IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2023-404-421
[2023] NZHC 2965
BETWEEN MICHAEL WARREN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 October 2023 Appearances:
C Paterson for the appellant S Teppett for the respondent
Judgment:
24 October 2023
JUDGMENT OF CAMPBELL J
[Appeal against refusal of discharge without conviction]
This judgment was delivered by me on 24 October 2023 at 1.00 pm
Registrar/Deputy Registrar
WARREN v NEW ZEALAND POLICE [2023] NZHC 2965 [24 October 2023]
[1] The appellant, Mr Warren, pleaded guilty to a charge of driving with excess breath alcohol. He applied under s 106 of the Sentencing Act 2002 to be discharged without conviction on the ground that the consequences of a conviction, being an inability to travel for his business, would be out of all proportion to the gravity of his offending. Judge A Fitzgibbon declined his application.1 Mr Warren appeals.
The offending
[2] On 7 December 2022, Police stopped Mr Warren’s car for a minor traffic infringement. Police carried out breath testing procedures. Mr Warren’s breath was found to contain 572 micrograms of alcohol per litre of breath. The legal limit is 400 micrograms of alcohol per litre of breath.2
[3] Mr Warren told Police he had had around three glasses of wine with dinner earlier that evening and that he was driving home. He was cooperative with Police.
[4] Mr Warren has two previous convictions, for careless driving in 1997 and 2000. He has also had a discharge without conviction for an assault.
Affidavit evidence before the District Court
[5] Mr Warren filed two affidavits in support of his application. One was from himself. The other was from Rahul Sharma, a solicitor and immigration advisor.
[6] Mr Warren is 58 years old. He has worked in the tourism industry since he was 20 years old. In 2002, he founded a tourist accommodation company based near Franz Josef Glacier. His company provides accommodation services for tourists, including a five-star boutique hotel, restaurant and bar, a backpackers’ lodge and a holiday park.
[7] Mr Warren’s business was severely affected by the closure of the international tourist market during the COVID-19 pandemic. The business is still not close to being back to pre-pandemic numbers. In February 2023, Mr Warren was forced to sell his house in order to clear debts.
1 New Zealand Police v Warren [2023] NZDC 15176.
2 Land Transport Act 1998, s 56(1).
[8] In order to market his business, and the West Coast of the South Island generally, Mr Warren needs to travel overseas to attend travel expos and to meet with travel management companies. Prior to the pandemic, he would travel overseas every year to attend such expos. He says they are typically held in Europe but there are many expos held all over the world. Mr Warren says that the benefits of attending these expos are immense and have been an integral part of generating business for his company.
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