ROWLINGS v NEW ZEALAND POLICE [2020] NZHC 564

ROWLINGS v NEW ZEALAND POLICE [2020] NZHC 564 [19 March 2020]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2020-463-10[2020] NZHC 564BETWEEN BECKIE VALERIE ROWLINGSAppellantAND NEW ZEALAND POLICERespondentHearing: 19 March 2020Appearances: CA Gentleman for AppellantSH Sheridan for RespondentJudgment: 19 March 2020JUDGMENT OF WALKER JThis judgment was delivered by me on 19 March 2020 at 2.30 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy Registrar[1] Ms Rowlings pleaded guilty on 17 October 2019 to the following charges:(a) Refusing an officer's request for a blood specimen;1 and(b) Possession of cannabis.2[2] On 29 January 2020, Judge Bidois granted Ms Rowlings' application fordischarge without conviction in relation to the possession charge. Ms Rowlings nowappeals Judge Bidois' decision to refuse her application for a discharge withoutconviction in relation to her second charge - refusing an officer's request for a bloodspecimen.Alleged Facts[3] At about 5.00pm on Tuesday 9 April 2019, Police found Ms Rowlings sittingin a Nissan car parked in a layby off Otarawairere Road in Whakatane.[4] When the police came and spoke to Ms Rowlings, they saw a small bag ofcannabis sitting in the driver foot well of the car. They invoked a search of the vehicleunder the Search and Surveillance Act 2012. Police located numerous small zip lockbags containing cannabis in one of Ms Rowlings' bags. They found approximately 2grams of cannabis in total.[5] Police suspected Ms Rowlings had consumed cannabis, and so they requiredher to complete an impairment test. She failed to complete that test to a satisfactorylevel so was required to submit a blood specimen. She refused to allow the Police totake a blood specimen.[6] She told the Police that the cannabis in the bag was hers, but that she didn'tknow about the cannabis under the driver's seat. She also told the Police that sherefused to take the blood specimen test as she does not like needles.1 Land Transport Act 1998, s 60(1)(a).2 Misuse of Drugs Act 1975, ss 7(1)(a) and 7(2).District Court Decision[7] In assessing whether Ms Rowlings should be discharged without conviction,Judge Bidois first assessed the gravity of the offending in respect of each offence. Hewas satisfied that the gravity of the possession charges was low. However, heconsidered the gravity of Ms Rowlings' failure to co-operate with the police withrespect of the blood testing was high, as she was suspected to have driven while underthe influence of cannabis and possibly alcohol.[8] The Judge then turned his attention to the consequences of conviction. MsRowlings submitted that there would be serious consequences to her ability to becomean air hostess with a conviction. The concern was that a criminal conviction wouldjeopardise her aviation security clearance. Judge Bidois was satisfied that there weresignificant impacts on her prospects of becoming an air hostess in relation to the drugcharges. However, he was not so persuaded in relation to refusing the blood test whichhe treated as of a different character. He considered that she could provide anexplanation for the conviction, and it would not necessarily impact on her suitabilityas an air hostess.[9] Finally, in the exercise of his discretion, the Judge considered that the drugconviction would result in disproportionate consequences for Ms Rowlings. He wasnot satisfied in relation to a conviction for refusing the blood sample. This was becauseof the seriousness and importance of the provisions relating to drug testing, andbecause the impacts of a conviction on her ability to become an air hostess werespeculative.Relevant Law[10] The legal principles for an application for a discharge without conviction arewell settled. The Court must consider whether the threshold under s 107 of theSentencing Act 2002 has been met. That requires the Court to carry out a three-stepanalysis, considering:(a) The gravity of the offence, taking into account all aggravating andmitigating factors of the offending and offender;(b) The direct and indirect consequences of a conviction (there must be a"real and appreciable" risk that any given consequence will happen);and(c) Whether those consequences are all out of proportion to the gravity ofthe offence.[11] If the offender meets the s 107 threshold, the Court may go on to considerwhether to exercise its residual discretion under s 106.[12] An appeal against a refusal to grant a discharge is an appeal against convictionand sentence.3 The proportionality test under s 107 is a matter of fact requiring judicialassessment. As such, it is subject to appeal on normal appellate principles, requiringme to undertake that assessment myself in order to determine whether or not thedecision was correct.4 I note that on a fresh consideration, there is no onus on anoffender to establish the disproportionality test has been met.5Gravity of offending[13] Ms Gentleman for Ms Rowlings first submits that Judge Bidois overstated thegravity of the offending by incorrectly relying on matters inherent to the charge, suchas being the likely driver of the vehicle and failing an impairment test. These matters,she says, are always present in respect of a charge of failing to give a blood specimen.[14] The offence to which the appellant pleaded carries a relatively low maximumpenalty – either three months' imprisonment or a fine not exceeding $4,500. I agreewith Ms Rowlings' counsel that this is not a 'high gravity' offence of itself but, in myview, it has more serious public safety consequences than the cannabis possessioncharge. There are also aggravating features that elevate its seriousness in this case:(a) Ms Rowlings provided no reason for failing the impairment test. Eventaking her youth into account, this suggests her failure to submit to3 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [8]–[9] and [16].4 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].5 R v Hughes, above n 4, at [49].blood testing was coloured more by a wider unwillingness to co-operatewith police than a fear of needles alone.(b) More importantly, the offending was committed while Ms Rowlingswas on bail for cannabis, methamphetamine and careless drivingoffences.