HARTNETT v NEW ZEALAND POLICE [2021] NZHC 2193

HARTNETT v NEW ZEALAND POLICE [2021] NZHC 2193 [25 August 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2021-485-046[2021] NZHC 2193BETWEEN KELSEY MOANA HARTNETTAppellantAND NEW ZEALAND POLICERespondentHearing: 24 August 2021Appearances: M Bott for the AppellantW Tupua for the RespondentJudgment: 25 August 2021JUDGMENT OF GRICE JIntroduction[1] Ms Hartnett appeals the decision of the District Court1 declining herapplication for discharge without conviction under s 106 of the Sentencing Act 2002(the Act) in relation to one charge of driving with excess breath alcohol.2 Ms Hartnettreceived a fine of $400 and was disqualified from driving for six months and one day.[2] Ms Hartnett's ground of appeal is that the Judge erred in the application of thetest under s 107 of the Act. Ms Hartnett has also sought to adduce evidence on appealby way of affidavit from her employer, Mr Daniel Moriarty.1 New Zealand Police v Hartnett [2021] NZDC 13110.2 Land Transport Act 1998, s 56(1), which reads: A person commits an offence if the person drivesor attempts to drive a motor vehicle on a road while the proportion of alcohol in the person'sbreath, as ascertained by an evidential breath test subsequently undergone by the person undersection 69, exceeds 400 micrograms of alcohol per litre of breath.Background[3] At about 3.00 am on Friday 26 June 2020 Ms Hartnett was driving a car onNaenae Road in Lower Hutt and was stopped for alcohol and licence checks. Anevidential breath test was conducted, and the result was 485 micrograms of alcoholper litre of breath.[4] Ms Hartnett had been drinking at home and had a fight with her partner beforeshe was stopped by police.[5] Ms Hartnett is 29 and does not have any previous convictions.District Court judgment[6] After setting out the three-step process for determining a discharge withoutconviction application,3 the Judge assessed the gravity of the offending as moderate.4He pointed to the low breath alcohol reading and Ms Hartnett's lack of previousconvictions.5[7] In terms of the direct and indirect consequences of a conviction, the Judgenoted the effects on Ms Hartnett's employment, namely the real likelihood that shewould be dismissed.6 The Judge then cited the decision of Miller J inLinterman v Police, where his Honour said:7[9] I agree that discharges ought to be exceptional for this offence. It isilluminating to reflect on the several reasons why that might be so. First, inthe hands of a drunk a car is a dangerous thing. Second, good character andextenuating personal circumstances normally count for little. Drink-driving isa pervasive social problem which has brought many good citizens into thedock and caused the legislature to respond with a sentencing policy thatemphasises personal and general deterrence. Notably, the court may relieve anoffender of the minimum disqualification period only for special reasons3 New Zealand Police v Hartnett, above n 1, at [4]: considering the gravity of the offending(including the aggravating and mitigating factors relating to the offending and the offender);identifying the direct and indirect consequences of a conviction, and considering whether thoseconsequences are out of all proportion to the gravity of the offence. If the Court determines thatthe consequences are out of all proportion it still must consider whether it should exercise itsdiscretion to grant a discharge.4 At [4]–[9].5 At [9].6 At [10], referring to Ms Hartnett's affidavit and Mr Bott's submissions.7 Linterman v Police [2013] NZHC 891.relating to the offence. Special reasons relating to the offender will not do. Noris ignorance of one's alcohol level a defence; a driver who chooses to drink atall takes the risk that for whatever physiological or other reason her level willprove higher than she thought. Third, an applicant must identify someextraordinary consequence of conviction, which is difficult when the ordinaryconsequences are unpleasant(footnote omitted)[8] The Judge said "there is nothing exceptional about your case", and hementioned that it was a routine test, Ms Hartnett was co-operative with police on thenight, emotional matters had come to a head, she had several drinks then chose to driveto see her grandmother, and did not take any alternative courses of action.8[9] The Judge then turned to the disproportionality test, noting:9[16] s 107 requires that a discharge must not be granted unless directand indirect consequences of conviction are out of all proportion to the gravityof the offence, and I agree with the police submission that, despite the detailedand extensive material that have been filed, that your situation is neitherexceptional nor rare.