Walford v Police
[2017] NZHC 2627
•26 October 2017
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 RespondentJudgment:
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 that the direct and indirect consequences of a conviction would be out of all
proportion to the gravity of the offence.3 The Judge identified the three-stage test set down by the Court of Appeal as to the standard required to grant a discharge.4
[9] When looking at the seriousness of the offence, the Judge had regard to Ms Walford’s affidavit outlining her personal circumstances. The Judge identified that the alcohol level was high, almost twice the level for a prosecution to be instituted and well over the permitted level for any driver to drive with. He characterised it as a “moderately serious offence of its type.”5
[10] In terms of the consequences of a conviction, the Judge identified the following concerns:
(a) a conviction will impact on Ms Walford’s ability to be involved with Amnesty International as a board member both in New Zealand and overseas;
(b)a conviction will impact on Ms Walford’s employment prospects as she is due to graduate with an LLB/BA degree next year and will be entering a competitive work environment; and
(c) the impact a conviction will have on her ability to travel overseas.
[11] The Judge identified that although these effects were speculative, they were sufficiently probable or possible to consider them.
[12] The Judge highlighted that in cases of drink-driving, the higher courts have cautioned that a discharge without conviction ought to occur only in exceptional cases of this kind.6 This is largely based on policy grounds that drink-driving is a pervasive social problem, although the Judge did note this is not a reason to refuse a
discharge without conviction.7
3 Sentencing Act 2002, s 107.
4 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142.
5 Walford, above n 2, at [9].
6 See comments of Miller J in Linterman v Police [2013] NZHC 891; and Williams J in
McDonald v Police [2017] NZHC 732.
7 Walford, above n 2, at [16].
[13] The Judge considered that the consequences of a conviction would not be out of proportion to the gravity of the offending. It would be expected that Amnesty International would have regard to the important work Ms Walford had done for them for many years, despite this conviction.
[14] In relation to any future employment, the Judge accepted that the conviction would need to be disclosed but he could not assume any future employer would disregard Ms Walford simply because of that conviction. The same can be said for her ability to travel. It is clear this conviction is out of character for Ms Walford and she has taken responsible steps since to ensure that her drinking is under control. Nevertheless, a conviction is appropriate in the circumstances.
[15] The Judge convicted Ms Walford, ordered her to pay court costs and disqualified her from driving for six months.
Approach to appeal
[16] The power of a court to order a discharge without conviction is set out in s 106 of the Sentencing Act 2002 (the Act). Section 107 provides a threshold which must be met before discretion can be exercised under s 106. Section 107 states:
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.
[17] A determination under s 107 has been held to be a three-stage process:8
(a) consider the seriousness or gravity of the offending;
(b)consider the direct and indirect consequences of a conviction on the offender; and
(c) determine whether the consequences would be out of all proportion to the gravity of the offending.
8 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]–[17], Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [14]; Z (CA447/12), above n 4, at [8]; and DC (CA47/13) v R [2013] NZCA 255 at [31].
[18] Because s 107 is a question of fact requiring judicial assessment, an appeal against a finding that s 107 is not satisfied is an appeal on ordinary appellate principles (Austin, Nichols & Co Inc v Stichting Lodestar),9 not an appeal against the exercise of discretion.10 Accordingly, the Court must come to its own view on the merits. The appellant must establish that a miscarriage of justice has occurred by
virtue of a material error by the sentencing Judge in entering a conviction or for any reason because the Judge has erred in applying the principles for discharging an offender without conviction.
Ms Walford’s position
[19] Ms Walford 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.
[20] Ms Walford does not take issue with the Judge’s assessment on the gravity of the offending, as drink-driving is an issue of public concern. She accepts the Judge was also right to assess her offending as moderately serious.
[21] However, Ms Walford submits the steps she has taken following the offending to make amends and right her wrongdoing must be seen to reduce the gravity of offending significantly. These include her ongoing counselling, donating to the Wellington Free Ambulance, her genuine remorse demonstrated by her early guilty plea and disclosure to the Chairman of the Board of Amnesty International. Ms Walford argues that while the Judge turned his mind to these points, he did not properly indicate or assess that they had reduced the gravity of the offending.
[22] Ms Walford contends that the Judge placed excessive weight on the seriousness of the offending by referring to recent High Court authority referring to
the exceptional circumstances where a discharge without conviction will be given in
9 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
10 R v Hughes, above n 8, at [63]–[66]; and Maraj v Police [2016] NZCA 279 at [11].
drink-driving cases.11 She submits the Judge placed too high a bar in terms of the gravity of the offending and the proportionality test then required.