[15] Although Ms Rowlings was not driving when she was found by the police, thefact she was in the driver's seat of the car strongly suggests that she had been drivingwhile under the influence of cannabis and/or alcohol. Ms Gentleman submits that therewas someone else in the car with her but the Police Summary of Facts in respect ofwhich the guilty plea was entered does not record this and there is no other evidenceof this.[16] Given this is the case, it is unclear how else Ms Rowlings could have beenfound in her car in the layby park if she had not driven it herself. That she had beendriving that afternoon is a fair and pragmatic assumption.[17] I am satisfied that Judge Bidois did not overstate the seriousness of MsRowlings' offending based on those aggravating features.Consequences of conviction[18] Ms Gentleman then submits that the Judge placed insufficient weight on theconsequences of a conviction. She says that this assessment was inconsistent with theway he approached the cannabis possession charge in terms of accepted consequences.[19] Ms Sheridan for the Crown submits that the Judge achieved the right balanceby regarding the blood specimen offending, in this case, as more serious and theconsequences lower because of their character.[20] The consequences relied on primarily relate to Ms Rowlings' desire tobecome an air hostess. The New Zealand Aviation Security Service advises that whilethere is no set list of security requirements to receive an AVSEC clearance, a criminalconviction is taken into account when a security check is completed. An adversesecurity determination would mean that her security application would be declined,preventing employment as air crew. Ms Rowlings has already enrolled with the NewZealand School of Tourism and has moved to Auckland with her partner to commencethe course. When she enrolled, the enrolment form declared that "a criminal convictionmay also prevent the offer of employment with any company".[21] A criminal conviction on Ms Rowlings' record may well have some impact onher security clearance. However, a potential detrimental impact on an offender'semployment prospects is a natural and inevitable consequence of criminal offending.In fact, it is an important consequence. This is both because it acts as a deterrent againstpossible future offending, but also because it ensures the court does not usurp the rightof a potential employer or, in this case, an authorised body, to decide the significanceof a particular conviction. It is on this basis that courts have been reluctant to exercisetheir discretion under s 107.6[22] Therefore, the difficulty for Ms Rowlings is that apart from identifying theconviction on her criminal record as a potential obstacle to passing her securityscreening with the Aviation Security Service, she is not able to identify further specificcircumstances to her that justify a discharge without conviction.[23] Ms Gentleman referenced some jurisdictions which take a particularly harshview of drink driving offences. There are two problems with this. First, there is nospecific evidence on which to rely. I have in mind the Court of Appeal's guidance thatdetailed and reliable evidence is ordinarily required where a discharge is sought on thebasis that a conviction will impede travel to a particular jurisdiction. Secondly, it isnot the case that a drink driving offence is the same as a blood specimen offence.[24] A general risk to Ms Rowlings' ability to obtain her desired employment is ageneric and inevitable consequence of conviction. Further, it is important that theAviation Security Service has the discretion to determine whether Ms Rowlings'conviction should impact her ability to be an air hostess, particularly given theimportance of public safety and security in the aviation industry.6 Graham v Police [2018] NZCA 172 at [29]; Walker v Police [2016] NZHC 1450 at [23].[25] In any case, I do not consider the risk that her clearance would be declinedbased on this conviction alone is well-founded. I also agree with the respondent'ssubmission that any potential risk of her ability to travel in the future needed to bemuch more detailed and specific to carry any weight.7[26] I have taken due notice of the fact Ms Rowlings was only 17 when theoffending occurred. She is 18 at the time of this appeal. I accept that youth is a primaryconsideration when assessing consequences and proportionality.8 However, her youthis not a free pass. It does not tip the balance with regard to the factors I have alreadyconsidered.[27] This conviction is not so serious that Ms Rowlings would be unable to explainit to a potential employer in three years, when she has completed her training. Thespecific details of the offending should be closely examined by the relevant aviationauthorities, and the existence of a conviction of this sort ought not, in my view, toresult in an automatic and immediate rejection without further inquiry.[28] The evidence presented by Ms Rowlings of her communications with theAviation Security Service indicates that even if she fails an initial screening test, hermatter will be forwarded to a station manager. The station manager does not have toapply any set assessment criteria, and has discretion over their decision of whether theapplicant poses a threat to aviation security. If Ms Rowlings' application progresses tothe station manager, the fact of conviction for the specimen blood offence at 17 yearsof age, alongside an otherwise clean criminal record (assuming that is the case) willdemonstrate that it was an aberration and not reflective of her character. In short, shewill likely have to do some explaining but that does not mean that the consequencesof conviction are out of proportion to the gravity of the offending.Conclusion[29] It follows that I am not satisfied Judge Bidois erred, either in his assessmentof whether the appreciable risks of conviction were out of proportion to the gravity of7 Edwards v R [2015] NZCA 583 at [26].8 Amstad v Police Auckland HC CRI-2011-404-000161, 6 September 2011 at [20].the offence, or in his application of s 107 of the Act more generally. In my view, theresult was correct.[30] Accordingly, the appeal is dismissed...........................................................Walker J