JOHN v POLICE [2022] NZHC 3143

JOHN v POLICE [2022] NZHC 3143 [29 November 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-000324[2022] NZHC 3143BETWEEN THOMAS FENN JOHNAppellantAND NEW ZEALAND POLICERespondentHearing: 7 November 2022Counsel: EP Priest for AppellantCL Wilkinson for RespondentJudgment: 29 November 2022JUDGMENT OF DOWNS JThis judgment was delivered by me on Tuesday, 29 November 2022 at 11 am.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Solicitor, Auckland.EP Priest, Auckland.Introduction[1] Thomas John drove with excess breath alcohol and carelessly, crashing in aresidential area. Judge D J McDonald declined to discharge Mr John withoutconviction.1 Mr John appeals. He contends the Judge erred. Mr John emphasises hislikely deportation as a wholly disproportionate consequence of the offending, and therisk conviction may scuttle his residency application.Background[2] The offending occurred 28 November 2021, at approximately 4.25 pm.Mr John was driving in a residential part of Auckland with a speed limit of70 kilometres per hour. He lost control of the car on a mild bend. The car spun180 degrees and crashed into a fence. Police attended. Mr John appeared to have beendrinking. A breath test revealed 771 micrograms of alcohol per litre of breath, almosttwice the legal limit. Mr John said he had consumed three bottles of beer. Drivingconditions were good, the road dry.[3] Mr John pleaded guilty and applied to be discharged without conviction.2He filed an affidavit and a second from David Ryken, an immigration expert. In brief,Mr John said:(a) He came to New Zealand from India on a student visa in 2018.(b) On the day in question, Mr John had been drinking with a friend.Mr John realised he had misplaced his wallet and drove to find it. Hecrashed during the return trip.(c) He is now 29. He works (fulltime) in a dog daycare centre and holdsan employer-assisted work visa. Mr John remits $200 per fortnight tohis mother in India.1 Police v John [2022] NZDC 16710.2 It appears Mr John pleaded guilty to driving carelessly 1 February 2022 and driving with excessbreath alcohol 31 May 2022. I say "appears" as the handwritten entries on the charge sheets area little difficult to interpret.(d) He hoped to obtain residency in New Zealand.(e) He is worried conviction may result in his deportation and affectresidency.[4] Mr Ryken said:(a) There is "a high probability" a conviction for the offence of drivingwith excess breath alcohol would result in Mr John being issued adeportation liability notice. An appeal (necessarily confined tohumanitarian grounds) would not likely succeed.(b) A discharge without conviction may enable Mr John to persuadeImmigration New Zealand not to deport him (on the ground ofdisproportionality). However, while a discharge without conviction"will help" this contention, "in recent times [it] is less likely tosucceed". Deportation is not contingent on conviction.(c) A discharge without conviction would preserve Mr John's prospect ofresidency as a character waiver would not be required. Conviction,however, would require a character waiver for Mr John to obtainresidency. Whether a waiver would be granted "is an evaluativedecision and the approach taken by individual officers differs".Mr Ryken considered, "there is a slightly greater than even chance thata character waiver would not be granted" if Mr John were convicted.33 Mr Ryken said it therefore followed conviction would "seriously prejudice any opportunity toobtain residence". This observation is a little difficult to reconcile with Mr Ryken's immediatelypreceding observation (concerning "a slightly greater than even chance ..."). I take him to meanentry of a conviction would give rise to a slightly greater than even chance a character waiverwould not be granted, and because of this, potentially prejudice residency.The District Court hearing[5] Judge McDonald considered the offending "serious".4 The Judge notedMr John's affidavit did not disclose consideration of alternatives to driving to find themissing wallet and the potential consequences for other road users were serious.[6] The Judge accepted the offending was mitigated by the fact Mr John was a"first offender" and by post-offence conduct.5 In relation to the latter, Mr John waspaying for the cost of the repairs to the fence and had completed: a total of 150 hours'voluntary community service; an alcohol and drug course; and a defensive drivingcourse. Mr John also pleaded guilty to the charges. The Judge concluded thesefeatures reduced the seriousness of the offending to "moderately" serious.6[7] The Judge accepted there was "a high probability" Mr John would bedeported.7 However, the Judge did not accept this outcome or related possibilities, forexample, loss of employment, meant the consequences of conviction were out of allproportion to the gravity of the offending. He, therefore, declined the application.A précis of Mr John's case[8] On behalf of Mr John, Ms Priest advances three main points:(a) Drink-drive offending is, like other types of criminal offending,amenable to discharge without conviction; the statute places norestrictions according to offence type. Ms Priest identifies a host ofexamples in which drink-driving has resulted in a discharge withoutconviction.84 Police v John, above n 1, at [7].5 At [10].6 At [11].7 At [19].8 See for example, Simpson v Police [2020] NZHC 2254 (965 micrograms of alcohol per litre ofbreath); Waight v Police HC Auckland CRI-2006-404-465, 24 May 2007 (732 micrograms ofalcohol per litre of breath); Brown v Police [2013] NZHC 2190 (468 micrograms of alcohol perlitre of breath); Glenn v Police [2016] NZHC 928 (19-year-old offender with 400 micrograms ofalcohol per litre of breath); Dennis v Police [2016] NZHC 1768 (18-year-old offender with 195micrograms of alcohol per litre of breath); and Amstad v Police HC Auckland CRI-2011-404-161,6 September 2011 (19-year-old offender charged with unlawfully taking a motor vehicle, drivingwith excess breath alcohol, failing to stop, dangerous driving).(b) The seriousness of Mr John's offending reduces to "low-moderate"once mitigating features are considered, and the Judge was wrong toconclude otherwise. Mitigating features also include remorse, whichwas inferable.(c) Because the prospect of deportation is so high, there is a real likelihoodthe consequences of conviction are out of all proportion to the gravityof the offending. This conclusion is buttressed by the jeopardy toMr John's residency application in the event of conviction, andpotential harm to Mr John's mother, given she would no longer receiveincome from New Zealand.Principle[9] Section 107 of the Sentencing Act 2002 says: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.