VANDENBRINK v NEW ZEALAND POLICE [2021] NZHC 1630

VANDENBRINK v NEW ZEALAND POLICE [2021] NZHC 1630 [2 July 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2021-404-139[2021] NZHC 1630BETWEEN MARTIN PAUL VANDENBRINKAppellantAND NEW ZEALAND POLICERespondentHearing: 28 June 2021Appearances: M Timmins for the AppellantA Mackenzie for the RespondentJudgment: 2 July 2021JUDGMENT OF CAMPBELL JThis judgment was delivered by me on 2 July 2021 at 3:00 pmRegistrar/Deputy RegistrarIntroduction[1] Mr Vandenbrink pleaded guilty to a charge of driving while impaired.1 Heapplied to be discharged without conviction. In the District Court, Judge B A Gibsondeclined his application. He convicted Mr Vandenbrink, fined him and disqualifiedhim from driving for six months.2[2] Mr Vandenbrink appeals. Primarily, he seeks to be discharged withoutconviction under s 106 of the Sentencing Act 2002. Alternatively, he asks for acommunity-based sentence under s 94 of the Land Transport Act 1998, in substitutionfor disqualification.FactsThe offending[3] On 20 August 2020, at 3.25 pm, Mr Vandenbrink was driving his car on anAuckland motorway at 120 kilometres per hour. The speed limit was 100 kilometresper hour. A Police officer observed the speeding, and then saw Mr Vandenbrinkchange lane without indicating. The officer stopped Mr Vandenbrink, and whenspeaking to him noticed a strong smell of cannabis.[4] Mr Vandenbrink failed to complete an impairment test in a satisfactory manner.Later ESR results confirmed the presence of THC in Mr Vandenbrink's blood. Asearch of Mr Vandenbrink's car revealed small amounts of cannabis, MDMA and LSD.[5] Mr Vandenbrink was charged with driving while impaired. He was alsocharged for possession of the drugs, but those charges were withdrawn after MrVandenbrink successfully completed the requirements of a Police diversion scheme.1 Land Transport Act 1998, s 57A(1). Penalty: three months' imprisonment or fine not exceeding$4,500, and disqualification for six months or more.2 Police v Vandenbrink [2021] NZDC 5707.Events after the offending[6] As noted, Mr Vandenbrink pleaded guilty to the charge of driving whileimpaired. He expressed genuine remorse and took steps to try to deal with any issueshe has with drugs by undertaking an eight-week drug and alcohol counselling course.He also completed a four-week defensive driving course.[7] Mr Vandenbrink presented character references which indicated he is wellrespected. He made a donation of $510 to a local surf lifesaving club. He volunteersat two such clubs.Consequences of convictions for Mr Vandenbrink[8] Mr Vandenbrink made an affidavit for the sentencing in the District Court. Hesaid he works as a service technician for a coffee company. Part of his job involvesdriving to various businesses around Auckland. He said that if he were unable to drivehe would be unable to fulfil his employment obligations and would therefore lose hisemployment.[9] Mr Vandenbrink explained that his employer has a strict drug policy. Heexhibited a copy of his employment contract. Clause 19 confers a discretion on hisemployer to terminate employment in the event Mr Vandenbrink is convicted of anoffence. The employer has a motor vehicle policy. This provides that if an employeeis stopped by Police, and has been taking drugs and is convicted, "disciplinary actionmay follow up to and including dismissal". The car Mr Vandenbrink was driving atthe time of his offending was his employer's car.District Court judgment[10] Section 106 of the Sentencing Act confers on the Court a discretion to grant adischarge without conviction. However, the discretion is subject to s 107, whichprovides that the Court must not grant such a discharge unless it is satisfied that "thedirect and indirect consequences of a conviction would be out of all proportion to thegravity of the offence."[11] Judge Gibson followed what is now a standard approach to s 106 applications:3(a) First, assess the gravity of the offending. This involves considerationof the seriousness of the actual offending, but also includes anyaggravating and mitigating factors that apply to the offender.(b) Secondly, identify the direct and indirect consequences of a conviction.(c) Finally, consider whether those consequences are out of all proportionto the gravity of the offence.[12] As to the gravity of the offending, the Judge said this was a serious offence, asit put other road users at risk. He took into account that there was no accident and thatMr Vandenbrink had been cooperative. He assessed gravity as "just under the midrange type of seriousness for this offence".4[13] In terms of consequences, Judge Gibson noted that a conviction would simplygive Mr Vandenbrink's employer a discretion whether to dismiss him. He nonethelessaccepted that there was a real prospect that Mr Vandenbrink might lose his job, andthat obtaining alternative employment might be problematic given Mr Vandenbrink'sage (61 years).5[14] The Judge said the employer had made it absolutely clear that it wished toknow whether its employees were driving company cars in breach of the alcohol anddrug impairment provisions of the Land Transport Act. That was a matter an employerwas entitled to know, and the Court ought not be in the business of suppressing thosematters simply for the purpose of keeping them from an employer.