BASNYAT v NEW ZEALAND POLICE [2018] NZCA 486

BASNYAT v NEW ZEALAND POLICE [2018] NZCA 486 [8 November 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA101/2018[2018] NZCA 486BETWEEN SHREESH BASNYATApplicantAND NEW ZEALAND POLICERespondentHearing: 9 May 2018Court: French, Cooper and Williams JJCounsel: C Mitchell for ApplicantJ E L Carruthers for RespondentJudgment: 8 November 2018 at 11.00 amJUDGMENT OF THE COURTA The application to adduce further evidence is declined.B The application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Williams J)Introduction[1] The District Court refused Mr Basnyat's application for a discharge withoutconviction under s 106 of the Sentencing Act 2002, following a guilty plea for drinkdriving.1 The High Court dismissed Mr Basnyat's subsequent appeal.2 Leave is nowsought to bring a second appeal. The issue raised is whether the Courts below properlyapplied the test for discharge without conviction in s 107 of the Sentencing Act or weredistracted into error by relying on flawed case law.Factual and Procedural Background[2] The facts of the offending were succinctly set out by Brewer J:3[2] On the evening of 26 October 2016 Mr Basnyat was driving inAvondale when he turned into a schoolyard immediately prior to a policealcohol checkpoint. He was stopped by a mobile patrol. When spoken to bypolice, Mr Basnyat exhibited signs of recent alcohol intake. He underwenta breath test and gave a blood sample — the latter generated a blood alcoholreading of 84 milligrams of alcohol per 100 millilitres of blood. When spokento by police Mr Basnyat said he had consumed three bottles of beer prior todriving.[3] On 13 March 2017 Mr Basnyat pleaded guilty to a charge of driving withexcess blood alcohol.4[4] Mr Basnyat is a 31-year-old civil engineer. He is employed as headworksengineer at Watercare Ltd in Auckland. This involves ensuring that the company'swater storage and wastewater assets meet regulatory, operational, financial andwater quality requirements. It is a position of considerable responsibility and someseniority. His supervisor Mr Chaloner-Warman provided an affidavit to theDistrict Court indicating that, but for the convictions which could well have a negativeimpact on his career, Mr Basnyat had the potential to reach "the very highest levels inthe organisation".[5] An affidavit from a practising chartered accountant adduced in the High Court,but not (as far as we can tell) in the District Court, attested to the proposition that inthe deponent's experience as a professional and an employer, a drink driving1 Police v Basnyat [2017] NZDC 21099.2 Basnyat v Police [2018] NZHC 51.3 Basnyat v Police, above n 2.4 Land Transport Act 1998, s 56. The maximum penalty is three months' imprisonment or a finenot exceeding $4,500.conviction is likely to significantly impact on Mr Basnyat's future employmentprospects.[6] Mr Basnyat sought leave in this Court to produce further evidence in the formof an affidavit of his father, Shreedhar Man Singh Basnyat. Mr Basnyat seniordeposed that his son is a fine and upstanding member of the local Nepalesecommunity; that he is a role model for his community; that he is an active contributorto the cultural and sporting life of that community; and that as the eldest son he hassignificant responsibilities to care for the family. The suggestion was that theseresponsibilities and Mr Basnyat's contribution to his community could well benegatively affected as a result of a conviction. The respondent opposed admission ofthis evidence. We will address the merits of this application below.[7] On 18 September 2017, Judge Ellis in the District Court at Auckland declinedMr Basnyat's application for a discharge without conviction, convicted him and finedhim $800 plus court costs and medical fees. Further, Mr Basnyat was disqualifiedfrom driving for six months.5[8] Mr Basnyat appealed to the High Court. Brewer J dismissed the appeal.[9] The matter comes before this Court by way of application for leave to bringa second appeal. Miller J directed that the leave application and the substantive appealbe argued together before the Permanent Court in light of the questions of principlesought to be raised.[10] We consider that the requirements for leave are not met in this case.In particular, no matter of general or public importance arises and there is no risk ofa miscarriage of justice.6 For completeness, however, we also address the substantivemerits of the appeal.5 Police v Basnyat, above n 1, at [14].6 Criminal Procedure Act 2011, s 237(2)(a) and (b).