ASHWORTH v NEW ZEALAND POLICE [2020] NZHC 1587

ASHWORTH v NEW ZEALAND POLICE [2020] NZHC 1587 [7 July 2020]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI 2020-463-000022[2020] NZHC 1587BETWEEN DEAN GRAEME ASHWORTHAppellantAND NEW ZEALAND POLICERespondentHearing: 6 July 2020Counsel: A Bean for the AppellantO M Salt for the RespondentJudgment: 7 July 2020JUDGMENT OF VAN BOHEMEN JThis judgment was delivered by me on 7 July 2020 at 11:00amRegistrar/Deputy RegistrarSolicitors/Counsel:Bean Law Ltd, HamiltonCrown Solicitor, TaurangaIntroduction[1] Dean Graeme Ashworth appeals against his conviction for two offences underthe Land Transport Act 1998 (LTA).The offending[2] On 21 September 2019, Mr Ashworth, the holder of a zero-alcohol licence, wasstopped by police as he drove along SH2 near Mangatarata. A breath test returned areading of 600 micrograms of alcohol per litre of breath.[3] Prior to the date of this offending, Mr Ashworth had two previous convictionsfor drink driving.The District Court trial and sentence[4] On 17 December 2019, in the District Court in Gisborne, Mr Ashworth pleadedguilty to two offences under the Land Transport Act 1998 (LTA) and convictions wereentered.[5] The two offences were:(a) Under s 57AA(4), driving with breath alcohol exceeding250 micrograms of alcohol per litre of breath, in contravention of azero-alcohol licence.1(b) Under s 56(1), driving with breath alcohol exceeding 400 microgramsof alcohol per litre of breath.2[6] Because of Mr Ashworth's prior drink driving convictions, the maximumpenalty for each offence is the same: two years' imprisonment or a fine of $6,000.00;1 Carrying a maximum penalty, provided by s 57AA(6) LTA, of two years' imprisonment or a fineof $6,000.00, and the court must order the person be disqualified from holding or obtaining adriver licence for 1 year or more.2 Because of Mr Ashworth's previous convictions, carrying a maximum penalty, provided bys 56(4), of two years' imprisonment or a fine of $6,000.00, and the court must order the person bedisqualified from holding or obtaining a driver licence for more than 1 year.in addition, the court must make an order disqualifying the person convicted fromholding or obtaining a driver's licence for more than one year.[7] On 10 March 2020, in the District Court in Thames, Judge R G Marshallimposed a sentence of nine months' supervision for each charge, and a period ofdisqualification of one year and one day, and 150 hours of community work.3Mr Ashworth's appeal[8] On 20 March 2020, Mr Ashworth's counsel filed a notice of appeal in the HighCourt in Rotorua. The appeal was only in respect of Mr Ashworth's conviction. Thegrounds of appeal referred to s 10 of the Crimes Act 1961 and stated that the twooffences for which Mr Ashworth had been convicted arose from the same incident andhe should not be punished twice for the same offence.[9] The notice of appeal did not specify under which section of the CriminalProcedure Act 2011 (CPA) the appeal was brought. However, submissions filed byhis counsel, Mrs Bean, state that the appeal is brought under s 232(c) of the CPA,namely that there has been a miscarriage of justice.[10] Mr Ashworth seeks to have the conviction under s 56 of the LTA quashed,leaving the conviction under s 57AA standing or, in the alternative, to have the matterremitted back to the District Court in order to vacate Mr Ashworth's guilty plea forthe s 56 charge and to enter a special plea of previous conviction under s 46 of theCPA.[11] Mr Ashworth's appeal was originally set down for hearing on 18 May 2020.However, at the request of Mr Ashworth's counsel and counsel for the Police, thehearing was adjourned to 6 July 2020 to allow account to be taken of the outcome ofan appeal to be heard by Osborne J on 19 May 2020 and which counsel consideredwas likely to be relevant to the present appeal. That decision, NZ Police v Mitchell,was issued on 27 May 2020.43 NZ Police v Ashworth [2020] NZDC 7549.4 NZ Police v Mitchell [2020] NZHC 1143.Appellant's submissions[12] Mrs Bean sets out the background to Mr Ashcroft being charged with, pleadingguilty to and being sentenced for two offences. Briefly:(a) On 9 October 2019, a charge of contravening the breath alcohol limitof a zero-alcohol licence under s 57AA of the LTA was brought in theDistrict Court in Pukekohe and the matter transferred to the DistrictCourt in Gisborne.