JOHNSTONE v POLICE [2023] NZHC 1660

JOHNSTONE v POLICE [2023] NZHC 1660 [30 June 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-0004198[2023] NZHC 1660BETWEEN CASSIDY ELLEN JOHNSTONEAppellantAND NEW ZEALAND POLICERespondentHearing: 13 June 2023Counsel: J A Kincade KC and A Shendi for AppellantM Djurich for RespondentJudgment: 30 June 2023JUDGMENT OF HINTON JThis judgment was delivered by me on 30 June 2023 at 3.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Meredith Connell, Auckland[1] On 18 January 2020, the appellant was involved in a high-speed police chasewhich ended when her vehicle veered off a motorway off-ramp. She was heavilyunder the influence of alcohol and the Class B controlled drugmethylenedioxymethamphetamine (MDMA). Two of her three passengers sufferedserious injuries which required hospitalisation and surgery and they suffered long-lasting consequences. The appellant was also injured.[2] Following a sentence indication given by Judge Fitzgibbon,1 the appellantpleaded guilty to two charges of causing injury while under the influence of drinkand/or a drug to such an extent as to be incapable of having proper control of a vehicle,2and one charge of reckless driving.3[3] On 6 September 2022, the appellant was convicted and sentenced to sixmonths' community detention and 12 months' supervision with conditions. 4 She wasalso ordered to pay a total of $22,500 to the victims by way of emotional harmreparation, and was disqualified from holding or obtaining a driver's licence for oneyear and two months on each charge, to be served concurrently.[4] The appellant appeals her conviction on two grounds:(a) the Judge erred by failing to consider under s 11 of the Sentencing Act2002 (the Act) whether the appellant ought to have been moreappropriately dealt with by way of a discharge without conviction unders 106 of the Act; and(b) a miscarriage of justice has occurred because her trial counsel failed toprovide her with advice regarding the availability of a dischargewithout conviction.1 Police v Johnstone DC North Shore CRI-2020-044-001454, 22 February 2022.2 Land Transport Act 1998, s 61(2)(a): maximum penalty of 5 years' imprisonment or a fine notexceeding $20,000; and disqualification from holding or obtaining a driver's licence for one yearor more.3 Section 35(1)(a): maximum penalty of 3 months' imprisonment or a fine not exceeding $4,500;and disqualification from holding or obtaining a driver's licence for 6 months or more.4 Police v Johnstone [2022] NZDC 22785.[5] The respondent says there was no error:(a) Although the Judge did not expressly address the appropriateness of adischarge without conviction, she was clearly alive to and articulatedthe factors relevant to such a sentencing outcome. This considerationwas also implicit in the Judge's conclusion that an electronically-monitored sentence was the most appropriate outcome havingconsidered a range of mitigating factors.(b) Trial counsel reasonably exercised his judgment in advising theappellant of the available sentencing options. Having regard to theseriousness of her offending, his previous resolution discussions withpolice, and the Judge's sentencing indication, it was reasonable forcounsel to conclude that a discharge without conviction was not arealistic possibility. Accordingly, no error was made in the provisionof advice.[6] I consider the Judge made no error for the reasons stated at [5(a)] above. Iconsider trial counsel also made no error. However, rather than addressing thesematters separately, I turn to consider whether, in any event, a miscarriage of justicehas occurred, that is, whether a discharge without conviction would be appropriate.To reach a conclusion on counsel error, I consider I have to address the ultimate issueanyway.BackgroundOffending[7] I take the record below largely from the respondent's submissions.[8] At about 5.00 am on 18 January 2020, the appellant was driving her BMWvehicle northbound on State Highway 1 towards the Victoria Park Tunnel. The speedlimit in the area is 80 km/h. There were three male passengers in the car — Mr de Witand Mr Wilson in the back seat and a third male in the front passenger seat.[9] The appellant's vehicle changed lanes and was recorded travelling 133 km/hinto the tunnel. A police patrol vehicle followed. On approach to the Harbour Bridge,the appellant was recorded as travelling at about 100 km/h.[10] The patrol vehicle activated its flashing lights and sirens. The appellant sloweddown and appeared to stop before accelerating rapidly. She continued to traveltowards the Harbour Bridge at approximately 130 km/h. This speed increased to 175to 180 km/h over the Harbour Bridge. It was accompanied by dangerous manoeuvresaround vehicles travelling at or around the speed limit, and rapid lane changing.[11] Due to these high speeds, the patrol vehicle abandoned the pursuit, turned offits flashing lights and continued travelling at the speed limit. The appellant continueddriving at 175 to 180 km/h and engaged in further dangerous manoeuvres such asrapidly driving up to other vehicles and crossing all lanes without reducing her speed.