AHMED v NEW ZEALAND POLICE [2022] NZHC 769

AHMED v NEW ZEALAND POLICE [2022] NZHC 769 [13 April 2022]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2021-412-48[2022] NZHC 769BETWEEN JAMIL AHMEDAppellantAND NEW ZEALAND POLICERespondentHearing: 12 April 2022Appearances: B P Stephenson for AppellantC E R Power for RespondentJudgment: 13 April 2022JUDGMENT OF EATON JThis judgment was delivered by me on at pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] Jamil Ahmed pleaded guilty to one charge of driving a vehicle with excessbreath alcohol1 and was convicted and sentenced by Judge Phillips in the DunedinDistrict Court to a fine of $600 and disqualification from driving for six months. On1 Land Transport Act 1998, s 56(1) and (3) – maximum penalty of three months' imprisonment or afine not exceeding $4,500 and disqualification from holding or obtaining a driver licence for atleast six months.4 November 2021, the Judge declined to grant a discharge without conviction.2Mr Ahmed now appeals against that decision.Facts[2] At about 11 pm on 28 July 2021, Mr Ahmed was driving his Nissan Moranovehicle on Prince Albert Road, Dunedin. A passing patrol car observed the vehicleweaving within its lane and driving at well below the speed limit. Mr Ahmed's vehiclewas stopped by police with red and blue flashing lights. When spoken to, Mr Ahmedadmitted to consuming alcohol and was required to undergo a breath screening test.He returned a positive result for alcohol. Mr Ahmed was required to accompany policeback to Dunedin Central Police Station where he underwent an evidential breath testand returned a result of 600 micrograms of alcohol per litre of breath. In explanationMr Ahmed stated, "I'm sorry I drank and drove."[3] In his affidavit evidence, Mr Ahmed deposed he had left his house to clear hishead after an argument with his wife. Mr Ahmed stated that, although he lived nearto the beach, he chose to drive there due to having a compromised ability to walk. Hewas stopped on his way home from the beach.District Court decision[4] Judge Phillips approached the question of whether to discharge Mr Ahmedunder s 106 of the Sentencing Act 2002 by considering the criteria for granting adischarge provided in s 107.[5] The Judge reviewed Mr Ahmed's affidavit evidence. He took issue with hisclaim that he had only two standard drinks of whiskey given his breath alcohol readingof 600 micrograms.[6] In assessing the gravity of the offending, the Judge had regard to the factMr Ahmed made an immediate expression of remorse, co-operated with police,entered an early guilty plea to the charge and was of otherwise of good character.However, he found an aggravating feature was that Mr Ahmed did not assess he had2 Police v Ahmed [2021] NZDC 21735.been drinking for some time before driving and was found to have a breath level of600 micrgrams. Overall, the Judge considered the gravity of Mr Ahmed's offence asin line with the offending in Snellex v Police,3 and described it as just belowmoderately serious.[7] The Judge then considered the direct and indirect consequences of convictionwhich related to Mr Ahmed's inability to regain employment as a hotel duty manager.He observed Mr Ahmed had allowed the required manager's certificate to lapse inNovember 2020 as he had been intending to study but that, following the breakdownof his marriage, he now wished to return to the hotel industry. The Judge concludedthere was a real and appreciable risk that Mr Ahmed would be unable to obtain themanager's certificate required under the Sale and Supply of Alcohol Act 2012 for aperiod of two years from the date of conviction (being the stand-down period appliedto applicants with relevant prior convictions).[8] The Judge did not consider a conviction presented an absolute bar toMr Ahmed obtaining such a certificate and observed he would be likely to succeed inhis application after the expiry of the two-year period after demonstrating goodcharacter in the interim. The Judge found that where an independent body is chargedwith determining the suitability of individuals for particular employment, the Courtwill be more ready to enter a conviction and it would be wrong for the Court to preventfull disclosure of information to that body by granting a discharge. He considered anybar to future employment may only be temporary and the evidence in this regard wasnot at all decisive. The Judge added that for positions in the liquor industry,prospective employers should be fully informed of an applicant's history.[9] The Judge determined the offending was moderately serious and theconsequences of a conviction would not be out of all proportion to the gravity of theoffending. Mr Ahmed was convicted and sentenced on the charge to a $600 fine anddisqualification from driving for six months.3 Snellex v Police [2017] NZHC 1792.Principles on appeal[10] The Court may grant a discharge without conviction under s 106 of the Actonly if it is satisfied, under s 107, that the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offending.4 Appealsagainst the proportionality test under s 107 are by way of rehearing, with the appellateCourt making its own assessment of whether the criteria are established.5 If adischarge without conviction should have been granted, then there will have been amaterial error by the sentencing Judge, or a miscarriage of justice will have occurredfor any other reason, and so the appeal against conviction must be allowed.6SubmissionsAppellant's submissions[11] On behalf of Mr Ahmed, no issue was raised on appeal with the Judge'sassessment of the gravity of the offending nor the sentence imposed upon conviction.Instead, Mr Stephenson submitted the Judge erred in his assessment of theconsequences of a conviction by failing to properly consider and weigh all theconsequences contended for (in particular those raised by Mr Ahmed in his affidavit)and that a miscarriage of justice had resulted from the refusal to grant a discharge inthe circumstances.