(b) On 4 November 2019, a further charge of driving with breath alcoholin excess of 400 micrograms of alcohol per litre of breath under s 56 ofthe LTA was brought in the District Court in Gisborne.(c) On 17 December 2019, convictions were entered on both charges andMr Ashworth applied for legal aid. In his application, he referred onlyto the charge under s 56.(d) On 10 March 2020, Mr Ashworth was sentenced in the Thames DistrictCourt. It was only after sentence had been passed that Mr Ashworth'scounsel understood Mr Ashworth had been convicted and sentenced ontwo charges, that is under both s 57AA and s 56.[13] Mrs Bean submits that both charges arose out of the same factual matrix. Sherefers to s 10(3) and (4) of the Crimes Act which provide:(3) Where an act or omission constitutes an offence under 2 or moreprovisions of this Act or of any other Act, the offender may beprosecuted and punished under any one of those provisions.(4) No one is liable to be punished twice in respect of the same offence.[14] Mrs Bean submits that, in accordance with s 10(3) of the Crimes Act,Mr Ashworth should have been charged with one or other of the two charges, whicharise from the one episode of drink driving, and that to be convicted of the two chargesoffends against s 10(4).[15] Mrs Bean submits that there appear to be no circumstances where someonewith a zero-alcohol licence who commits an offence under s 56 would not also commitan offence under s 57AA. She also says that a driver with a zero-alcohol licence,whose breath alcohol level exceeds 400 micrograms of alcohol per litre of breath,commits both offences with one act of driving.[16] She also submits that the charge under s 57AA is the more appropriate chargebecause it would recognise both the breach of the zero-alcohol licence as well as drinkdriving and that the breath alcohol level of 600 micrograms of alcohol per litre ofbreath would be an aggravating feature to be considered on sentence.[17] In her submissions, Mrs Bean refers to Waddell-Stephens v NZ Police,5 whichconcerned an appeal against a ruling by the District Court that the defendant in thatcase was liable for conviction on a charge under s 57AA of the LTA after convictionhad been entered of an offence under s 56 of the LTA, after being found to have hadexcess blood alcohol levels under both sections. In that case, Mander J had allowedthe appeal and referred the matter back to the District Court for consideration ofwhether Mr Waddell-Stephens could enter a special plea under s 46 of the CPA inrespect of the charge under s 57AA.[18] Mrs Bean also refers to the Court of Appeal's decision in Rangitonga v Parker6where the Court of Appeal considered the principles applying to the entry of specialpleas under ss 46 and 47 of the CPA and had endorsed the approach set out by Katz Jin the High Court decision in that case.75 Waddell-Stephens v NZ Police [2016] NZHC 1480.6 Rangitonga v Parker [2016] NZCA 166, [2018] NZLR 796.7 Rangitonga v Parker [2015] NZHC 1772, [2016] 2 NZLR 73.Respondent's submissions[19] Counsel for the Police, Mr Revell in written submissions and Mr Salt in thehearing on 6 July 2020, do not dispute the history of the proceedings as set out byMrs Bean.[20] Counsel for the Police also accept there is a distinction between s 32 of theLTA, under which it is an offence to drive contrary to a zero-alcohol licence, ands 57AA, in that s 57AA sanctions both driving in contravention of a licencingcondition and driving with excess breath alcohol. They note the maximum penaltyunder s 57AA(4) and (5) is the same as under s 56(4): two years' imprisonment and a$6,000.00 fine. They submit that in Mr Ashworth's case there is no further culpabilityarising from the underlying facts which is not already addressed by the s 57AA chargeand its penalty. They say that it appears s 57AA has been drafted to address preciselythe type of offending by Mr Ashworth.