Williams v Police

[2013] NZHC 394

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-340 [2013] NZHC 394

BETWEEN  MICHAEL ORMOND WILLIAMS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         11 February 2013

Counsel:         RD Mulgan and A Simpson (on instructions from P Winkler) for

Appellant
B Hamlin for Respondent

Judgment:      5 March 2013

JUDGMENT OF BREWER J

This judgment was delivered by me on 5 March 2013 at 2:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS/COUNSEL

Patrick Winkler (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

WILLIAMS V POLICE HC AK CRI-2012-404-340 [5 March 2013]

Introduction

[1]      The appellant appeals his conviction for driving with excess breath alcohol (third or subsequent offence).  He pleaded guilty to the charge and contends that he should have been discharged without conviction pursuant to s 106 of the Sentencing Act 2002.

Background

[2]      The appellant was convicted and sentenced for driving with excess breath alcohol in 1995 and in 2000.  On each occasion he was fined and disqualified from driving for six months.

[3]      On 7 May 2011, the appellant was drinking at a bar.  At about 10:00 pm he suspected he was developing an anxiety attack.  He has perhaps two or three attacks a year.  During an anxiety attack the appellant shakes uncontrollably and loses the coordinated use of his limbs.  Disorientation is also experienced.  It is usual for him to go to sleep once the attack is over.

[4]      The appellant’s car was in the car park of the bar.  The appellant got into his car and, because he did not want anyone to see him in the throes of the anxiety attack, reversed around the corner of the building and stopped in a service lane behind the bar.   This was a distance of about 25 metres.   Unfortunately for the appellant the Police had the bar under observation.  They approached the appellant, who was still in his vehicle in the service lane, and his breath was found to contain

573 micrograms of alcohol per litre of breath.

[5]      The appellant held the sincere but mistaken belief that the drink/driving laws apply only to public highways.  He did not think that they apply to someone driving across a car park and into a service lane.

[6]      The appellant co-operated fully with the Police. After the Police released him he was overcome by the anxiety attack, called  an ambulance and was  taken to hospital.

[7]      The appellant is a man in his late 30s.  He is employed as a mechanic with an income of $41,000 per annum.  He has shared custody of his 15 year old daughter.

[8]      Since the offending the appellant – who has had a long struggle with drugs and alcohol – has made a real effort and has been drug and alcohol free for over a year.[1]

[1] This recitation of the facts is taken largely from the submissions of Mr Winkler for the appellant.

They go well beyond the summary of facts.  However, the respondent made no demur and so I

accept the facts as put forward.

[9]      The appellant had the benefit of the “clean slate” legislation in relation to his two  previous  convictions.[2]      That  is  to  say,  he  was  entitled  to  regard  them  as concealed.

[2] Criminal Records (Clean Slate) Act 2004.

Sentencing in the District Court

[10]     The appellant was sentenced in the District Court at Manukau by Judge SA Thorburn on 11 September 2012.[3]   The issue before the Judge was whether there should be a discharge under s 106.  The Judge noted the gap of years between the previous offending and the current offending.   He noted that the breath alcohol reading in 2000 was 490 and that for the present case it is 573.  He noted that these “are not in the higher range at all”.[4]     He described the offending as “an almost de minimis episode of driving”[5] and held from the outset that it warranted a finding of special circumstances pursuant to s 81 of the Land Transport Act 1998 such that no period of disqualification would be imposed.

[11]     His Honour went on to say:[6]

[3] Police v Williams DC Manukau CRI-2011-088-1904, 11 September 2012.

[4] Ibid, at [2].

[5] Ibid, at [4].

[6] Ibid, at [5]-[8].

[5]       It is suggested that in the circumstances this is a case where the discretion can be exercised to discharge without conviction.  The statutory scheme is clear, there is an injunction in not to discharge without conviction, unless the Court can be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.  I have said that I am not going to discharge without conviction.  I have also said that there is a sense in which the offending of its sort is in the de

minimis category, and I refer to that in terms of the driving distance and the reasons for it.

[6]       The situation, as I see it, is that in lots of ways there is little to distinguish this man from many who come before the Court with histories comparable to his, previous convictions from the past days when perhaps one might have been a little less disciplined, or less insightful about things than at a more mature stage of life, but they are there, and they take their place in the nature of the statutory scheme in respect of third or subsequent. Whilst he has nothing else in his record which indicates that he lives lawlessly, he certainly is a person with repeat offending in his record in respect of alcohol and driving.   This is the area where it appears that his judgment fails and it is the area which he will be in risk of bad decisions in terms of integrity, alcohol and the law.