[23] Further, Ms Walford submits the Judge failed to properly consider the consequences of a conviction. Ms Walford refers to the evidence before the Court that a conviction would impact on her ability to remain on the Board of Amnesty International and it may impact on her ability to travel for the organisation. She says the Judge appeared to imply there was some obligation on her to disclose the entire membership of her conviction and not hide this. Ms Walford submits her disclosure to senior members of the Board should be considered to her credit and not held against her as hiding it from the membership.
[24] Finally, Ms Walford emphasises that a conviction will affect her employment prospects in a competitive field. She would still have to explain her offending and the Judge failed to consider that this, in and of itself, would be a consequence of her conviction.
Crown’s position
[25] The Crown submits the Judge correctly identified that the offending was moderately serious for its type. Discharges without conviction are generally granted in exceptional circumstances as the offence is inherently serious whenever the alcohol is more than minimally above the permissible limit.12 The Crown submits that Ms Walford’s offending was more than minimally above the permissible limit as it was almost double the legal limit. The Crown relies on Miller J’s comments in
Linterman v Police about the exceptional nature of discharges without conviction in drink-driving cases.13
[26] The Crown says that the Judge considered the subsequent steps taken by
Ms Walford, in his discretionary decision-making process. The Judge referred to
11 Linterman, above n 6.
12 Simmonds v Police [2014] NZHC 2488 at [27].
13 Linterman, above n 6, at [9].
these steps as “mitigating circumstances” and the Crown says, the Judge did not err when considering the gravity of the offending.14
[27] Further, the Crown submits the Judge considered the consequences of conviction and made no error in assessing them. The Judge did not err in his decision by considering whether or not Amnesty International should be aware of this conviction. Ms Walford has disclosed the offending to Board members and any future consequences she faces in her position are uncertain and speculative. There is no evidence to explain how a conviction will create a real and appreciable risk to Ms Walford’s future in Amnesty International or human rights work generally.
[28] The Crown emphasises that there is no evidence of the likely response of the countries to which Ms Walford intends to travel, in relation to a conviction of this kind. Therefore, it is submitted it is impossible to conclude there is a real risk of consequence caused to Ms Walford’s ability to travel.
[29] The Crown submits that any effect on Ms Walford’s future employment prospects is speculative. There should generally be evidence or supporting material beyond an assertion as to the likely consequences on employment.15 The lack of any proof provided in this case means that these consequences should, as the Crown argues, be given little weight in the s 107 balancing exercise.
Relevant law
[30] In Linterman v Police, Miller J commented on the exceptional nature of a discharge without conviction in drink-driving cases:16
[9] I agree that discharges ought to be exceptional for this offence. It is illuminating to reflect on the several reasons why that might be so. First, in the hands of a drunk a car is a dangerous thing. Second, good character and extenuating personal circumstances normally count for little. Drink- driving is a pervasive social problem which has brought many good citizens into the dock and caused the legislature to respond with a sentencing policy that emphasises personal and general deterrence. Notably, the court may relieve an offender of the minimum disqualification period only for special
14 Walford, above n 2, at [20].
15 Simmonds, above n 12, at [34]; and Police v M [2013] NZHC 1101, (2013) 36 CRNZ 308 at
[58]–[62].
16 Linterman, above n 6 (emphasis added and footnotes omitted).
reasons relating to the offence. Special reasons relating to the offender will not do. Nor is ignorance of one’s alcohol level a defence; a driver who chooses to drink at all takes the risk that for whatever physiological or other reason her level will prove higher than she thought. Third, an applicant must identify some extraordinary consequence of conviction, which is difficult when the ordinary consequences are unpleasant. A drink-driving conviction always carries a social stigma and the offender must normally disclose it to a prospective employer, who may wonder whether it evidences poor judgement or undue fondness for drink, and to immigration authorities, who may categorise it as evidence of antisocial tendencies.
[10] That said, a discharge is available in law for the offence, so the legislature must be taken to have recognised that some cases may merit one. When granting a discharge, a court may make any order that it would be required to make on conviction, so the policy of the legislation can be respected by imposing a period of disqualification. And under settled principles the offender’s explanation and good character may be considered when assessing the gravity of the offence and exercising the discretion under s 106 of the Sentencing Act 2006, although the weight accorded [to] these things must be affected by the legislative policy that I have just discussed. Further, the cases indicate that disruption to travel or study plans may justify a discharge if sufficiently proved, although counsel could draw my attention to no judgment of this Court in which one has been granted or upheld on such grounds for drink-drinking.
[31] In the more recent case of McDonald v Police, Williams J endorsed Miller J’s comments, noting it “has long been the case that discharges without conviction for drink-driving are rare.”17 The Judge further stated:18
[18] Consistently with these remedies, discharges have been granted for particularly exceptional circumstances such as self-testing with a faulty breathalyser, acceding to a request from an employer to drive following consumption of alcohol, or sleeping at an acquaintance’s flat (to avoid drink- driving) and driving home in the morning while unexpectedly still over the limit.