[12] The appellant continued driving at an extremely high speed as she approachedthe Onewa Road off-ramp. As she entered the off-ramp, she veered completely off theshoulder and crashed into a tall light pole, knocking it off its base. Her vehiclecontinued in a straight line into a steep bush area where it crashed into a bush and wasspun around at high speed. The vehicle came to a rest approximately 5 to 10 metresup the bushy hillside with the driver's door jammed against a tree.[13] Mr Wilson was briefly knocked unconscious and was thrown onto Mr de Wit.The man in the front passenger seat was uninjured. He immediately exited the vehicleand started running down the off-ramp towards Onewa Road where he was stoppedby police. Mr de Wit, who had a badly injured elbow, also got out of the vehicle andwalked down the hillside to where police units were arriving.[14] The appellant was found in the front passenger seat. She smelt strongly ofalcohol. She denied that she was the driver and stated that she had injured her back.[15] The appellant and Mr de Wit were both transported to North Shore Hospital byambulance. Mr Wilson sought medical treatment later. The appellant suffered afracture to a vertebra in her lower spine. A blood sample was taken and was found tocontain 182 (+/-9) mg of alcohol per 100 ml of blood (the limit being 80 mg per 100ml of blood). The blood sample also contained the Class B controlled drug MDMA(or ecstasy).[16] Mr de Wit suffered a dislocated left elbow, a compound fracture to his left arm,one ruptured ligament and one torn ligament in his left arm. His left arm requiredsurgery to remove scar tissue and repair the damaged ligaments. He was hospitalisedfor a day, but as a result of his injuries he was unable to work and lost his buildingapprenticeship. He consequently had to move back home with his parents in order tofinancially support himself.[17] Mr Wilson suffered a burst fracture to his L2 vertebra, classed as a traumaticspinal injury, which required surgery. He was hospitalised for ten days but alsosuffered ongoing consequences such as pain and restricted movement. Mr Wilson'sparents have had to take time off from their work to assist with his recovery. He hasbeen told that because of his injuries, he may never be able to return to the manuallabour workforce.Procedural history[18] The appellant eventually gave a statement to police accepting that she may wellhave been the driver. This was supported by other evidence: statements of herpassengers, and forensic and scene evidence. The cumulative effect made thelikelihood of conviction high. The appellant's counsel, Mr Foley, deposed forpurposes of this appeal that he considered the strength of the evidence, coupled withthe seriousness of the alleged offending, rendered imprisonment a real possibility. Herecommended to the appellant that he should try to negotiate more favourable chargesand a more favourable summary of facts.[19] Mr Foley achieved both goals. For example, the appellant initially also facedan additional charge — failing to stop for blue and red flashing lights (aggravated).The police agreed to withdraw this charge for the purposes of resolution. Further, thepolice agreed to various amendments to the summary of facts which were favourableto the appellant such as the removal of any mention of the appellant purposefullymoving seats following the crash, as well as her exact blood alcohol level. Mr Foleyalso obtained confirmation that, in the event the appellant accepted the amendedsummary of facts, the police would not seek a prison sentence.[20] On Mr Foley's advice, the appellant sought a sentence indication on theamended summary of facts (to which she later pleaded guilty).Sentence indication[21] Before the Judge, Mr Foley submitted an appropriate starting point wasbetween 20 and 26 months' imprisonment and an appropriate end sentence was homeor community detention together with a period of disqualification and an order foremotional harm reparation. The police supported the suggested end sentence.[22] Mr Foley raised the following mitigating factors personal to the appellant:(a) a letter of reflection, apology and remorse plus willingness to engagein restorative justice and pay emotional harm reparation;(b) confirmation of the appellant's attendance at 29 counselling sessionsand her voluntary engagement with Community Alcohol and DrugServices (CADS), as well as her attempt to engage with the Right Trackprogramme directed at young and at-risk drivers;(c) the appellant's previous good character evidenced by an absence ofprevious convictions and a number of letters of support;(d) the appellant's youth, being 21 at the time of the alleged offending; and(e) the availability of a discount for guilty plea, in the event she acceptedthe sentence indication.[23] Judge Fitzgibbon said she "[had] a fulsome understanding of the way in which[the appellant] feels about what has happened and what her friends and those close toher think about her as a person".55 Police v Johnstone, above n 1, at [9].