SAYERS v NZ POLICE [2023] NZHC 2362

SAYERS v NZ POLICE [2023] NZHC 2362 [28 August 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-000275[2023] NZHC 2362BETWEEN ANNETTE CLARE SAYERSAppellantAND NEW ZEALAND POLICERespondentHearing: 21 August 2023Appearances: J Rhodes for AppellantJ L Gibson for RespondentJudgment: 28 August 2023JUDGMENT OF ANDREW JThis judgment was delivered by Justice Andrewon 28 August 2023 at 4.00 pmpursuant to r 11.5 of the High Court Rules 2016Registrar / Deputy RegistrarDate ..Introduction[1] Ms Annette Sayers pleaded guilty to one charge of driving with excess bloodalcohol.1 On 24 May 2023, at the Auckland District Court, Judge K J Glubb declinedMs Sayers' application for a discharge without conviction. She was convicted andfined $700 as well as $130 in court costs, and disqualified from driving for sixmonths.2[2] Ms Sayers now appeals against the Judge's refusal to discharge her withoutconviction. She contends that the gravity of the offending should be assessed as low,and the Judge did not properly take into account the consequences of conviction. Shealso says that she is at a potentially unfair disadvantage because in the absence ofJudge Glubb's written decision she cannot identify a specific error.3 She submits thatthe appeal be approached afresh, and a decision made on the evidence available.[3] The Police oppose the appeal on the grounds the Judge made no error and theconsequences of conviction identified are of a speculative nature.The offending[4] At around 1.55 pm on 28 October 2022, Ms Sayers was stopped at a policecheckpoint and recorded a blood sample of 146 milligrams of alcohol per 100millilitres of blood. The legal limit is 80 milligrams of alcohol per 100 millilitres ofblood.[5] Ms Sayers explained to Police that she had not had anything to drink sinceabout 10.00 pm the prior evening.1 Land Transport Act 1998, s 56(2), (3)(a) and (b). Maximum penalty: 3 months' imprisonmentand/or $4,500 fine; and mandatory minimum 6 months' disqualification from holding or obtaininga driver licence.2 The commencement date of the disqualification was backdated by just over a month to 19 April2023 to reflect the period of time that Ms Sayers had already been suspended from driving.3 Due to a technical error, Judge Glubb's decision was not transcribed.Personal circumstances[6] Ms Sayers is 57 years old. She has no previous convictions. She lives in Druryand co-owns a business with her husband, Bitumen Equipment. The businessperforms maintenance work for customers, including design work, maintenance andengineering. Ms Sayers also spends considerable time volunteering to improve localcommunity basketball and to develop young players and teams. Her two adult childrenlive in Australia.Legal principlesDischarge without conviction[7] If a person pleads guilty to an offence, the court may, instead of imposing asentence, direct that the offender be discharged without conviction.4 The Court mustnot discharge an offender without conviction unless it is satisfied that the direct andindirect consequences of a conviction would be out of all proportion to the gravity ofthe offence.5[8] In Z (CA447/12) v R, the Court of Appeal set out a three-stage test to be appliedby the Court when considering applications for a discharge without conviction.6Firstly, when considering the gravity of the offence, the Court should consider allaggravating and mitigating factors relating to the offence and the offender. The Courtshould then consider the direct and indirect consequences of a conviction and considerwhether those consequences are out of all proportion to the gravity of the offence.Finally, if the Court determines that they are out of all proportion, it must still considerwhether it should exercise its residual discretion to grant a discharge, noting that it willbe rare for the Court to refuse a discharge in such circumstances.Approach on appeal[9] An appeal against a refusal to discharge without conviction is an appeal againstboth a conviction and a sentence.74 Sentencing Act 2002, s 106.5 Sentencing Act 2002, s 107.6 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27].7 Jackson v R [2016] NZCA 627; Ovtcharenko v Police [2017] NZCA 65 at [5].[10] To the extent that the appeal relates to the court's weighing of consequences ofconviction against gravity of offending, it proceeds by way of rehearing. The appellatecourt makes its own assessment of whether the criteria for discharge withoutconviction are met.8 Unless satisfied that a miscarriage of justice has occurred, thisCourt must dismiss Ms Sayers' appeal.9 In the context of a discharge withoutconviction, a miscarriage of justice means a material error or that the Judge erred inapplying the principles for discharging an offender without conviction.10District Court decision[11] As noted, due to a technical error, the decision of Judge Glubb in the DistrictCourt could not be transcribed.