SIMPSON v NEW ZEALAND POLICE [2020] NZHC 2255

SIMPSON v NEW ZEALAND POLICE [2020] NZHC 2255 [1 September 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000200[2020] NZHC 2255BETWEEN MICHAEL SIMPSONAppellantAND NEW ZEALAND POLICERespondentHearing: 17 August 2020, further evidence filed on 27 August 2020 andfurther submissions filed on 31 August 2020Appearances: Z Reid for AppellantF Sulikosky for RespondentJudgment: 1 September 2020JUDGMENT OF WYLIE JThis judgment was delivered by Justice WylieOn 1 September 2020 at 12.30 pmRegistrar/Deputy RegistrarDate:Solicitors/counsel:Z Reid, AucklandCrown Solicitor, AucklandIntroduction[1] On 13 October 2019, the appellant, Michael Simpson, was stopped by thepolice on College Hill in Auckland at 2.15pm in the afternoon. He had been speeding.He was given a breath screening test. He was driving with 965 micrograms of alcoholper litre of breath (more than twice the then limit of 400 micrograms of alcohol perlitre of breath). Mr Simpson was charged with driving with excess breath alcohol. Heentered a guilty plea at the first available opportunity. Mr Simpson sought a dischargewithout conviction, pursuant to s 106 of the Sentencing Act 2002. That applicationwas declined by Judge Dawson in the District Court at Auckland on 12 May 2020.1Judge Dawson went on to impose a fine of $500 on Mr Simpson and to disqualify himfrom driving for eight months.[2] Mr Simpson appeals Judge Dawson's decision declining his application for adischarge without conviction. The appeal was advanced on the basis that the Judgeerred when undertaking the proportionality assessment required by s 107 of theSentencing Act, and that he failed to give proper consideration to the consequences ofa conviction for Mr Simpson. Mr Simpson also sought to adduce fresh evidence thathas become available following the hearing of the matter which, he says, is relevantto the proportionality assessment.[3] The respondent submits that the Judge's decision was correct. It argued theJudge did not err in his consideration of the consequences of the conviction onMr Simpson's future employment prospects, that Mr Simpson's further evidence doesnot advance the issue, and that the consequences of the conviction are not out of allproportion to the gravity of the offence.The District Court decision[4] The Judge noted that Mr Simpson had entered a guilty plea to the charge andhe recited the relevant facts. He referred to s 106, and then turned to consider thegravity of Mr Simpson's offending. He noted that there was a risk of harm to thepublic due to the very high level of alcohol in Mr Simpson's system. He also noted1 Police v Simpson [2020] NZDC 8173.that Mr Simpson was speeding at the time. He acknowledged mitigating factors,including Mr Simpson's early guilty plea, his remorse and that he is otherwise a personof good character. The Judge nevertheless referred to Supreme Court authority, notingthat drink driving is a relatively serious offence, because it puts at risk not only theoffender's life and safety, but also that of other people. He considered that the gravityof Mr Simpson's offending was at a moderate level.[5] The Judge next addressed the direct and indirect consequences to Mr Simpsonof his conviction. He noted that Mr Simpson was not then working, and that he waslooking for employment in the advertising and marketing industry. He referred to theaffidavit evidence, noting that it indicated that "it would be difficult for [Mr Simpson]to get a job in that industry with a conviction". The Judge however stated "it is not anabsolute bar to you getting a job. It may impact on your future employmentpossibilities but it does not necessarily stop you from obtaining a job in your chosenprofession".2 The Judge commented that, while a conviction might adversely affectapplications for jobs that Mr Simpson might make, this was a predictable consequenceof the offending. He commented that the stigma of the conviction is real, but that it isa common and intended consequence; it is part of the deterrence aspect of discouragingpeople from drinking and driving.[6] The Judge concluded that the consequence was not out of proportion to thegravity of the offending, and accordingly declined Mr Simpson's application for adischarge without conviction.The appeal[7] Under ss 229 and 244 of the Criminal Procedure Act 2011, Mr Simpson has ageneral right of appeal against both his conviction and his sentence.[8] Mr Simpson's appeal was brought pursuant to ss 232 and 244 of the CriminalProcedure Act 2011 and it was advanced as an appeal against conviction. Section 232deals with appeals against conviction. It provides that the first appeal Court must2 At [7].allow the appeal if it is satisfied, inter alia, that a miscarriage of justice has occurredfor any reason.3[9] The Court of Appeal has held that an appeal against refusal against s 106 of theSentencing Act is properly categorised as an appeal against both conviction andsentence.4[10] As I have noted, Mr Simpson has a right to appeal his sentence, and I treatedhis appeal as being both against his conviction and sentence. Under s 250(2) of theCriminal Procedure Act, the Court must allow the appeal if it is satisfied that, for anyreason, there is an error in the sentence imposed on conviction and that a differentsentence should be imposed.Submissions[11] Ms Reid, on behalf of Mr Simpson, focused on the consequences toMr Simpson of having the conviction on his record. She referred to his two affidavits,and to the affidavit of Matthew Jackson, a Human Resources Business Partner. Sheargued that the Judge erred in concluding that the evidence indicated that "it would bedifficult" for Mr Simpson to gain employment and in effect mischaracterisedMr Jackson's evidence. She pointed out that, on Mr Jackson's evidence, it will be allbut impossible for Mr Simpson to gain future employment in his chosen field and thatthis is borne out by Mr Simpson's experiences since Judge Dawson's decision. Sheargued that there is a real and appreciable risk that Mr Simpson will not be able toprogress in the advertising and marketing industry with the conviction on his record,and that the Judge overstated matters when he suggested that the test was whetherMr Simpson faced an "absolute bar" to gaining employment.