[15] The Judge therefore concluded that the consequences of a conviction were notout of all proportion to the gravity of the offence.3 Z (CA 447/2012) v R [2012] NZCA 599, [2013] NZAR 14 at [27]; and Mathieson v Police [2019]NZCA 406 at [8].4 Police v Vandenbrink [2021] NZDC 5707 at [10].5 At [14] and [15].[16] The Judge's written reasons for his decision did not address the possibility ofa community-based sentence, in substitution for disqualification, under s 94 of theLand Transport Act. Mr Timmins, who appeared for Mr Vandenbrink, told me theJudge dealt with this orally, saying that this issue would be better dealt with by way ofa limited licence.Appeal[17] Whether the test under s 107 of the Sentencing Act has been met is not a matterof discretion. It is a matter of fact requiring judicial assessment, which is subject toappeal on normal appellate principles. The appeal against the Judge's refusal todischarge Mr Vandenbrink without conviction is by way of rehearing with theappellate court making its own assessment of the merits.6[18] A decision whether to substitute a community-based sentence fordisqualification under s 94 is a discretionary decision. The appeal against that decisionis therefore a more limited appeal. Mr Vandenbrink must show that Judge Gibsonerred in law, failed to take into account relevant matters, took into account irrelevantmatters or was plainly wrong.7Decision: discharge without convictionGravity of the offending[19] Mr Timmins challenged the Judge's assessment of the seriousness of theoffending as just under the "mid range". He said this did not take sufficient accountof Mr Vandenbrink's steps to address his offending, his remorse, his guilty plea, hischaracter and his community work.[20] I disagree. I acknowledge the steps taken by Mr Vandenbrink since theoffending. But I accept the submissions of Mr Mackenzie, for the Police. Theoffending was inherently dangerous. In addition, not only did Mr Vandenbrink fail the6 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].7 Hall v Police HC Hamilton CRI-2009-419-76, 9 December 2009 at [11], applying May v May(1982) 1 NZFLR 165 (CA).impairment test, before being pulled over he was speeding and was seen to changelanes in a careless manner. The Judge's assessment was right.Consequences of the convictions[21] Turning to the consequences of the convictions, Mr Vandenbrink does not haveto establish that the consequences would occur as a matter of fact. It is sufficient toshow there is a "real and appreciable risk" of the consequences occurring.8[22] Mr Timmins submitted that there was a real and appreciable risk that twoconsequences would occur from a conviction. The first was of Mr Vandenbrink losinghis current employment. The second was of Mr Vandenbrink thereafter being unableto obtain future employment. Mr Timmins submitted that Judge Gibson gaveinsufficient weight to these consequences.[23] I first consider the risk of loss of current employment from a conviction. I havethe advantage, which Judge Gibson did not, of seeing how that risk has played outsince Mr Vandenbrink was convicted on 29 March 2021 (just over three months ago).In his written submissions, Mr Timmins said that Mr Vandenbrink had obtained alimited licence, but "is still at real risk of losing his current employment". At thehearing I asked for clarification. Mr Timmins informed me that Mr Vandenbrinkobtained a limited licence on 13 May 2021. Mr Vandenbrink has informed hisemployer that he lost his licence and has obtained a limited licence, but has not toldhis employer the reasons for the loss of licence.[24] Mr Timmins also told me that if Mr Vandenbrink obtained a discharge, hewould inform his employer of the underlying offending. Mr Timmins took me to theterms of Mr Vandenbrink's employment contract, which he said would oblige MrVandenbrink to make such disclosure to his employer. Mr Timmins submitted that theemployer would then be at liberty to decide whether to terminate Mr Vandenbrink'semployment on the grounds of the underlying offending. In making that decision, MrTimmins said, the employer would be assisted by this Court's decision to grant a8 Mathieson v Police [2019] NZCA 406 at [18], citing R v Taulapapa [2018] NZCA 414.discharge (were a discharge to be granted), as that would signal to the employer thatdismissal was out of all proportion to the offending.