[12] Both counsel appear to agree that the Judge assessed the gravity of theoffending as being in the low to moderate range of seriousness. Both also agreed thatgiven that the appeal proceeds by way of a rehearing, it is for this Court to make itsown assessment of whether the criteria for discharge without conviction are met.11[13] In any event, there are a number of critical and relevant factors (discussedbelow) which the parties agree the Judge did take into account. Ultimately, noprejudice arises from the lack of a written District Court decision.Analysis and decisionThe offending[14] Mr Rhodes submitted that the Judge erred in assessing the gravity of theoffending as being in the low to moderate range. He contended that the Judge placedsignificant weight on the level of Ms Sayers' breath alcohol reading without properlytaking into account the mitigating features personal to Ms Sayers; they are relevant tothe overall assessment of the gravity of the offending.128 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141; R v Hughes[2008] NZCA 546, [2009] 3 NZLR 222 at [11].9 Criminal Procedure Act 2011, s 232(3).10 Jackson v R, above n 7, at [12].11 Austin, Nichols & Co Inc v Stichting Lodestar, above n 8; R v Hughes, above n 8.12 Muatabu v Police [2022] NZHC 2535.[15] Mr Rhodes accepted that the moderately high reading of Ms Sayers' bloodalcohol level is an aggravating feature of the offending but sought to distinguish itfrom the most serious of cases of this type that come before the Court. He alsocontended that due to the absence of any other aggravating features present, andbecause she was genuinely unaware that her blood alcohol reading could remain highafter drinking the night prior, Ms Sayers' "recklessness" in driving after drinking wasat a low level. Mr Rhodes also relied on the fact Ms Sayers had lost a significantamount of weight at the time, thus making her more sensitive to alcohol. She wasunaware of that fact. One of Ms Sayers' friends who was in the car with her at thetime confirms in a letter to the Court that Ms Sayers weighed approximately 45kilograms.[16] Therefore, Mr Rhodes submitted that the offending itself sits at the lower endof moderate.[17] The starting point in assessing the gravity of Ms Sayers' offending is thefeatures of the particular offending.13 As the Court of Appeal held in J (CA32/21) v R,an assessment of the gravity is informed by the culpable conduct, to be determined onan assessment of the facts, rather than the nature of the charge.14[18] I accept that Ms Sayers may genuinely have had good reason to believe thather blood alcohol level was not over the limit. However, ignorance of one's alcohollevel is not a defence. As the Court of Appeal affirmed in Basnyat v Police, there areimportant public safety reasons for this:15Drink-driving is a pervasive social problem which has brought many goodcitizens into the dock and caused the legislature to respond with a sentencingpolicy that emphasises personal and general deterrence.[19] The maximum penalty upon conviction for Ms Sayers' charge of driving withexcess blood alcohol is three months' imprisonment and/or a $4,500 fine, and amandatory minimum of six months' disqualification from holding or obtaining a driver13 See Taylor v R [2018] NZHC 688 at [46]; Babich v R [2018] NZHC 2324 at [7].14 J (CA32/21) v R [2021] NZCA 690 at [36].15 Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344 at [16], citing Linterman v Police [2013]NZHC 891 at [9].licence.16 While Ms Sayers' blood alcohol reading does not place her in the mostserious category of offending of this nature, a reading of 146 milligrams per 100millilitres of blood is significantly above the legal limit of 80 milligrams. That is acritical and unavoidable fact in determining the gravity of the offending. As Heath Jheld in Ovtcharenko v Police, the nature of the social problem that the blood alcohollegislation is intended to address is something that goes to an assessment of the gravityof the offending.17Overall gravity assessment[20] Mr Rhodes submitted that there were five mitigating factors arising fromMs Sayers' personal circumstances: previous good character, remorse, efforts towardsrehabilitation, offer of reparation, and guilty plea. He emphasised the cumulativeeffect of all of these factors. Mr Gibson, on behalf of Police, acknowledges Ms Sayers'mitigating factors but says that none of them are exceptional.[21] For prior good character, Mr Rhodes relied on Ms Sayers' lack of criminalconvictions, a driving history limited to two discrete minor speeding tickets, thebusiness she co-owns with her husband, and the volunteering she has done over thelast seven years to improve local community basketball. I agree with Mr Rhodes thatMs Sayers can be accurately described as an upstanding member of her community.[22] Ms Sayers has expressed her remorse for her offending, particularly for the factshe may have put other road users at risk, as well as her friends who were in the carwith her. Ms Sayers has also undertaken positive efforts towards rehabilitationincluding completing defensive driving and practical driving courses. She says in heraffidavit that these courses have helped her learn about the potential for alcohol toremain in the system and the impact of alcohol on driving for a much longer periodthan she was initially aware of.