[17] In this case, Ms Hartnett, I do not find that the consequences of aconviction outweigh the gravity of the offending and therefore yourapplication for discharge without conviction is declined.Appeal[10] An appeal against a discharge without conviction is an appeal againstconviction and sentence.10 Section 232(2) of the Criminal Procedure Act 2011provides that the appeal must be allowed if there has been miscarriage of justiceresulting from the refusal to grant a discharge without conviction, or as the Court inJackson put it:11... the principled basis for determining an appeal against a discharge withoutconviction is to establish that a miscarriage of justice has occurred by virtueof a material error by the sentencing judge in entering a conviction. That isbecause a trial includes a proceeding in which the appellant has pleaded guilty.Alternatively, it can be said that a miscarriage of justice has occurred "for anyreason" if the Judge has erred in applying the principles for discharging anoffender without conviction found in s 107 of the Sentencing Act.8 New Zealand Police v Hartnett, above n 1, at [14].9 At [16]–[17].10 Jackson v R [2016] NZCA 627 at [12].11 At [12].[11] The threshold test in s 107 is not a matter of discretion, but:12a matter of fact requiring judicial assessment, which can be subject to appealon normal appellate principles ... The discretionary power of the court todischarge without conviction under s 106 arises and exists only if the court issatisfied that the s 107 threshold has been met.[12] The issue is therefore whether the Judge's decision declining to grant adischarge without conviction to Ms Hartnett amounted to a miscarriage of justice orwhether the Judge otherwise erred in applying the principles for discharging anoffender without conviction.13[13] This appeal is conducted by way of rehearing, and Ms Hartnett bears the onusof satisfying the Court that it should differ from the decision under appeal.14[14] The grounds of appeal are set out in the Notice of Appeal as follows:The Judge misstated the relevant test in declining the s106 application. TheJudge was wrong as a matter of law that loss of employment was not relevantin the s106 balancing exercise.Other errors of fact and law that will be raised upon receipt of the decisionand transcript.Additional evidence[15] I will first address the affidavit of Daniel Moriarty dated 10 August filed insupport of Ms Hartnett's appeal. Mr Moriarty is the CEO of Urban Plus Limited, aproperty development and rental housing business. Ms Hartnett is the Project andSupport Manager at Urban Plus Limited. She has not formally sought leave to file thisaffidavit, but I take it that admission is sought.[16] The affidavit outlines Ms Hartnett's role and confirms the company's policyaround employees with convictions, which allows it to summarily dismiss employees.Mr Moriarty confirms an employee review process has begun concerning Ms Hartnettbut has been parked pending this appeal. Mr Moriarty says although he cannot say12 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].13 A miscarriage of justice is defined under s 232(4) of the Act as any error, irregularity or occurrencein, or in relation to, or affecting the trial that has created a real risk that the outcome of the trialwas affected or has resulted in an unfair trial or a trial that was a nullity.14 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.definitively that Ms Hartnett will lose her employment, a conviction nonethelessbegins the review process. He ends by saying:Ms Hartnett is an extremely well-liked and thoroughly professional personwho performs her role with dedication. However, our policy has been in placefor some time and regrettably I cannot show favouritism.[17] A letter before the court on sentencing from Mr Moriarty had emphasised thatone of the employer's concerns was the misuse of alcohol or drugs and noted that hewould not predetermine that a conviction would follow but a "criminal conviction fordriving while impaired, has the potential to impact an employee's career."15[18] The Judge had the benefit of the letter from the employer and oral submissionsto which the Judge referred as follows:16[10] Then I need to look at the direct and indirect consequences of aconviction. In your affidavit and Mr Bott's oral and written submissions is thatthe immediate impact of conviction on your employment is real. He submitsthere is a real and appreciable risk that will prejudice both your immediate andfuture career prospects. In your affidavit at paragraph [17] and in oralsubmissions this morning, your employer has said to me that there is aneffective non-conviction policy for your role. That is clause 15.6 of thecontract and that there is a real likelihood that you would be dismissed.