W v Police HC Wellington CRI-2009-485-6
[2009] NZHC 1725
•30 April 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2009-485-6
W
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 21 April 2009
Appearances: C J Tennet for the appellant
J M Webber for the respondent
Judgment: 30 April 2009
JUDGMENT OF CLIFFORD J
Introduction
[1] Ms W pleaded guilty to a charge under s 56(2) of the Land Transport Act
1998 of driving when the proportion of alcohol in her blood exceeded 80 milligrams of alcohol per 100 millilitres of blood. Ms W sought a discharge without conviction under s 106 of the Sentencing Act 2002. The Judge declined that
application. Ms W now appeals against that decision.
W V POLICE HC WN CRI-2009-485-6 30 April 2009
Background
[2] After Ms W was stopped at a compulsory checkpoint at 7.15am on 2
August 2008, she admitted that she had recently drunk alcohol. Breath screening and evidential breath tests confirmed that the amount of alcohol in her breath exceeded the allowable limit. Ms W elected to have a blood test carried out. The blood sample was found to contain 87 milligrams of alcohol per 100 millilitres of blood.
[3] Ms W based her application for a discharge without conviction on material she provided to the District Court by way of affidavit. In that affidavit Ms W explained the background to her offending, and in particular:
a) that she had been out socialising with some friends until approximately 2.30am;
b) that by her account she had drunk some four glasses of wine;
c) that as she believed at that time it may not be safe to drive she stayed at a flat belonging to some acquaintances in town, sleeping from just after 3.00am until she left there shortly before 7.30am in the morning;
d)that she had got up early to go home as her father was over from China and was babysitting her daughter and she did not want to leave her father with her daughter for too long;
e) that had she thought she was over the limit, she would not have driven at all and certainly would have stopped and waited.
[4] More generally, Ms W described herself as being a solo parent with a three year old child. She has been employed as a nanny but has more recently started studying law as a mature student. She also recorded details of being treated for a medical condition.
[5] She expressed concern about the impact of a conviction on her employment as a lawyer and with public sector agencies.
[6] She noted, more specifically in terms of the possible adverse effect of a conviction, matters relating to her nannying career and her aspirations to be a legally qualified Police prosecutor.
[7] As regards the nannying career, she said that a conviction was likely to mean she would no longer be able to work as a nanny or, at the very least, it would severely affect her chances of gaining work in that area. Nannying was the only consistent work she had been able to perform throughout her life due, possibly, to the nature of the medical condition for which she was being treated making her particularly suited to working with children. As regards the intention to become a qualified Police prosecutor, she stated she understood that would not be possible with such a conviction.
District Court decision
[8] In applying s 106 of the Act, the Judge considered whether a conviction would be out of all proportion to the gravity of the offending. While acknowledging that there would be some inconvenience to Ms W and some “undefined, conjectural impacts on her career”, the Judge concluded that the offending was relatively serious, and that the consequences of the conviction would not be out of all proportion to the gravity of the offending. The Judge also referred to the need for consistency in sentencing, noting that persons charged with this type of offence were almost invariably convicted, fined and disqualified.
Submissions
[9] I consider that the extensive submissions Mr Tennet made for Ms W on appeal can be fairly summarised as follows:
a) R v Hughes [2008] NZCA 546 set out the correct test to be applied.
Moreover, the decision as to whether the disproportionality test had been met under s 107 was not a matter of discretion but a matter of fact of judicial assessment which was subject to appeal on normal appellate principles. This was not, therefore, an appeal against the exercise of judicial discretion, but rather against the decision of the District Court Judge that the adverse consequences of a conviction for Ms W were not out of all proportion to the gravity of the offending.
b)The Judge had wrongly assessed the gravity of Ms W ’s offending and, in particular, had not appropriately acknowledged the significance of Ms W having not driven immediately, but having taken the trouble to sleep before returning home.
c) The Judge had wrongly interpreted the applicability of the Criminal
Records (Clean Slate) Act 2004.
d)The Judge had failed to give appropriate consideration to the significance of a conviction for a person in Ms W ’s position were she to qualify as a lawyer, being a mature student in a competitive employment market.
e) The Judge had wrongly evaluated the significance for Ms W of a conviction, particularly as regards her future employment as a nanny and as a Police prosecutor.
