Wadman v Police

[2025] NZHC 300

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2024-488-000130 [2025] NZHC 300

BETWEEN

OLIVIA GEORGETTE WADMAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	25 February 2025
Appearances:	T Shepherd for Appellant A Goodwin for Crown
Judgment:	26 February 2025

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 26 February 2025 at 4.00 pm.

……………………………… Registrar/Deputy Registrar

Solicitors:

Marsden Woods Inskip Smith, Whangarei

WADMAN v POLICE [2025] NZHC 300 [26 February 2025]

[1]                  On the evening of 25 April 2024, Ms Olivia Wadman was driving in Kaitaia when Police stopped her at a roadside checkpoint. She returned a positive breath test of 451 micrograms of alcohol per litre of breath.1 Ms Wadman deposed that she had consumed three beers over a period of around three hours. She was on her way to a local supermarket because she had run out of nappies for her youngest child.

[2]                  At the first opportunity, on 17 May 2024, Ms Wadman pleaded guilty in the Kaitaia District Court to one charge of driving with excess breath alcohol.2 Subsequently, on 21 November 2024, Judge M Howard-Sager declined Ms Wadman’s application for a discharge without conviction.3 Ms Wadman appeals.

[3]                  At the time of the offending, Ms Wadman was 28 years old and working as a registered nurse at the Kaitaia Hospital Emergency Department. She has postgraduate qualifications in nursing and business administration, and an impressive academic transcript. By the time of her application for discharge Ms Wadman had recently moved to Queensland.

Additional information on appeal

[4]                  In an affidavit sworn on 19 November 2024 in support of her application in the District Court, Ms Wadman deposed that she had “accepted a casual employment position as a registered nurse in the Yeppoon Emergency Department and a permanent contract in Rockhampton Emergency Department.” She annexed two “Approvals to offer employment” with the Central Queensland Hospital and Health Service for these roles.

[5]                  The Yeppoon offer for a casual position describes the hours “As Required” commencing 30 October 2024. The Rockhampton offer is dated 11 November 2024. It is for a “Permanent  Part  Time”  position,  48  hours per  fortnight, commencing 25 November 2024. The Rockhampton offer annexed the Queensland Health General Terms and Conditions of Employment.

1      This result exceeded the legal limit of 250 micrograms.

2      Land Transport Act 1998, s 56. The maximum penalty is three months' imprisonment or a fine not exceeding $4,500.

3      NZ Police v Wadman [2024] NZDC 28265.

[6]                  The Rockhampton offer was incomplete in the  affidavit  filed  in  the  District Court. Unopposed, I granted leave to Ms Wadman to file a further affidavit annexing the missing pages.  This  affidavit  also  provided  some  narrative  about Ms Wadman’s employment and visa position.

Legal principles

[7]                  The Court must not discharge an offender without conviction under s 106 of the Sentencing Act 2002 “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”.4 This involves establishing the gravity of the offending, the consequences of conviction and assessing whether the latter are out of all proportion to the former. It remains open to the Court to decline to exercise its discretion to grant a discharge even if that test is satisfied.5

[8]                  An appeal must be allowed against a refusal to grant a discharge if a miscarriage of justice has or may have occurred due to a material error by the sentencing Judge or for any other reason.6 If the appellant can show that the first instance decision is wrong, the appellate court makes its own assessment of whether the criteria for discharge without conviction are met.7

District Court decision

[9]                  The Judge assessed the gravity of Ms Wadman’s offending as low on the basis that it appeared to be a lapse in Ms Wadman’s decision-making on the day. She noted the relatively low breath test result, that there was no suggestion that Ms Wadman was driving erratically or dangerously, and that she had no previous convictions.8 On the direct or indirect consequences of conviction, the Judge said:9

4      Sentencing Act 2002, s 107.

5      Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]–[28].

6      Rahim v R [2018] NZCA 182 at [6] citing Criminal Procedure Act 2011, ss 232(2)(c) and 250; and

Jackson v R [2016] NZCA 627, at [12]–[13].

7      Maraj v Police [2016] NZCA 279 at [11]; Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103 at [16]; [2008] 2 NZLR 141; R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 at [63]–[66].

8 At [5].

9      At [6]–[7].

[Mr Shepherd] had made submissions, he has filed thorough submissions on your behalf in advance and I have read your affidavit as well. He says to me that [conviction] could affect your ability to continue working or to take a step up in terms of management.

The difficulty I have got with that is that there is no evidence before me today. I can see from your affidavit that you have filed that you are working, it appears that you were in casual employment, you are now in permanent employment so that suggests to me that you are a valued employee; and you have told me today through Mr Shepherd that, with you nodding in court, that your employer knows that you are in court today and there is certainly no evidence to suggest that they have sought to terminate your employment. It may have been helpful to get something from them to say what the consequences would have been of a conviction being entered but there is simply no evidence of that before me today.

[10]               She also noted Ms Wadman had a pilot’s licence and that this might make her marketable in nursing particularly in Australia. However, the Judge commented that she could not make a decision unless  she  had something tangible  about whether  Ms Wadman’s conviction would affect her ability to fly.

[11]                Accordingly, the Judge concluded that she was not satisfied that the direct or indirect consequences of Ms Wadman’s conviction were out of proportion to the gravity of the offence.

The appellant’s submissions

[12]               Ms Wadman’s appeal is directed at the Judge’s assessment of the direct and indirect consequences of the offending.

[13]               First, Ms Wadman asserts factual errors in the Judge’s statement: “it appears that you were in casual employment, you are now in permanent employment so that suggests to me that you are a valued employee”. Mr Shepherd for Ms Wadman says this is wrong because:

(a)the employment at Yeppoon is on a casual basis “as required” with no guarantee of permanent work; and

(b)at the time of the hearing, Ms Wadman had only received an “Approval to offer” and had not yet commenced the permanent role at

Rockhampton.    Moreover, it is subject to a six-month probationary period.