[12] Specifically, Mr Stephenson submitted the Judge erred in not considering thefact Mr Ahmed says he has struggled to find any employment for a period of threemonths and that his back pain issues meant he could not return to alternativeemployment as security personnel. He maintained that if the Judge had consideredMr Ahmed's significantly limited ability to obtain employment during the interveningtwo-year stand-down period, he would have assessed the consequences of convictionas particularly harsh and the disproportionality test would likely have been met. GivenMr Ahmed's personal circumstances, Mr Stephenson submitted the two-year stand-down period is unduly punitive. He submitted that, if a discharge is granted, the six-4 Sentencing Act 2002, s 107.5 H (CA680/2011) v R [2012] NZCA 198 at [35]-[36].6 Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627, (2016) 28CRNZ 144 at [12].month period of disqualification from driving could be viewed as an appropriatepunishment.[13] In oral submissions Mr Stephenson confirmed Mr Ahmed had recently securedfull-time employment as an online consultant. Mr Stephenson responsibly andrealistically acknowledged the fact of employment might be seen as undermining theprimary ground of appeal.Respondent's submissions[14] For the prosecution, Mr Power submitted the Judge appropriately consideredthe consequences of entering a conviction, having weighed up the matters of primaryconcern, and the conclusion he reached was open to him. Counsel acknowledged theJudge may not have entirely considered other employment-related consequences of aconviction. However, it was submitted these are of a general nature and would nothave affected the outcome. Mr Power submitted difficulties gaining employment aremerely the ordinary consequences of driving with excess breath alcohol offending andthat, in any event, the Judge was right to conclude it would not be impossible forMr Ahmed to find employment suited to him. Mr Power observed that this has provento be correct.[15] Mr Power submitted there was not a demonstrated causative link betweenMr Ahmed's offending and his inability to gain other types of employment and theremay be several other factors influencing a person's ability to secure employment. Itwas accepted Mr Ahmed's physical condition limited his employment prospects butMr Power argued it did not render him entirely bereft of options. Mr Power submittedthat in the absence of evidence of more specific and direct consequences, a convictioncannot be said to be out of all proportion to the offending. He submitted nomiscarriage of justice occurred and the appeal should be dismissed.Analysis[16] Where a person is found guilty or pleads guilty, s 11(1)(a) of the SentencingAct requires the Court to consider whether they might be more appropriately dealtwith by way of discharge without conviction under s 106. Section 106 of the Actprovides that if a person who is charged with an offence is found guilty or pleadsguilty, the Court may discharge the offender without conviction, unless by anyenactment applicable to the offence the Court is required to impose a minimumsentence.[17] Section 107 governs the exercise of that discretion:107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unlessthe court is satisfied that the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence.[18] This requires a three-step analysis.7 First, to assess the gravity of the offence,which includes taking into account all aggravating and mitigating features of both theoffending and the offender.8 Second, the direct and indirect consequences ofconviction for the offender must be assessed. There must be a "real and appreciablerisk" that the consequences will occur.9 Finally, only if the Court is satisfied that theseconsequences are "out of all proportion" to the gravity of the offence may it considerexercising its discretion to discharge the defendant without conviction. There is nolegal onus on a defendant to establish this statutory test, but the Court must be satisfiedits requirements have been met.10Gravity of offence[19] There is no issue on appeal regarding the principles the Judge applied inrelation to the s 107 gateway test nor regarding his assessment of the gravity ofMr Ahmed's offending. A first offence of driving with excess breath alcohol carries amaximum penalty of three months' imprisonment. While it may, relatively speaking,be described as a lower-level offence, the Court of Appeal has observed that drinkdriving "is a moderately serious offence when seen by reference to its potentialconsequences and to the pervasiveness of alcohol abuse in our society".117 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16], approved in R v Sok [2021] NZCA252, (2021) 29 CRNZ 962 at [40].8 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; DC (CA47/2013) v R [2013]NZCA 255 at [35].9 DC v R, above n 8, at [43].10 R v Taulapapa [2018] NZCA 414 at [23]; R v Hughes, above n 9, at [49] and [53].11 Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344 at [19].