MILBURN v NEW ZEALAND POLICE [2022] NZHC 1238

MILBURN v NEW ZEALAND POLICE [2022] NZHC 1238 [31 May 2022]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2022-419-18[2022] NZHC 1238BETWEEN STEPHEN SAMUEL AMITTAI MILBURNAppellantAND NEW ZEALAND POLICERespondentHearing: 23 May 2022Appearances: M L Jepson for appellantB B Harris for respondentJudgment: 31 May 2022JUDGMENT OF HARLAND JThis judgment was delivered by me on 31 May 2022 at 2:30 pmRegistrar/Deputy Registrar Date..Solicitors/Counsel:M L Jepson, HamiltonCrown Solicitor, HamiltonIntroduction[1] The appellant, Mr Milburn, appeals the decision of the District Court refusingto grant an application to discharge him without conviction following his plea of guiltyto one charge of careless or inconsiderate vehicle operation causing injury.1[2] The appeal is opposed by the respondent.Background facts[3] Mr Milburn is 18 years of age. On Saturday, 3 July 2021 (when he was 17) hewas driving a Toyota utility vehicle east along Bell Road at Ngāhinapōuri. Bell Roadis a rural road with a speed limit of 80 kilometres per hour. His brother Daniel, thevictim, was his passenger.[4] Mr Milburn lost control of the vehicle while driving around a bend. Thevehicle skidded, then rolled. His brother received serious injuries including a fracturedskull, a traumatic brain injury, scalp injuries, a fractured left shoulder blade, twofractured ribs, a broken finger, lacerations and extensive damage to his right hand.[5] After the accident Mr Milburn said to a member of the public, who was present,that he was going too fast and "lost it". This comment was specifically referred to bythe Judge in his sentencing notes, a matter I return to shortly.[6] In the affidavit Mr Milburn presented to the District Court, he outlined that theaccident occurred sometime after 9.30 am on a winter morning. He said that it wascold and, although he could not be certain, there may have been ice on the road. Inthe restorative justice report, also available to the District Court Judge, Mr Milburnexplained that it was the first hard frost of the year and he believed there was ice onthe road. At sentencing it was submitted that the presence of ice may have contributedto the loss of control of the vehicle. This is also a matter I return to later in thisjudgment.1 Land Transport Act 1998, s 38: maximum penalty three months' imprisonment or a fine of $4,500.The Court must also order disqualification from driving for at least six months.The judgment under appeal[7] On 22 March 2002, Mr Milburn appeared before Judge Mabey QC at theDistrict Court at Te Awamutu for sentence, having earlier pleaded guilty to the charge.2He advanced an application to be discharged without conviction under s 106 of theSentencing Act 2002 (the Act). The Act provides that the Court may discharge adefendant without conviction if it is satisfied that the direct and indirect consequencesof a conviction would be out of all proportion to the gravity of the offence.3[8] As well as the summary of facts, a victim impact statement and submissionsfrom Mr Milburn's then counsel in favour of the s 106 application, as alluded to abovethe Judge also had before him an affidavit from Mr Milburn and a full restorativejustice conference report.[9] The Judge began by referring to Mr Milburn's affidavit, the restorative justiceconference report and the victim impact statement.4 He noted Mr Milburn's brotherwas recovering quickly and denied any emotional harm. The Judge said it wasimportant to note that in the restorative justice report Mr Milburn's brother made itclear that he did not want Mr Milburn to suffer any sanction as a result of what hadoccurred.[10] The Judge then noted that, in his affidavit, Mr Milburn said he was driving atthe notified speed limit. The Judge said this was "contrary to what was said at thescene". The Judge then observed:[4] He says his Ute began swerving and did so about three times, thenhe lost control. The car flipped. He speculates there might have been ice onthe road. That is not supported by any police observations or anyone who waspresent at the scene. Understandably, it is an after the fact rationalisation ofwhat might have happened, but the true position as I see it must be as Stephensaid to a bystander immediately after the accident that he was going too fast.That is the carelessness which leads to his guilty plea.2 No conviction was entered at the time the plea was made as it was indicated an application for adischarge without conviction would be made.3 Sentencing Act 2002, s 107.4 Police v Milburn [2022] NZDC 4847.[11] With further reference to Mr Milburn's affidavit, the Judge next referred to theassistance Mr Milburn provided to his badly injured brother and noted that he hadsuffered since the accident because he had injured his brother. The Judge also referredto the assistance Mr Milburn had given his brother during his recuperation.[12] The Judge then addressed Mr Milburn's concern that a conviction could resultin him losing his job as an apprentice builder because he was required to drive a vanto and from work. He noted that this concern was not independently substantiated byMr Milburn's employer, but in any event, the Judge said, and counsel accepted, thatMr Milburn could apply under s 103 of the Land Transport Act for a limited worklicence after the mandatory one month stand down period.[13] The Judge also referred to the submission that Mr Milburn needed his licenceto take his brother to and from his appointments. He observed that other familymembers were likely to be available for that purpose during the one month stand downperiod.[14] The Judge did not place much weight on the submission that a conviction mighthinder Mr Milburn's chances of acquiring a firearms licence. He accepted, however,that the stigma of a conviction was an important consideration, but correctly observedthat it is only one factor to be considered when applying ss 106 and 107 of the Act.