NEWING v NZ POLICE [2019] NZHC 772

NEWING v NZ POLICE [2019] NZHC 772 [10 April 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-135[2019] NZHC 772BETWEEN LANCE PHILLIP NEWINGAppellantAND NEW ZEALAND POLICERespondentHearing: 8 April 2019Appearances: C Mitchell for the AppellantM J Mortimer for the RespondentJudgment: 10 April 2019JUDGMENT OF GAULT JThis judgment was delivered by me on 10 April 2019 at 4:00 p.m.pursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarSolicitors / Counsel:Mr C Mitchell, Barrister, AucklandMr M Mortimer, Meredith Connell, Office of the Crown Solicitor, Auckland[1] Mr Newing pleaded guilty to a charge of driving with excess breath alcohol.On 31 July 2017 Community Magistrate S Cole refused Mr Newing's application fora discharge without conviction, entered a conviction and sentenced Mr Newing to afine of $500, disqualification from driving for six months, and ordered Court costs of$130.1[2] Mr Newing appealed to the District Court. On 6 April 2018 Judge C S Blackiedismissed the appeal.2[3] Mr Newing applies for leave to bring a second appeal against the refusal todischarge without conviction on the grounds that the District Court Judge failed toproperly assess the overall gravity of the offending, did not make a proper assessmentof the seriousness of the consequences of a conviction, and thus did not properly applythe proportionality test.[4] The hearing was adjourned pending release of the Court of Appeal's decisionin Basnyat v Police.3The facts[5] Mr Newing was driving in a southerly direction along East Coast Road,Mairangi Bay, about 10:00 pm on Sunday 28 August 2016. He was stopped by policedue to exceeding the 50 kilometres per hour speed limit and failing to comply with ared traffic signal. When spoken to by police he exhibited signs of recent alcoholintake. The police carried out breath test procedures and Mr Newing's result was 707micrograms of alcohol per litre of breath. In explanation, Mr Newing stated that hehad had a couple of drinks prior to driving.Sentence[6] The Community Magistrate considered the offending was moderately serious.In relation to the consequences of conviction, the Community Magistrate referred to1 NZ Police v Newing [2017] NZDC 16950.2 Newing v NZ Police [2018] NZDC 5927.3 Basnyat v Police [2018] NZCA 486.Mr Newing's need to travel overseas at short notice for his work as a trading managerand the concern that there will be difficulties in that regard, which would leave hisemployer with no option but to dismiss him, with a roll-on effect on Mr Newing'sability to care for his son and pay maintenance. The Community Magistrate acceptedthat there was a possibility that Mr Newing may lose his job, but did not accept therewas a real and appreciable risk of this occurring. In relation to the foreign travelconsequences, the suggested consequences were speculative. The CommunityMagistrate was not satisfied on the evidence that there was a real and significant riskthe suggested consequences of travel delay and refusal would occur.The appeal to the District Court[7] Judge Blackie approached the appeal as one against the exercise of a discretion,where the appellate court will only interfere if satisfied that the discretion wasexercised on the basis of wrong facts, proceeded on mistaken facts, applied incorrectlegal principle, took into account irrelevant considerations, or failed to take intoaccount relevant considerations.4 The appeal proceeded entirely on the evidence thatwas produced before the Community Magistrate.[8] The District Court Judge stated that a discharge without conviction for drinkdriving would be granted only in exceptional circumstances.5 In relation to overseastravel consequences, the Judge referred to the Court of Appeal's approach inEdwards v R.6 The Court must be satisfied that the consequences of conviction areout of all proportion with the gravity of the offence. It is settled law that an applicantfor a discharge need only point to a real and appreciable risk, but it does not followthat a Court will permit an applicant to speculate. A Court will ordinarily expect to besatisfied under the law and practice of the jurisdiction concerned that:7(a) the conviction must be disclosed but, assuming a discharge is given, thefact that the offence was committed need not be;4 May v May [1982] 1 NZFLR 165 (CA).5 Linterman v Police [2013] NZHC 891 at [9].6 Edwards v R [2015] NZCA 583 at [24]-[26].7 At [26].(b) as a consequence of the conviction, the applicant is prima facieinadmissible and for how long; and(c) there is no alternative entry process available, or if there is it isunreasonably difficult and uncertain in all the circumstances.[9] The Judge considered the evidence spoke only in general terms: there wasnothing specific by way of visa restrictions or otherwise in any of the countries towhich Mr Newing may be required to travel. Mr Newing relied on his understandingbased on enquiries to various Consulates that a drink drive conviction is a criminaloffence and would mean that the visa process would be prolonged and he would needto apply for a visa to countries where, without a conviction, one is not required.[10] The Judge also noted that there was nothing in the evidence to explain whyMr Newing's travel arrangements need to be made in such haste. The Judgeconsidered the evidence adduced to be far from convincing, finding himself in thesame position as Brewer J in Basnyat v Police.8 Brewer J had found that the evidencedid not establish any material consequences that met the standard set out in the caselaw.