BURNS v NEW ZEALAND POLICE [2023] NZHC 2585

BURNS v NEW ZEALAND POLICE [2023] NZHC 2585 [15 September 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2023-485-042[2023] NZHC 2585BETWEEN PATRICIA BURNSAppellantAND NEW ZEALAND POLICERespondentHearing: 15 September 2023Counsel: Z S Meehan for AppellantR G Buckman for RespondentJudgment: 15 September 2023JUDGMENT OF CHURCHMAN JIntroduction[1] The appellant pleaded guilty in the District Court to one charge of driving withexcess breath alcohol (EBA).1 Judge Tompkins rejected an application for a dischargewithout conviction under s 106 of the Sentencing Act 2002. The appellant was finedthe sum of $400 and disqualified from driving for six months. As a result of the breathlevel involved, the appellant was subject to the alcohol interlock regime.[2] The appellant sought leave to appeal out of time. The reason that leave is saidto be necessary is that counsel failed to act promptly upon instructions to appeal whichwere given within the requisite 20-day working period.1 Land Transport Act 1998, s 56(1) — maximum penalty three months' imprisonment or $4,500fine.[3] A notice of general appeal was filed challenging the failure to discharge theappellant without conviction.[4] The principal issue raised is whether the Judge was correct in finding that theconsequences of conviction were not out of all proportion with the gravity of theoffence.[5] The issues raised on appeal are capable of serious argument. The failure to filethe appeal in time was the fault of counsel rather than the appellant. Leave is notopposed by the respondent. I therefore grant leave to appeal.Relevant facts[6] At 5:45pm on Sunday 11 September 2002, the appellant was stopped for acompulsory breath test in Upper Hutt. The test revealed a reading of 812 microgramsof alcohol per litre of breath. The appellant's explanation was that she had consumedseveral glasses of wine after work and prior to driving home. The driving was notaccompanied by any aggravating features. The appellant pleaded guilty promptly. Noconviction was entered at the time of the plea as the appellant wished to pursue anapplication for discharge without conviction.[7] That application was heard on 14 June 2023 and dismissed.2[8] At the time of sentencing, the appellant's driver's licence was suspended as aresult of medical issues.[9] Although the appeal was against the failure to discharge without conviction,Mr Meehan has indicated that the appellant does not challenge the order fordisqualification.Points in contention on appeal[10] In the District Court, the Police had opposed the application for dischargewithout conviction and had referred the Judge to the 2013 decision of Miller J in the2 Police v Burns [2023] NZDC 12242.High Court in Linterman v Police.3 The Judge noted that in Linterman, Miller J hadexpressed the view that discharges without conviction for driving with excess breathalcohol ought to be exceptional.4[11] The appellant refers to the decision of the Court of Appeal in Basnyat v Police,5where the Court had indicated that the approach of treating the test in s 107 of theSentencing Act as if the word "exceptional" was found there was an error. In that case,the Court of Appeal said, in relation to Linterman:[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 byreference to its potential consequences and to the pervasiveness of alcoholabuse in our society. That means that the proportionality scales to be appliedat stage three of Z (CA447/2012) v R are, to an extent, tipped by that level ofseriousness. The consequences of a conviction must also therefore berelatively significant before they are "out of all proportion" to the moderateseriousness of the offence. It would be different if drink driving were a minoroffence, but it is not.[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 [12] The appellant submits that the Judge has done exactly what the Court of Appealsaid should not be done.[13] The appellant also submits that the District Court Judge did not explicitly gothrough the process of assessing the gravity of the offending. It was conceded that theJudge did go through the consequences of conviction in forming the view that theywere not out of all proportion to the gravity of the offending.The correct legal approach[14] Section 107 of the Sentencing Act provides:The 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.3 Linterman v Police [2013] NZHC 891.4 Police v Burns, above n 2, at [13].5 Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344.[15] Both counsel accept that the proper approach in interpreting s 107 is thethree-step approach set out by the Court of Appeal in Prasad v R:6(a) identification of the gravity of the particular offence, taking intoaccount all aggravating and mitigating factors of the offending and theoffender;(b) identification of the direct and indirect consequences of conviction;and(c) a determination of whether those consequences are "out of allproportion" to the gravity of the offence.