[25] The events that have happened since Mr Vandenbrink's conviction suggest thatthe risk of his losing his employment, as a result of a conviction, is low. The employermust already know that Mr Vandenbrink lost his licence as a result of a conviction.His employment nonetheless has not been terminated. It appears that if there is to beany loss of employment, that will arise from the underlying offending (if it is everdisclosed), rather than from the conviction itself.[26] To be clear, I place no weight on the prospect of Mr Vandenbrink makingdisclosure to his employer in the event he is granted a discharge. That seems anunlikely prospect, given he has not yet disclosed the reasons he lost his licence. Thereis no evidence before me to satisfy me that such an unlikely prospect will eventuate.[27] I now turn to consider the second consequence, that a conviction willjeopardise Mr Vandenbrink's chances of obtaining future employment. Thisconsequence was in large part based on the assumption that a conviction would leadto Mr Vandenbrink losing his current job. For the reasons I have just set out, I do notaccept that assumption.[28] Nonetheless, I recognise that at some point Mr Vandenbrink may, for reasonsunrelated to the conviction, wish to seek alternative employment. Mr Timminssubmitted there was a real and appreciable risk that a conviction would prevent MrVandenbrink from obtaining any future employment. Mr Vandenbrink has historicalconvictions in respect of which, until his recent conviction, he enjoyed the benefit ofthe scheme under the Criminal Records (Clean Slate) Act 2004 (the Clean Slate Act).The recent conviction means that, if any prospective employer asks whether he hasconvictions, he now must disclose those historical convictions. Mr Timminssubmitted that, given Mr Vandenbrink is 61 years old, he will have difficulty findingfuture employment if he has to disclose his historical convictions.[29] I accept that a consequence of the conviction is that Mr Vandenbrink will havedifficulty in finding future employment. But, to be clear, I put it no higher than adifficulty. I accept that some prospective employers may not be prepared to lookbeyond the convictions, but I am not prepared to assume that all or even mostemployers would behave in that way, especially where the offender is otherwise aperson of good character (as Mr Vandenbrink appears to be). There was no evidencebefore me to suggest otherwise. This is in contrast to the case on which Mr Timminsrelied, Simpson v Police,9 where there was independent evidence that the offenderwould be "extremely unlikely" to be considered if he were convicted.Would these consequences be out of all proportion to the gravity of the offence?[30] I have concluded there is only a low risk that Mr Vandenbrink will lose hiscurrent employment as a consequence of a conviction, and that a conviction will causehim some difficulty if he ever seeks future employment. I do not regard theseconsequences as out of all proportion to the gravity of the offence. His offending wasinherently dangerous. The consequences are ordinary and natural consequences of aconviction of this sort. The low risk to his current employment is proportionate, giventhat his employment involves driving a car, and that his employer (understandably)has policies about driving company cars under the influence of drugs. Any difficultiesthat might arise for future employment are largely a consequence of Mr Vandenbrinklosing eligibility under the Clean Slate Act. That is likewise a proportionate response.That legislation confers a privilege, but on the condition the privilege will be lost ifthe person commits an offence: s 8. The loss of that privilege is therefore an intended,as well as a natural, consequence of a conviction.[31] I conclude Judge Gibson was correct to dismiss Mr Vandenbrink's applicationfor a discharge.Decision: community-based sentence instead of disqualification[32] Section 94 of the Land Transport Act provides that the court can impose acommunity-based sentence if it "considers that it would be inappropriate to order thatthe offender be disqualified from holding or obtaining a driver licence".10 Mr Timminssubmitted it would be in the interests of justice for Mr Vandenbrink not to be9 Simpson v Police [2020] NZHC 2254.10 Section 94 is engaged because Mr Vandenbrink has previously been disqualified from driving.disqualified, because he was (despite holding a limited licence) still at risk of losinghis current employment, and his inability to drive would be a barrier to him obtainingalternative employment.[33] Neither of those matters means that it would, in terms of s 94, be inappropriateto order that Mr Vandenbrink be disqualified.Result[34] I dismiss Mr Vandenbrink's appeal.______________________Campbell J