[24] The Judge adopted a starting point of 26 months' imprisonment, having regardto the high speeds, the high level of intoxication (by both alcohol and illicit drugs) aswell as the injuries suffered by two of the passengers.6[25] The Judge indicated the appellant would be afforded discounts amounting to50 per cent (the maximum of the range submitted on her behalf) for the matters inmitigation put forward by Mr Foley and, subject to there being a positive pre-sentencereport, that an end sentence of home or community detention would be appropriate.7The Judge further said she favoured community detention to allow the appellant tocomplete her studies.8[26] On Mr Foley's advice, the appellant accepted the sentence indication on 10March 2022.Sentencing[27] The appellant was sentenced on 6 September 2022. In the meantime, she hadcompleted the Right Track programme. The Judge did not have sufficient informationto impose reparation for the victims so she made orders for emotional harm paymentsinstead.[28] The Judge then sentenced the appellant as recorded above at [3].Legal principlesApproach on appeal[29] An appeal against conviction may only be allowed if a miscarriage of justicehas occurred for any reason, and must otherwise be dismissed.9 A miscarriage ofjustice means any error, irregularity, or occurrence in or in relation to a trial that has6 Police v Johnstone, above n 1 at [8] and [10].7 At [10].8 At [10].9 Criminal Procedure Act 2011, s 232(2)(c).created a real risk that the outcome was affected or is unfair.10 This includes aproceeding in which the appellant has pleaded guilty.11Discharge without conviction[30] As stated above, leaving to one side the question of trial counsel or judicialerror, and in the interests of pragmatism, I directly address the ultimate question ofwhether an application for discharge would have succeeded had the appellant beenadvised to seek one and accepted that advice. Unless that is the case, there has beenno miscarriage of justice.[31] Discharges without conviction are governed by ss 106 and 107 of the Act.Section 107 is a precondition to the discretion under s 106.12[32] Section 107 requires consideration of three factors:13(a) the gravity of the offending;(b) the direct and indirect consequences of a conviction; and(c) whether those consequences are out of all proportion to the gravity ofthe offending.[33] If the answer to (c) is positive, the Court has a discretion as to whether to granta discharge.Would a discharge without conviction have been available?Gravity of offending[34] There is no dispute that the gravity of the appellant's offending beforeconsidering any personal mitigating factors is high. She had consumed over twice thelegal blood alcohol limit, as well as the Class B controlled drug MDMA or ecstasy.10 Section 232(4)11 Section 232(5).12 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].13 At [8]; see also Z v R [2012] NZCA 599, [2013] NZAR 142, at [8].Her driving was both dangerous and at extremely high speeds. She failed to stop whenpolice followed her over the Harbour Bridge with flashing lights and sirens. Herspeeding and dangerous driving was the direct result of her attempt to evade police,which I agree with the respondent, is a significant aggravating factor. Finally, theextent of injury caused was severe. The two passengers' victim impact statementsrecord that they suffer ongoing consequences.[35] Both the appellant and the respondent acknowledge that the personalmitigating factors set out at [22] above, reduce the gravity to no less than moderate. Iconcur but would emphasise "no less than".Consequences of conviction[36] The appellant submits that the following consequences flow from herconvictions and these consequences are out of all proportion to the moderate gravityof her offending:(a) Employment prospects: the appellant fears she will not be able to get ajob within the cybersecurity industry. She further fears that a recentrejection of a studentship may be linked to her convictions because shewas required to disclose them during the application process and shecould see no other reason why she would be rejected.(b) Future travel: the appellant also fears that she will not be able to obtainvisas to travel to, and work in, places such as Australia, Canada and theUnited Kingdom if her convictions stand.[37] The Court must be satisfied there is a "real and appreciable risk" that theidentified consequences will arise.14 The nature, seriousness and degree of likelihoodof the consequences occurring will be material.14 R v Taulapapa [2018] NZCA 414 at [22].Employment[38] The appellant relies on evidence from Mr Francis, a friend who works in thecybersecurity sector. He is 25 years of age and has five years' experience including asa summer intern at Xero, his current employer. Mr Francis says the appellant will"likely struggle" to find employment with her convictions. He bases this on thefollowing factors:(a) First, security checks in the cybersecurity field are routine. Mr Francishimself has been asked in previous applications whether he hasconvictions.(b) Mr Francis was asked to vet graduate applicants for a summerinternship programme at Xero and, in his experience, "those withconvictions were not favoured and unlikely to be considered for a roleas the work includes aspects such as handling private and sensitiveinformation".(c) It is sometimes necessary to undergo further vetting where a person isrequired to work on a Government contract.(d) Failing a security clearance could mean alienation from certain typesof work (for example, Government-contract work).