[12] Ms Sulikosky, for the Crown, submitted that the Judge did not err in hisconsideration of the consequences of the conviction on Mr Simpson's futureemployment prospects. She referred to relevant authority, noting that the social stigmathat any conviction carries naturally affects a person's career, and that this3 Criminal Procedure Act 2011, s 232(2)(c).4 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222; Jackson v R [2016] NZCA 627 at [12];Ovtcharenko v Police [2017] NZCA 65 at [5].consequence must normally yield to an employer's right to know. She further arguedthat Mr Simpson's additional evidence should not be admitted on the basis that it isnot cogent. It was her submission that the consequences of the conviction relied onare not out of all proportion to the gravity of the offence.AnalysisFresh evidence[13] The Court can receive further evidence if the interests of justice require it. Itmust be credible and fresh.5[14] Initially Mr Simpson filed one additional affidavit only. There were somedifficulties with this affidavit. Mr Simpson said that, since being convicted, he hasapplied for some 30 jobs in the advertising and marketing industry and that he hasreceived interviews for five different positions. However, he has not been offeredemployment. He did not say however whether he was required to disclose hisconviction in all or any of his job applications. Without this information the furtherevidence did not assist.[15] I sent out a minute asking Ms Reid to obtain a further affidavit fromMr Simpson clarifying the position. She has done so. Mr Simpson has now explainedthat he did not use a recruitment agency, because such agencies require proof of a clearcriminal record before putting a candidate forward for a position. Rather, he appliedfor jobs through on-line sites, such as LinkedIn and Seek. He was not required todisclose his conviction on every job application. He did apply for numerous roles inthe banking sector. All applications for positions in this sector required him to disclosewhether he had a conviction; he did so and he did not receive either responses orinterviews for any of those roles.[16] The proposed evidence is both credible and fresh and it is in the interests ofjustice that I should receive it. It bears directly on the issue I have to consider. I rulethat the fresh evidence is admissible.5 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273; Bain v R [2007] UKPC 33, [2007] 23 CRNZ71.Did the Judge err in declining to discharge Mr Simpson without conviction?[17] Relevantly, ss 106 and 107 of the Sentencing Act provide as follows:106 Discharge without conviction(1) If a person who is charged with an offence is found guilty or pleadsguilty, the court may discharge the offender without conviction, unlessby any enactment applicable to the offence the court is required toimpose a minimum sentence.(2) A discharge under this section is deemed to be an acquittal.107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unless the courtis satisfied that the direct and indirect consequences of a conviction would beout of all proportion to the gravity of the offence.[18] The approach to s 107 was set out by the Court of Appeal in Z (CA447/2012)v R.6 The Court must:(a) consider all aggravating and mitigating factors of the offence and theoffender to establish the gravity of the offence;(b) identify the direct and indirect consequences of the conviction for theoffender; and(c) consider whether those consequences are out of all proportion to thegravity of the offence.If the Court is satisfied of these various matters it must then go and decide whether toexercise its discretion to the discharge without conviction under s 106.[19] It is settled law under s 107, that the Court need only be satisfied that thereexists a real and appreciable risk that the relevant consequence will happen,7 and thatapplication of the disproportionality test under s 107 requires consideration of all6 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [8].7 DC (CA47/2013) v R [2013] NZCA 255 at [43]; R v Taulapapa [2018] NZCA 414 at [45].relevant circumstances of the offence, the offending and the offender, and the widerinterests of the community, including the factors required by the Sentencing Act to betaken into account under ss 7, 8, 9 and 10.8[20] I consider first the gravity of the offending.