[23] Ms Sayers has paid the fine and court costs ordered by the Judge, and has alsooffered willingly to pay the analyst fees and medical expenses sought by Police even16 Land Transport Act, s 56(2), (3)(a) and (b).17 Ovtcharenko v Police [2016] NZHC 2572 at [20]. This "cautionary" language was endorsed bythe Court of Appeal in Basnyat v Police, above n 15, at [21].if she is discharged without conviction. She has further offered a donation to Policeto be put towards alcohol harm reduction and education.[24] Mr Rhodes lastly relied on Ms Sayers early guilty plea at the case reviewhearing.[25] These are undoubtedly all positive factors demonstrating Ms Sayers' overallgood character.[26] Overall, I consider that in assessing the gravity of the offending as in the lowto moderate range, the Judge correctly balanced the positive mitigating factors withthe high blood alcohol reading and deterrence required for this kind of offending.There was no error in the Judge's conclusion. While I am sympathetic to Ms Sayers'explanation of the personal circumstances that led to the charge, I cannot ignore thefact that even a genuine unawareness of one's alcohol level is not a defence.Consequence of conviction[27] The second stage of the test requires the Court to assess the direct and indirectconsequences of a conviction.18[28] I agree with Mr Rhodes that discharges for this kind of offending are notrestricted to exceptional cases. Applications for discharges without conviction inalcohol-related driving cases are to be scrutinised with care but exceptionality is notthe key criterion. Rather, it is the consequences themselves which must be clear; thestatutory test must be applied, namely "out of all proportion".19[29] Mr Rhodes submitted that the following consequences arise in this case: lossof licence, impact on volunteer work, and the shame and stigma associated with aconviction. Ms Sayers affirmed an affidavit in the Auckland District Court in supportof this.18 Z (CA447/12) v R, above n 6, at [27].19 Basynat v Police, above n 15, at [20] and [21].[30] As to the consequences of a loss of licence, Mr Rhodes pointed to the impactthis would have on her ability to carry out work necessary for the operation of herbusiness, and on her ability to attend basketball trainings, games and other volunteer-related commitments. However, Mr Rhodes correctly acknowledged that theseconsequences have been somewhat mitigated because the Judge back-datedMs Sayers' disqualification from driving for just over a month. That enabled her tosuccessfully apply for a limited licence on the same day she was sentenced.Mr Rhodes referred to some administrative delays in Ms Sayers being issued thelimited licence and submits that she still faces consequences in the form of not beingable to travel to the supermarket, to see friends and family, or for other personalreasons.[31] Mr Rhodes further submits that Ms Sayers may be barred from future volunteerwork opportunities as a result of a conviction on her record. He points to the fact thatMs Sayers has in the past been required to complete a Police check, which iscommonly required when volunteering to work with young people. Mr Gibson saysthat there is no evidence of Ms Sayers being barred from future volunteer work andno evidence that one drink-driving conviction would bar her from volunteer coaching.He further submits that because Ms Sayers is seemingly well-respected and a valuablemember of the community, she is likely to be able to continue in her role regardless ofthis conviction.[32] Lastly, Mr Rhodes relies on Ms Sayers' deep embarrassment to be in theposition she is and the devastating stigma she would receive having this conviction.Mr Gibson submits that this kind of general stigma which attaches to a conviction ofthis kind is not exceptional and therefore does not warrant Ms Sayers receiving adischarge without conviction.[33] Despite the consequences identified by Ms Sayers, I find that the consequencesof a conviction in this case would not be out of all proportion to the gravity of theoffending. That is so for the following reasons:(a) Ms Sayers was able to obtain a limited licence on the day she wassentenced which enables her to travel to work and basketball trainings.The restrictions she still faces until the end of the six months, namelydriving for other reasons, are not consequences out of all proportion.(b) A drink-driving conviction would not be of the kind to preventMs Sayers from continuing her volunteer work, particularly as abasketball coach. While Police checks are common for those workingwith young people, the presence of this conviction would not lead toany consequences out of all proportion to Ms Sayers' offending.(c) Ms Sayers' embarrassment and fear of the stigma associated with theconviction is not out of the ordinary. I appreciate that Ms Sayers hasdemonstrated good character all her life and contributes to hercommunity. However, the stigma or shame associated with thisconviction does not on its own or in combination with the other factors,meet the statutory threshold of "out of all proportion" to the gravity ofthe offence.Conclusion and result[34] Overall, I have come to the same conclusion as Judge Glubb in the DistrictCourt. I find that the direct and indirect consequences of Ms Sayers' offending are notout of all proportion to the gravity of her offending. That gravity I assess as withinthe low to moderate range.[35] Accordingly, the appeal is dismissed.__________________________Andrew J