(e) The cybersecurity industry in New Zealand is small and if a person isprevented from working on certain projects, "it becomes well known toall those working in this field".[39] I do not consider the evidence establishes a real and appreciable risk ofunemployability in the cybersecurity industry as a whole or elsewhere.[40] With great respect to Mr Francis who clearly has a promising career, he doesnot yet have the experience or standing the Court requires for evidence on anapplication such as this. Mr Francis' comments are based on his own personal andlimited work experience in one particular segment of the cybersecurity sector. He hasa limited employment history and has only been involved in the vetting process forgraduate student internships with one firm, Xero. He is not an employer in theindustry. Even in the limited context in which he assisted in screening graduatecandidates, Mr Francis provides no information as to how often he came acrosscandidates with convictions, or what other attributes these candidates had that mayhave impacted their employability. The fact that some candidates with convictions didnot obtain internships does not amount to evidence that convictions are, in and ofthemselves, a barrier to employment. Accordingly, Mr Francis' personal employmentexperience and views as to the weight employers may place on convictions cannot berelied on as being indicative of industry practice.[41] Further, I do not accept the proposition that any conviction whatsoever wouldrender the appellant "untrustworthy" in the industry. As the respondent says,Mr Francis assumes all convictions would be seen as the same by all employers in thatindustry. I consider it unlikely that driving-related convictions would preclude theappellant from all types of work within the industry. That is more likely to be the casewith a dishonesty conviction or , for example, the charge Mr Foley arranged to bedropped, which showed serious non-compliance with the law. I have not seen itsuggested previously that traffic offending, even serious traffic offending such as theappellant's, is a particular employment impediment, except where the job is driving-related in its broadest sense.[42] There is insufficient evidence that the appellant would be faced with significantor insurmountable barriers to employment within the cybersecurity industry. It is clearfrom Mr Francis' affidavit that there are various types of cybersecurity work. Thispresumably covers both private and public sectors. It seems unlikely that the appellantwould be excluded from all forms of this work.[43] It seems that following graduation, the appellant will hold a Bachelor ofComputer and Information Sciences, with strong academic results. She is likely to besought after, whether within her current chosen field, or similar or other fields. As therespondent submits, it seems likely that this degree has a large number of career paths.There is no evidence before the Court to suggest there is a real and appreciable riskthat the appellant will generally be unable to find employment following her studies.I note also that she has strong character support, evident from the letters filed for thepurpose of her sentence indication. It would seem she also has an employment referee,at least in Mr Francis. I would assess it as likely that the appellant will overcome anyor most employment impediments she may have from her convictions.[44] Finally, there is no evidence to suggest that the appellant's unsuccessfulstudentship application, notwithstanding her good academic results, was due to weightplaced on her convictions. There may be any number of factors which resulted in herunsuccessful application. The criteria were not in evidence, but I doubt thescholarships were granted solely to top students, as the appellant assumes.[45] Overall, the potential impact of a conviction on the appellant's employmentprospects is speculative. Any potential impact is insufficiently real or appreciable tojustify a conclusion that her convictions would preclude her from employment,whether in the cybersecurity industry, in related fields, or more generally.Travel[46] The appellant has expressed "aspirations of working remotely all over theworld". In particular, "the countries [she] would mostly like to work in [are] Canada,United Kingdom and Australia". While the appellant has no actual travel plans, shefears she would not be able to get a visa to these countries if her convictions stand.[47] The appellant relies on the affidavit of immigration specialist, Carina Ford, tosupport her submission that a conviction would have an impact on her ability to traveland work in Australia, in particular. No evidence has been provided in respect of anyother country.[48] Ms Ford helpfully sets out a number of Australian visa pathways available tothe appellant and how these may be affected by her convictions, should they remain.The respondent says that none of the pathways suggest there is a real and appreciablerisk that the appellant will not be able to travel to Australia.