W v Police HC Auckland CRI 2006-404-465

[2007] NZHC 536

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-465

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         22 May 2007

Appearances: Mr Maddox for appellant

Mr Williams for respondent

Judgment:      24 May 2007 at 2.15 pm

JUDGMENT OF WINKELMANN J

This judgment was delivered by me on 24 May 2007 at 2.15 pm pursuant to Rule540(4) of the High Court Rules.

Registrar/ Deputy Registrar

James Maddox, Ellerslie

Crown Solicitor, Auckland

W V POLICE HC AK CRI 2006-404-465  24 May 2007

[1]      The appellant was convicted following a defended hearing in the Waitakere District Court on 21 November 2006 on one count of excess breath alcohol pursuant to s 56(1) of the Land Transport Act 1998.  An application was made by counsel at that time that the appellant should be discharged without conviction under s 106 of the  Sentencing  Act  2002.    The  application  was  declined.    The  appellant  was convicted and fined $300 with Court costs of $130 and disqualified from holding or obtaining a drivers licence for six months.

[2]      The appellant initially brought an appeal against sentence, intended to be an appeal  against  the  refusal  of  the  District  Court  Judge  to  discharge  without conviction.    At  the  commencement  of  the  hearing  of  this  appeal  there  was  a discussion regarding whether the appeal needed to be against both conviction and sentence.  Counsel for the appellant sought leave to amend the appeal to an appeal against both conviction and sentence so as to avoid any procedural difficulty in that regard.  The application was not opposed and I granted leave to amend the appeal to one against both conviction and sentence.

Factual background

[3]      The relevant factual background to the offending is shortly stated.  On Friday

9 September 2005, the appellant was driving his car when he was stopped at a police checkpoint on Rata Street, New Lynn.   Subsequent tests disclosed that he had a breath alcohol level in excess of the legal limit and he was charged.  The appellant was a newly qualified police officer, who had previously been employed as a technician with the navy.  On the night in question he had been at a farewell with his old navy colleagues.   He consumed alcohol at that function and, conscious of the law, he conducted two self-tests using the standard Alcotel R80A.  Unfortunately the test kit was wrongly assembled, and two readings indicated that he had not breached the legal limit.

[4]      He co-operated with the police officers and consciously did not tell them of his occupation to avoid the creation of implied pressure to deal with him differently than a member of the public might be dealt with.

[5]      There was a defended hearing in respect of the charge.

Judge’s decision on s 106

[6]      The  Judge  noted  that  Mr  W    would  lose  his  job  with  the  police, irrespective of whether or not a discharge without conviction was granted to him. The police would hold their own disciplinary hearing, and the fact that a Court had granted a s 106 discharge was likely to be of little relevance to the outcome of that hearing.  The application for discharge was brought on the basis that having lost his career in the police, Mr W   wished to return to the navy.   The difficulty of a conviction for Mr W   is that the navy apply a stand down period following conviction for drink driving, and in his submission the effect of that stand down is a consequence that is out of all proportion to the gravity of the offence.

[7]      The  stand  down  period  was  identified  as  being  12  months,  but  on  the evidence before the Court (in the form of a chart showing the relevant stand down period for any offending) the stand down period for a drink driving conviction is one year after the end of the disqualification period.   Accordingly, if a conviction was entered, and a disqualification period imposed, the stand down period would be 18 months.

[8]      The Judge noted the mitigating factors.  Mr W   had not tried to persuade the police officer in any way to do other than his duty on the night by using the fact that he was a policeman.  He admitted that he had been drinking.  Further, there was no driving fault identified by the police.

[9]      Against that, the Judge weighed the fact that the breath alcohol reading of

732 micrograms of alcohol was very high, not far away from twice the legal limit. Mr W   had driven for quite some distance, although he admitted to having drunk

six cans of Woodstock.  The Judge considered this to be serious offending, placing the public at risk.

[10]     The Judge referred to the lack of any precedent for a s 106 discharge but said that was not significant because he had to consider the particular charge, Mr W   and the application for a discharge.