[14]               Ms  Wadman  says  that  the  Judge’s   consequential   characterisation   of Ms Wadman as a “valued employee” was overstated. At the date of the hearing, she had only had the casual role for less than a month and was yet to start at Rockhampton.

[15]               Ms Wadman also says that a miscarriage of justice occurred due to the Judge not having the missing pages of the exhibits to her affidavit and hence not possessing all the relevant documentation required to assess Ms Wadman’s employment position and status.

[16]               The missing documents include Ms Wadman’s “Acceptance of Offer” for the Rockhampton position. Ms Wadman highlights that this document records that in accepting the offer she was required to learn and maintain the requirements of her role including visa requirements; maintain relevant registrations; comply with a code of conduct; and comply with policy, regulations, standards procedures and work practices. Specifically, as linked to these aspects Ms Wadman says:

(a)She has now learned about her visa requirements. She annexed to her latest affidavit a “Visa Details Check” from the Australian Government stating that Ms Wadman only has temporary residence in Australia. To be eligible for this visa Ms Wadman must “meet … character requirements.”

(b)The Queensland Public Service Code of Conduct outlines ethical standards expected.

(c)Ms Wadman is required to maintain annual registration as a nurse in Australia which requires disclosure of criminal history.

(d)Ms Wadman’s terms of employment record that “Queensland Health has determined that criminal history checks will be conducted for all

persons who are recommended for permanent appointment; or all temporary or casual employments”.

[17]               Mr Shepherd for Ms Wadman submits that these  matters demonstrate that Ms Wadman is likely to suffer direct or direct consequences out of proportion to what the Judge concluded was a low gravity of offending.10

Decision

[18]This appeal does not have merit.

[19]               First, the Judge did not make factual errors. There is nothing to suggest that the Judge did infer that the “casual” position provided any guarantee of work. As to the permanent role, based on the seven days within which Ms Wadman was required to accept her Rockhampton offer, Ms Wadman had already returned the acceptance by the date of the affidavit. Hence it was not wrong for the Judge to describe Ms Wadman as now in permanent employment, consistent with how Ms Wadman herself had described the position.

[20]               The fact that the Rockhampton position has a probationary period does not equate to this being a non-permanent role. There was no evidence before the Judge (or now me) suggesting that Ms Wadman’s employer will view her conviction as impacting on the probationary period.

[21]               Significantly, in her sentencing notes the Judge referred to Ms Wadman having acknowledged that her employer knew she was before the Court that day. It was not suggested in  this  Court  that  the  Judge’s  understanding  was  incorrect  or  that  Ms Wadman’s employer has indicated any consequences from the outcome of the Court hearing.

[22]               I agree that the Judge’s assessment from the facts that Ms Wadman was a “valued employee” is a stretch. However, this comment has no material bearing on

10 I observe that it may have been more appropriate to assess the gravity of this offending as “moderately serious” albeit at the lower end, to adopt the Court of Appeal’s approach in Basnayat v Police [2018] NZCA 486 at [19].

the Judge’s decision. Her conclusion was that there was no evidence to suggest that Ms Wadman’s employer had sought or would seek to terminate the employment (or, I interpose, withdraw the offer if it had not yet been accepted), and insufficient evidence generally to say what consequences might flow. As the Judge noted, it was difficult for her to assess Ms Wadman’s concerns without any letter or affidavit from prospective employers as to how the conviction would result in this consequence.

[23]               Ms Wadman has now been in her permanent part time role at Rockhampton for nearly three months, since 25 November 2024. I have no evidence to suggest that due to the conviction, Ms Wadman’s employer will not confirm her role when the six-month probationary period passes. Indeed, Ms Wadman has had the opportunity to prove herself on her merits. That is in contrast to the position sometimes advanced in cases where a conviction may screen out the candidate from even being considered for interview.11

[24]               There is no risk that the omission of pages from Ms Wadman’s affidavit led to a miscarriage of justice:

(a)Ms Wadman’s temporary visa enables her to live and work in Australia and to stay for an indefinite period. Mr Shepherd notes that to be eligible for this visa Ms Wadman must “meet … character requirements.” I have no evidence on how this is applied, but on its face it is linked to the fact of the offending not the conviction. I do not have any information to suggest her temporary visa or (in due course) permanent visa status would be affected by the conviction.

(b)Ms Wadman’s highlighted reference in the omitted material to criminal checks for those recommended for employment with Queensland health employees. Here, Ms Wadman has already received and accepted her job offer. Again, this is not a situation where Ms Wadman may not get through a screening process due to the fact of a conviction.

11     For example, Maraj v Police, above n 7.

(c)Ms Wadman relies on her annual registration obligations. I have no information on the impact of a conviction on registration and/or whether the fact of offending is required to be disclosed in any event. The Courts tend to leave the assessment of the impact of a conviction to the professional body concerned, rather than viewing this factor as supporting a discharge.12

(d)Ms Wadman did not provide any further information on consequences relating to her pilot’s licence.

[25]               In short, the Judge was not in error on the information before her in concluding that Ms Wadman has not established an appreciable risk of consequences that would outweigh even the low gravity of offending the Judge identified. There has been no risk of a miscarriage of justice arising either based on the Judge’ s decision or taking into account pages of exhibits missing before the District Court. The appeal is dismissed.

Anderson J

12     Roberts v Police (1989) 5 CRNZ 34 (HC) at 36 cited in Maraj v Police, above n 7, at [28].