[19] The respondent's position is that this affidavit is not fresh evidence, except forthe confirmation that a review process had begun in relation to Ms Hartnett'semployment; it offers nothing new than what was considered by the Judge. And, itcould have been produced with reasonable diligence at sentencing. The respondentnotes too that the affidavit will not have any impact on the sentence.[20] In Mark v R, the Court of Appeal held:17The principles for assessing the admissibility of fresh evidence for appealsagainst conviction are now well established. There is no reason why differentprinciples should be engaged where an appellant wishes to adduce freshevidence for an appeal against sentence. Thus, if the fresh evidence is notcredible it should not be admitted. If it is credible, an assessment needs to bemade as to whether or not it could have been presented to the sentencing Courtwith reasonable diligence. If the evidence is both credible and fresh it should15 Letter dated 12 April from Daniel Moriarty, Chief Executive Officer, Urban Plus Limited toMs Harnett.16 New Zealand Police v Hartnett, above n 1, at [10].17 Mark v R [2019] NZCA 121 at [16].be admitted unless the appellate court is satisfied it would have had no effecton the sentence. If the evidence is credible but not fresh, the appellate courtshould assess its strength and its potential impact on the sentence. If theappellate court considers that the sentence could be manifestly excessive if theevidence is excluded, then it should be admitted notwithstanding that it is notfresh.(footnote omitted)[21] The evidence is credible, but I do not consider the sentence could be manifestlyexcessive if it is excluded. The Judge was aware of the company's policy, noting:18 your employer has said to me that there is an effective non-convictionpolicy for your role. That is clause 15.6 of the contract and that there is a reallikelihood that you would be dismissed.[22] Essentially, I do not consider the evidence will have a material impact on myassessment of the decision under appeal or the statutory tests applicable to dischargeswithout conviction. It is therefore excluded.Discussion[23] The test to be applied to applications on discharge without conviction wasclarified by the Court of Appeal in Taulapapa v R:19[22] It is settled law that a court considering a discharge should: examinethe gravity of the particular offence, taking into account all aggravating andmitigating factors of the offending and the offender; identify the direct andindirect consequences of conviction; and consider whether thoseconsequences are "out of all proportion" to the gravity of the offence. Onlythen does it move to considering the residual discretion under s 106.20 Theremust be a "real and appreciable" risk that any given consequence will happen:this standard recognises that the court is assessing the likelihood of somethingthat may happen in the future.21[23] The offender should ordinarily put information before the court toprovide a factual basis for a decision that the test has been satisfied. There isno legal onus on the offender to do so however, and the standard of proof in s107 is simply that the judge be satisfied that the requirements of the sectionare met.2218 New Zealand Police v Hartnett , above n 1, at [10].19 Taulapapa v R [2018] NZCA 414 at [22]–[23].20 Citing Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].21 Citing DC (CA47/2013) v R [2013] NZCA 255 at [43].22 Citing R v Hughes, above n 12, at [49] and [53]; and DC (CA47/2013) v R, above n 21, at [43].[24] Ms Hartnett's primary point on appeal is that the Judge appears to haveimposed the threshold of "exceptional circumstances" instead of the well-establishedtest; whether the consequences of a conviction would be out of all proportion to themoderate seriousness of the offence. By adopting the wrong test, Ms Hartnett submitsthe Judge went too far in saying effectively that in cases such as Ms Hartnett's,discharges without conviction should only be granted in exceptional circumstances.[25] If one looked at [16] of the judgment in isolation, it is possible to conclude thatthe Judge applied the wrong test to s 107. He said:23I agree with the police submission that, despite the detailed and extensivematerial that have been filed, that your situation is neither exceptional nor rare.