[21] Counsel for the Police submit that the Court's approach in Waddell-Stephensshould be followed, and the matter should be remitted back to the District Court sothat Mr Ashworth may vacate his plea under s 56 LTA and enter a special plea ofprevious conviction under s 46 of the CPA. Alternatively, they say the Court mayadopt the alternative course of action proposed by Mrs Bean of quashing theconviction and dismissing the s 56 LTA charge in accordance with s 46 of the CPA ifthe Court is satisfied that Mr Ashworth has been convicted of another offence arisingfrom the same facts. If this course is adopted, counsel for the Police submit that noadjustment to Mr Ashworth's sentence is necessary for the remaining offending unders 57AA because they say there was no extra sentence imposed for the s 56 charge andthat the sentences were concurrent.Legal principles[22] The CPA provides that a first appeal against conviction8 must be allowed if theCourt is satisfied that the Judge in the first instance erred in their assessment of the8 Sections 229-230.evidence to such an extent that a miscarriage of justice has occurred, or if the Court issatisfied that a miscarriage of justice has occurred for any other reason.9[23] Section 232(4) of the CPA provides that a miscarriage of justice means anyerror, irregularity or occurrence in relation to or affecting a trial that has created a realrisk that the outcome of the trial was affected or has resulted in an unfair trial.[24] While s 10(4) of the Crimes Act protects the rule against double jeopardy, s 46of the CPA provides for that rule to be effected by permitting a defendant to enter aspecial plea of previous conviction. Section 49 of the CPA provides the process fordoing so:46 Previous conviction(1) If a plea of previous conviction is entered in relation to acharge, the court must dismiss the charge under section 147 ifthe court is satisfied that the defendant has been convictedof—(a) the same offence as the offence currently charged,arising from the same facts; or(b) any other offence arising from those facts.(2) Subsection (1) does not apply if—(a) the defendant was convicted of an offence and iscurrently charged with a more serious offence arisingfrom the same facts; and(b) the court is satisfied that the evidence of the moreserious offence was not readily available at the timethe charging document for the previous offence wasfiled.49 Procedure for dealing with special plea(1) If a special plea is entered, the availability of that plea must be decidedby a Judge.(2) In deciding whether a special plea is available to the defendant, theJudge may consider any evidence the Judge considers appropriate.(3) If the Judge decides that the special plea entered is not available tothe defendant, the defendant must be required to enter a plea of guiltyor not guilty to the charge.9 Section 232(2).(4) Despite subsection (1), if a special plea is entered in relation to acharge for a category 4 offence, the availability of that plea must bedecided by a High Court Judge.Discussion[25] Two questions arise under this appeal:(a) Does the entry of convictions under both ss 57AA(4) and 56 (1) of theLTA in relation to the same act of driving with an excess of breathalcohol offend against the principle of double jeopardy in s 10(4) of theCrimes Act?(b) If the answer to the first question is yes, what is the correct procedureto follow in resolving the appeal?Does entry of convictions under ss 57AA(4) and 56(1) of the LTA amount todouble jeopardy?[26] The first question was not decided in Waddell-Stevens. Because of the way inwhich the appeal arose, Mander J referred that issue back to the District Court forconsideration.10 He did so because a conviction had been entered only in respect ofthe charge under s 56 so it was open to the District Court to consider whether a specialplea of previous conviction under s 46 of the CPA was available to the defendant inrelation to the charge under s 57AA. Accordingly, Waddell-Stevens is not authorityfor the proposition that the entry of convictions under ss 56 and 57AA of the LTA inrelation to the same act of driving with an excess of breath alcohol amounts to doublejeopardy. As far as I am aware, therefore, there is no senior Court decision on thespecific point.[27] In Mitchell, Osborne J considered a similar but not identical point to that whichMander J had referred back to the District Court in Waddell-Stevens: whether a specialplea of previous conviction under s 46 of the CPA was available where a defendantwas charged under both ss 32 and 56 of the LTA in relation to the same act of drivingwith an excess of breath alcohol and had been convicted on one of the charges.10 At [16].[28] In that case, Mr Mitchell had attempted to plead guilty to both charges but, atthe invitation of the District Court Judge, pleaded guilty to the s 56 charge and entereda special plea of previous conviction under s 46 of the CPA to the charge under s 32of the LTA. Following a separate hearing on the point, a different Judge found thatthe special plea of previous conviction was available and dismissed the charge unders 32.11 The Solicitor-General then applied under s 296 of the CPA for leave to appealthat decision and to reinstate the charge under s 32 of the LTA.