[49] Ms Ford is of the view that the appellant's current convictions "would not makeher ineligible" for a subclass 444 visa, unless her community detention is considereda period of imprisonment and it is for a period of 12 months or more. I note that theappellant was sentenced to a period of only six months' community detention. Further,under s 5 of the Migration Act 1958 (Cth), it appears unlikely that the appellant'ssentence of community detention would be considered a "period of imprisonment".Consequently, the appellant would not automatically be refused entry into Australia ifher convictions are upheld. She would, however, be subject to a character test(discussed below). If the appellant enters Australia on a subclass 444 visa from 1 July2023, assuming she does not reoffend, she may be eligible for citizenship after fouryears of residency and subject to meeting other criteria.[50] Australian permanent or skilled visas are also subject to the character test. AsMs Ford deposes, a person will not be considered to pass the character test if they havea substantial criminal record (which the appellant clearly does not) or their "past andpresent criminal or general conduct indicates they are not of good character". Whethera person passes this second limb is clearly a matter of discretion for immigrationofficials. In any case, it is Ms Ford's view that there is only a low risk that the appellantwould not pass this test. Regardless, refusal of a permanent visa does not preclude theappellant from an alternative pathway such as a temporary visa or residency.[51] Ms Ford's evidence on the character test applied by Australian immigrationofficials is instructive. It indicates that while the appellant would be required to meetthe character test if her convictions stand, those convictions do not, in and ofthemselves, mean that she would automatically fail that test. On the contrary, it is MsFord's opinion that there is only a low risk that this would be the case based on theappellant's past and present criminal or general conduct. This risk is clearly of a lowmagnitude.[52] There is no evidence at all that the appellant would be precluded fromtravelling to Canada or the United Kingdom, being the other countries to which shehas expressed a desire to travel and work.[53] There is also no evidence that the appellant has immediate travel plans, nor aspecific need to travel to Australia (or elsewhere) in the near future for employmentpurposes or otherwise. In contrast, in the three cases cited by the appellant — Vela vR,15 Rodrigo v Police,16 and Police v Suturin17 — the defendants had specific travelneeds of more significance. In Vela v R, the Court regarded the inability of thedefendant to travel to America and live with his father as a "heavy burden".18 Thedefendant had also provided evidence confirming that he would be ineligible to enterAmerica at all while he had the conviction.19 In Rodrigo v Police, the Court consideredthe defendant's career and travel aspirations would be more affected than some otherswho appear before the courts because the defendant's relatives were all overseas.20 InPolice v Suturin, the Court considered that the consequences of conviction on futuretravel were relatively minor where the defendant's job required him to travelinternationally.21[54] The consequences of conviction on the defendants' ability to travel in the abovethree cases are not present in this case. There is no evidence to suggest that theappellant's desire to travel to Australia, Canada or the United Kingdom foremployment is based on particular ties to those countries or any specific need, eithernow or in the near future. Rather, it is based on a general desire to travel and workabroad at some later stage and to be untrammelled by her convictions.[55] For the above reasons, I do not consider there is a real and appreciable risk thatthe identified consequences will arise and in any event I consider that theconsequences are low.Proportionality[56] The appellant's offending is of at least a moderate degree of seriousness foroffending of its kind after taking into account all mitigating factors personal to her. Incontrast, the direct and indirect consequences of conviction are low. Their submittedimpact on the appellant is speculative. In any event, I do not consider they poseinsurmountable or even significant barriers for her. They are not "out of allproportion" to the gravity of her offending.15 Vela v R [2010] NZCA 440.16 Rodrigo v Police [2014] NZCA 68.17 Police v Suturin [2021] NZDC 2001.18 Vela v R, above n 15, at [19].19 At [16].20 Rodrigo v Police, above n 16, at [17].21 Police v Suturin, above n 17, at [12].[57] The appellant would therefore not have been eligible for a discharge withoutconviction.Conclusion[58] For the foregoing reasons, I find that neither Judge Fitzgibbon nor Mr Foleyerred in their respective roles. I note that I consider the Judge was as generous to theappellant as possible. In terms of Mr Foley's advice, while I agree a prison sentencewas possible, I think it was unlikely in all the circumstances. But I consider overallthat Mr Foley's advice was not only correct, the appellant was materially advantagedby it both as a result of the negotiated outcome and the ultimate sentence.[59] Even if the Judge and/or Mr Foley did err, there is no risk that any error affectedthe outcome, given the appellant's ineligibility for a discharge under s 106 of the Act.There was no miscarriage of justice.[60] The appeal is therefore dismissed.___________________________Hinton J