[15] The Judge then referred to the two-step process required to be undertaken whendetermining an application for a discharge without conviction.[16] The Judge first addressed the gravity of the offending. In doing so, he firsttook into account matters personal to Mr Milburn, accepting that a number were in hisfavour, including his youth, lack of previous convictions, early guilty plea, his apologyto his brother, his engagement in formal restorative justice and his brother's view thathe did not want Mr Milburn to suffer any consequence at all. In relation to theoffending the Judge had already noted Mr Milburn's submission about the speed hewas travelling and his suggestion there may have been ice on the road.5 He assessed5 Police v Milburn, above n 4, at [4]the gravity of the offence as low to moderate, following this finding with remarksabout speed,6 and concluded that Mr Milburn had been "going too fast".7[17] The Judge considered the likely direct and indirect consequences of aconviction, noting that "it is a question of likelihood and not certainty",8 and that theconsequences are required to be out of all proportion to the gravity of the offending.The Judge was not satisfied that they were. He was not satisfied that Mr Milburnwould lose his job or that the stigmatic effect of a conviction for careless vehicleoperation causing injury would be so severe that it would be out of all proportion tothe gravity of the offending. The Judge acknowledged Mr Milburn was suffering fromwhat he had done to his brother, but he considered a conviction would not addconsiderably to that grief, as Mr Milburn would "need to deal with that whetherconvicted or not".9[18] The Judge refused Mr Milburn's application for a discharge without convictionas he concluded the grounds for it had not been made out.[19] Taking into account Mr Milburn's age, his early guilty plea, his lack ofprevious convictions and remorse, as well as the degree of carelessness, the Judgeconvicted Mr Milburn and fined him $500, ordered him to pay costs of $130, anddisqualified him from holding or obtaining a driver's licence for the minimum periodof six months. No issue is taken with this sentence if the appeal against the refusal togrant a discharge without conviction fails.Legal principles[20] An appeal against a refusal to grant a discharge without conviction is an appealagainst both conviction and sentence.10 The basis for determining such appeals wasoutlined by the Court of Appeal in Jackson v R where it held:116 Police v Milburn, above n 4, at [13]–[15].7 At [14].8 At [12].9 At [12].10 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [9].11 At [12].[12] we are satisfied that the principled basis for determining an appealagainst a discharge without conviction is to establish that a miscarriage ofjustice has occurred by virtue of a material error by the sentencing judge inentering a conviction. That is because a trial includes a proceeding in whichthe appellant has pleaded guilty. Alternatively, it can be said that a miscarriageof justice has occurred "for any reason" if the Judge has erred in applying theprinciples for discharging an offender without conviction found in s 107 of theSentencing Act.[21] I agree that this means that an error must be identified by the appellant. TheCourt will then consider if the error resulted in a miscarriage of justice. If so, theconviction will be set aside. The Court of Appeal adopted this approach inOvtcharenko v Police.12[22] Mr Jepson submits the material error of the Judge in the District Court andtherefore the miscarriage of justice is the:(a) incorrect finding the appellant was speeding;(b) focusing on the effect on the appellant's employment and loss oflicence;(c) not giving appropriate weight to the views of the victim that he wantedthe appellant "off with this charge";(d) not giving appropriate weight to the effect a conviction would have ona young man of 19; and(e) not giving appropriate weight to the psychological effect of having torelive the events at times when a conviction may need to be disclosedor explained.Discussion[23] I start by assessing whether the Judge determined that the appellant wasspeeding and if so, whether it was speeding in excess of the speed limit or speedingwithin the speed limit but not in accordance with the conditions.12 Ovtcharenko v Police [2017] NZCA 65.[24] I have already referred to paragraph [4] of the Judge's decision where headdressed Mr Milburn's suggestion that there may have been ice on the road and thathe was driving at the notified speed limit. In relation to the presence of ice on theroad, the Judge referred to this as speculation because he said it was not supported byany Police observations or anyone who was present at the scene. However, in hissubmissions before me, Mr Jepson advised that the Police did not arrive at the sceneuntil an hour after the accident. It is also not clear what observations from others atthe scene the Judge was referring to, as this is not revealed in the summary of facts.[25] I have already referred to the contents of Mr Milburn's affidavit about thepotential for the presence of ice on the road and his explanation recorded in therestorative justice report. As well, Mr Milburn deposed that he is very familiar withthe roads he and his brother were travelling on that morning as they had travelled fromHamilton to Pirongia to drop off a trailer to their grandparents and, as he noted, heregularly visits his grandparents.[26] Although I acknowledge that independent evidence about the weather thatmorning could have been provided and was not, the basis for the Judge's finding thatthe presence of ice on the road was speculation cannot be made out by reference toany matters he considered.