Warren v Police - [2023] NZHC 2965

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.

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.

Continue reading Warren v Police

Details

AGLC: Warren v Police [2023] NZHC 2965
Case: [2023] NZHC 2965
Decision Date: 24 October 2023

CaseChat Overview and Summary

In this appeal, Mr Warren, who pleaded guilty to driving with excess breath alcohol, sought to be discharged without conviction. The District Court judge declined his application, finding that the consequences of a conviction were not out of all proportion to the gravity of his offending. Mr Warren appeals the decision. The appeal was dismissed. The appellant argued that the District Court judge had erred in her assessment of the consequences for him of a conviction. The Court of Appeal held that the judge was correct in her assessment. Mr Sharma’s affidavit did not give evidence that there were specific jurisdictions where Mr Warren frequently travelled where he would be barred from travelling as a result of a conviction. Instead, he merely speculated that other jurisdictions may have laws that were similar or analogous to immigration laws in New Zealand. This evidence was far too general and speculative to meet the test of a "real and appreciable risk" that a conviction would preclude Mr Warren from travelling overseas. The appeal was dismissed.

Orders