[11] The Judge found there was nothing which could lead to a conclusion that theCommunity Magistrate had proceeded upon mistaken facts, had applied incorrect legalprinciple, or had taken into account irrelevant considerations in relation to his findingas to Mr Newing's travel. Similarly, there was nothing to persuade the Judge that theCommunity Magistrate was mistaken as to facts relating to Mr Newing's futureemployment. The Community Magistrate was entitled to make the findings that heexpressed in his decision. There was no error in legal principle. The appeal wasdismissed.Further evidence[12] Mr Mitchell, counsel for Mr Newing, sought to file two further affidavits inthe High Court in March 2019 dealing with travel consequences. The first affidavit8 Basnyat v Police [2018] NZHC 51.largely repeated Mr Newing's 2017 affidavit. Mr Newing also stated the appeal is theonly reason his employment has not been terminated. He referred to a proposed tripto Iran, which one of the owners of the business had to undertake in his place becausethe Iranian Embassy advised that his visa would take weeks to consider because of theconviction. He also referred to the company's purchase of a business with a factoryin Canada and the need to visit the factory. The affidavit exhibited CanadianGovernment website information indicating that if persons have committed or beenconvicted of a crime, minor or serious (including driving under the influence of drugsor alcohol), they may not be allowed into Canada.[13] The second affidavit also largely repeated the previous affidavits. In addition,Mr Newing stated that he is due to attend a conference in Sydney and the AustralianConsulate had advised there could be problems. He also explained that the reason hesometimes needs to make urgent travel arrangements is that he is responsible forproduct quality claims.[14] Mr Mortimer, counsel for the respondent, acknowledged that the Court wouldwish to deal with the leave application on the basis of all the evidence and therespondent abides the Court's decision. Despite the delay and the nature of theapplication, I accepted the further affidavits.The arguments on appeal[15] Mr Mitchell, counsel for Mr Newing, submitted that the District Court Judgedid not make a proper assessment of the consequences of conviction, namelytermination of employment because of the risk he cannot travel, and therefore did notproperly apply the proportionality test in s 107 of the Sentencing Act 2002 (the Act).In particular, Mr Mitchell submitted that it is highly unlikely Mr Newing will beallowed into Canada.[16] The respondent opposes leave on the grounds that the arguments do not satisfythe test for leave to bring a second appeal. The respondent acknowledged two aspectsof the Judge's decision that might be considered in error. First, treating the appeal asan appeal from a discretion. This is only the case in respect of the final discretionunder s 106, not the evaluation under s 107.9 The respondent submitted, however, thatthe Judge did in fact go on and undertake his own assessment of the evidence.Secondly, the respondent acknowledged the Judge's reference to "exceptionalcircumstances" citing Linterman,10 which has now been clarified by the Court ofAppeal.11 However, the respondent submitted that the proposed appeal raises nomatters of general or public importance and no miscarriage of justice arises.Approach on application for leave to bring second appeal[17] An appeal against a refusal to grant a discharge without conviction is an appealagainst conviction and sentence.12 The Court must not grant leave for a second appealunless satisfied that the appeal involves a matter of general or public importance(which is not suggested here) or a miscarriage of justice may have occurred or mayoccur unless the appeal is heard.13[18] A miscarriage of justice is any error, irregularity or occurrence in or in relationto or affecting the trial that has created a real risk that the outcome of the trial wasaffected or has resulted in an unfair trial or a trial that was a nullity.14The approach to discharges without conviction[19] Since Judge Blackie's decision, the Court of Appeal has dismissed theapplication for leave to appeal in Basnyat v Police and the Supreme Court has alsodeclined leave to appeal.15 In that case, the Court of Appeal summarised the approachto the regime in ss 106 and 107.16 Section 107 provides the threshold test fordischarges without conviction:The court must not discharge an offender without conviction unless thecourt is satisfied that the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence.9 Edwards v R [2015] NZCA 583 at [6].10 Linterman v Police [2013] NZHC 891 at [9].11 Basnyat v Police [2018] NZCA 486 at [19]-[20].12 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [9].13 Criminal Procedure Act 2011, ss 237 and 253.14 Section 232(4).15 Basnyat v Police [2018] NZCA 486; and Basnyat v Police [2019] NZSC 21.16 Basnyat v Police [2018] NZCA 486 at [14]-[15].[20] There is then a residual discretion under s 106 which uses the word "may",although once the threshold is met, a discharge will usually follow.17 The correctapproach to the s 107 test was set out by the Court of Appeal in Z (CA447/2012) v Rwhere Arnold J described a four-stage analysis for sentencing courts:18(a) consider all aggravating and mitigating factors of the offence andoffender to establish the gravity of the offence;(b) identify the direct and indirect consequences of conviction for theoffender;(c) consider whether those consequences are out of all proportion to thegravity of the offence; and(d) consider whether, in exercise of the residual discretion in s 106,a discharge should nonetheless be declined.