ANDREWS v NEW ZEALAND POLICE [2019] NZHC 2547

ANDREWS v NEW ZEALAND POLICE [2019] NZHC 2547 [7 October 2019]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI 2019-463-57[2019] NZHC 2547BETWEEN TAHLIA JOY IRENE ANDREWSAppellantAND NEW ZEALAND POLICERespondentDate of hearing: 7 October 2019 (at Rotorua)Appearances: T J Conder and EJT Sherratt for the appellantR W Jenson for the respondentDate of judgment: 7 October 2019ORAL JUDGMENT OF JAGOSE JSolicitors/Counsel:Holland Beckett, TaurangaPollett Legal Limited, Tauranga[1] Tahlia Andrews pleaded guilty to driving with excess breath alcohol.1 Sheunsuccessfully sought a discharge without conviction and was convicted, fined anddisqualified from driving by Community Magistrate Shaun Cole on 29 March 2019.2[2] Ms Andrews subsequently appealed to the District Court, arguing theCommunity Magistrate's decision was wrong and the penalty imposed manifestlyexcessive.3 On 6 June 2019, Judge I D R Cameron in the District Court at Taurangaallowed the appeal in relation to sentence (reducing the fine imposed from $700 to$300) but declined the appeal against refusal to grant a discharge without conviction.[3] Ms Andrews now seeks leave to bring a second appeal against the decision ofthe District Court to refuse her application for discharge without conviction. Nochallenge is made to the fine and disqualification period imposed.4Background[4] At approximately 3 am on Saturday, 9 February 2019, Ms Andrews was drivingon Ferry Road in Taupō. The area has a speed limit of 50 kilometres an hour. Drivingconditions were favourable and traffic was minimal. Ms Andrew's partner was sittingin the passenger seat. Without warning, he pulled on the vehicle's handbrake.Ms Andrews lost control and the vehicle collided with a power pole. Attending policenoted she exhibited signs of recent alcohol intake. A breath test revealed her breathcontained 782 micrograms of alcohol per litre of breath, more than three times thelegal limit.5[5] Ms Andrews said she knew she should not have driven but was trying toremove herself from a bad situation. She had been drinking with friends earlier in theevening and became separated from them. She was followed by a group of unknownmen, after which she went to her vehicle to "recover from the ordeal". Her partner of1 Land Transport Act 1998, s 56(1).2 Police v Andrews DC Tauranga CRI-2019-069-000188, 29 March 2019.3 Police v Andrews [2019] NZDC 10876.4 Ms Andrews was disqualified from driving for six months (the mandatory disqualification periodunder s 56(3) of the Land Transport Act 1998).5 The limit is 250 micrograms of alcohol per litre of breath: Land Transport Act, s 11(a).around 12 months joined her, and the two argued. Her decision to drive the vehicle issaid to be a result of her desire to remove herself from that stressful situation.[6] Ms Andrews has ongoing mental health difficulties. She suffers fromborderline personality disorder, anxiety, depression and post-traumatic stress disorder.She has experienced serious family violence in the past, a history which her counsel,Tim Conder, says forms the background to her current offending.Community Magistrate's decision[7] The Community Magistrate applied the orthodox four-stage approach to anapplication for discharge without conviction.6 In assessing the gravity of the offending,the Magistrate considered Ms Andrews' "high reading" of 782 micrograms of alcoholper breath an aggravating factor. But she acknowledged Ms Andrews was "underunique stress as a result of [her] personal history, mental health condition and theevents of that night".7[8] The consequences of conviction included employment repercussions (thepotential loss of a career as a Corrections officer) and potential restrictions on travel(Ms Andrews had a planned trip to the United States). The Magistrate did not expresslyhold the consequences of conviction would be out of all proportion to the gravity ofthe offending. But, given she discussed exercise of her s 106 discretion, I infer thatwas her conclusion.8[9] Ultimately, the Magistrate was not prepared to discharge Ms Andrews withoutconviction. Her breath alcohol reading was high, the consequence of which meantpotential risk to the public, Ms Andrews and her partner.9 A $700 fine was imposed,and Ms Andrews was disqualified from driving for six months.6 See Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344 at [15].7 Police v Andrews, above n 2, at [10].8 Rahim v R [2018] NZCA 182 at [5].9 Police v Andrews, above n 2, at [22].District Court decision[10] On first appeal, the Judge characterised Ms Andrews' offending as "moderatelyserious".10 While Ms Andrews' mental health difficulties were noted, the Judgeconsidered Ms Andrews had "made a conscious and deliberate decision to drive thevehicle knowing that she had consumed a significant quantity of alcohol".11 Further,the Judge found it "difficult to see how driving away in the vehicle was going toremove the defendant from the stressful situation she found herself in".12 Alternativeswere available. The Judge acknowledged there were several mitigating features ofboth the offending and Ms Andrews herself – she has no prior convictions, mentalhealth difficulties, and is only 26 years old. But the Judge considered it clear thatMs Andrews knew what she was doing was wrong.