[20] Here, Mr Ahmed's vehicle was observed weaving within its lane and drivingat well below the speed limit. Following an evidential breath test, Mr Ahmed returneda result of 600 micrograms of alcohol per litre of breath. The Judge was correct toidentify Mr Ahmed was immediately remorseful, pleaded guilty, was fully co-operative with police and was of good character. However, the potential public dangerrecognised as being inherent in drink driving offending meant it was open to the Judgeto assess the gravity of Mr Ahmed's offending as "just below moderately serious".The direct and indirect consequences of conviction[21] The substance of this appeal concerns the second and third stages of theanalysis. That is, whether the Judge erred in his assessment of the consequences of aconviction by failing to properly consider and weigh all the consequences raised byMr Ahmed in his affidavit. This issue must be considered in the light of the factMr Ahmed has now secured full-time employment.[22] In his affidavit, Mr Ahmed deposed that he had previously been employed asa hotel duty manager from 2016 to 2020. He describes this as a position in which heis most skilled and experienced. He had previously worked in security and as a nightpatrol and noise control officer but can no longer do so following back surgery. Tothis end, Mr Ahmed annexed to his affidavit a copy of a spinal assessment report dated5 August 2021 completed by a physiotherapist at Burwood Spinal Unit.[23] In this report, the physiotherapist observed Mr Ahmed could walkindependently without an aid but that he cannot run because of weakness and reducedsensation in his right leg and foot. Mr Ahmed reported lower back pain when standingor walking for a long time but that he is able to sit comfortably for long periods anddrive without concerns. Mr Ahmed told the physiotherapist he was able to managethe pain because he was not working. It was noted he had not engaged withphysiotherapy in the last three years and would benefit from professional input.[24] Mr Ahmed then deposed that a current manager's certificate granted by a locallicensing authority was required in order for him to be considered for a duty managerrole. He expressed concern that he would be required to disclose his conviction in hiscertificate application and there would be a minimum two-year stand-down periodbefore his application would be considered favourably.[25] As at the date of Mr Ahmed's affidavit he was in receipt of a job seeker'sbenefit and had been applying for jobs for three months without success. Heconsidered no employer will employ him as a hotel duty manager if he is unlikely toobtain a manager's certificate for two years.[26] It was common ground on appeal that the Judge had appropriate regard toMr Ahmed's difficulty in acquiring a manager's certificate for a period of two years.However, Mr Stephenson submitted the Judge erred in not considering the balance ofMr Ahmed's affidavit evidence, where he stated he has struggled to find anyemployment for three months and his back pain issues prevent him returning toalternative employment in security.[27] The Sale and Supply of Alcohol Act 2012 sets out the process and requirementsfor obtaining a manager's certificate. A person may not be appointed a manager ofany licensed premises unless they hold a manager's certificate granted under the Act.12Mr Ahmed's previous certificate expired on 30 November 2020 so he would berequired to re-apply. The application must be filed with the licensing committee forthe district in which Mr Ahmed resides.13 The licensing committee may decide theapplication or refer it to the Alcohol Regulatory and Licensing Authority (theAuthority).14 In considering the application, the Authority or committee must considerthe applicant's suitability to be a manager, any convictions recorded against them, theirexperience in controlling any licensed premises, any relevant training and evidencethe applicant holds, the prescribed qualification under s 218, and any matters dealtwith in a report provided by police regarding the application under s 220.15 I have nodoubt Mr Ahmed would need to disclose his conviction in the course of any applicationfor a manager's certificate.12 Sale and Supply of Alcohol Act 2012, ss 216 and 217.13 Section 219(2).14 Section 221.15 Section 222.[28] The Authority has held that, where an applicant for a manager's certificate hasa relevant prior conviction, two years should elapse from the date of the offence beforean application will be entertained.16 Mr Stephenson advised the Court that policeoppose any application where the applicant has not completed the required stand-downperiod without a further conviction. In this context, I agree with the Judge that thereis a real and appreciable risk that Mr Ahmed will be unable to obtain the manager'scertificate required under the Act for a period of two years from the date of hisconviction for driving with excess breath alcohol.