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

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 Williams v Police

Details

AGLC: Williams v Police [2013] NZHC 394
Case: [2013] NZHC 394
Decision Date: 5 March 2013

CaseChat Overview and Summary

In this case, the appellant, Michael Ormond Williams, challenges his conviction for driving with excess breath alcohol, his third or subsequent offence. Williams pleaded guilty and argues that he should have been discharged without conviction under section 106 of the Sentencing Act 2002. The legal issues centre on whether the direct and indirect consequences of a conviction are out of all proportion to the gravity of the offence, as required by section 107 of the Act. Williams contends that the de minimis nature of his driving, driven by an anxiety attack, and the potential public disgrace and employment risks, justify a discharge without conviction. The respondent argues that driving with excess breath alcohol is inherently serious and that the consequences of conviction are not disproportionate.

The court examined the gravity of the offence, considering the aggravating and mitigating factors, including the breath alcohol reading and the fact that this was Williams' third offence. The court then identified the direct and indirect consequences of a conviction. While acknowledging that a conviction could have indirect consequences on Williams' employment prospects, the court found no evidence that these would be out of all proportion to the gravity of the offence. The court also considered the impact of the Criminal Records (Clean Slate) Act, noting that a fresh conviction would revive Williams' previous record, which aligns with Parliament's intention to impose consequences for re-offending. Ultimately, the court found that the direct and indirect consequences of a conviction were not out of all proportion to the gravity of the offence, and dismissed the appeal.

Orders