[29] In his decision, Osborne J discussed the High Court decision in Rangitongawhere Katz J had undertaken a comprehensive review of the history of the principleof double jeopardy, discussed how it came to be reflected in s 47 and considered howthe section should be interpreted in the light of that history. As Osborne J noted,12 inconsidering the phrase "arising from the same facts" in s 47, Katz J had focused onthe concept of "core facts" that the Court must determine and had concluded that onceall of the core facts of the offending (for which a defendant had been convicted) hadbeen identified, it was necessary to consider whether any subsequent charge arosefrom those facts.13[30] Osborne J also discussed14 the Court of Appeal's decision in Rangitonga inwhich the Court had stated it was in general agreement with Katz J and that thereference to offences "arising from the same facts" in s 47 was intended to apply tocases where there was a common punishable act central to both the previous and newcharge.15[31] Osborne J then discussed how the District Court had applied Rangitonga indecisions where charges had been laid under both ss 32 and 56 of the LTA.16 He alsodiscussed two decisions of the Court of Appeal which had followed Rangitonga,Filitonga v R and O'Reilly v Chief Executive of the Department of Corrections.17 As11 NZ Police v Mitchell [2020] NZDC 1999.12 At [23].13 Above n 7, at [80].14 Above n 4, at [26]-[28].15 Above n 6, at [40]-[41].16 Above n 4, at [29]-[41]; above n 11; NZ Police v Tindall [2018] NZDC 22252; NZ Police v Smith[2018] NZDC 2057 and NZ Police v Kumar [2019] NZDC 17758.17 Filitonga v R [2017] NZCA 492; O'Reilly v Chief Executive of the Department of Corrections[2018] NZCA 313, [2018] NZAR 1327.Osborne J noted,18 in the last case, the Court had also had regard to the differingpurposes of the offences when declining leave to appeal decisions of the District Courtand High Court rejecting the availability of a special plea under s 47 of the CPA forparole offences arising out of the defendant's failure to comply with the conditions ofan extended supervision order for which he had been convicted.[32] I agree with Osborne J's analysis of these decisions.[33] Osborne J proceeded to consider whether the breach of Mr Mitchel's zero-alcohol licence under s 32 arose from the same facts as the excess breath alcoholoffence under s 56, having regard to the Court of Appeal's decisions in Rangitonga,Filitonga and O'Reilly.19 In doing so, he focused on whether the central or corepunishable act or acts were common to both charges. He concluded that while therewere common features to both charges – driving on a road and being affected byalcohol – they were not common core punishable acts. The key element or punishableact under the s 56 charge was an excessive alcohol level, whereas the key element orpunishable act under the s 32 charge was driving with some level of breath alcohol inbreach of the zero-alcohol licence.20 For these reasons, he concluded that it was opento the prosecutor to lay separate charges under both ss 32 and 56.[34] There is a key difference in the charges brought in Mitchell and those broughtin the present case. Under s 32, the offence is driving contrary to a zero-alcohollicence. Under s 57AA(4), the offence is driving with a breath alcohol level in excessof 250 milligrams where the driver holds a zero-alcohol licence. As Osborne J held,the core punishable act under s 32 is driving with some level of breath alcohol inbreach of the zero-alcohol licence. However, the key element under s 57AA(4) isdriving with an excess breath alcohol level while holding a zero-alcohol licence. Theholding of the zero-alcohol licence provides the necessary factual basis for the offencebut it is the aggravating feature of the excess breath alcohol level that is the corepunishable act.18 Above n 4, at [49].19 At [75]-[90].20 At [84]-[85].[35] In that respect, the core punishable act under s 57AA is essentially the same asthat under s 56(1) – driving with an excess breath alcohol level. I agree with Mrs Beanthat it is difficult to conceive of how a person with a zero-alcohol licence who commitsan offence under s 56 would not also commit an offence under s 57AA. Or, as counselfor the Police put it, there is no further culpability arising from the underlying facts inrelation to a charge under s 56 that is not already in a charge under s 57AA.