Wilby v New Zealand Police
[2013] NZHC 2963
•8 November 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-000251 [2013] NZHC 2963
BETWEEN AMANDA LEIGH WILBY Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 4 November 2013
Counsel: J Price for Appellant
E Woolley for Respondent
Judgment: 8 November 2013
JUDGMENT OF ASHER J
This judgment was delivered by me on 8 November 2013 at 4.30 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitor/Counsel:
Meredith Connell, Auckland.
WILBY v NZ POLICE [2013] NZHC 2963 [8 November 2013]
Introduction
[1] On 6 August 2013 Amanda Wilby pleaded guilty to one charge of driving a motor vehicle with excess breath alcohol contrary to s 56(1) of the Land Transport Act 1998. Judge Wade in the North Shore District Court convicted her and sentenced her to a fine of $600, court costs of $132.80 and disqualified her from driving for a period of six months. He declined an application to discharge her without conviction under s 106 of the Sentencing Act 2002. This is an appeal against the refusal to grant the discharge. There is no challenge to the disqualification and fine on a stand alone basis.
[2] On behalf of Ms Wilby, Ms Price submits that the Judge erred in his finding that the direct and indirect consequences of a conviction did not outweigh the gravity of the offending, and failed to consider the appreciable risk of prejudice and based his decision on incorrect assumptions. She also submits that he did not apply the orthodox test.
Approach
[3] Section 106 of the Sentencing Act confers jurisdiction on a Court to discharge an offender without conviction. Section 107 provides:
107 Guidance for discharge without conviction
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.
[4] In R v Hughes1 the Court of Appeal held that the decision as to whether the test under s 107 has been met is not a matter of discretion, but rather a matter requiring judicial assessment. It is subject to the usual appellate principles set out in Austin, Nichols & Co Inc v Stichting Lodestar.2 The appellate Court must give judgment in accordance with its own opinion, even if that opinion is an assessment
of fact and degree and entails a value judgment.
1 R v Hughes [2008] NZCA 546.
2 Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141.
[5] Courts have adopted what is in essence a three-step approach to the test under s 107.3 First the Court must consider the gravity of the offending. In doing so it should consider all the aggravating and mitigating factors relating to the offending and the offender. Second, the Court should then identify the direct and indirect consequences of a conviction. Thirdly, the Court should make an assessment of whether those consequences are out of all proportion to the gravity of the offending.
If the Court determines that they are out of all proportion it must still consider whether it should exercise its residual discretion to grant a discharge, although cases where that will occur is rare.4
[6] I now turn to the Judge’s decision and my assessment of these factors.
The further evidence
[7] Ms Price without opposition filed a further affidavit from Ms Wilby where she set out some further material in support of her application.
The gravity of the offending
[8] The Judge made an assessment of Ms Wilby’s culpability and aggravating and mitigating factors relating to the offender and the offending in her sentencing decision. Ms Wilby was a first offender. She had had a quiet evening at home with her four year old son and she says drank four glasses of wine. She went to bed to be woken by her son at around 11.00 pm. He had a minor graze on his knee which had become sore and looked a lot worse than it had previously. He had some unusual lesions on his arms and legs. She had given him some drugs because she became concerned at his condition. He had vomited and he was complaining about his sore knee. She made the decision to drive him to the local accident and emergency centre. She considered she was fit to do so as she had stopped drinking four hours
earlier.
3 Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA), Police v Roberts [1991] 1 NZLR 205, Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [12].
4 Z v R [2012] NZCA 599 at [27].
[9] At the hospital her son was seen by the attending doctor and was diagnosed as having impetigo. He was given medicine. At about 2.00 am Ms Wilby chose to drive home with her son. She was pulled over by the Police. Her blood alcohol reading was 930 micrograms, twice over the permitted limit.
[10] Judge Wade found it difficult to accept that with that level Ms Wilby did not think she was over the limit. He observed that when she chose to drive home there was no medical emergency. She could have got a taxi or made some other arrangement.
[11] Ms Wilby had no prior convictions and entered an early guilty plea. She had given evidence, which I will come to, that she had concerns about how the disqualification could impact on her future employment. The Judge reduced the sentence he would have imposed and fined her $600 and disqualified her for six months. I accept that this was a lenient sentence and seems to me to recognise the circumstances of the offending, Ms Wilby’s good record and guilty plea, and her limited means and the effects of disqualification.
[12] Having said that, this is not at the bottom of the scale of blood alcohol offending; Ms Wilby was well over the limit and as a mature woman should have known better than to be driving, particularly on the way home when any thoughts of an emergency were well past.
[13] I now assess the direct and indirect consequences of the conviction. This has been the area of major focus from both Ms Price and Ms Woolley for the Crown.