[11]     He concluded:

It is a balancing act.  I have to consider the public interest and the fact that the police have to set an example, the fact that the police should not have any special favours.   You have no family, you do  not  have a  wife and children.   It is you who is affected.   Of course you have extended family, they will be affected but not directly.

In this case having weighed everything up I cannot give you a 106 discharge. There will have to be a conviction.  You will be treated as the first offender you are.   There will be a conviction, there will be a fine, and a minimum disqualification period.

Approach on appeal

[12]     The present appeal is brought under s 115 of the Summary Proceedings Act

1957.  Under s 119(1) all appeals under s 115 are by way of a rehearing.  The test to be applied on such a rehearing  has been articulated by  Fisher  J  in  Herewini  v Ministry of Transport [1992] 3 NZLR 482 at 489 as follows:

Pursuant to s 119 of the Summary Proceedings Act, general appeals are to be "by way of rehearing".  On a rehearing the appellate Court can come to its own decisions on questions of fact and law but the onus still lies upon the appellant to satisfy the appellate Court that the decision given in the Court below  was  wrong:  Powell  and  Wife  v  Streatham Manor  Nursing  Home [1935] AC 243, 249, 255, 265; Toomey v Police [1963] NZLR 699, 700; Page v Police [1964] NZLR 974; Reilly v Police [1967] NZLR 842; DW McMullin, "Appeals from Magistrates: Principles Applicable" (1958) 34

NZLJ 183, 201, 263, [1964] NZLJ 54.

[13]     This is an appeal against the exercise of a discretion.   It is a well known principle that an appellate Court will only interfere with the exercise of a judicial discretion if satisfied that there has been a wrongful or improper exercise of the discretion in the sense that the Judge exercised the discretion on the basis of wrong facts, proceeding upon mistaken facts, applied an incorrect legal principle, or took

into account irrelevant considerations or failed to take into account relevant considerations (May v May (1982) 1 NZFLR 165 (CA)).

[14]     In the present case the sentencing Judge was required to apply two provisions of the Sentencing Act 2002, namely ss 106 & 107.  Section 106 gives a discretion to the sentencing Judge to discharge a person who is found guilty or pleads guilty, and provides  that  a  discharge  is  deemed  to  be  an  acquittal.    Section  107  provides guidance as to how such discretion should be exercised:

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.

[15]     As  was  said  in  the  leading  Court  of  Appeal  decision  on  the  statutory predecessor to s 107, Police v Roberts [1991] 1 NZLR 205 at 210, the words “out of all proportion” point to an extreme situation that speaks for itself. The section involves the Court in a three step inquiry, it must first give consideration to the gravity of the offending, then the consequences of a conviction, and then finally to whether the latter is out of all proportion to the former. Only if satisfied on the last point, may the Court grant a discharge.

[16]     In Delaney & Ors v Police HC WN CRI 2005-485-22, 23, 24, 25, 26, 27, 28,

22 April 2005, Miller J said that considering the gravity of the offending the Court should have regard to (at [29]):

… not only the offence itself but also anything that may affect the Court’s subsequent assessment of overall culpability.   That includes guilty pleas, expressions of remorse and the Court’s assessment of how likely it is the offender will reoffend, the victim’s perspective and any consequence already suffered by way of reparation, community work or publicity”.

[17]     I agree that these matters are all relevant to the s 106 discretion, although I take the view that consequences already suffered by the offender are better seen as relevant to the final issue to be addressed, that of the proportionality of the consequences to the gravity of the offence.  At that step, regard should also be had to the purposes of sentencing particularly relevant to the type of offending.   A Court would likely be concerned to ensure that the exercise of the discretion to discharge without conviction does not undermine the relevant purposes of sentencing in the

particular case.  In respect of excess breath alcohol offending, deterrence and public safety have been identified as the two key purposes of sentencing.  In the case of a first offender to that I also add rehabilitation.

Grounds of appeal

[18]     The appellant submits that the Judge committed three errors in the exercise of his discretion:

(i)      He proceeded upon the basis of a  mistaken view of the facts; namely that the stand down period was 12 months, when it was in fact 18 months.