[11] We also dismiss Mr Basnyat's application to admit the further evidence of hisfather. While credible, it is plainly not fresh and for the reasons which follow below,it could not, in any event, affect the outcome of this application.7District Court Decision[12] Judge Ellis considered the facts in this case to be "quite unremarkable".8The Judge was not persuaded that, in terms of s 107, the consequences pointed to inMr Basnyat's case were "out of all proportion" to the seriousness of the offending.9Drink driving was, the Judge considered, "serious anti-social behaviour".10Against that, there was no indication of a likelihood of loss of Mr Basnyat's currentemployment.11 In addition, the Judge considered, while a conviction may affect anyapplications for jobs elsewhere, this is to be expected as a predictable consequence ofthe offence.12High Court Decision[13] In the High Court Brewer J agreed with that assessment. He consideredthe potential employment and travel impacts of the conviction.13 In making hisproportionality assessment, he applied the decision in Linterman v Police.14There 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.15 Since, in Brewer J's view,there was no risk to Mr Basnyat's current employment, it could not be said thatthe employment consequences of a conviction were out of all proportion to the gravityof the offending.16 Concerns with respect to travel were noted but dismissed asunsubstantiated.17 Mr Basnyat had no immediate travel plans.187 Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].8 At [8].9 At [12].10 At [8].11 At [9].12 At [10].13 At [20]–[25].14 Linterman v Police [2013] NZHC 891.15 At [9].16 At [35].17 At [32].18 At [32].Analysis[14] The regime in ss 106 and 107 has been the focus of a number of decisions ofthis Court.19 No purpose would be served in undertaking yet another survey ofthe background to what is now a well-settled approach to the exercise of the discretionin s 106. A brief summary is all that is required. Section 107 provides the thresholdtest for discharges without conviction: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.[15] 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.20 The correctapproach to the s 107 test was set out by this Court in Z (CA447/2012) v R whereArnold J described a four-stage analysis for sentencing courts: 21(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 forthe offender;(c) consider whether those consequences are out of all proportion tothe gravity of the offence; and(d) consider whether, in exercise of the residual discretion in s 106,a discharge should nonetheless be declined.[16] The focus in this application is on whether, despite that settled approach ingeneral offending, the courts have come to develop a different test in respect of drink19 See R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222; Blythe v R [2011] NZCA 190, [2011] 2NZLR 620; and Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142.20 R v Hughes, above n 19.21 Z (CA447/2012) v R, above n 19, at [27].driving. The fault lies, it is said, with the High Court decision in Linterman.22 InLinterman the appellant was a law student whose plans to undertake specialistpostgraduate study in Vancouver would likely have been significantly disrupted if shewere convicted.23 She was a top honours student and a good sportswoman.24 In apassage often quoted by courts applying s 106, Miller J articulated his approach inthese terms:[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-drivingis a pervasive social problem which has brought many good citizens intothe dock and caused the legislature to respond with a sentencing policy thatemphasises personal and general deterrence. Notably, the court may relievean offender of the minimum disqualification period only for special reasonsrelating to the offence. Special reasons relating to the offender will not do.Nor is ignorance of one's alcohol level a defence; a driver who chooses todrink at all takes the risk that for whatever physiological or other reason herlevel will prove higher than she thought. Third, an applicant must identifysome extraordinary consequence of conviction, which is difficult when theordinary consequences are unpleasant. A drink-driving conviction alwayscarries a social stigma and the offender must normally disclose it toa prospective employer, who may wonder whether it evidences poorjudgement or undue fondness for drink, and to immigration authorities, whomay categorise it as evidence of antisocial tendencies.[10] That said, a discharge is available in law for the offence, sothe legislature must be taken to have recognised that some cases may meritone. When granting a discharge a court may make any order that it would berequired to make on conviction, so the policy of the legislation can berespected by imposing a period of disqualification. And under settledprinciples the offender's explanation and good character may be consideredwhen assessing the gravity of the offence and exercising the discretion unders 106 of the Sentencing Act [2002], although the weight accorded these thingsmust be affected by the legislative policy that I have just discussed. Further,the cases indicate that disruption to travel or study plans may justifya discharge if sufficiently proved, although counsel could draw my attentionto no judgment of this Court in which one has been granted or upheld on suchgrounds for drink-driving.