Warren v Police
[2023] NZHC 2965
•24 October 2023
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.
[9] Mr Warren’s business also requires him to travel to meet with travel management company representatives. He specifically mentions a company based in London.
[10] Mr Warren says that with the ever-changing landscape of the tourism sector, it is important to his business that he has the flexibility to travel to all countries in order to take full advantage of emerging markets.
[11] Mr Sharma deposes that when Mr Warren travels overseas to attend travel and tourism events, he will have character issues to address with his visa application process. He says that his understanding is, based on an analogy with immigration laws in New Zealand, that a conviction would make obtaining a visa problematic from overseas jurisdictions.
[12] Mr Sharma says another analogy can be drawn from New Zealand’s immigration system. He says that when a person makes a temporary visa application from overseas and declares a criminal conviction, and a decision is made to decline a visa, there is no opportunity to respond or complain or appeal on such matters. Mr Sharma says he believes Mr Warren will face a similar situation in many parts of the world where he may wish to travel. He says that Mr Warren’s visa applications to many countries may not be approved where a character waiver is not granted.
[13] Mr Sharma concludes that if Mr Warren is convicted there is a real risk that he will be adversely impacted in travelling overseas to promote his business. Mr Sharma says that Mr Warren would have to declare the conviction on each occasion whilst
applying for a visa to “multiple countries” and there would always be a degree of uncertainty around his visa approvals and future travel plans.
District Court judgment
[14] Judge Fitzgibbon said that she first needed to consider the gravity of Mr Warren’s offending, including all aggravating and mitigating factors. The next step was for her to identify the direct and indirect consequences of a conviction for Mr Warren. The third step was to consider whether those consequences were out of all proportion to the gravity of the offence. Her Honour said that if she determined that the consequences were out of all proportion she then had to consider whether to exercise the discretion to grant a discharge.
[15] After referring to the nature of the offending, Mr Warren’s cooperation with Police and his early guilty plea, the Judge said she considered the gravity of the offending to be moderate. As to the direct and indirect consequences of the offending, her Honour said that there had to be a “real and appreciable risk” of the suggested consequences occurring. She then referred to the Court of Appeal’s decision in Edwards v R.3 Her Honour found it was not demonstrated that there was a real and appreciable risk of Mr Warren being prohibited from overseas travel such that his business would suffer. Her Honour said that Mr Sharma’s affidavit did not give evidence that there were specific jurisdictions where Mr Warren frequently travelled where he would be barred. Finally, Judge Fitzgibbon distinguished a High Court decision, Papuni v New Zealand Police,4 in which Duffy J had granted a discharge without conviction to a defendant who had pleaded guilty to a drink driving charge.
Relevant legal principles
[16] Section 106 of the Sentencing Act provides that the court may discharge an offender without conviction following a plea or finding of guilt. Section 107 provides that the court must not grant such a discharge 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.
3 Edwards v R [2015] NZCA 583.
4 Papuni v New Zealand Police [2013] NZHC 1958.
[17] The proportionality assessment required by s 107 involves three steps.5 First, the court must determine the gravity of the offending, taking into account all aggravating and mitigating factors of the offending and the offender. Secondly, the court must determine the direct and indirect consequences of a conviction. Thirdly, the court must determine whether those consequences are out of all proportion to the gravity of the offending.
[18] If the consequences are found to be out of all proportion to the gravity of the offending, the court then has the discretionary power under s 106 to discharge the offender without conviction.
[19] The proportionality assessment in s 107 involves judicial evaluation rather than the exercise of discretion. It is therefore subject to appeal on normal appellate principles.6 The appeal court must come to its own view of the merits, but the appellant bears the onus of satisfying the court that it should differ from the decision under appeal.