Therefore, the Judge had wrongly approached the balancing exercise required in applying the disproportionality test under s 107.
[10] Mr Webber for the Police submitted that the District Court Judge was correct in assessing the consequences of a conviction as advanced by Ms W were undefined and conjectural. Ms W failed to demonstrate that the balancing
exercise favoured a discharge without conviction in her case. The Judge’s decision should therefore be upheld.
Discussion
[11] Where an offender pleads guilty or is found guilty, s 11(1)(a) of the Sentencing Act requires the Court before entering a conviction to consider whether the offender might be more appropriately dealt with by way of a discharge without conviction under s 106. Section 106 provides that the Court may discharge an offender without conviction unless the Court is required to impose a minimum sentence. In addition to the discharge, the Court may make any order for costs, or any other order that the Court is required to make on conviction. Section 107 provides that 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.
[12] The approach to be taken under ss 106 and 107 is summarised as follows by the Court of Appeal in Hughes at [41]:
Application of the disproportionality test under s 107 requires consideration of all relevant circumstances of the offence, the offending and the offender, and the wider interests of the community, including the factors required by the Sentencing Act to be taken into account under ss 7, 8, 9 and 10. Having taken account of those factors, the Judge must determine whether the s 107 test is met and whether it is appropriate that he or she makes an order under s 106 to deal with the offender.
[13] As submitted by Mr Tennet and acknowledged by Mr Webber for the Police, the Court of Appeal also held that a decision as to whether s 107 has been met is not a matter of discretion, but that it is “a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles”: see Hughes at [11], [63]-[65].
[14] This judgment proceeds accordingly.
[15] The District Court Judge, relying on Police v Stewart (2004) 22 CRNZ 35, accepted that jurisdiction did exist for Ms W to be discharged under s 106 of the
Sentencing Act, notwithstanding the fact that s 56(3)(b) of the Land Transport Act requires that, where a person is convicted of a first or second offence as regards driving with excess blood alcohol, the Court must order the person to be disqualified from holding or obtaining a driver’s licence for six months or more. Although a contrary view has been expressed by Heath J in Police v Joblin-Hall HC WANG AP5/03 29 May 2003, and again in Ministry of Fisheries v Williams HC WHA AP6/03 13 November 2003, the approach taken in Police v Stewart has been followed more recently in a number of High Court decisions. See, for example, Neason v Police HC DUN CRI-2004-412-49 17 March 2005, Kairau v Police HC WN CRI-2005-485-154 9 December 2005 and Waight v Police HC AK CRI-2006-
404-465 24 May 2007.
[16] Here, the Crown accepted that jurisdiction existed for the District Court
Judge to discharge without conviction.
[17] In these circumstances, I am content to proceed on the basis, as did the
District Court Judge, of the authority of Police v Stewart.
[18] I now turn to the matters raised by Mr Tennet.
[19] In assessing the gravity of Ms W ’s offending, the Judge recorded, at [19], that she considered the offending relatively serious. She did this by reference to the fact that Ms W had been convicted of driving with excess blood alcohol. That this offending is generally serious offending is confirmed by the following comments of the Supreme Court in its decision Aylwin v Police [2008] NZSC 113:
[17] Every driver of a motor vehicle on the roads of this country should by now be aware that driving after consuming more than a small amount of alcohol is dangerous, illegal and socially unacceptable.
[20] Given, however, that a discharge without conviction is available where a person is convicted of such offending, it is not, and nor did the District Court Judge regard it so, sufficient to refer simply to the serious nature of this offending generally. Rather an assessment of the seriousness of Ms W ’s individual offending is called for.
