HOPKINS v POLICE [2019] NZHC 1858

HOPKINS v POLICE [2019] NZHC 1858 [1 August 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-000113[2019] NZHC 1858BETWEEN JAMES MICHAEL HOPKINSAppellantAND NEW ZEALAND POLICERespondentHearing: 22 July 2019Counsel: E Gresson (on behalf of R Chambers) for AppellantS T L Teppett for RespondentJudgment: 1 August 2019JUDGMENT OF BREWER JThis judgment was delivered by me on 1 August 2019 at 4:00 pmRegistrar/Deputy RegistrarSolicitors:Meredith Connell (Auckland) for RespondentCounsel:Roger Chambers (Auckland) for AppellantIntroduction[1] Mr Hopkins pleaded guilty to a charge of driving while impaired by a drug.1The maximum sentence is three months' imprisonment and/or a fine of up to $4,500.2Mr Hopkins asked Judge RG Ronayne to discharge him without conviction. TheJudge declined to do so and fined Mr Hopkins $350, ordered him to pay Court costsof $130, an analyst's fee of $652.63 and medical expenses of $100.3 The Judge alsodisqualified Mr Hopkins from holding or obtaining a driver's licence for a period ofsix months. Mr Hopkins now appeals Judge Ronayne's refusal to discharge himwithout conviction.Approach on appeal[2] I must allow the appeal if I am satisfied that, for any reason, Judge Ronaynemade an error such that Mr Hopkins should have been discharged without conviction.4[3] The law recognises that sometimes the consequences for an offender of beingconvicted of their offending will be so harsh that justice is better served by not enteringa conviction.5 The test is set out in s 107 of the Sentencing Act 2002:The court must not discharge an offender without conviction unless the courtis satisfied that the direct and indirect consequences of a conviction would beout of all proportion to the gravity of the offence.[4] It can be seen there is a high threshold between an offender and a dischargewithout conviction. It is not enough to satisfy the Judge that the consequences of aconviction would be disproportionate to the gravity of the offence. The Judge mustbe satisfied the consequences would be out of all proportion to the gravity of theoffence.[5] To apply the test properly, a Judge must (as did Judge Ronayne) conduct athree-step analysis:61 Land Transport Act 1998, s 57A(1).2 Section 57A(2).3 Police v Hopkins [2019] NZDC 1214.4 See Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12]–[13].5 Sentencing Act 2002, s 106.6 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8]–[9].(a) Assess the gravity of the offending. That means first looking at all therelevant circumstances of the offending and of the offender, and thenstanding back and deciding how serious the offending is.(b) Determine the direct and indirect consequences of a conviction for theoffender.(c) Determine whether those consequences are out of all proportion to thegravity of the offending.[6] I will examine Judge Ronayne's reasoning against the circumstances beforehim and, in doing so, I will make my own assessment as to whether there is an errorand, if so, whether there should be a different result.Background[7] Mr Hopkins was 28 years old when he was stopped randomly by the Policewhile driving. The smell of cannabis was detected, and a police officer requiredMr Hopkins to complete a compulsory impairment test. The form of the testadministered to Mr Hopkins is not in evidence before me but Mr Teppett, consultingthe file, was able to tell me it had a physical balancing component. Mr Hopkins wasthen required to give a blood sample and that revealed the presence of lorazepam, aClass C controlled drug (for which Mr Hopkins had a prescription), andtetrahydrocannabinol (THC), which is the active ingredient of cannabis. Mr Hopkinspleaded guilty to the charge at the first reasonable opportunity.[8] Judge Ronayne equated the charge of driving while impaired by a drug withcharges involving drink-driving. He commented that discharges without convictionare rare in the latter class of cases in the absence of exceptional circumstances. Thatis because the danger to public safety inherent in driving while under the influence ofalcohol, or any other drug, is serious.[9] The Judge took into account there was no driving fault, Mr Hopkins's lack ofprevious convictions, his remorse and his early guilty plea. Nevertheless, the Judgecharacterised the gravity of the offence as moderately serious.[10] As to the consequences which could arise from a conviction, the Judge notedMr Hopkins's submission that his employment was likely to require travel to theUnited States of America and the likelihood of disruption to such travel if a convictionwere entered. It was also submitted on Mr Hopkins's behalf there could be an impacton future employment opportunities and also a future impact on his mental health andindependence.[11] Judge Ronayne decided there was no material before him which wouldestablish anything more than a possible impediment to travel. A letter tendered onbehalf of Mr Hopkins from his employer contained no suggestion that a convictionwould jeopardise his employment.[12] As to future impact on mental health and wellbeing, again the Judge took theview that nothing put before him established any appreciable consequences from theentry of a conviction. He then said, and I set it out here because it forms part of theappeal argument:7 except of course for the inevitable and quite usual unpleasantness ofconviction.[13] In summary, the Judge did not find that entering a conviction would result inan appreciable risk of consequences outside the ordinary consequences of a convictionfor this sort of offending. Accordingly, having regard to the last component of the test,the Judge was of the view that those ordinary consequences are not disproportionateor out of all proportion to the gravity of the offending.The appeal[14] The basis of the appeal is that Judge Ronayne overstated the gravity of theoffending and gave insufficient weight to the direct consequences of the convictionfor Mr Hopkins.[15] Mr Hopkins is a 28-year-old web designer and musician. He suffers fromanxiety, depression and panic disorder. He has in the past resorted to self-harm and7 Police v Hopkins (above n 3) at [12].was prescribed lorazepam, a drug used to combat chronic anxiety, depression andpanic disorder.[16] Mr Hopkins's position on the use of cannabis was that he was feeling stressedon the evening he was stopped and attempted to self-medicate by taking two puffs ofa cannabis cigarette.