[16] Once the threshold set out in s 107 has been met, the Court then considers itsresidual discretion under s 106. There must be a "real and appreciable" risk that anygiven consequence will happen in the future.7[17] Mr Meehan submitted that the gravity of the offending was moderate. Heacknowledges that driving with an excess breath alcohol of 812 micrograms per litreof breath in itself could be described as moderately serious but submitted that thefactors which reduced the gravity of the offence to that of being moderate were:(a) the level of 812 micrograms per litre of breath was just above the 800micrograms level that triggers a mandatory alcohol interlock sentence;(b) there was no other driving fault;(c) the appellant pleaded guilty early;(d) she was previously of good character; and(e) she attended an alcohol counselling course run by the Salvation Army.[18] Particular emphasis was put on the fact that the appellant was to be a witnessfor the prosecution in a serious criminal trial and was upset at having been told,6 Prasad v R [2018] NZCA 537 at [11].7 At [11].approximately a week prior to the drink driving incident, that the hearing in that matterwas to be adjourned for a substantial period of time.[19] I accept that, as her only prior conviction is for careless driving in 1995, theappellant can claim the benefit of good character. I also accept that she would havebeen stressed as a result of having to give evidence in the criminal matter. Hercompletion of what was described by the sentencing Judge as a brief alcohol and drugabuse intervention programme where she was assessed as not meeting the criteria foralcohol use disorder is also a positive factor. However, all of these matters werespecifically considered by the Judge.[20] I do not accept that the fact that the breath alcohol reading was "just above"the level that triggered a mandatory alcohol interlock sentence is a factor whichreduces the gravity of the offending. The reality is that the interlock regime wasimplemented to deal with people who have driven while significantly intoxicated.Rather than being a mitigating factor, a reading of 812 micrograms confirms that theappellant was significantly impaired by her alcohol consumption at the time of driving.It is therefore an aggravating factor.[21] I assess the combination of factors as warranting a categorisation of the gravityof the offending as being moderately serious.[22] The next issue for me to determine is what the direct and indirect consequencesof the entry of a conviction would be for the appellant.[23] The evidence before the Court as to the potential consequences of a convictionwas somewhat confusing. The appellant had filed an affirmation which said she wasemployed at a rest home as a diversional therapist. That role required the appellant tohold a driver's licence so that she could drive residents to appointments or activities ifrequired. The affirmation indicated that the appellant had told her original managerabout the prosecution but that this manager had since left and she had not told her newmanager.[24] It was also clear that the appellant had her licence suspended as a result ofhealth issues but did not seem to have had her employment terminated as a result ofthat. Mr Meehan confirmed in oral submissions that the appellant had resigned fromher employment about a month before sentencing and that, at that she was bothmedically unfit for work and had had her driver's licence suspended for medicalreasons. At the time of the sentencing, she had been cleared medically to resume workbut had not had her driver's licence reinstated.[25] As was noted in the decision,8 counsel had put before the Court what wasdescribed accurately by the Judge as "very generalised advice from a human resourcesconsultant" to the effect that a person seeking employment in the particular area wherethe appellant worked would be required to complete a criminal conviction backgroundcheck based on role type.[26] Counsel conceded that the appellant was not able to put forward evidence thatshe would not be considered for roles in the aged care industry as a result of the entryof a conviction, but emphasised that the Court need only be satisfied that there was areal and appreciable risk that the relevant consequence would happen.9[27] In support of his contention that a conviction was out of all proportion to thegravity of the offending, Mr Meehan relied heavily on the decision in Simpson vPolice.10 That case involved a 30-year-old first offender who had an excess breathalcohol reading of 965 micrograms per litre of breath. The Judge in that case haddetailed information before him as to the consequences of a conviction on theappellant's career.[28] The facts of that case had a number of significant differences to the presentcase. The principal ones are that the appellant had known that he would be drinkingat a work-related cocktail function. He therefore arranged to spend the night at hisparents' home which was across the road from where the function took place to ensurethat he would not be driving anywhere after drinking. He slept there on the night after8 Police v Burns, above n 2, at [9].9 Referring to DC (CA47/2013) v R [2013] NZCA 255 at [43].10 Simpson v Police [2020] NZHC 2254.the function. At 2:15pm in the afternoon of the following day, he drove home and wasapprehended. He had not had anything to eat that day and was unaware that he wouldstill be over the limit for driving.