[7]       In that sense he is not positioned in any different way than many who come before the Court.  Is there a dimension of personal circumstances which distinguish him in a way which means he ought to have the benefit of a finding that the consequences of conviction are out of all proportion to the gravity of the offence?   I am struggling with this to find anything of that particular nature.   His personal circumstances are also fairly routine for somebody   like   him,   otherwise   stable   in   good   relationships,   family obligations and work.   It really is I think to do with his condition, which might have medical recognition, and the de minimis nature of the offending which has brought him into this plight.

[8]      The consequences of conviction are to my mind almost totally ameliorated by the s 81 application.  For him in order for his life to maintain its stability and normality and for consequences not to erode those things which are important in that area for him, it is the driving which would be the consequence.   I have concluded reading the submissions (and counsel has provided extensive and very elaborate and well thought out submissions), that there is however nothing in them which takes me to a point of view that there are consequences pointed to, which would outweigh the consequences of conviction in terms of the proportionality test.

[12]     The District Court Judge, having found that special circumstances enabled him not to disqualify the appellant from driving, convicted him and sentenced him to community work for 75 hours.

Grounds of appeal

[13]     The appellant’s theory of his case is that ordinary or common consequences of  a  conviction  can  nevertheless  be  out  of  all  proportion  to  the  gravity of  the offending. Accordingly, the District Court Judge erred in failing to recognise that the de minimis nature of the offending was so disproportionately outweighed by the consequences that a discharge without conviction was necessary.

[14]     Counsel submits that the District Court Judge also failed to take into account the effect of a fresh conviction for the appellant whose previous offending is no longer recorded against him by reason of the “clean slate” legislation.  Not only does a  fresh  conviction  make  the  appellant  vulnerable  to  the  inconstancies  of  the economy, but the conviction itself is for an offence which has as ingredients the previous offending.  Therefore, a conviction would mean that not only would he be seen as an employment risk but anybody dealing with him would, because of the nature of the conviction, become aware of the two previous convictions.

[15]     Mr Winkler developed these submissions by portraying his client as a low- waged man for whom a conviction would bring “public disgrace” and put him at risk of long-term unemployment.  Mr Winkler accepts that his client has the support of his current employer.  It is also apparent that he has the skills necessary for his work as a mechanic.   Nevertheless, in his submission, the appellant cannot afford to be complacent about his employment in the current economic climate.

The respondent’s reply

[16]     Mr Hamlin for the respondent accepts that the offending was not the most serious of its type, but says neither was it unusually minor.  He submits that driving with excess breath alcohol is inherently serious offending, particularly where the offence relates to a third occasion.   The respondent submits that the appellant’s breath alcohol reading of 573 micrograms of alcohol per litre of breath was well over the legal  limit  of 400 micrograms  of  alcohol  per litre  of breath.   Although  the appellant drove for a short distance, he did so by reversing and turning a motor vehicle at night in an urban area.   Mr Hamlin submits that there is always risk of harm to pedestrians or property in such circumstances.

[17]     Mr  Hamlin  submits  further  that  the  allegation  of  public  disgrace  is  not supported by particulars. Accordingly, the appellant is in no different position to that of any person who has been convicted.   Indeed, given that the appellant has two previous convictions for the same offending, he is less likely to experience disgrace than someone with an otherwise unblemished record.  In Mr Hamlin’s submission, the  “helplessly  adrift  on  a  changeable  employment  sea”  ground  of  appeal  is

speculative.  The appellant has the support of his employer[7] whose concerns over the appellant’s position related only to his ability to drive.  That concern was dealt with by the District Court Judge finding special circumstances allowing him not to disqualify the appellant from driving.  Mr Hamlin also noted that the appellant has been employed in his current job since 13 May 2002.

[7] Conveyed to the Court in a letter dated 9 August 2012.

[18]     Mr Hamlin, in relation  to the “clean slate” argument, submitted that  the Criminal Records (Clean Slate) Act was intended to mitigate the consequences of past offending for those who do not re-offend.  It would arguably subvert the intent of the Act if the Court were to discharge the appellant so he could maintain a “clean slate” that Parliament did not intend him to have.   Pursuant to s 7 of that Act, a conviction  for  re-offending  would  trigger  another  rehabilitation  period  of  seven years.

The law

[19]     A Court has a discretion to discharge an offender without conviction under s 106 of the Act.   However, before the Judge can turn his or her mind to this discretionary exercise he or she must be satisfied that the test under s 107 of the Act is met:

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.

[20]     It is clear that although the heading of the section refers to “guidance”, the

section gives a mandatory direction.