[17] Ms Gresson for Mr Hopkins submits Judge Ronayne was wrong to equatedriving while drug impaired with driving while under the influence of alcohol. Thatis because the culpability of driving under the influence of alcohol can be assessed byhaving regard to the level of alcohol present in breath or blood. That cannot be donewith driving while impaired by a drug.[18] Ms Gresson submits the Judge should have found Mr Hopkins's offending tobe at the very lowest end of the scale, not of moderate seriousness.[19] As to the consequences for Mr Hopkins of a conviction, Ms Gresson'ssubmission is Judge Ronayne failed to place appropriate weight on the likely effectson Mr Hopkins of a conviction in relation to his employment and, in particular, histravel.[20] Mr Hopkins was sent to the United States of America by his employer in 2016to work closely with key clients. The letter before Judge Ronayne from the employerconfirmed the likelihood of further travel to the United States of America beingrequired of Mr Hopkins from late 2018. Ms Gresson submitted there is a real andappreciable risk that a conviction on a charge like this would prevent or impedeMr Hopkins travelling to the United States of America.[21] Further, Ms Gresson submitted Judge Ronayne too readily dismissedMr Hopkins's mental health issues. A medical report before the Judge from aconsultant psychiatrist was clear that Mr Hopkins suffers from the mental healthconditions to which he deposed and to which I have referred previously. Therefore,the Judge's characterisation of the future impact of a conviction on Mr Hopkins'smental health and wellbeing as "the inevitable and quite usual unpleasantness ofconviction" was wrong.[22] Ms Gresson's final submission is that given the gravity of the offending shouldbe characterised as "low to negligible", and that a conviction would result in likelyconsequences for Mr Hopkins of real significance, the proportionality test shouldconclude that such consequences would be out of all proportion to the gravity of theoffending, thus warranting a discharge without conviction.[23] Mr Teppett submits the Judge was correct to place emphasis on the danger tothe public inherent in a person driving either while impaired by a drug or by theconsumption of alcohol. There is no underlying distinction and the offending isinherently serious. The fact is that Mr Hopkins failed a compulsory impairment test.Mr Teppett supports the Judge's view that notwithstanding the mitigating factorspersonal to Mr Hopkins the offending was moderately serious and that conclusion isconsistent with the approach taken by the higher courts for drink-driving. Similarly,the Crown supports the Judge's analysis of the likely consequences for Mr Hopkins ofa conviction and the Judge's application of the proportionality test.Discussion[24] I agree with Judge Ronayne that there is no distinction in the policy underlyingthe law prohibiting driving while drug impaired and driving while under the influenceof alcohol. The policy goes to public safety. Driving while drug impaired or drivingunder the influence of alcohol is inherently dangerous. It is, inherently, seriousoffending. However, in every case it is necessary for a sentencing judge to assess thelevel of seriousness.[25] The drink-driving legislation makes it easier to assess the culpability of drivingunder the influence of alcohol because there is a measured result of testing for alcohollevels and statutory prescriptions for when alcohol levels become unlawful. It is moredifficult to assess the degree of impairment when it comes to driving impaired by adrug. As a starting point, there is the failure to pass the compulsory impairment test.Evidence could be put before a Judge of the way in which the defendant presentedwhen stopped, the nature of the compulsory impairment test, how it was that thedefendant failed the test and details of his performance. Of course, any driving faultwould be particularly relevant.[26] In this case, all the summary of facts said on this point was that after a randomstop not relating to any driving fault Mr Hopkins failed a compulsory impairment test.His blood contained a (prescribed) medication and THC. There were no details of thetest administered; there was nothing about why it was failed. Mr Hopkins said he hadhad two puffs of a cannabis cigarette by way of self-medication for mental healthconditions. The prosecution did not contest those statements. Accordingly, the factorsrelating to the offending put Mr Hopkins's culpability at the lowest end of the scale.Then there are the factors personal to Mr Hopkins. There are no aggravating factors.In particular, Mr Hopkins has no previous convictions. Mitigating factors are his earlyguilty plea and his accepted remorse.[27] I conclude that Judge Ronayne's characterisation of Mr Hopkins's offendingas "moderately serious" is too strong. The offending was at the lowest degree ofseriousness for this type of offending.[28] On the other hand, I agree with Judge Ronayne's assessment of the likelyconsequences for Mr Hopkins of a conviction. The onus was on Mr Hopkins toestablish the likely consequences or, to put it another way, to satisfy the Court there isa real and appreciable risk that the consequences identified would occur.[29] There was no risk to Mr Hopkins's employment. The letter from his employermade that clear. There was a likelihood that the employer would want Mr Hopkins totravel to the United States of America in the future. However, there was no evidenceas to whether, or to what extent, the conviction would affect Mr Hopkins's ability totravel. There was just a general assertion.[30] Further, there was no evidence of a likely impact on Mr Hopkins's mentalhealth if he received a conviction. The psychiatrist's report confirmed and describedMr Hopkins's mental health condition, and that is all.[31] Accordingly, Judge Ronayne was correct to conclude that the direct andindirect consequences to Mr Hopkins of a conviction were no greater than theconsequences which would normally pertain.[32] I must now consider proportionality. The offending was of low seriousness,but in an area where public safety is at risk. The direct and indirect consequences arealso low, and not out of the ordinary. I am not, therefore, satisfied those consequenceswould be out of all proportion to the gravity of the offence.Result[33] The appeal is dismissed.________________________________Brewer J