Police [2020] NZHC 2254.
10 Section 94 is engaged because Mr Vandenbrink has previously been disqualified from driving.
disqualified, because he was (despite holding a limited licence) still at risk of losing his current employment, and his inability to drive would be a barrier to him obtaining alternative employment.
[33] Neither of those matters means that it would, in terms of s 94, be inappropriate to order that Mr Vandenbrink be disqualified.
Result
[34]I dismiss Mr Vandenbrink’s appeal.
Campbell J
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