[11] The Judge accepted a conviction would effectively mean Ms Andrews wouldbe unable successfully to reapply to be a Corrections officer but held there was nosuggestion a conviction of this type would prevent her obtaining employment in thefuture. Similarly, the Judge considered there was no real evidence the convictionwould preclude her from visiting the United States. The consequences were not out ofall proportion to the gravity of the offending; the appeal against refusal to grant adischarge without conviction was declined. Given the mitigating features of theoffending, the Judge reduced the fine imposed from $700 to $300.Issues on appeal[12] Mr Conder says the District Court Judge failed to have regard to Ms Andrews"unique characteristics", specifically her mental health and history of being a victimof family violence. Mr Conder says this failure means Ms Andrews "was held to anunrealistic standard" as to the availability of alternatives, causing the Judge to err inhis assessment of Ms Andrew's culpability. That, Mr Conder says, is a miscarriage ofjustice.10 Police v Andrews, above n 3, at [14].11 At [9].12 At [9].Further evidence[13] Mr Conder seeks leave to adduce an affidavit sworn by Alison Towns, aregistered clinical psychologist. Dr Towns discusses how victims of family violencemay make apparently irrational decisions, and details the psychological processMs Andrews was experiencing when she made the decision to drive while intoxicated.It does not appear Dr Towns assessed Ms Andrews personally. Her conclusions relyon Ms Andrews' affidavit and the District Court judgment. There is no criticism ofDr Towns. I understand from Mr Conder she was conducting this essentially on a probono basis.[14] Leave is granted if the interests of justice favour admission of new evidenceon appeal.13 If the evidence is both fresh and credible, it should generally beadmitted.14 I have some reservations under both heads:(a) the evidence is not fresh. It is to explain, as a victim of family violence,the counterintuitive constraints on Ms Andrews' options and actions inthe circumstances leading up to the offending. The point has been atissue throughout; and(b) to the extent Dr Towns' opinion is to be taken literally – as explainingwhat Ms Andrews "would have" perceived, and "the psychologicalprocess [she] was undergoing at the time of the incident" – it goesbeyond the bounds of her expertise and constitutes an impermissibleexercise in advocacy.15But, taken more generically – that victims of family violence have a heightenedawareness of and response to risk to personal safety, characterised by assertions ofcoercive control, and may be counselled to remove themselves from such situations toone of quiet and safety – I am prepared to admit Dr Towns' affidavit in the interests ofjustice as providing such insight. The Crown does not oppose, for that reason.13 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119]; and Bain v R [2007] UKPC 33, (2007)23 CRNZ 71 at [34].14 Lundy v R, above n 13, at [120].15 High Court Rules 2016, r 9.43 and Schedule 4.Approach on appeal[15] An appeal against a refusal to grant a discharge without conviction is an appealagainst conviction and sentence.16 I must not grant leave for a second appeal unlesssatisfied the appeal involves a matter of general or public importance, or a miscarriageof justice may have occurred or may occur unless the appeal is heard.17[16] If leave is granted, I must allow the appeal if I am satisfied the Judge "erred inhis assessment of the evidence to such an extent that a miscarriage of justice hasoccurred", or if I am satisfied "a miscarriage of justice has occurred for any reason".Otherwise I must dismiss the appeal.18 By 'miscarriage of justice' is meant somethinghas occurred in relation to trial to create a real risk against a more favourable outcomefor Ms Andrews, or has resulted in an unfair trial or a nullity.19 The threshold is high;not every error will amount to a miscarriage of justice.20[17] If Ms Andrews can establish Judge Cameron was wrong, I will consider herapplication for discharge without conviction afresh.21[18] I may discharge Ms Andrews without conviction only if the direct and indirectconsequences of her conviction would be out of all proportion to the gravity of theoffence.22 Only then may I decide if to exercise my residual discretion. The Court ofAppeal recently characterised drink driving as "a moderately serious offence whenseen by reference to its potential consequences and to the pervasiveness of alcoholabuse in our society".23 The "proportionality scales are, to an extent, tipped by thatlevel of seriousness".24 But this does not necessarily mean 'exceptional' consequencesare required for a discharge without conviction to be allowed.25 Nonetheless, there16 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [9].17 Criminal Procedure Act 2011, s 237.18 Sections 240 and 232.19 Section 232(4); and R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].20 Otis v Police [2019] NZCA 231 at [4]; and McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764at [38].21 Maraj v Police [2016] NZCA 279 at [11]; and Austin, Nichols & Co Inc v Stichting Lodestar[2007] NZSC 103, [2008] 2 NZLR 141 at [13].22 Sentencing Act 2002, s 106; and Basnyat v Police, above n 6, at [15], citing Z (CA447/2012) v R[2012] NZCA 599, [2013] NZAR 142.23 Basnyat v Police, above n 6, at [19].24 At [19].25 At [20].must be a "real and appreciable" risk any given consequence will happen; thisrecognises I am to assess future likelihood.26Discussion[19] The essence of Mr Conder's submission is Ms Andrews' history of mentaldifficulties and abuse rendered her "incapable" of using the alternatives identified bythe Judge. Dr Towns' generic opinion is victims of family violence, confronted bysignificant risk, may experience a survival response in which flight is the only option.That is contended to be the position – having retreated to her car as refuge, only tofind it no longer a haven when in later dispute with her partner – in which Ms Andrewsfound herself. Dr Towns' evidence gives possible context to Ms Andrews' actions.[20] But Ms Andrews' evidence indicates a rational awareness of her actions ratherthan the 'reflexive response' for which Dr Towns contends. There is no evidenceMs Andrews was counselled to act as she did in response to perceived threat. Neitheris there evidence she went to her car in such response. Rather, Ms Andrews herselfexplained she went to her car "simply to sit and give myself some time to recover":Particularly because of my history and my mental health, I sometimes needtime and space to process what is happening and to depressurise. When I amin a stressful situation it can be important for me to get away to recover beforehaving to deal with other people.[21] Only there, in subsequent dispute with her partner, did she feel she "had to getout of that situation". She "almost immediately" regretted her decision to drive thevehicle: "I can only say that I was not thinking clearly at the time". She knew shewould "definitely be over the limit", given the "amount of alcohol [she] hadconsumed". Notably, when the car crashed, she "got out and began running away. Thiswas because I was still feeling stressed and overwhelmed and felt like I needed to getaway". That illustrates driving, with her partner still in the car, was not her only option.Given the crash occurred "[s]hortly after pulling out", it undermines the contentionthe immediate vicinity presented such risk as prevented her leaving the car. That threatwas not, after all, why she had gone to the car in the first place. Her partner's continuedpresence in the car undermines the suggestion her driving was in flight from him.26 DC (CA47/2013) v R [2013] NZCA 255 at [43].[22] The crash was caused by Ms Andrews' partner's action in pulling on thehandbrake. But Ms Andrews' breath/alcohol ratio was more than three times over thelegal limit. Drink driving is a social problem with inherent danger.27 Dr Townsacknowledges that Ms Andrews' intoxication was itself a factor. Drink driving is amoderately serious offence because of its potential consequences.28 Ms Andrews'situation is not similar to drink driving offending in which the offender was dischargedwithout conviction.29 While Ms Andrews previously has not offended, "[d]rink-driving is a pervasive social problem which has brought many good citizens into thedock", and the legislature correspondingly has responded with a sentencing policy thatemphasises personal and general deterrence.30[23] I cannot identify any matter of general or public importance, or possiblemiscarriage of justice, such as may qualify for a second appeal. Dr Towns' legitimateexpert opinion evidence does not provide a foundation for a more favourable outcomefor Ms Andrews, or illustrate the Judge's approach was unfair to a disqualifyingdegree. The Judge had due regard for Ms Andrews' history and state of mind.31 He didnot err in characterising the gravity of her offending as being 'moderately serious'despite her personal difficulties. There is no other apparent error. Mr Conder'ssubmission that the overall circumstances meant that Ms Andrews suffered adisproportionate cumulative penalty is not accepted. The impacts of conviction onMs Andrews' desired career and travel is speculative, neither being established to apoint beyond possibility, and insufficient to support the necessary disproportionality.32Result[24] I grant Ms Andrews' application to adduce Dr Towns' affidavit.27 See Basnyat v Police, above n 6, at [19]; and Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR1 at [17].28 Basnyat v Police, above n 6, at [19].29 At [22]. A discharge without conviction was granted after the appellant (a police officer)administered two-self tests using a breathalyser which gave inaccurate readings (Waight v PoliceHC Auckland CRI-2006-404-465, 24 May 2007). In Police v Erwood [2007] DCR 728, an off-duty rural police officer attended an accident, having been drinking with friends. There was noevidence he was impaired when administering assistance, but a breathalyser showed he was overthe limit. He was discharged without conviction.30 Linterman v Police [2013] NZHC 891 at [9].31 Police v Andrews, above n 3, at [5]–[7] and [10].32 Edwards v R [2015] NZCA 583 at [24]–[28].[25] I dismiss Ms Andrews' application for leave to appeal.—Jagose J