[19] Thus, personal background factors are unlikely to count for much and nor is a simple miscalculation about degree of intoxication. Low levels of alcohol will affect penalty, if above the legal limit, but are unlikely to justify a discharge without more.
[32] Although the appellant in that case had lost his job in New Zealand, Williams J held that the consequences of his potential to acquire future jobs was
speculative. The appellant did still have employment in Australia.
17 McDonald, above n 6, at [17].
18 Footnotes omitted.
[33] Similarly, in Franks v Police Courtney J refused to grant a discharge without conviction on the basis a drink-driving conviction would negatively impact a 26 year old nurse’s future employment prospects.19 The Judge held it was far from certain there would be any long-term consequences on her career as she was a first time offender with good references that supported her character and professional abilities. It, therefore, seemed unlikely that the consequences would be severe. Further, the Judge stated that although Ms Franks would need to disclose the conviction to prospective employers, there is no reason to think she will be shut out of her
profession solely as a result of this conviction. Although in her profession there is public concern and sensitivity to this type of offending, the consequences of conviction were not out of proportion to the seriousness of the offending.
Analysis
[34] Sections 229 and 244 of the Criminal Procedure Act 2011 confer on a convicted person the right to appeal against their conviction and sentence, respectively. A refusal to grant a discharge without conviction is a decision both as to conviction and as to sentence.
[35] The Court of Appeal stated in R v Hughes that the test under s 107 of the Act requires an evaluative judgment, and is not a matter of discretion.20
[36] Thus, this Court must apply the analysis required by s 107. In R v Hughes, the Court of Appeal confirmed a three step test that is helpful when applying s 107:21
(a) first, the court must assess the gravity of the offending;
(b)second, the court must assess the direct and indirect consequences of the conviction; and
(c) third, the court must determine whether the consequences are out of all proportion with the gravity of the offending.
19 Franks v Police [2013] NZHC 3556.
20 Hughes, above n 8, at [11]. This view was confirmed in Blythe, above n 8, at [12]–[13] and DC (CA47/2013), above n 8.
21 Hughes, above n 8, at [16]–[17].
[37] In the first step, the court should take into account all aggravating and mitigating factors of both the offending and the offender.22 This must be weighed against all the likely consequences of a conviction.
[38] An appellant must show that a miscarriage of justice has occurred by virtue of a material error by the Judge in entering the conviction, or that a miscarriage of justice has occurred because the Judge has erred in applying the principles for discharge without conviction.23
[39] The authorities on granting a discharge without conviction for an excess blood or breath alcohol are consistent: without exceptional circumstances, discharges without conviction for drink-driving are rare. This case lacks the unusual mitigating factors seen in other cases, where discharges have been granted on appeal for this
offence, as Miller J observed in Linterman.24
[40] I cannot find fault or error in Judge Mill’s approach in this case. His approach is consistent with his refusal to grant a s 106 discharge in McDonald v Police, which was upheld by this Court.25
[41] As the authorities make clear, personal background factors are unlikely to count in drink-driving cases and the consequences, which have been pleaded by Ms Walford, are not out of the ordinary. They are ordinary consequences of all persons convicted of driving with excess blood or breath alcohol and are not out of proportion to the gravity of the offending.
[42] I acknowledge that Ms Walford is about to complete her legal qualifications but it is speculative whether she will be “shut out” of the legal profession or her chosen field of human rights, as a result. Her experience to date, the accolades about her work and the character references all suggest otherwise. It was accepted that the possible travel consequences of a conviction for drink-driving are not significant and
are also speculative.
22 Z (CA447/12), above n 4, at [27]–[28].
23 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12]; McDonald, above n 6, at [16]; and
Criminal Procedure Act 2011, s 232.
24 Linterman, above n 6, at [10]–[11].
25 McDonald, above n 6.
[43] I acknowledge that Ms Walford will have to disclose a conviction of this kind to a future employer, but that does not place Ms Walford in any different position to other drink-driving offenders. It is a natural consequence for this type of offending and is not disproportionate.
[44] The balancing exercise required under s 107, therefore, properly weighs against a discharge without conviction. The consequences of such conviction for Ms Walford are not disproportionate to the seriousness of the offending. Ms Walford, however, is to be commended for the steps she has taken since the offending, recognising those factors which have led to it. Those are the same factors, which one would trust a future employer would take into account, in assessing Ms Walford’s otherwise blameless record.
[45] The appeal is dismissed accordingly.
Cull J
Solicitors:
Crown Solicitor, Wellington
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