(Footnotes omitted.)[17] For Mr Basnyat, Mr Mitchell submitted that to the extent that Linterman is nowroutinely cited and followed by sentencing courts (as it was by Brewer J in this case)the courts are in error. Such reliance had caused them to bypass the four-stage22 Linterman v Police, above n 14.23 At [4].24 At [3].proportionality assessment provided for in the legislation and explained inZ (CA447/2012) v R, and to substitute that with the superficial standards of"exceptional circumstances" and "significant hardship". The law had, it was argued,developed "a bifurcated standard for discharge applications that has no basis inthe authorising statute".25[18] We do not see the problem.[19] Properly construed, Linterman is not a gloss on the statutory test, but rathera statement of the practical consequence of the application of the sections. Drinkdriving is a moderately serious offence when seen by reference to its potentialconsequences and to the pervasiveness of alcohol abuse in our society. That meansthe proportionality scales to be applied at stage three of Z (CA447/2012) v R are, to anextent, tipped by that level of seriousness. The consequences of a conviction mustalso therefore be relatively significant before they are "out of all proportion" tothe moderate seriousness of the offence. It would be different if drink driving werea minor offence, but it is not.[20] But judges must not treat Linterman as if it were a proxy for the statutory test,and they must not exercise their discretion as if the word "exceptional" is to be foundin s 107. By and large they do not, as shown in the survey of 15 High Court decisionsreferred to in the article by Mr Conder which was cited by Mr Mitchell in argument.The learned author concluded as follows:26A close reading of these cases show[s] that exceptionality is not the keycriterion. Rather it is the consequences themselves which must be clear. Thisis consistent with the language of s 107, which requires an explicit balancingact between a moderately serious offence like drink driving andthe consequences which flow from a conviction. It is also consistent withthe careful scrutiny encouraged by Heath J in the Ovtcharenko decision.25 See generally a discussion of the subject in Tim Conder "Exceptionally unexceptional" [2018]NZLJ 21 at 21.26 At 25.[21] Having surveyed these and other decisions for ourselves, we agree with thatassessment.27 But the cautionary language adopted by Heath J in Ovtcharenko v Policeis nonetheless apt:28[20] I agree with Miller J, in Linterman v Police, that applications fordischarges without conviction in alcohol related driving cases should bescrutinised with care. It may, with respect, go too far to say that they oughtonly to be granted in "exceptional" circumstances. As with any other offence,it is necessary to apply the statutory tests. In doing so, the nature of the socialproblem that the legislation is intended to address is something that goes to anassessment of the gravity of the offending.(Footnotes omitted.)[22] The legislative directive is that a proportionate response to driving with a bloodalcohol level above 80 milligrams per 100 millilitres of blood will ordinarily bethe entry of a conviction. All other things being equal that will be the inevitable result.It will therefore be necessary to identify factors either in the offending orthe consequences of a conviction for the offender that show that result is whollydisproportionate. A blood alcohol reading that is only just over the limit will berelevant — placing the gravity of the offending at the low end of moderately seriousas Brewer J indicated — but not enough on its own. There will also be factors personalto the offender, often related to the offending itself, which will go to gravity. Thesemight include the use before deciding to drive of faulty personal breath alcoholchecking devices or the need to drive to assist others in an emergency, and the like.29Youth will also be a relevant factor under this heading.27 Two further High Court decisions from 2017 are consistent with this assessment: Howard v Police[2017] NZHC 2779; and Walford v Police [2017] NZHC 2627.28 Ovtcharenko v Police [2016] NZHC 2572.29 See Waight v Police HC Auckland CRI-2006-404-465, 24 May 2007 at [30]; and Police v Erwood[2007] DCR 728. In Waight v Police, Winkelmann J records at [3]: " The appellant was anewly qualified police officer, who had previously been employed as a technician with the navy.On the night in question he had been at a farewell with his old navy colleagues. He consumedalcohol at that function and, conscious of the law, he conducted two self-tests using the standardAlcotel R80A. Unfortunately the