SCHOLLUM v NEW ZEALAND POLICE [2019] NZHC 1452

SCHOLLUM v NEW ZEALAND POLICE [2019] NZHC 1452 [25 June 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-120[2019] NZHC 1452BETWEEN JONATHAN SCHOLLUMAppellantAND NEW ZEALAND POLICERespondentHearing: 25 June 2019Appearances: P J Boylan for the AppellantR S Ching for the RespondentJudgment: 25 June 2019ORAL JUDGMENT OF PALMER JCounsel/Solicitors:P J Boylan, Barrister, AucklandCrown Solicitor, AucklandWhat happened?[1] On the morning of Saturday 2 June 2018, Mr Jonathan Schollum, aged 65, hadbreakfast and drove down to the marina to pick up his boat. On the way, in downtownAuckland, he was stopped at a Police checkpoint. He says he had five rum and cokesbefore dinner the night before, as sailors might do, and a glass of wine with dinner.He was surprised his blood alcohol reading was 117 milligrams per 100 millilitres ofblood, which is more than double the legal limit. So, he says, was the police officerwho suggested he investigate whether there is a medical explanation. I accept thePolice's submission that Mr Schollum's opinion that the Police officer was surprisedis opinion evidence. Mr Schollum has three previous convictions for drink driving in1982, 1984 and 1988 and other driving convictions in that period and before. Thistime he was charged with driving with excess alcohol for a third or subsequent time,the maximum penalty for which is two years' imprisonment or a fine not exceeding$6,000 and disqualification from holding a driver's licence for more than one year.Mr Schollum pleaded guilty and applied for a discharge without conviction.[2] On 31 January 2019, in the Auckland District Court, Judge A J Fitzgeralddeclined the application, convicted Mr Schollum, fined him $550 and disqualified himfrom holding a driver's licence for one year and one day.1 The Judge took into accountthe historical nature of Mr Schollum's previous convictions, the serious nature ofdrink-driving, the lack of driving fault and moderate level of alcohol. He assessed thegravity of the offending as at the high end of the low range.2 He had regard to MrSchollum's remorse and guilty plea and his attendance at alcohol counselling. TheJudge considered submissions that Mr Schollum's business as a truck importer wouldsuffer from his travel overseas being inhibited and his reputation being diminished.He considered his business relationships overseas were mature and doubted theywould be damaged. He considered, taken at their very worst, the consequences of MrSchollum's conviction were not out of all proportion to the gravity of the offending,which is a very high test.31 Police v Schollum [2019] NZDC 2955.2 At [6].3 At [9].Submissions[3] Mr Boylan, for Mr Schollum, submits the Judge erred in assessing the gravityof the offending because he says Mr Schollum did not knowingly or intentionally driveunder the influence of alcohol and the aggravating factor of his previous convictionsshould fade given their historical nature. He submits the Judge erred in accepting MrSchollum would face only delay in entering other countries, rather than prohibitionwhich would have severe consequences on his business especially in countries wherethe culture is to be submissive to authority. He says there is no evidence that MrSchollum would only be delayed just as there is no evidence there are difficulties. Hesubmits the difficulties in entering some countries are well-known but acknowledgesthere is no evidence of that. He says, from the bar, the relevant countries are in South-East Asia, like Indonesia, as well as the United States. He submits there does not needto be absolute proof a bar to entry is going to happen, just a real and appreciable risk.He submits the previous offences were historic, committed when he was youthful. Hesubmits Mr Schollum would not risk being denied entry so would not go overseas, tothe cost of his business. He submits the sentence would be far more than whatParliament intended and it is important people see that good behaviour gives thechance to restart the clock. He submits the criteria for discharge without convictionare met here.