[29] In assessing the consequences of a conviction, I accept the Judge did notexpressly consider the evidence the two-year stand-down period may be renderedmore punitive in light of Mr Ahmed's back pain issues which curtail his ability to gainalternative employment as a security personnel and the fact he had been unable toobtain employment in the three months preceding the sentencing. However, givenMr Ahmed is now in employment, the consequence of ongoing unemployment is nolonger a real and appreciable risk.Proportionality[30] As the Judge identified, the entry of a conviction does not present an absolutebar to Mr Ahmed obtaining a manager's certificate in the future. In the interveningtwo years before the expiry of the anticipated stand-down period, Mr Ahmed will havethe opportunity to demonstrate his suitability to be a manager pursuant to s 220 of theSale and Supply of Alcohol Act by maintaining good character and not reoffending. Ihave no doubt he will do so. As Mr Stephenson acknowledged in the District Court,the Authority has held that, in light of a conviction, any person should not be deemedunsuitable to hold a manager's certificate indefinitely.17 Any bar to Mr Ahmedreturning to work as a hotel duty manager is merely temporary.[31] There is a significant difference between a case where a conviction is anabsolute barrier to a defendant continuing in an established career, and one where a16 Re Judd [2014] NZARLA PH 94; Re NZ LNQ Ltd [2014] NZARLA PH 229.17 Referring to G L Osborne NZLLA 2388/95.conviction is more properly described as a short-term obstacle to a defendantrecommencing employment within their preferred industry.[32] In Ramage v Police, the appellant sought a discharge without conviction afterdriving with excess breath alcohol.18 The High Court found that difficulties gainingemployment in such circumstances are "merely the ordinary consequences ofoffending behaviour" and determined that, whilst finding employment suited to theappellant may well be made more difficult than it would be without a conviction, itwould not be impossible.19 Similarly here, Mr Ahmed's struggle to secureemployment over the three month period he has referred to is an ordinary consequenceof his offending. His back pain certainly limits the options he may have in roles thatinvolve standing for long periods, but he plainly has many qualities that enhance hisprospects of employment, albeit, and as has transpired, in a field where he has no priorexperience.[33] Furthermore, there is here an independent statutory body, namely theAuthority or relevant licensing committee, charged with assessing Mr Ahmed'scharacter and suitability to be a manager of a licensed premises. Where Parliamenthas seen fit to establish an authority with the task of screening applicants for admissionto a particular profession, the courts should not generally usurp the right of such abody to exercise its discretion to decide the significance of any particular convictionin light of their specialist expertise.20 There is a public interest that the relevantlicensing committee or the Authority is able to conduct an investigation intoMr Ahmed's character with the benefit of full disclosure of his offending behaviour. Ialso agree with the Judge that the liquor industry is one where the employer should befully informed of a prospective employee's history. Mr Ahmed's conviction will beonly one factor of many taken into account.[34] It is not enough that the consequences of a conviction outweigh the gravity ofthe offending. The consequences must be out of all proportion to the gravity of the18 Ramage v Police [2017] NZHC 75.19 At [22].20 Malster v Police [2020] NZHC 1444 at [39], citing Maraj v Police [2016] NZCA 279 at [36];Graham v Police [2018] NZCA 172 at [29]; Police v Roberts [1991] 1 NZLR 205 (CA).offending before the Court has jurisdiction to grant a discharge without conviction.21In particular, the moderately serious nature of drink driving offending means theproportionality scales to be applied are "to an extent, tipped by that level ofseriousness", meaning the consequences of a conviction must therefore be "relativelysignificant" and "specific" before they are out of all proportion to the moderateseriousness of the offence.22[35] In the present case, I do not consider Mr Ahmed's physical condition willrender the two-year stand-down period unduly punitive or disproportionately harsh.The consequences identified are insufficiently significant to be out of the ordinary, letalone out of all proportion to the gravity of the offending. The opportunity to becomea hotel duty manager through applying for a manager's certificate remains open to himfollowing the expiry of any stand-down period and it would be wrong for this Courtto pre-empt the decision-making of the relevant licensing committee or the Authorityin determining Mr Ahmed's suitability for such a certificate.[36] I am satisfied that the consequences outlined in Mr Ahmed's affidavit are not"out of all proportion" to the gravity of the offence.Result[37] The appeal is dismissed....................................................Eaton JSolicitors:Public Defence Service, DunedinRPB Law, Dunedin21 R v Smyth [2017] NZCA 530 at [12].22 Basnyat v Police, above n 11, at [19] and [23].