test kit was wrongly assembled, and two readings indicated thathe had not breached the legal limit." The discharge was granted despite the appellant being nearlytwice the limit when stopped. In Police v Erwood, an off-duty rural sole charge police officer hadbeen golfing and drinking with friends. The local fire service siren sounded twice indicating therehad been a serious motor accident in the area. The next nearest police station was an hour awayin New Plymouth. Ambulance services were 25 minutes away. Since he was closer, he decidedhe should attend to help local volunteer fire fighters. He had medical emergency training andoxygen and a defibrillator in his car. He arrived at the scene and rendered assistance beforethe ambulance arrived. According to statements from those in attendance, there was no evidencethat he was impaired in rendering such assistance. He was breathalysed at the scene byNew Plymouth officers when they arrived later. He was discharged without conviction.[23] Specific consequences are required and those have been identified in manycases. They include employment or travel limitations where the risk of impact isappreciable.30 In short, some element of the offending or something inthe circumstances of the offender are required to make the standard response whollydisproportionate.[24] In this case, the argument is Mr Basnyat was only four milligrams overthe limit; he is a capable young engineer working for a reputable infrastructurecompany; he is well regarded with a bright future and likely to require overseas travelas part of his current employment or in search of employment offshore given histransferable skill set; and he is an important contributor to the life of the Nepalesecommunity in Auckland.[25] There is nothing in particular about the offending that reduces its gravity belowthe low end of moderately serious. Mr Basnyat pulled into a schoolyard before beingstopped so was plainly aware that he was at risk of being over the limit. Whilethe degree of excess was small, that alone will not be sufficient to justify a discharge.More will be required. In this case Mr Basnyat is young, but at 31, not so young thatit might be said the gravity of the offending is mitigated thereby, or thatthe consequences for him will be disproportionate. It is acknowledged that he is ina responsible position with a bright future, but that is not an uncommon circumstance,at least among those employed in responsible positions. As we have said, excessalcohol consumption is pervasive in New Zealand.[26] In any event Mr Basnyat's job is not at risk. His supervisor suggests thata conviction may prejudice Mr Basnyat's prospects of promotion withinWatercare Ltd, but no particular policy or practice of the company in relation to drinkdriving convictions was identified and the supervisor himself seemed very supportiveof Mr Basnyat's future prospects. We would not, overall, attach significant weight tothis particular risk.[27] We accept that the risk of his conviction having an impact is greater if andwhen Mr Basnyat chooses to seek employment elsewhere. All other things being30 Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20].equal, similar candidates without convictions are likely to be preferred to those withconvictions. But that is a relatively narrow set of circumstances. We do not knowhow common it is for candidates to be separable only by their criminal record.On the other hand, if Mr Basnyat is as valued by his current employer as his supervisorsuggests, any such handicap could well be overcome by the sort of work or characterreferences one would expect in that circumstance. Thus the potential impact can onlybe speculation at this point, or at least insufficiently real and appreciable to justifya conclusion that the impact of a conviction would indeed be out of all proportion.[28] As for travel, Mr Mitchell's argument was unconvincing. He pointed to entryconstraints in Canada where Mr Basnyat might wish to travel for business conferencesor work. But a perusal of the Immigration Canada website, details of which wereprovided by Mr Mitchell, indicates that a person in Mr Basnyat's situation is verylikely to be granted entry albeit not as of right. The inconvenience for him will be thathe must apply for entry. This is hardly disproportionate to the moderate seriousnessof this offending.Result[29] The application to adduce further evidence is declined.[30] In light of our view of the effect of Linterman, no issue of general or publicimportance arises because neither Judge Ellis in the District Court, nor Brewer J inthe High Court strayed from the terms of the statutory test. There is also no risk thata miscarriage of justice may have occurred, or may occur unless the appeal is heard,given our view of the merits. We accordingly decline to grant leave to appeal.Solicitors:Crown Law Office, Wellington for Respondent