Grounds of appeal
[20] Mr Paterson, counsel for Mr Warren, submitted that Judge Fitzgibbon had erred in her assessment of the consequences for Mr Warren of a conviction. He submitted that the Judge ought to have concluded that there was a real and appreciable risk that a conviction would preclude Mr Warren from travelling to the countries that he had visited in the past for business. He submitted that, in turn, the Judge should have found that these consequences were out of all proportion to the gravity of Mr Warren’s offending.
Did the Judge err?
[21] Judge Fitzgibbon concluded that the gravity of Mr Warren’s offending was moderate. The Judge was right to reach this conclusion, which was in accordance with the Court of Appeal’s decision in Basnyat v Police.7
5 Z (CA447/2012) v R [2012] NZCA 599.
6 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.
7 Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344.
[22] As to the direct and indirect consequences of a conviction, it is not necessary for the court to be satisfied that these consequences would inevitably or probably occur. It is sufficient that the court is satisfied there is a “real and appreciable risk” that such consequences would occur.8 As the Court of Appeal explained in Edwards v R,9 this standard recognises that the court is being asked to predict what will happen in the future. In this case, for example, Mr Warren does not have to prove that he will inevitably or probably travel overseas for his business. It suffices for him to establish to a real and appreciable risk that he will do so. I am satisfied that Mr Warren has done so.
[23] However, that is only part of what Mr Warren needed to do in order to establish a real and appreciable risk that a conviction would preclude him from travelling overseas. In Edwards, the Court of Appeal said:
[25] It does not follow, however, that a court will permit an applicant to speculate about matters of present fact, in which we include any existing travel restrictions that are said to preclude travel. Proof of these matters may require expert evidence if they are not agreed and cannot be established in any other way.
[26] It seems to us, speaking generally, that a court will ordinarily expect to be satisfied that under the law and practice of the jurisdiction concerned:
(1)the conviction must be disclosed but, assuming a discharge is given, the fact that the offence was committed need not be; and
(2)in consequence of the conviction, the applicant is prima facie inadmissible, and for how long; and
(3)there is no alternative entry process available or that, if there is, such process is unreasonably difficult and uncertain in all the circumstances.
[24] Mr Sharma’s evidence falls well short of satisfying me that Mr Warren will face any existing travel restrictions precluding him from travelling. Mr Sharma does not identify any particular restrictions in any particular jurisdictions that would require Mr Warren to disclose a conviction. Nor does he explore whether, even if a discharge were given, the fact of the offending need not be disclosed. Mr Sharma does not point to any provisions in any jurisdictions that would make Mr Warren inadmissible to the
8 DC (CA47/2013) v R [2013] NZCA 255 at [43].
9 Edwards v R [2015] NZCA 583 at [24].
jurisdiction in consequence of a conviction. He does not explore possible alternative entry processes into such jurisdictions. Instead, he merely speculates that other jurisdictions may have laws that are similar or analogous to immigration laws in New Zealand. This evidence is 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 (or even that he would face unreasonable restrictions in seeking to undertake such travel).10
[25] Mr Paterson placed much reliance on Duffy J’s judgment in Papuni v New Zealand Police.11 He submitted that the expert evidence in that case was just as generic as Mr Sharma’s evidence, yet Duffy J found there was a real and appreciable risk that a conviction would preclude the defendant from travelling overseas. I accept that Duffy J’s summary of the expert evidence suggests that it was generic. But even if that were so, her Honour’s judgment predated the Court of Appeal’s decision in Edwards, which I am bound to follow.
[26] For these reasons, I consider that Judge Fitzgibbon made no error in her assessment of the direct and indirect consequences of a conviction and accordingly made no error in finding that those consequences would not be out of all proportion to the gravity of Mr Warren’s offending.
Result
[27]Mr Warren’s appeal is dismissed.
Campbell J
10 Compare the more specific evidence described in Edwards itself and in cases subsequent to
Edwards such as Shi v New Zealand Police [2020] NZHC 59.
11 Papuni v New Zealand Police [2013] NZHC 1958.
0
4
0