Walford v Police - [2017] NZHC 2627

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-Ā-TARA ROHE

CRI-2017-485-42 [2017] NZHC 2627

BETWEEN
CHENNOAH WALFORD

Applicant

AND

NEW ZEALAND POLICE Respondent

Hearing: 10 October 2017

Appearances:

L A Scott for the Applicant
C T Hislop for the Respondent

Judgment:

26 October 2017

JUDGMENT OF CULL J

[1] Ms Walford pleaded guilty to once charge of driving with excess blood alcohol.1 She sought a discharge without conviction, however, Judge Mill convicted Ms Walford, ordered her to pay court costs and disqualified her from driving for six months.2

[2] Ms Walford appeals against this conviction and submits the Judge was wrong to refuse the discharge without conviction. Ms Walford submits the Judge failed to properly assess the gravity of the offending and failed to properly consider the potential consequences for her in relation to her involvement with Amnesty
International and her future employment.

1 Land Transport Act 1998, s 56(2). Maximum penalty for this offending, of a first or second offence, is three months’ imprisonment or a fine not exceeding $4,500, and disqualification from driving for a minimum period of six months.
2 R v Walford [2017] NZDC 15940.

WALFORD v NEW ZEALAND POLICE [2017] NZHC 2627 [26 October 2017]

[3] The Crown opposes the appeal because this is not a case where a discharge without conviction is warranted. The consequences of conviction submitted by Ms Walford are speculative and do not establish a real or appreciable risk.

Factual background

[4] On the evening of 20 January 2017, Ms Walford was driving a car in central Wellington. Ms Walford had been drinking more than she should have and had an argument with her boyfriend. She left his house to go to the petrol station to purchase cigarettes, pulled out of the petrol station and forgot to put her lights back on. She was stopped because the headlights were not operating on the car. A blood test gave a reading of 157 milligrams of alcohol per 100 millilitres of blood, which was almost twice the legal limit.

[5] Ms Walford is 23 years of age and a university student. She has no other previous convictions. In her affidavits, Ms Walford explained the difficult personal circumstances she was facing at the time of the offending. In addition to her problems in 2015, in 2016, her mother had significant health and personal problems which had an effect on Ms Walford’s studies as a result.

[6] Ms Walford states that her actions were linked to her depression and use of alcohol. Since the incident, Ms Walford donated to Wellington Free Ambulance and has been studious about taking counselling sessions for alcohol use. Ms Walford has also filed a letter in support of her character from the Chairman of the Amnesty International New Zealand Board.

District Court decision

[7] Judge Mill refused to grant a discharge without conviction in Ms Walford’s

case.

[8] The Judge identified that to grant a discharge without conviction, he must be satisfied…

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: [2017] NZHC 2627
Decision Date: 26 October 2017

CaseChat Overview and Summary

Chennoah Walford appealed against her conviction for driving with excess blood alcohol, seeking a discharge without conviction. The District Court Judge had convicted Ms Walford and ordered her to pay court costs and disqualified her from driving for six months. The Crown opposed the appeal, arguing the consequences of conviction for Ms Walford were speculative and did not establish a real or appreciable risk. The High Court had to decide whether the Judge was wrong to refuse the discharge without conviction. The Court applied the three-stage test set down by the Court of Appeal to determine whether the consequences of a conviction would be out of proportion to the gravity of the offending. The Court concluded that the Judge was correct to refuse the discharge without conviction and dismissed the appeal. The consequences of a conviction for Ms Walford were not out of proportion to the seriousness of the offending and were ordinary consequences of all persons convicted of driving with excess blood or breath alcohol. The Court commended Ms Walford for the steps she had taken since the offending, recognising those factors which had led to it.

Orders