[27] As well, it appears that the Judge did not accept that Mr Milburn was drivingat the notified speed of 80 kilometres per hour limit, because he said this was "contraryto what was said at the scene". This comment can only relate to Mr Milburn'sexplanation referred to in the summary of facts where he stated to a witness he was"going too fast and lost it." The important point is however that this comment couldapply equally to travelling in excess of the speed limit or within the speed limit inconditions which meant it was not safe to travel even at the stated speed limit.[28] As well, and in relation to the gravity of the offending, the Judge said:[13] I assess the gravity of the offence as low to moderate. Young men andwomen speed, so do older men and women. Speed is dangerous and has beendemonstrated in this case. People die or are seriously injured. It is not asMs Beech has submitted a momentary lapse such as might occur whenchanging the station on a radio, changing a CD or turning to speak to childrenin the back seat.[14] The decision to speed is conscious and deliberate and involves puttingthe foot down in circumstances where it becomes careless and sometimes evendangerous. It is not momentary. Stephen's own words at the scene that hewas going too fast and lost it demonstrate that.[15] So, I have reached the conclusion that against a low to moderatelyserious act of careless use of a motor vehicle causing injury the direct orindirect consequences of a conviction, as detailed to me, are not out of allproportion to the gravity of the offence.[29] I accept Mr Jepson's submission that an inference from these passages is thatthe Judge may well have determined that Mr Milburn was travelling above the80 kilometre per hour speed limit. However, I agree that an equally available inferencefrom Mr Milburn's comment at the scene is that he was not travelling above the speedlimit, but the weather conditions were such that travelling at the speed limit was notappropriate. In either scenario, the speed at which Mr Milburn was travelling couldhave contributed to the accident, however his culpability for the speed at which he wastravelling could well be assessed to be less if he was travelling at or under the speedlimit.[30] There was no obligation for the Judge to accept inferences more favourable toMr Milburn.13 But, as Mr Jepson submitted, the problem is that it is impossible todiscern what impact the latter inferences would have had on the Judge's assessment ofthe gravity of the offending.[31] Although the basis for these inferences was referred to, I am not satisfied thatthey were presented to the Judge in such a direct way as I have laid out. This is notsurprising, given that the matter would have been dealt with in a busy circuit Courtlist. Despite this, technically an error can be established because the two availableinferences were not analysed, and it is not clear what impact that has had on the Judge'sassessment of the gravity of the offending and thereafter on the exercise of hisdiscretion.13 R v Tallentire [2019] NZHC 1749; Edwardson v R [2017] NZCA 618; Hutchins v R [2016]NZCA 173 at [31].[32] In relation to the remaining matters referred by Mr Jepson, I am not persuadedthat the Judge made any error. The Judge considered Mr Milburn's employment andloss of licence, but I am not persuaded that he focused unnecessarily on them. Neitheram I persuaded that the Judge failed to give appropriate weight to the views of thevictim. The Judge referred to the restorative justice report and the victim impactstatement, as well as the fact that Mr Milburn's brother did not want him to be subjectto any sanction. Nor am I satisfied that the Judge failed to give appropriate weight tothe age of the appellant or the psychological effects on him. I am not persuaded byMr Jepson's argument that every time Mr Milburn is required to disclose or explainhis conviction, this will inevitably require him to relive the events that occurred. Theappropriate place to deal with this sort of issue is in a therapeutic environment, butthere is no evidence that steps have been taken to engage such assistance.[33] In addition, Mr Harris submitted the Criminal Records (Clean Slate) Act 2004applies to the appellant, which means that after seven years this conviction will nolonger be required to be disclosed in New Zealand. I accept that it could be requiredin certain countries when and if the appellant travels overseas, however I am notpersuaded, given the nature of this offending and the penalty imposed, that this wouldprovide any difficulties for him.[34] As outlined above, an appeal against a refusal to grant a discharge withoutconviction is an appeal against both conviction and sentence, but primarily againstconviction. It is necessary to establish that a miscarriage of justice has occurred byvirtue of a material error by the sentencing Judge in entering a conviction or if theJudge erred in applying the principles found in s 107 of the Act.14[35] The question for me is therefore whether the errors in relation to the potentialfor ice on the road and whether Mr Milburn was exceeding the speed limit resulted ina miscarriage of justice.[36] I am not persuaded they did. The Judge assessed the gravity of Mr Milburn'soffending as to low moderate, an assessment which was open to him and which, in allthe circumstances, was fair. Mr Milburn had pleaded guilty to careless driving causing14 Jackson v R, above n 10, at [12].injury, and was by his own admission driving too fast. Drawing the inference mostfavourable to Mr Milburn would have a relatively small mitigating effect on hisculpability and on the overall assessment of the gravity of the offending.[37] I have already determined that the Judge made no error in assessing theconsequences of conviction on Mr Milburn as low. Those consequences could not,therefore, have been out of all proportion to the gravity of the offence.Result[38] The appeal is dismissed.Harland J