LUTERU v POLICE [2023] NZHC 2508

LUTERU v POLICE [2023] NZHC 2508 [7 September 2023]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2023-443-19[2023] NZHC 2508BETWEEN ALFRED LUTERU LUTERUAppellantAND NEW ZEALAND POLICERespondentHearing: 30 August 2023Appearances: N R Harding for the AppellantH Bullock for the RespondentJudgment: 7 September 2023JUDGMENT OF HARLAND JIntroduction[1] Alfred Luteru pleaded guilty to a charge of driving with excess blood alcohol.1He applied for a discharge without conviction, but his application was declined byJudge Hikaka on 24 May 2023.2 Mr Luteru appeals this decision. The respondentopposes the appeal.[2] The appeal was filed out of time by two working days. The respondent doesnot oppose an extension of time being granted. The delays were occasioned throughno fault of the appellant, including a delay in his application for legal aid being1 Land Transport Act 1998, s 56(2): maximum penalty three months' imprisonment or a fine notexceeding $4,500 and a mandatory disqualification from holding or obtaining a driver licence forsix months or more.2 New Zealand Police v Luteru [2023] NZDC 10340.processed. In the circumstances, I am satisfied it is in the interests of justice to hearthe appeal and grant leave for it to be heard out of time.Principles on appeal[3] The Court may grant a discharge without conviction under s 106 of theSentencing Act 2002 only if it is satisfied, under s 107, that the direct and indirectconsequences of a conviction would be out of all proportion to the gravity of theoffending.3[4] The decision under s 107 involves a matter of fact requiring judicialassessment. Appeals against the proportionality test under s 107 are by way ofrehearing, with the appellate Court making its own assessment of whether the criteriaare established.4 If a discharge without conviction should have been granted, thenthere will have been a material error by the sentencing Judge, or a miscarriage ofjustice will have occurred for any other reason, and so the appeal against convictionmust be allowed.5The offending[5] On 24 December 2022, Police were called to a hotel in Hāwera due to a largenumber of patrons celebrating Christmas Eve. At about 12.20 am, Mr Luteru wasspoken to by Police and asked who was driving the vehicle he was standing next to.He was drinking alcohol at the time. He said that he was waiting for a friend to pickhim up.[6] Some 10 minutes later, the Police observed Mr Luteru get into the driver's seatof the vehicle and drive away. The Police stopped the vehicle. Mr Luteru elected tohave a blood sample taken. His blood alcohol level was revealed to be 136 mg ofalcohol per 100 ml of blood, when the legal limit is 80 mg.3 Sentencing Act 2002, s 137.4 H v R [2012] NZCA 198 at [35]–[36].5 Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].[7] When spoken to by Police, Mr Luteru said that his friend was not answeringhis phone and therefore he did not have a sober driver to drive the vehicle.District Court decisionThe material filed in support of the application for discharge without conviction[8] As is usual when a defendant wishes to file an application for a dischargewithout conviction, the appellant filed an affidavit prior to his sentencing hearing. Heexplained his reason for driving, which was consistent with the explanation he gave tothe Police, and he noted that he was often the sober driver for work functions but, inthis case, as someone else had offered to fulfil that task, he participated in thefestivities. Although he said he felt "O.K. to drive", he deposed that he had sinceappreciated that he was simply over-confident because of the alcohol he hadconsumed. The appellant was clear that this would not happen again in the future.[9] The appellant has no other criminal or traffic history and he outlined that hehas applied for permanent residency in New Zealand. He expressed his concern thata conviction would, at the very least, delay his application and, at the very worst, causeit to be rejected. He outlined that he had put significant effort into coming to NewZealand, including being away from his family in Samoa when the borders closed forCOVID. He outlined the advice he had received from an immigration consultant thatit would be much harder for him to get residency if he has a conviction as he wouldneed a character waiver and there was no guarantee that he would be successful inobtaining one. He noted the advice he had received that, if he was discharged withoutconviction, the path to residency would be more straightforward with much lesschance that his application would be rejected. Obtaining permanent residency isclearly very important for the appellant as he has a wife and five children in Samoathat he is hoping to permanently bring to New Zealand so they can be together.[10] The appellant noted that he would be in a position to make a donation to charityas directed by the Court and he accepted that, even if he was discharged withoutconviction, he could still be disqualified from driving.