[26] But at [17] the Judge said:In this case, Ms Hartnett, I do not find that the consequences of a convictionoutweigh the gravity of the offending and therefore your application fordischarge without conviction is declined.[27] The use of the description "exceptional" by the Judge refers to the"exceptional circumstances" jurisprudence from Linterman v Police.24 In that case,Miller J considered a discharge without conviction for drink driving ought to beexceptional and that an applicant "must identify some extraordinary consequences ofconviction" in order for such applications to be granted.25[28] In Basnyat v Police the Court of Appeal clarified the law around s 107 in lightof Miller J's approach in Linterman.26 The Court said:27[19] Properly construed, Linterman is not a gloss on the statutory test, butrather a statement of the practical consequence of the application of thesections. Drink driving is a moderately serious offence when seen by referenceto its potential consequences and to the pervasiveness of alcohol abuse in oursociety. That means the proportionality scales to be applied at stage three ofZ (CA447/2012) v R are, to an extent, tipped by that level of seriousness. Theconsequences of a conviction must also therefore be relatively significantbefore they are "out of all proportion" to the moderate seriousness of the23 New Zealand Police v Hartnett, above n 1, at [16].24 Linterman v Police, above, n 7.25 At [9].26 Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344.27 At [19]–[20].offence. It would be different if drink driving were a minor offence, but it isnot.[20] But judges must not treat Linterman as if it were a proxy for thestatutory test, and they must not exercise their discretion as if the word"exceptional" is to be found in s 107[29] The Judge did not treat Linterman as a proxy for the statutory test. While heno doubt had the approach in Linterman in mind, he also went on to explicitly refer tothe statutory test; whether the consequences of a conviction outweigh the gravity ofthe offending. The Judge's reference to Ms Hartnett's case not being "exceptional" ismore properly characterised as the Judge simply suggesting in the context of drinkdriving — which has been characterised by the courts as moderate level offending —that the consequences of a conviction faced by Ms Hartnett were not sufficient toengage the statutory threshold.[30] In short, the Judge did not err in the application of the test under s 107 ofthe Act.[31] In addition, there is no doubt that the Judge did properly consider the risk ofloss of employment. The trigger for the review of Ms Hartnett's employment underthe employment agreement [cl 15.6] was the alcohol-related "arrest and/or charge".Importantly, and as Mr Tupua noted, not only a conviction for, but being charged with,a criminal offence which was incompatible with Ms Hartnett's duties, could trigger asummary dismissal.[32] In any event, I think it significant in this case that Ms Hartnett will notnecessarily lose her employment. Clause 15.6 of the employment contract states thecompany "may" summarily dismiss employees should they be charged with, orconvicted of, a criminal offence. There is clearly an element of discretion in thisassessment. And I imagine Ms Hartnett's good standing at the company would feedinto the exercise of this discretion. The 12 April 2021 letter from Mr Moriarty toMs Hartnett confirmed that a conviction for an alcohol-related offence will notautomatically lead to termination, but that it has the potential to impact an employee'scareer.[33] Ultimately the judge is required to be satisfied that the direct and indirectconsequences of a conviction would be out of all proportion to the gravity of theoffence. I repeat what the Court of Appeal noted in Basnyat v Police:28Drink driving is a moderately serious offence when seen by reference to itspotential consequences and to the pervasiveness of alcohol abuse in oursociety. That means the proportionality scales to be applied at stage three of Z(CA447/2012) v R are, to an extent, tipped by that level of seriousness. Theconsequences of a conviction must also therefore be relatively significantbefore they are "out of all proportion" to the moderate seriousness of theoffence. It would be different if drink driving were a minor offence, but it isnot.[34] The District Court Judge correctly assessed the consequences in adrink-driving context. The Judge did not err in his application of the s 107 test.Result[35] The appeal is dismissed._____________________Grice JSolicitors:Heretaunga Law, Upper Hutt for AppellantCrown Solicitor, Wellington for Respondent28 Basnyat v Police, above n 26, at [19].