[21]     In recent years there have been two decisions of the Court of Appeal dealing with the interrelationship between ss 106 and 107.[8]     There are some differences between the approaches taken by the Court in those cases.  The differences did not

[8] R v Hughes [2009] 3 NZLR 222 (CA); Blythe v R [2011] 2 NZLR 620 (CA).

affect outcomes but they made it a little difficult to formulate a coherent conceptual

approach.   Recently, however, the Court of Appeal has addressed the differences.[9]

[9] Z (CA447/12) v R [2012] NZCA 599.

Arnold J, in giving the judgment of the Court, approaches the test under s 107 of the

Act as follows:[10]

[10] Ibid, at [27].

... when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; 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 ...

[22]     The s 107 exercise requires an appellate Judge to come to a view of the merits under general appeal principles.[11]     If the Court is satisfied that the s 107 threshold is met, it must then consider the exercise of the discretionary power to discharge under s 106.   It is, of course, logical that an outcome favourable to the offender in the s 107 exercise will lead generally to a favourable outcome for the offender under the s 106 discretion.

[11] Austin, Nichols & Co Ltd v Stichting Lodestar [2008] 2 NZLR 141 (SC).

The s 107 test

[23]     I turn,  first,  to  identifying the  gravity of the offence considering all  the aggravating and mitigating factors relating to the offending and the offender.

[24]     The  aggravating  and  mitigating  factors  relating  to  the  offending  and  the offender have been set out above.  I disagree with the District Court Judge that the circumstances of the offence itself are de minimis.  They are certainly at the lower end of the scale for the offence, but the breath alcohol reading was appreciably above the legal  limit.    Mathematically,  some  43% in  excess  of the legal  limit. Further, when it comes to assessing the gravity of the offence, I cannot lose sight of the fact that this was the third occasion on which the appellant had committed the underlying offence.  The actual offence to which he pleaded guilty was not driving with excess breath alcohol but driving with excess breath alcohol for the third time.

Accordingly, this is a low level example of a serious offence.

[25]     I turn now to identify the direct and indirect consequences of a conviction. The only direct consequence identified is what has been called “public disgrace”. There  is  no  evidence  that  the  fact  of  a  conviction  will  bring  any  particular opprobrium to the appellant.  He has already been convicted of driving with excess breath alcohol on two previous occasions.  This is not a fall from untainted grace. There is no threat to the appellant’s employment.  He has not been disqualified from driving  and  so  the  most  common  form  of  consequence  arising  from  a  third conviction for driving with excess breath alcohol is not a factor in this case.

[26]     I accept one of the indirect consequences as put forward by the appellant’s counsel.  It is only commonsense that a mechanic with a third conviction for driving with excess breath alcohol would not, all other things being equal, be as attractive a prospective employee as someone with the same skills, similar personality and blemish-free record.  I do not accept that because this charge has as a stated element a requirement for at least two previous convictions, the fact of a conviction would disclose offending which is currently off the record by virtue of the “clean slate” legislation.  Section 8 of the Criminal Records (Clean Slate) Act 2004 provides that further offending removes a person’s eligibility for a “clean slate”.  Therefore, the appellant’s record would become open again if his latest conviction stands.   That does not depend on the wording of the charge.

[27]     Finally, I must determine whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offence.  The gravity of the offence lies primarily in its elements.   It is an offence the prerequisite for which is that the current instance of driving with excess breath alcohol is (in this case) the third occasion.   It is clear that Parliament has chosen to enact a more onerous sentencing regime for repeat drink driving offenders.   However, the aggravating and mitigating factors relating to the offending and the offender put the case right at the lower end of seriousness for this offence.

[28]   I accept Mr Winkler’s submission that commonplace consequences can nevertheless be out of all proportion to the gravity of an offence.  Unfortunately for his argument, I cannot see direct and indirect consequences out of all proportion to the gravity of this offence.  No direct consequences have been identified with any

particularity.  I accept the possibility of indirect consequences, but in this case they are not supported by evidence.   For example, the appellant has employment of longstanding, he is a valued employee, he has the support of his employer and he has not been disqualified from driving.

[29]     The Criminal Records (Clean Slate) Act deals with the consequences of re- offending.  One is that the previous record is revived.  The appellant would have to spend a rehabilitation period of seven years before statutory concealment would apply again.  That is what Parliament intended.  Although loss of concealment of the earlier convictions can be seen as an indirect consequence, I think there is some merit in the respondent’s submission that to give it weight could undermine Parliament’s intention that there be consequences for further offending.

[30]     That is not to say that it could not be a factor in an offender’s favour in a case of particular sensitivity.  There could be cases where the entry of a conviction would reveal the existence of previous convictions with serious consequences for the offender.  But that is not the case here.

Decision

[31]     I am in agreement with the District Court Judge.  On my view of the merits of the case, the s 107 threshold has not been crossed.  Accordingly, there is no need to consider the s 106 discretion.

[32]     The appeal is dismissed.

Brewer J