[11] The appellant is employed as a team leader at Silver Fern Farms Ltd's Haweraplant. He is a skilled slaughterer. His affidavit attached letters of support from hisparish steward, site manager, human resource manager, the Samoan team at SilverFern Farms and, as well, there was a character reference from his brother, a letter fromhis immigration consultant, an email from his mentor at Te Ara Pae Trust, and a letterfrom the Vaimoana Pasifika Trust.[12] The character references speak of the appellant's participation in hiscommunity, including the supportive and senior role he has at Silver Fern Farms, andthe pastoral and cultural care he provides to other workers from Samoa while livingand working in Taranaki, helping to ensure that they are not too isolated from theirwhānau, church and village.[13] The reference from Silver Fern Farms describes the appellant as a leader of theSamoan team. He is heavily relied upon not only to be a translator but to assist withtraining and supporting other Samoan employees to adjust to "the 'kiwi way' of life".The appellant is described as punctual, honest and reliable.[14] The references also record that the appellant is very remorseful for theoffending.[15] The letter from the appellant's immigration consultant outlines that he holdsan essential skills work visa valid to 18 January 2024. His application for a residentvisa was lodged on 11 April 2022.[16] The immigration consultant also outlined various immigration instructions thatshe considers are relevant to the appellant. These include that applicants for visasmust be of good character (Immigration Instruction A5.1) and that a person who hasbeen convicted at any time in the last five years of an offence (including a trafficoffence involving dangerous driving, driving having consumed excessive alcohol ordriving having consumed drugs), will not normally be granted a residence class visaunless granted a character waiver (Instruction A5.25(h)).[17] The immigration consultant further notes that, given the nature of the charge,the appellant may not meet the good character requirement to be eligible for residencyunder Instruction A5.25(f). She noted:Any conviction appearing on Mr Luteru's criminal record will seriouslyjeopardize Immigration New Zealand's decision to grant a Resident visa.A discharge without conviction will greatly help Mr Luteru's circumstancesto secure residency in New Zealand he has worked so hard to achieve. MrLuteru's sacrifice to remain in New Zealand for 3 years, separated from familywhen the borders closed, whilst actively contributing to the New Zealandeconomy is commendable.We strongly encourage the court's decision to discharge Mr Luteru withoutconviction.[18] The letter from the Vaimoana Pasifika Charitable Trust, the only Pasifikaorganisation in Taranaki, was also instructive. The committee member of the Trustthat provided a letter of support outlined that her role for the last two years had beento assist Pasifika people applying for New Zealand residency in Taranaki. The letteroutlines the experience the Trust has had with obtaining residency visas and notes, forthose with a criminal conviction, there are "more loop holes" and potential difficultiesfor those who wish to include their family or bring them to New Zealand later on.The Judge's decision[19] At the outset of his judgment, Judge Hikaka noted the information he hadbefore him which he described as "significant", and he acknowledged the number ofpeople who attended Court to support the appellant.[20] When outlining the offending, the Judge referred to the appellant having beenspoken to by the Police while he was standing next to the vehicle, his response that itwould not be him, but the Judge observed that nonetheless 10 minutes later theappellant got "behind the wheel and drove".6 The Judge said:[9] The explanation was that there was no sober driver to drive thevehicle, so you took it upon yourself. The level of alcohol in your system washigh. You would have known at the time you were under the influence. Byfar, the majority of people would have known that, with that level of alcoholin their system.6 New Zealand Police v Luteru, above n 2, at [8].[21] The Judge then outlined the immigration consequences for the appellant, notedhis prior role as a sober driver for work functions and reflected that he had put a lot ofeffort into coming to New Zealand. However, he also noted that, even with noconviction entered, there would still be a chance of the appellant's residencyapplication not succeeding.[22] The Judge then referred to the legal test for a discharge without conviction. Hedescribed the offending as moderately serious because of the reasonably high level ofalcohol the appellant had in his system. The Judge also considered that the direct andindirect consequences of the conviction on the appellant would be moderately serious.