[21] The narrative provided by Ms W in her affidavit was not contested by the Police although there is, perhaps inevitably, some uncertainty about Ms W ’s own recollection as to the precise number of glasses of wine that she may have consumed. Having said that, however, more significant in my judgment in this context are the two factors of:
a) the decision made by Ms W to sleep at her acquaintance’s flat before returning home; and
b)the influence on her decision to get up in the morning to drive home of her concern not to leave her father looking after her young child for too long.
[22] Here, the Judge’s sentencing notes refer to Ms W having decided to drive “after such a short interval” (at [19]). Moreover, the Judge’s sentencing note records Ms W “sleeping at her acquaintance’s flat until 3.00am” before Ms W decided to return home (at [4]).
[23] Ms W would appear to have slept until approximately 7.00am and only then decided to return home. The Police statement of facts was clear in that Ms W was stopped at 7.15am very close to the flat where she had stayed. Ms W explained her decision to get up and drive home in her affidavit in the following terms:
I left early as I didn’t know the people whose place I stayed at very well and woke up thinking I am too old to be sleeping on people’s couches. I believed that the alcohol from the previous night had left my system and that I was in a fit state to drive the 15 minutes to my home. I walked up to my car at the other end of Cuba Street to drive to my home in Ngaio. Had I thought I was over the limit I would not have driven at all and certainly would have stopped and waited. I was also anxious to get home to see my daughter and relieve my father from child care duties.
[24] When tested, Ms W ’s blood alcohol concentration was found to be 87 milligrams of alcohol per 100 millilitres of blood, seven milligrams in excess of the maximum allowed limit of 80 milligrams per 100 millilitres.
[25] I think it is therefore fair to say, as Mr Webber acknowledged, that this offending is very much at the low end of the scale as regards offending of this nature. Whilst offending of this nature is generally serious, and regarded as such by society, in my judgment the combination of the actual blood alcohol reading, Ms W having taken the precaution of staying at her acquaintance’s flat and having been influenced in her decision to drive home in the morning by her desire to not leave her father looking after her child for too long, emphasises that conclusion.
[26] The Police submitted that under the “clean slate scheme” there would be no record of her conviction after seven years and that therefore, at that time, that conviction would not affect Ms W ’s employment prospects.
[27] At the hearing, Mr Tennet appears to have made a submission that, although the Criminal Record (Clean Slate) Act 2004 would apply once the relevant statutory time period had passed to relieve Ms W of an obligation to disclose any conviction entered against her, the Court could not necessarily assume – in assessing the consequences of such a conviction – that that would always remain the case. In my judgment, such a speculative submission is not one that a Court can give much – if any – weight to.
[28] Before me, Mr Tennet appeared to submit that the District Court Judge had been wrong – in assessing the submissions made to her at the hearing – that that legislation would in fact apply generally to Ms W . As I understood matters, Mr Tennet based this submission on s 7(1)(g) of the Criminal Record (Clean Slate) Act. That section provides that an individual is only eligible under the clean slate scheme if no order has ever been made disqualifying him or her from holding or obtaining a driver licence under s 65 of the Land Transport Act, or a driver’s licence under s 30A of the Transport Act 1962.
[29] As relevant to Ms W , s 65 of the Land Transport Act applies where a person is convicted of an offence against either of ss 56 to 62 and the person convicted has previously been convicted of such an offence within five years of the date of the commission of the offence being dealt with by the Court. As Ms W had not previously offended under the Land Transport Act, s 65 does not apply to
her, and she is therefore not disqualified from being eligible under the clean slate scheme by reason of s 7(1)(g). The Judge did not, therefore, wrongly interpret the applicability of the Criminal Records (Clean Slate) Act.
