OVTCHARENKO v NEW ZEALAND POLICE [2017] NZCA 65

OVTCHARENKO v NEW ZEALAND POLICE [2017] NZCA 65 [20 March 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA595/2016[2017] NZCA 65BETWEEN DANEEL OVTCHARENKOApplicantAND NEW ZEALAND POLICERespondentCourt: Brown, S France and J Williams JJCounsel: C Mitchell for ApplicantJ Cheng for RespondentJudgment:(On the papers)20 March 2017 at 12.30 pmJUDGMENT OF THE COURTA The application for an extension of time to file the application for leave tobring a second appeal is granted.B The application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] In the early hours of 16 April 2016 the applicant, Mr Ovtcharenko, drove amotorcar on the Northern Motorway near Orewa for some five kilometres, travellingat a speed in excess of 200 kilometres per hour. Eventually he was stopped by thepolice. An evidential breath test returned a result of 525 micrograms of alcohol perlitre of breath.[2] Mr Ovtcharenko entered pleas of guilty in the District Court at North Shore toone charge of driving with an excess breath alcohol concentration and one charge ofdriving with an unnecessary exhibition of speed. His application for discharge withoutconviction was declined by Judge Hinton.1 His appeal against that decision wasdismissed by Heath J.2 Mr Ovtcharenko now seeks leave to bring a second appealagainst the refusal to grant a discharge without conviction.[3] The application for leave is opposed by the respondent. Winkelmann J directedthat the application for leave be determined separately from the proposed appeal andon the papers. An application to review the mode of hearing direction was declined.3[4] Mr Ovtcharenko's application for leave was filed out of time. The delay beingminimal, we grant Mr Ovtcharenko an extension of time to file his application forleave to bring a second appeal.Application for leave[5] An appeal against a refusal to discharge a defendant without conviction unders 106 of the Sentencing Act 2002 is properly characterised as an appeal against bothconviction and sentence.4 Both ss 237(2) and 253(3) of the Criminal Procedure Act2011 state that this Court must not give leave for a second appeal unless satisfied thateither the appeal involves a matter of general or public importance or a miscarriage ofjustice may have occurred or may occur unless the appeal is heard.[6] Mr Ovtcharenko's application invoked both limbs of the statutory prerequisitesfor a grant of leave. With reference to the former, Mr Mitchell for Mr Ovtcharenkoproperly acknowledged this Court's decision in McAllister v R, drawing attention tothe observation that an illustration of a matter of general or public importance is one1 Police v Ovtcharenko [2016] NZDC 16460.2 Ovtcharenko v Police [2016] NZHC 2572.3 Ovtcharenko v Police [2017] NZCA 43.4 Jackson v R [2016] NZCA 627.raising an important question of law having broad application beyond thecircumstances of the particular case.5 However, the case advanced in support of leavefocused primarily on two aspects of the High Court's consideration of the evidence.[7] First it was contended that Heath J overstated the gravity of the offending indescribing the incident as a "chase" of some five kilometres. Secondly it was said thatHeath J had erred in concluding that the evidence of prejudice to the applicant from aconviction was not compelling, attention being drawn in particular to the evidence ofMessrs Robertson and Ward, two Chartered Accountants who provided affidavitevidence as to the effect of a conviction on recruitment processes.Analysis[8] We agree with Ms Cheng's submission for the respondent that the question ofwhen Mr Ovtcharenko became aware that the police were pursuing him was notcritical to Heath J's assessment of the gravity of the offending.6 The Judge'sconclusion that it was irresponsible and dangerous to drive in the manner in which MrOvtcharenko did was open to him irrespective of whether Mr Ovtcharenko was beingchased by a police officer.[9] Secondly the evidence of Messrs Robertson and Ward, which was wellcanvassed in the High Court, was considered by Heath J to have little probative value,both witnesses accepting that an employer would expect to be informed of anyconviction. As Heath J remarked, it is the act undertaken by the potential employeethat raises the questions of character and judgement that would concern a futureemployer.7[10] In further submissions directed to the review of the mode of hearing direction,Mr Mitchell advanced the proposition that lower court judges are determining thequestion of the consequences of a conviction in "unique and varied ways" which on5 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].6 Ovtcharenko v Police, above n 2, at [21].7 At [24].occasions do not follow the guidance provided in Iosefa v Police8 and Alshamsi vPolice9 and adopted by this Court in DC (CA47/2013) v R.10[11] However, as Ms Cheng submitted, it is unclear why Mr Ovtcharenko considersthat further guidance is required from this Court on the correct approach determiningthe consequences of conviction, given that he appears to accept that there is anestablished approach (albeit one which he submits was not followed in this case) andhe fails to cite cases where lower courts have followed an approach different from theestablished approach.[12] Consequently we do not consider that the proposed appeal involves a matter ofgeneral or public importance. Nor on the facts is there any appearance of a miscarriageof justice.Result[13] The application for an extension of time to file the application for leave to bringa second appeal is granted.[14] The application for leave to bring a second appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent8 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005.9 Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007.10 DC (CA47/2013) v R [2013] NZCA 255 at [43].