[23] He noted that the prosecution did not oppose the application for dischargewithout conviction. However, he referred to the principles of denunciation anddeterrence, and said:[28] There are so many positive comments about you in all of thisinformation that has been provided. It would be a great surprise if you werenot given a character waiver but, on the other hand, a discharge withoutconviction would potentially invite any number of people, and there were 37who signed up to be in support of you, drinking, driving and then on the basisof a delayed residency application or a rejection of such an application,applying for a discharge without conviction. That is not sending the rightmessage for moderately serious offending such as yours of drink-driving.[24] The Judge then expressed his surprise that 10 minutes prior to being seen to begetting into the driver's seat and driving away and having been approached by a Policeofficer, the appellant nonetheless decided to do exactly that. Noting the appellant'sremorse, the Judge concluded that he could not be satisfied that the direct or indirectconsequences of a conviction would be out of all proportion to the seriousness of theoffending. He considered them to be more evenly balanced and dismissed theapplication.[25] In convicting and fining the appellant, as well as ordering him to pay costs tothe prosecution and disqualifying him for six months from driving, the Judge thensaid:[34] Without hesitation, I note that the level of support you have within thecommunity, recognising what a valuable person you are in this localcommunity, will go a long way toward supporting the character wavier [sic]requirements of the Immigration inquiry. If need be, this decision can beattached to the various other documents you have provided to show that I amof the view that you would be a person of value to our community, particularlygiven the role that you have taken on and the influence you have had on others.[35] However I cannot step away from what the law requires of me to dowith this balancing act and I have made my decision in line with that balancingact.Discussion[26] As I indicated to counsel during the hearing, I do not consider the floodgatesargument, potentially referred to by the Judge when he referred to denunciation anddeterrence forming part of the sentencing process,7 to be compelling, given that eachapplication for a discharge without conviction must be considered on its facts. Thenature of each person's situation is highly variable. It is not binding or even highlypersuasive where one applicant receives a discharge without conviction and anotherdoes not for offending of this kind.[27] But I do not see the Judge's judgment as depending on that observation. Theessence of his decision was that he could not find the consequences of the conviction,both direct and indirect, to be out of all proportion to the gravity of the offending. Thiswas because he assessed the offending to be moderately serious and the indirect anddirect consequences of conviction to also be moderately serious.[28] The question on appeal is whether any of the personal circumstances relatingto the appellant, when considered as part of the assessment of the gravity of theoffending, mitigate or reduce the Judge's assessment of it, given that his "moderatelyserious" finding related to the offending itself. This is important because the gravityof the offending in this context takes into account the aggravating and mitigatingcircumstances of the offending and the offender.87 See above at [23].8 Sok v R [2021] NZCA 252, (2021) 29 CRNZ 962, citing Z (CA447/2012) v R [2012] NZCA 599,[2013] NZAR 142 at [27]-[28], in turn citing A (CA747/2010) v R [2011] NZCA 328 at [25].[29] As noted by the Court of Appeal in Basnyat v Police, driving with excess bloodalcohol is a moderately serious offence because of its potential consequences and thepervasiveness of alcohol abuse in our society.9 The Court went on to say:[22] The legislative directive is that a proportionate response to drivingwith a blood alcohol level above 80 milligrams per 100 millilitres of bloodwill ordinarily be the entry of a conviction. All other things being equal thatwill be the inevitable result. It will therefore be necessary to identify factorseither in the offending or the consequences of a conviction for the offenderthat show that result is wholly disproportionate. A blood alcohol reading thatis only just over the limit will be relevant — placing the gravity of theoffending at the low end of moderately serious as Brewer J indicated — butnot enough on its own. There will also be factors personal to the offender,often related to the offending itself, which will go to gravity. These mightinclude the use before deciding to drive of faulty personal breath alcoholchecking devices or the need to drive to assist others in an emergency, and thelike. Youth will also be a relevant factor under this heading.(footnote omitted)[30] In this case, the appellant was caught with an alcohol blood level of higher thanone and a half times the legal limit.10 The Judge was generous when he described theoffending as "moderately serious". It could have been categorised as serious giventhe high reading. There are no mitigating features of the offending itself, such asdriving to assist others as mentioned in Basynat v Police referred to above. Rather,the appellant was aware that he should not be driving as he told the Police 10 minutesbefore he drove that he was going to have a sober driver take him home.