(ii)    He failed to take into account a matter relevant to the consideration of the gravity of the offending,  in that  he failed to consider at all the steps the appellant had taken to avoid offending.

(iii)   He was in error in directing himself that there was no precedent for a discharge without conviction in respect of a charge of excess breath alcohol.

[19]     The appellant argues that if the correct matters are weighed in assessing the proportionality of the consequences of conviction against the gravity of the offence, the  discretion  should  have  been  exercised  to  discharge  Mr  W    without conviction, whilst ordering his disqualification from driving.

[20]     The  Crown  submits  that  there  is  no  error  in  the  District  Court  Judge’s decision such as would open the exercise of his discretion to reconsideration by this Court.  Although it concedes that the Judge seems to have thought in error there were no previous cases in which there had been a discharge without conviction for a drink driving offence, that had no bearing upon the exercise of his discretion since he clearly directs himself that the issue is the case before him.  He says:

I do not have any evidence that there is precedent for a 106 discharge for a drink drive offence.   The fact that a discharge may not have been given before for a drink drive offence is not of particular significance to me.  That fact is I have to consider this particular charge, you and the application for a

106 discharge for you.

[21]     The Crown therefore submits that the Judge did not exercise his discretion on a wrong principle or follow any set pattern, but carefully considered all relevant considerations.

Is there jurisdiction to discharge without conviction?

[22]     A preliminary issue arises in this case as to whether the Court does have jurisdiction to discharge without conviction in circumstances where s 56(1) directs the Court that it must disqualify the offender from driving for six months or more. This issue has received consideration in a number of High Court decisions but with conflicting outcomes.  In Police v Joblin- Hall HC Wanganui AP5/03 29 May 2003, Heath J (minimum period of disqualification required to be imposed under s 81 Land Transport Act 1988) and Ministry of Fisheries v Williams HC WHA AP06/03 13

November 2003, Heath J (forfeiture or prohibition order under s 257 Fisheries Act

1996).  Heath J regarded himself as bound by the decision in Richardson and Irvine v Wise (1987) 2 CRNZ 707 in which the Court of Appeal said that a minimum term of disqualification  was  the  type  of  minimum  sentence  to  which  s  42(1)  of the Criminal Justice Act 1964 (the predecessor to 106) referred.  In Joblin-Hall, Heath J said:

There is nothing in the language of the Sentencing Act 2002 or the Land Transport Act 1998 (which are the successors to the respective legislation referred to in Richardson) to lead me to a contrary conclusion.  The position would have been otherwise had the learned District Court Judge been able to find special reasons for not imposing a disqualification.  He did not however do so.

[23]     Section 42(1) provided:

42  Power of Court to discharge offender without conviction or sentence (1) Where any person is accused of any offence, any Magistrate's Court, after  inquiry  into  the  circumstances  of  the  case,  may  in  its  discretion discharge that person without convicting him, unless by any enactment applicable to the offence a minimum penalty is expressly provided for."

[24]     In Police v Stewart (2004) 22 CRNZ 35, Nicholson J reached the opposite conclusion following close analysis of the provisions of s 106 of the Sentencing Act

2002 and in particular, s 106(3)(c) of the 2002 Act.

[25]     Section 106(3)(c) of the 2002 Act says:

A Court discharging an offender under this section may - …

make any order that the Court is required to make on conviction.

[26]     He also considered the report of the Justice and Electoral Committee which reported on the Bill.   In referring to s 106, the Justice and Electoral Committee commented:

Most of us recommend an amendment to clause 95 [now s 106] allowing the Court to discharge without conviction an offender where there is a minimum penalty for the offence and also impose a penalty.  An example of this is a drink driving case, in which an offender may lose their job if convicted, but the Court should still be able to disqualify them from driving. (Report of Justice and Electoral Committee on the Sentencing and Parole Reform Bill, page p 21).