[29] The appellant in that case had lost his employment and since being convictedhad applied unsuccessfully for some 30 jobs in the industry that he had worked in.The judgment recorded that the appellant had completed a New Zealand AdvancedDriver Training Course and made a charitable donation of $1,000 to Women's Refuge.[30] The Judge in Simpson referred specifically to the affidavit evidence of anexpert who deposed:11I can say unequivocally that the applicant will be overlooked for employmentopportunities within [his chosen] industry should he obtain a criminalconviction of this nature on his record.[31] The Judge on appeal concluded that the Judge at first instance had inaccuratelyrecorded this witness' evidence and that the witness had not said that it "would bedifficult" for the appellant to obtain work in the industry but rather that he would "beoverlooked" and that it was "extremely unlikely" that the appellant would progress inthe industry.[32] The Judge also referred to the importance of the appellant's evidence that hehad been unsuccessful in over 30 job applications since being dismissed. The Judgeconcluded that there was a real and appreciable risk to the appellant's future careerprospects in his chosen field as a result of a conviction.12[33] The Judge then turned to assess whether there was a real and appreciableconsequence that was out of all proportion to the gravity of the offence. The Judgereferred to a number of factors identified by Miller J in Linterman, being:13(a) in the hands of a drunk, a car is a dangerous thing;11 At [25].12 At [26].13 At [28], referring to Linterman v Police, above n 2, at [9].(b) good character and extenuating personal circumstances normally countfor little;(c) drink driving is a pervasive social problem and the legislature hasresponded with a sentencing policy that emphasises personal andgeneral deterrence;(d) an application must identify some extraordinary consequence ofconviction, which is difficult when the ordinary consequences areunpleasant;(e) a drink driving conviction always carries a social stigma and theoffender must normally disclose the conviction to a prospectiveemployer, who may wonder whether it evidences poor judgement or anundue fondness for drink, or antisocial tendencies.[34] The Judge in Simpson placed great weight on the unequivocal affidavitevidence of the industry expert and the extensive history of unsuccessful jobapplications by the applicant following conviction. He was satisfied "[b]y a very finemargin"14 that the consequences of the conviction were out of all proportion to thegravity of the offending, notwithstanding his conclusion that the offending wasmoderately serious.[35] In exercising his discretion under s 106, the Judge said he was mindful of thedonation that the appellant had made to the Women's Refuge, and he held it wasappropriate to grant a discharge without conviction. The appeal was allowed and thefine and period of disqualification imposed were set aside.Discussion[36] Each case must be considered on its own facts. While there are somesimilarities between the facts of the present case and the facts in Simpson, there arealso significant differences as outlined in [28]–[30] above.14 At [33].[37] The most important of these differences is the nature of the evidence as to thepotential consequences of the entry of a conviction. The evidence in the present caseis far more equivocal. In my assessment, it does not meet the threshold of establishingthat there is a real and appreciable risk that the appellant will be unable to obtain otheremployment in her chosen industry.[38] I accept that the District Court Judge in the present case appears to haveapproached his task on the assumption that the case of Linterman effectively insertsthe word "exceptional" into s 107 and that the Court of Appeal has clearly said inBasnyat that this is wrong.15[39] While the decision in Linterman does contain some helpful commentary on thereasons why drink driving offences are regarded as being moderately serious, thePolice should not submit the case to District Court Judges as a guiding authority unlessthey also make it clear that the Court of Appeal has clarified that the reference to"extraordinary" circumstances must not be seen as a proxy or substitute for the correctstatutory test.Outcome[40] An appeal against a refusal to discharge without conviction is conducted byway of rehearing.16 I have undertaken such a rehearing. In accordance with thethree-step process outlined in Z (CA447/12) v R, I have concluded:17(a) weighing all the aggravating and mitigating factors, the offending ismoderately serious;(b) the consequences of a conviction are common to all those convicted ofsimilar drink driving offences, principally publicity, loss of reputationand disqualification from driving, but in this case do not establish thecontention that there is a real and appreciable risk that the appellant willbe unable to obtain work in her chosen industry in the future; and15 Basnyat v Police, above n 5, at [20].16 See Gaunt v Police [2017] NZCA 590 at [10].17 Z (CA447/12) v R [2012] NZCA 599.(c) the consequences of the offending and resultant conviction are not outof all proportion to the gravity of the offence.[41] The appeal is therefore dismissed.Churchman JSolicitors:Public Defence Service, Wellington for AppellantCrown Solicitor, Wellington for Respondent