[21] The Court of Appeal in Basnyat v Police also made it clear that the referenceto "exceptional circumstances" in Linterman is not a gloss on the statutory test butrather a statement of the practical consequences of the application of the sections.Judges must not treat Linterman as if it were a proxy for the statutory test, and theymust not exercise their discretion as if the word "exceptional" is to be found in s 107.19Decision[22] Driving with excess breath alcohol is a moderately serious offence.20 As theSupreme Court has stated, every driver of a motor vehicle on the roads of this countryshould by now be aware that driving after consuming more than a small amount ofalcohol is dangerous, illegal and socially unacceptable.21 In this case, the breathalcohol level (707 micrograms of alcohol per litre of breath, significantly more thanthe limit of 250 micrograms of alcohol per litre of breath) and the related driving17 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.18 Z (CA447/2012) v R [2012] NZCA 599 at [27].19 Basnyat v Police [2018] NZCA 486 at [19]-[20].20 At [19].21 Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].(exceeding the 50 kilometres per hour speed limit and failing to comply with a redtraffic signal) were aggravating features. The only mitigating feature was the guiltyplea.[23] In relation to the consequences of conviction, the concern is the riskMr Newing cannot travel overseas and its effect on employment. Even taking intoaccount the further evidence, I do not consider there is a real and appreciable risk ofthese consequences for the following reasons.[24] Mr Mitchell said that the Canadian Government immigration websitedocuments exhibited to Mr Newing's affidavit were the same or at least similar tothose provided to the Court of Appeal in Basnyat, although he could not be sure.The documents appear to be to the same effect as those Mr Mitchell submitted to theSupreme Court with his application for leave in that case, which he also provided tothis Court. In Basnyat, the Court of Appeal concluded:22As for travel, Mr Mitchell's argument was unconvincing. He pointed to entryconstraints in Canada where Mr Basnyat might wish to travel for businessconferences or work. But a perusal of the Immigration Canada website, detailsof which were provided by Mr Mitchell, indicates that a person in MrBasnyat's situation is very likely to be granted entry albeit not as of right. Theinconvenience for him will be that he must apply for entry. This is hardlydisproportionate to the moderate seriousness of this offending.[25] Without assuming they are the same documents, taking the approach inEdwards,23 I consider that the evidence in this case does not indicate there is a real andappreciable risk that the alternative entry process in Canada is unreasonably difficultor uncertain. Mr Mitchell referred me to Kardos v NZ Police, where it was acceptedthat a drink driving conviction would bar the appellant from entering Canada, but theevidence in this case does not indicate that.24[26] Mr Newing's correspondence with the Australian Consulate also indicates thatMr Newing is very likely to be granted entry into Australia, albeit not as of right.As Mr Mortimer submitted, the tenor of the correspondence does not suggest a seriousimpediment.22 Basnyat v Police [2018] NZCA 486 at [28].23 Edwards v R [2015] NZCA 853 at [24]-[26]. See also MacDonald v R [2019] NZCA 91 at [29].24 Kardos v NZ Police [2014] NZHC 3023 at [40].[27] Mr Mitchell referred to the strict alcohol laws operating in some Middle Eastcountries but the only evidence related to Iran, and simply indicated that the delayinvolved in obtaining a visa for Mr Newing meant that someone else had to make thatparticular trip. The evidence does not reach the level of cogency required by the Courtof Appeal in Edwards. Similarly, Mr Newing's concern about travel to other countriesis not sufficiently substantiated.[28] Even if entry to any of the countries Mr Newing has identified is unreasonablydifficult and uncertain, the issue here is the consequence for his employment.Mr Hall's February 2017 affidavit considered in the District Court stated that ifMr Newing were convicted the company would have no option but to terminate hisemployment immediately. There has, however, been no updating or more specificevidence from Mr Newing's employer despite the Community Magistrate's conclusionthat there was not a real and appreciable risk that Mr Newing would lose his job, theJudge's comments on appeal as to the inadequacy of the evidence, the fact thatMr Newing's employment was not terminated after his conviction or unsuccessfulappeal, and the length of time that has passed since then. I note Mr Newing's furtheraffidavit stating that the appeal is the only reason his employment has not beenterminated. Even so, given Mr Newing's senior role and importance to the business,I expect his employer would seek to manage the situation and the position would likelydepend on which particular country Mr Newing could not enter. Here also theevidence does not reach the level of cogency required by the Court of Appeal.The consequences are not as acute as in Moyes v NZ Police,25 which Mr Mortimerresponsibly drew to my attention.[29] In any event, I am not satisfied in this case that the consequences of convictionwould be out of all proportion to the gravity of the moderately serious offence.[30] Even taking into account the further evidence, I do not consider there is anymiscarriage of justice. This is not an appropriate case for a second appeal.25 Moyes v NZ Police [2018] NZHC 582.Result[31] The application for leave to bring a second appeal is dismissed.________________________________Gault J