[27]     Nicholson J concluded that the changes to the law affected by s 106 of the

2002 Act were intended to, and did, restrict the power to grant discharge without conviction only to situations of minimum sentences that the Court is required to impose and  not  to  situations where the Court  is  required  to  make  an  order  on conviction.  The Judge referred to the two previous decisions of Heath J but declined to follow them, noting that Heath J had not had the provisions of s 106(3)(c) referred to him in the earlier cases.

[28]     The analysis of Nicholson J is compelling and is to be preferred.  Counsel for the Crown responsibly conceded that there is jurisdiction to discharge without conviction in this case.

Consideration of grounds of appeal

[29]     The Judge clearly did mistakenly calculate the relevant stand down period, proceeding upon the basis that the stand down period was 12 months rather than the actual 18 months stand down period.

[30]     I also consider that when turning his mind to the gravity of the offence, the Judge should have referred himself to the fact that Mr W   had attempted to ensure that he was not drink driving by self-administering two Alcotel self tests. That was a factor the Judge could have taken into account by way of mitigation in terms of Mr W  ’s culpability for the offence.

[31]     The final appeal ground is that the Judge erred when he said that he was not aware of any precedent for a s 106 discharge.  Counsel for the appellant says that he had referred the Judge to a decision of Ongley DCJ (New Zealand Police v Vetter CRI 2004-085-133, 23 January 2004), in which the Judge granted a s 106 discharge to a first time offender in circumstances very similar to this, on the basis of the 18 month stand down period for a navy applicant.

[32]     It is however apparent from the sentencing notes that this oversight would not have led the Judge into error in the exercise of his discretion.  The Judge proceeded upon the assumption that he did have jurisdiction to grant the discharge, but that he had to consider the particular circumstances of the case in deciding whether to do so.

[33]     I have found that the Judge erred in the exercise of his discretion in that he proceeded upon a mistaken view of the facts (the extent of the stand down period) and that he failed to take into account a relevant consideration, namely the self- administration of the Alcotel tester, which was relevant to the issue of the offender’s culpability.

[34]     I must therefore proceed to exercise the discretion afresh, although in doing so I adopt many of the considerations that the Judge took into account.  In terms of assessing  the  gravity  of  the  offending,  I  take  into  account  that  drink  driving offending is offending which is viewed as serious offending, endangering as it does public safety.  I also take into account that Mr W  ’s breath alcohol reading of

732 micrograms of alcohol was very high, and that as a matter of common-sense he should have known that he was likely to be over the limit, since he admitted having drunk six cans of Woodstock.

[35]     I note however that there was nothing irregular in Mr W  ’s driving on that evening.  In assessing the gravity of the offending I also take into account that this is a first offence and also that the appellant took steps, however ineptly executed those precautions may have been, to ensure he was not over the legal limit.

[36]     As  to  the  consequences  of  a  conviction,  I  am  satisfied  that  there  is  a likelihood that the entry of a conviction will result in an 18 month stand down for Mr W   were he to be successful in his employment application.   I note that it is apparent from the navy’s job application form that he will have to make disclosure of the fact of this offending come what may, so that the concern that the navy should be made aware of the offending is met.

[37]     The proportionality of this consequence falls to be considered against:

(a) The background that Mr W   has already lost his career with the police.

(b) Mr W   has suffered sufficient consequences to be satisfied that the essential deterrent  purposes of sentencing  for  such an offence are met.

(c) The   public   safety  considerations   are   met   by  an   order   of disqualification without the need for a conviction to be entered.

[38]     Weighing all of these matters and also the matters relevant to the gravity of the offending identified above, I am satisfied that the consequences of a conviction are out of all proportion to the seriousness of the offence.

[39]     The appeal is therefore allowed.  The orders convicting and fining Mr W   are quashed.   Under s 106 of the Sentencing Act 2002, Mr W   is discharged without conviction, subject to the following orders:

(a) The  disqualification  as  ordered  by  Judge  Recordon  on  21

November 2006 remains in place.  I see no order for suspension

on the file so I assume that disqualification period will by now have expired.

(b) Mr W   is to pay Court costs of $130.

(c) In substitution for the order of fine, Mr W   is ordered to pay a donation of $300 to the Auckland City Mission.

Winkelmann J