[30] As regards the adverse consequences of a conviction on Ms W ’s future employment prospects, Mr Tennet referred both to Ms W ’s prospects in the legal market generally, and more specifically to her future employment as a nanny and her aspiration to be a Police prosecutor.
[31] I am not persuaded that anything in Mr Tennet’s submissions as regards Ms W ’s general prospects of employment, were she to graduate as a lawyer, satisfied me in terms of the disproportionality analysis. In general terms, I do not consider that such a conviction would be a significant bar to employment as a lawyer.
[32] More specifically, however, I accept as did the Police that a conviction of this nature would prevent Ms W obtaining employment as a Police prosecutor. I do so on the basis not only of her affidavit evidence, but on the basis of the acknowledgement provided by the prosecution before the Judge. The prosecution noted, moreover, that were Ms W to be discharged without conviction, she nevertheless would have, in the course of her application for employment as a prosecutor by the Police, to disclose the record of her offending in any event.
[33] The Police prosecutor did, however, also accept that whilst a conviction would act as an absolute bar, a s 106 discharge without conviction would only probably mean that her employment with the Police would not be recommended. There is, therefore, a real adverse impact on Ms W as regards her undisputed aspiration to be a Police prosecutor.
[34] Ms W ’s affidavit evidence was, as noted above, that her nannying work had been important to her, particularly as it was a type of work that was compatible with her medical condition. I have no reason not to accept that evidence. In my judgment, moreover, I think a conviction of this type would be of real significance for Ms W as a prospective nanny. I do so based on my assessment of the nature of that position, the particular relationship of trust between an employer and
employee and the significance of having a good driving record. Having said that, I accept the Police submissions on appeal that Ms W did not, somewhat unfortunately in my view, provide any third party confirmation of those matters. Whilst that was unfortunate, and persons applying for s 106 discharges should as a matter of general principle provide objective confirmation of matters such as those, at the end of the day s 107 involves an assessment by a Judge of a particular individual’s circumstance, and I consider it appropriate that I make that assessment based on the material before me.
[35] I also record that the District Court Judge, who was in a good position to judge these matters, agreed that Ms W was a person of good character (Ms W having provided a number of personal references), that she appeared remorseful and that she had learned her lesson on this occasion. As a matter of record, Ms W does not have any previous record of appearance or conviction.
[36] In applying the disproportionality test, I note that Ms W ’s culpability, that is the seriousness of her individual offending, is in my judgment at the very lowest end of the scale, accepting the seriousness generally with which society regards drink/driving offending. In reaching that conclusion, I pay particular regard to her fairly low recorded blood alcohol level, the fact that Ms W did not drive immediately after drinking, but slept at her inconvenience at an acquaintance’s flat, and that she was in part motivated to return home at the reasonably early hour of
7.15am because of her concern for her young child.
[37] Whilst the District Court Judge referred to the undefined and conjectural impacts on her career of a conviction, I accept that for Ms W , particularly given her personal position as regards her dependence on nannying employment while she studies part time for a law degree, a conviction for this offending could have a considerable impact on her. I also note the significance of such a conviction for her prospect of employment as a prosecutor with the Police.
[38] In these circumstances, and although by a fine margin, I am satisfied that the direct and indirect consequences for Ms W of a conviction for this offending would be out of all proportion to the seriousness of her individual offending.
[39] I therefore allow this appeal.
[40] Ms W will, nevertheless, be subject to disqualification as ordered by the
District Court Judge and to the costs order imposed in that Court.
[41] Mr Tennet invited me to impose some form of costs order in this Court in substitution, as it were, for the fine to which Ms W was sentenced in the District Court. In the circumstances of this case, and Ms W ’s individual position as I assess it, I do not consider that to be necessary.
[42] This appeal is allowed accordingly.
“Clifford J”
Solicitors: Chris Tennet, P O Box 12-456, Wellington for the appellant
Crown Solicitor, P O Box 10-357, Wellington for the respondent ([email protected])
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