[31] There are however mitigating features personal to the appellant, namely thathe pleaded guilty at an early opportunity, he has no previous criminal convictions inNew Zealand, and there are the character references. Although referring to them, theJudge did not assess how much weight he attached to them in his overall assessmentof the gravity of the offending. Arguably, these matters reduced the gravity of theoffending. In the circumstances, this would reduce the gravity of the offending overallto the lower end of moderately serious.9 Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344 at [19].10 Land Transport Act, s 56(2).[32] Regarding the direct and indirect consequences of the conviction, the mainconsequence is the impact the conviction will have on the appellant's application forpermanent residency in New Zealand.[33] This is unlike many discharge without conviction applications the court seeswhere the concern is deportation. The appellant is currently on an essential skillsworker visa that is valid until 18 January 2024. Therefore, his liability for deportationis reliant on the Minister of Immigration determining that there is a "sufficient reason"for his deportation, which can include criminal offending (as opposed to a conviction)and other matters relating to character.11 A conviction therefore does not impact hisliability to be deported, but it may affect his ability to get a permanent residency visa.[34] Instruction A5.25.1 of the Operational Manual for Immigration New Zealandstates that an immigration officer must not automatically decline residence class visaapplications on character grounds but must consider the surrounding circumstances ofthe application to decide whether they are compelling enough to waive the goodcharacter requirement. The factors that are relevant include, but are not limited to:i. if applicable, the seriousness of the offence (generally indicated by theterm of imprisonment or size of the fine);ii. whether there is more than one offence;iii. if applicable, the significance of the false, misleading or forgedinformation provided, or information withheld, and whether theapplicant is able to supply a reasonable and credible explanation orother evidence indicating that in supplying or withholding suchinformation they did not intend to deceive INZ;iv. how long ago the relevant event occurred;v. whether the applicant has any immediate family lawfully andpermanently in New Zealand;vi. whether the applicant has some strong emotional or physical tie toNew Zealand;vii. whether the applicant's potential contribution to New Zealand will besignificant.11 Immigration Act 2009, s 157.[35] Regardless of whether a discharge without conviction is imposed, it appearsthat Immigration New Zealand will take into account the fact that the appellant pleadedguilty to the charge in its assessment of his permanent residency application with theresult that a character waiver may be required in any event.[36] Further, I do not consider the consequences of the offending being disclosed toImmigration New Zealand are as grave as Mr Harding submits. He is correct to pointout that the conviction engages instruction A5.25 of the Operational Manual whichmeans the appellant would be an applicant who would "not normally be granted aresidence class visa", however instruction A5.25.1 also explicitly states that animmigration officer must not automatically decline a residence class visa applicationon character grounds. All the factors that were placed before the District Court andthis Court, including the details of the offending and the letters of support and aboutthe appellant's good character, can be placed before Immigration New Zealand. TheCourt is entitled to assume that Immigration New Zealand will behave fairly andrationally in making its decision.12[37] In conclusion, it is far from clear in this case that it is an inevitable outcomethat the appellant's application for permanent residency will be declined because ofhis conviction for driving with excess blood alcohol.[38] I therefore agree with the Judge's assessment that the consequences of theconviction for the appellant are moderately serious, likely at the higher end of theavailable scale.[39] However, the test is whether the consequences of conviction are out of allproportion to the gravity of the offending. As noted by the Court of Appeal in Basnyatv Police, usually the proportionate response to driving with excess blood alcohol is theentry of a conviction.13 In this case, I have reassessed the gravity of the offending atthe lower end of moderately serious and the consequences of a conviction weremoderately serious, it cannot be said that the proportionality test has been met. Even12 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at[24]; and Jing v New Zealand Police [2019] NZHC 2999 at [13].13 Basnyat v Police, above n 9, at [22].though I have independently reached a different view from the Judge about theassessment of the gravity of the offending, this does not impact on the Judge's overallconclusion.Result[40] The appeal is dismissed.____________________Harland J