[36] In these respects, ss 57AA and 56 address the same purpose – to prevent peopledriving with an excess breath alcohol level. The level in s 57AA(4) is lower than thatunder s 56 because the starting premise is that a person with a zero-alcohol licenceshould not have any alcohol in their breath. In fact, s 57AA combines the chargesunder ss 32 and 56 so that it is, in reality, an alternative to separate charges being laidunder those sections – as Osborne J observed.21 That analysis also confirms that thecharges under s 57AA and 56 arise from the same facts. As Mrs Bean submitted, theamount by which the actual breath alcohol level exceeds the threshold levels specifiedin the sections is an aggravating feature to be considered at sentence.[37] For these reasons, I conclude that entry of convictions under both ss 57AA(4)and 56(1) of the LTA in relation to the same act of driving with an excess of breathalcohol offend against the principle of double jeopardy in s 10(4) of the Crimes Act.What is the correct procedure to follow in resolving the appeal?[38] In Waddell-Stephens, Mander J observed that, while s 10 of the Crimes Act ands 26(2) of the New Zealand Bill of Rights Act 1990 establish the rule against doublejeopardy, s 10 does not of itself provide the process or set the threshold by which theissue is to be determined. Mander J said that the proper procedure that should havebeen followed in the case before him was for Mr Waddell-Stephens either to haveentered a plea of previous conviction to the s 57AA charge or to have applied for thecharge to be stayed or dismissed on the basis that its continued prosecution was an21 At [90].abuse of the Court's process.22 While neither course had been followed, because noconviction had been entered on the s 57AA charge, Mander J was able to refer thematter back to the District Court to enable Mr Waddell-Stephens to enter a plea ofprevious conviction on that charge and for the District Court then to decide whetherthe plea was available.[39] In the present case, convictions have already been entered on both charges.Moreover, the appeal has been brought as an appeal against conviction under s 232 ofthe CPA rather than an appeal on a point of law under s 296 of the CPA, the procedureby which the appeals were brought in Waddell-Stephens and Mitchell. Arguably, anappeal under s 296(3) would also have been appropriate in the present case but thatwas not the course followed. In these circumstances, I consider that I should decidethe appeal by reference to s 232.[40] As noted above, s 232(2)(c) of the CPA provides that a first appeal againstconviction must be allowed if the Court is satisfied that a miscarriage of justice hasoccurred. Section 232(4) provides that miscarriage of justice means any error,irregularity or occurrence in relation to or affecting a trial that has created a real riskthat the outcome of the trial was affected. Section 232(5) provides that "trial" insubs (4) includes a proceeding in which the appellant pleaded guilty.[41] I am satisfied that in entering a conviction under for an offence under s 56(1)of the LTA when also entering a conviction for an offence under s 57AA(4), the DistrictCourt Judge made an error because, as I have found, the offences under both sectionsarose from the same facts. That error has affected the outcome of the trial and hasresulted in a miscarriage of justice because convictions were entered under bothsections. If, following entry of the conviction under s 57AA(4), Mr Ashworth hadentered a plea of previous conviction under s 46 of the CPA in relation to the offenceunder s 56(1), as was his right to do so, the District Court Judge would have beenrequired under s 46(1) of the CPA to dismiss the charge under s 147.[42] Since dismissal of the charge would have been mandatory, I see no point inreferring the matter back to the District Court.22 Above n 5, at [12].Result[43] I allow Mr Ashworth's appeal.[44] In accordance with s 233 of the Criminal Procedure Act, I set asideMr Ashworth's conviction for an offence under s 56(1) of the Land Transport Act,vacate Mr Ashworth's guilty plea to that offence and dismiss the charge relating tothat offence.______________________G J van Bohemen J