[14] In essence Ms Wilby has stated in her affidavits in the District Court and this Court that a conviction of driving with excess alcohol in her blood will affect her chances of employment with Air New Zealand. She was employed by Air New Zealand for approximately six years. She stated in her affidavit she left the role to have an overseas experience and to be the mother of her son. However, a letter by her of 19 June 2013 to Air New Zealand acknowledged that she had suffered from absenteeism in the last year of her employment because of a personal tragedy that she had suffered. In her letter to Air New Zealand she asked the company to
consider that she was now a different person with a whole lot of life experience behind her. She believed she could be an admirable employee.
[15] There was no responding material from Air New Zealand, save for an email from a Pauline Brown, who is an Air New Zealand employee and who was described as “talent source and team leader” who stated:
Convictions are a case by case decision from our legal team. All candidates must be in a position to be able to obtain a US Visa as part of their employment with us as crew. Although New Zealand operate in a clean slate environment, the US Government does not recognise this for entry into the states. Candidates with convictions of any kind are asked to disclose this when they apply to us and once they have gone through a process successfully we would move them into a vetting area which reviews MOJ, references, aviation security etc. At this point convictions are raised with our legal team for an individual approval.
[16] In her original affidavit Ms Wilby said that she would have to apply for a visa when she flew to America and that meant she would have to disclose any conviction for drink driving. She has now in a further affidavit stated that she would not need to personally apply for a visa when she arrived in America. She would need to get what is known as a “crewman’s visa”. Information attached to her affidavit indicates that this is a general visa that can be for an entire crew. There is nothing to indicate that the conviction would make the obtaining of a crewman’s visa more difficult or lead to stoppages at United States airports.
[17] Ms Woolley for the Crown has produced without objection a printout of a statement from the United States Bureau of Consulate Affairs which sets out certain crimes which will result in the denial of a visa. Those are all serious crimes involving real moral turpitude, and do not include a drunken driving conviction of this type.
[18] It seems that there would be no bar to Ms Wilby getting a visa. It seems clear from the Air New Zealand email that she would be expected to disclose the conviction to Air New Zealand, and that the conviction would be considered as part of the vetting process.
[19] It seems to me the issue is not so much whether Ms Wilby could get a visa for America (she clearly could) or whether there might be occasional barriers to her entry because of the conviction (about which there is no evidence), but rather whether her conviction will lessen her chances of employment at Air New Zealand. This is the consequence that I must assess.
[20] It is my assessment that Air New Zealand will note any conviction for a blood alcohol conviction. However, there is nothing to indicate that this will be a serious barrier to her employment. Ms Price makes the point that if there are two candidates of equal caliber, one with and one without a blood alcohol conviction, the one without the conviction would get the job. Given, however, that all employment decisions are highly nuanced there could be a host of factors that fall into this category of matters that “might” make a difference. If it looked like the conviction could be a problem, it would be open to Ms Wilby to explain the circumstances to Air New Zealand and one could anticipate that they would be fairly assessed.
[21] I recognise that Ms Wilby is in a difficult position of trying to find a new career after a period out of the work force, and that she is very attracted to the idea of a job with Air New Zealand. However, at the moment she has no job with Air New Zealand. With or without this conviction she may have difficulties getting a job with Air New Zealand. While she has a track record of having been an Air New Zealand hostess there does appear to have been an issue of absenteeism around her departure from that company. There is nothing to indicate that her application has strong or even fair prospects.
[22] Of course I accept, as Ms Price emphasised, the Court does not have to be satisfied that the direct and indirect consequences would inevitably or even probably occur. It is sufficient if the Court is satisfied that there is a real and appreciable risk that such a consequence would occur.5 The consequence identified here is that Ms Wilby will not get an airline attendant’s job with Air New Zealand because there is a real and appreciable risk that this conviction would stop her from doing so. She
has not in my view shown that this is a real appreciable risk.
5 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005, and Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007.
[23] I accept, however, that it is possible that the conviction could play a role in her candidacy for an airline attendant’s job. Thus, I do not decide this appeal just on the basis of whether there is a “real and appreciable risk”. I accept that the possibility of a very severe outcome because of the conviction could still have real weight in the proportionality assessment, even if the outcome was only a possibility. If, for instance, there had been very minor offending and where if that possibility transpired, consequences could be career destroying, a discharge might be granted. However, this application is not of that type.
[24] While this is not a conviction that involves what is generally regarded as orthodox criminal culpability, it is a moderately serious example of an area of offending which has serious consequences for our community. I weigh against that the possibility of some adverse effect to her application for employment, and I do not find the consequence of the conviction standing to be disproportionate.
Result
[25] My reasoning has not been exactly the same as that of Judge Wade, but I have had further factual material put to me that was not before him. However, having carried out my own assessment I consider that he made the correct decision in dismissing the application for discharge.
[26] The appeal is dismissed.
……………………………..
Asher J