[4] Ms Ching, for the Police, submits Judge Fitzgerald did not err in assessing thegravity of the offending or the consequences of conviction. She notes intention is notan element of this offence and should not go to the gravity of the offending. Althoughhis last conviction was in 1988, she submits driving under the influence remains anissue for Mr Schollum and the seriousness of the offending should be assessed as atthe lower end of the scale. She submits the evidence of the consequences of convictionhe has produced amounts to general consequences that apply to anyone and are vagueand speculative. She notes his plans to travel overseas are tentative though she acceptsI could infer an intention to do so. She points out there is no evidence why thisconviction would prevent him from travelling when his previous convictions did not.She points to law in the United States that a sentence of imprisonment is required tobar entry absolutely and the law in Canada takes into account discharges withoutconviction as well as convictions. She submits he has been able to travel overseaswith driving-related convictions in the past and submits, at its highest, the likelyconsequence of conviction is an administrative burden prior to travelling or somedelay at border security. Ms Ching submits these consequences are not extraordinaryand it is not for the Court to usurp the role of other nations' immigration services inassessing whether entry should be granted. She submits the Court cannot be satisfiedthe consequences of conviction would be out of all proportion to the gravity of theoffending.Decision[5] This is an appeal, by way of rehearing, against conviction and sentence.4Under s 232(2) of the Criminal Procedure Act 2011, I must allow the appeal of theconviction if satisfied a miscarriage of justice has occurred by virtue of a material errorin entering the conviction or in applying s 107. Otherwise I must dismiss the appeal.A miscarriage of justice is defined to mean "any error, irregularity, or occurrence in orin relation to or affecting the trial" (including a proceeding in which the appellant haspleaded guilty) that "has created a real risk that the outcome of the trial was affected"or "has resulted in an unfair trial or a trial that was a nullity".[6] Under s 106 of the Sentencing Act 2002 a court may discharge withoutconviction a person who is found or pleads guilty if, under s 107, the court is satisfiedthe direct and indirect consequences of a conviction would be out of all proportion tothe gravity of the offence. I must consider:5 the gravity of the offence; the direct andindirect consequences of a conviction; whether those consequences are out of allproportion to the gravity of the offence. The applicant must demonstrate there is a realand appreciable risk any identified consequences will occur,6 rather than speculateabout matters of present fact. That includes facts about travel restrictions said topreclude travel.7 In Linterman v Police, the High Court held that discharges withoutconviction for drink driving offences ought to be exceptional.8 In Basnyat v Policethe Court of Appeal endorsed Linterman, characterising drink driving as a moderately4 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.5 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8]; Z (CA447/12) v R [2012] NZCA 599,[2013] NZAR 142 at [8].6 DC (CA47/2013) v R [2013] NZCA 255 at [43].7 Edwards v R [2015] NZCA 583 at [25].8 Linterman v Police [2013] NZHC 891.serious offence with reference to its potential consequences and the pervasiveness ofalcohol abuse in New Zealand society.9[7] It would not be obvious to me that drinking the amount Mr Schollum says hedid, at the time he says he did, would necessarily result in the blood alcohol reading atthe level his did. But it did. I agree the gravity of his offending is at the low end but,as the courts have said, drink driving is an inherently serious offence. Responsibly,Mr Schollum pleaded guilty. The question is whether the consequences of convictionare out of all proportion to the gravity of the offending. I do not consider there isevidence which suggests they are, as Mr Boylan frankly acknowledged. No doubt MrSchollum travels overseas for business and no doubt that is important for him and hisbusiness. But there is no evidence of a real and appreciable risk his conviction willnecessarily preclude him from doing so. He has had three drink driving offences inthe past. There are procedures by which other nations assess the implications of pastconvictions, and perhaps discharges without conviction, for eligibility for entry. Thatis their right. There is no evidence before me that that amounts to a complete bar toentry by Mr Schollum to the countries with which he does business.[8] I do not consider the circumstances here are exceptional enough that MrSchollum should be discharged without conviction for drink-driving. I do not considerthe consequences of conviction are out of all proportion to the gravity of the offending.I do not consider there has been a miscarriage of justice, so I must dismiss the appeal.I do wish him well with his investigation of possible medical issues.Palmer J9 Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344 at [19].