[21] Driving while impaired due to alcohol is inherently dangerous and it can resultin serious injury and death. The Supreme Court has observed that, in itself, suchoffending is "very serious offending".9 In addition, there were some aggravatingfactors to the offending in this case. First, Mr Simpson was speeding at the time.Secondly, his level of breath alcohol was extremely high – over two times the thenapplicable limit and over four times the present limit. There were no mitigating factorsto the offending. There were however mitigating factors personal to Mr Simpson. Hehas been driving for approximately 14 years without any significant incident and hehas no previous convictions of any sort. According to his affidavit, which isunchallenged, he attended a work-related cocktail function on the night before he wasapprehended by the police. He had arranged to spend the night at his parents' home,which was across the road from where the function took place, to ensure that he wouldnot be driving anywhere after drinking. He duly went to bed at his parents' house,before waking up the following afternoon. He felt hungover, but assumed that hewould be safe to drive himself home. He had however not eaten for some time. Hefailed to appreciate the level of his intoxication. Mr Simpson accepts unequivocallythat he has no excuse or good reason for driving after consuming excess alcohol. It isnoteworthy that he cooperated fully with the police, entered a guilty plea to the chargeof drink driving at the earliest opportunity, promptly advised his then employer thathe had been charged with driving with excess breath alcohol and was candid with hisfamily and friends about the incident. Since the incident, he has maintained a zeroalcohol level at all times when intending to drive and when driving. He has completedthe New Zealand Advanced Driver Training Course and he made a charitable donationof $1,000 to Womens' Refuge. He is extremely remorseful for the danger that he8 R v Hughes, above n 4 at [41].9 NZ Law Society v Stanley [2020] NZSC 83 at [72] and [102]; Aylwin v Police [2008] NZSC 113,[2009] 2 NZLR 1 at [17].caused, both to himself and to members of the public. He has assured the Court thathe is very unlikely to put himself or members of the public in a similar position again.[22] Judge Dawson did not articulate all of these various matters, but he concludedthat Mr Simpson's offending was moderately serious. No issue was taken with JudgeDawson's assessment. Indeed, Ms Reid expressly accepted that the Judge'sassessment was accurate. I agree with the Judge's assessment. There was no error inthis regard.[23] I now turn to deal with the direct and indirect consequences of the conviction.[24] The only consequence asserted before me was the effect that the convictionwill likely have on Mr Simpson's ability to obtain a job in the advertising andmarketing industry. On the evidence, Mr Simpson is 30 years old. He hasapproximately a decade's experience in the advertising and marketing industry, andhe has completed tertiary studies in this field. He was employed by an advertising anddesign company for some six years. He then co-founded an online platform designedto help build and strengthen football communities around the world. From early 2018until early 2020, he was employed as a client services director by a creative productionstudio, with a number of significant clients. As noted, when he was charged in October2019 for the drink driving offence, he promptly advised his then employer. Noimmediate action was taken but, in February 2020, he was advised that the companywas being restructured. He was made redundant in late February 2020, and as a result,has been unemployed since. He is concerned that should the conviction remain on hisrecord, the consequences will be devastating to his future career. He asserts that theadvertising and marketing industry is extremely competitive and says that he has beenadvised by more senior colleagues that a criminal conviction of this nature is likely tohalt his career altogether and prevent him from obtaining employment in the industrygoing forward.[25] Mr Jackson has filed an affidavit. As noted, he is a Human Resources BusinessPartner who works in human resources and recruitment industry. His experienceinvolves recruiting candidates for positions in the advertising and marketing industry.He has confirmed that the industry is extremely competitive and that, as a result, it iscommon practice for both recruiters and employers to have zero tolerance towardscriminal convictions when selecting candidates for interview and potentialemployment. He said that it has been and remains his practice to cull job applicantsby immediately eliminating those with any form of criminal conviction. He then saidas follows:I can say unequivocally that the applicant will be overlooked for employmentopportunities within the advertising and marketing industry should he obtaina criminal conviction of this nature on his record.And further: the applicant will be extremely unlikely to progress in the advertising andmarketing industry if he obtains a criminal conviction on his record.[26] The Judge summarised Mr Jackson's evidence, by saying that it indicated thatit "would be difficult" for Mr Simpson to get a job in the advertising and marketingindustry with a conviction. With respect, Mr Jackson did not say this. Rather,Mr Jackson said plainly that Mr Simpson will "be overlooked" for employmentopportunities and that it is "extremely unlikely" that Mr Simpson will progress in theindustry if the conviction remains on his record. I also have the benefit of the furtherevidence which was not before the Judge. It bears out in large part Mr Jackson'sobservations. Mr Simpson did not receive a response let alone an interview from anyof the prospective employers to whom he disclosed his conviction. I acknowledgehowever the point made by Ms Sulikosky – Mr Simpson was not offered a job evenwhen he did not disclose his conviction, and he seems to discount the possibility thathe may be less qualified or suitable than other candidates. Nevertheless, on the basisof the evidence which is before me, I am satisfied that there is a real and appreciablerisk of Mr Simpson's future career prospects in his chosen field being frustrated as aresult of the entry of the conviction. In my view, the Judge understated this risk anderred in so doing.[27] I now turn to consider whether this real and appreciable consequence is out ofall proportion to the gravity of the offence.[28] Discharges without conviction are not often granted for drink driving offences.As was noted by Miller J in Linterman v Police,10 there are several reasons for this.First, in the hands of a drunk, a car is a dangerous thing. Secondly, good character andextenuating personal circumstances normally count for little. Drink driving is apervasive social problem and the legislature has responded with a sentencing policythat emphasises personal and general deterrence. Thirdly, an application must identifysome extraordinary consequence of conviction, which is difficult when the ordinaryconsequences are unpleasant. A drink driving conviction always carries a socialstigma and the offender must normally disclose the conviction to a prospectiveemployer, who may wonder whether it evidences poor judgment or an undue fondnessfor drink, as well as to immigration authorities, who may recognise it as evidence ofanti-social tendencies.[29] Miller J suggested that discharges without conviction for the offence of drivingwith excess breath or blood alcohol should be granted only in "exceptionalcircumstances".11 This observation has been somewhat diluted in more recent cases.[30] Sections 106 and 107 still apply to drink driving convictions. The inherentlyserious nature of the offence means that the proportionality scale applied at stage 3 ofthe s 107 inquiry is, to an extent tipped by this level of seriousness. As the Court ofAppeal has put it:12The consequences of a conviction must also therefore be relatively significantbefore they are out of all proportion to the moderate seriousness of the offence.[31] While I have accepted that there is a real and appreciable risk thatMr Simpson's future career in the advertising and marketing industry will befrustrated, the fact remains that any conviction, and in particular a conviction for drinkdriving, carries social stigma, which can affect an offender's career. The Courts haveheld that this consequence must normally yield to the employer's right to know.13 Thisconsequence can be severe, if prospective employers are unwilling to look behind the10 Linterman v Police [2013] NZHC 891 at [8]-[9].11 At [9].12 Basnyat v Police [2018] NZCA 486 at [19]; and see Ovtcharenko v Police [2016] NZHC 2572.13 R v Taulapapa [2018] NZCA 414 at [42(a)].conviction to consider the person's merits. The Courts generally assume thatemployers will not be blinded to an applicant's merits by a conviction.[32] In the present case, the evidence before me is that the advertising andmarketing industry is very competitive and that recruiters will cull out applicants witha conviction, without further inquiry. Further, it is the view of Mr Jackson, as anexperienced HR specialist, that Mr Simpson will be overlooked for employmentopportunities and that he is extremely unlikely to progress in the advertising andmarketing field. This is now borne out at least in part by the further evidence which Ihave admitted. It is evidence of the attitude of some prospective employers.[33] I am satisfied on the basis of Mr Jackson's evidence and the further evidencefrom Mr Simpson, that potential employers are very likely to exclude Mr Simpsonfrom consideration because of his conviction. Mr Simpson has spent some time in theadvertising and marketing industry, and he has undertaken and obtained qualificationsin that industry. He is 30 years old, and at a stage in his career where it is not easy tochange occupation, or seek employment in some other industry. I have considered thewider interests of the community. While there is an obvious need to condemndrink/driving offending, there is also a community interest in people being able toobtain gainful employment in their chosen field. I have also considered the variousprinciples set out in ss 7-10 inclusive of the Sentencing Act 2002. In my judgment,granting a discharge without conviction is likely to best assist Mr Simpson'srehabilitation, and is the most appropriate (least restrictive) outcome in the particularcircumstances of this case. By a very fine margin, I am satisfied that the consequencesof the conviction for Mr Simpson are out of all proportion to the gravity of theoffending, notwithstanding that it is moderately serious offending.[34] I now turn to the exercise of the discretion conferred by s 106.[35] Mr Simpson has, but for the matter before the Court, an unblemished record.I accept that he is genuinely remorseful and that he has completed endeavours torehabilitate himself since the incident. I also mindful of the donation he made toWomens Refuge. Insofar as I can gauge, the offending was wholly out of character.In my judgment it is appropriate to allow the appeal and grant Mr Simpson a dischargewithout conviction.[36] The appeal is allowed and the fine and period of disqualification imposed bythe Judge are set aside. Mr Simpson is discharged without conviction.__________________________Wylie J