[10] It follows a Court may discharge a defendant without conviction if satisfied thedirect and indirect consequences of a conviction would be out of all proportion to thegravity of the offending.[11] Attendance sequence is well known. The Court first assesses offence gravity,which includes both aggravating and mitigating factors. It then assesses direct andindirect consequences of conviction, including potential ones of sufficient risk. TheCourt then asks whether the consequences would be out of all proportion to the gravityof the offence. If so, the Court may discharge without conviction.[12] For an appeal to succeed, an appellate Court must be persuaded the Courtbelow was wrong; but reach its decision on its own view of the case.99 R v Taulapapa [2018] NZCA 414 at [18], citing H (CA680/2011) v R [2012] NZCA 198 at [35]–[36].Analysis[13] Ms Priest is correct that the statute places no restrictions according to offencetype, and equally correct that some drink-drivers have been discharged withoutconviction. The picture is, however, more nuanced than these bare propositions maysuggest.[14] It was sometimes said, based on a decision called Linterman v Police,10 that adischarge without conviction for drink-driving required "exceptional circumstances"or "significant hardship", irrespective of the statutory test. In Basnyat v Police, theCourt of Appeal clarified the position:11[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 the proportionality scales to be applied atstage 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. By and large they do not, as shown inthe survey of 15 High Court decisions referred to in the article by Mr Conderwhich was cited by Mr Mitchell in argument. The learned author concludedas follows:A close reading of these cases show[s] that exceptionality is not the keycriterion. Rather it is the consequences themselves which must be clear.This is consistent with the language of s 107, which requires an explicitbalancing act between a moderately serious offence like drink drivingand the consequences which flow from a conviction. It is also consistentwith the careful scrutiny encouraged by Heath J in the Ovtcharenkodecision.[21] Having surveyed these and other decisions for ourselves, we agree withthat assessment. But the cautionary language adopted by Heath J inOvtcharenko v Police is nonetheless apt:[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 theyought only to be granted in "exceptional" circumstances. As with anyother offence, it is necessary to apply the statutory tests. In doing so, the10 Linterman v Police [2013] NZHC 891.11 Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344 at [19]–[21] (footnotes omitted).nature of the social problem that the legislation is intended to address issomething that goes to an assessment of the gravity of the offending.(Footnotes omitted.)[15] The Court added:12[22] The legislative directive is that a proportionate response to driving witha blood alcohol level above 80 milligrams per 100 millilitres of blood willordinarily be the entry of a conviction. All other things being equal that willbe the inevitable result. It will therefore be necessary to identify factors eitherin the offending or the consequences of a conviction for the offender that showthat result is wholly disproportionate. A blood alcohol reading that is only justover the limit will be relevant — placing the gravity of the offending at thelow end of moderately serious as Brewer J indicated — but not enough on itsown. There will also be factors personal to the offender, often related to theoffending itself, which will go to gravity. These might include the use beforedeciding to drive of faulty personal breath alcohol checking devices or theneed to drive to assist others in an emergency, and the like. Youth will also bea relevant factor under this heading.[23] Specific consequences are required and those have been identified inmany cases. They include employment or travel limitations where the risk ofimpact is appreciable. In short, some element of the offending or somethingin the circumstances of the offender are required to make the standardresponse wholly disproportionate.[16] Mr Basnyat was a 31-year-old first offender with "a bright future".13 Hepleaded guilty, being "only four milligrams over the limit".14 Mr Basnyat was,apparently, "an important contributor to the life of the Nepalese community inAuckland".15[17] Mr Basnyat's discharge application failed.16 That decision was upheld by boththe High Court17 and Court of Appeal. In part, this was because there was "nothing about the offending that reduces its gravity below the low end of moderatelyserious".18[18] This brings me to Ms Priest's second submission, which concernsoffence-seriousness. There are obvious aggravating factors to Mr John's offending.12 Basnyat v Police, above n 11, at [22]–[23] (footnotes omitted).13 At [24].14 At [24].15 At [24].16 Police v Basnyat [2017] NZDC 2109917 Basnyat v Police [2018] NZHC 51.18 Basnyat v Police, above n 11, at [25].His breath alcohol level was nearly twice the legal limit (of 400 micrograms per litreof breath). Mr John lost control of his car. He hit a fence. Because the conditionswere good (and the bend mild), it is reasonable to infer consumption of alcohol playeda role. That no one was hurt—or worse—reflects providence. While there is ameasure of overstatement in the Judge's observation the offending involved "extremedriving fault",19 the offending does represent a serious example of its kind. Moretechnically, it a serious example of moderately serious offending (before mitigatingfeatures are considered). Whether this assessment is appreciably different from theJudge's—he considered the offence "serious"20—is of no moment for reasons that willbecome apparent.[19] As foreshadowed, Ms Priest contends offence-seriousness reduces to"low-moderate" once mitigating factors are considered. Again, Ms Priest notesMr John is paying for the cost of repairs to the fence and has completed a total of 150hours' voluntary community service; an alcohol and drug course; and a defensivedriving course. Mr John pleaded guilty to the charges. He is a first offender.Like Mr Basnyat, Mr John has a bright future. Ms Priest says Mr John is remorseful.[20] These factors are mitigatory. However, they do not reduce offence-seriousnessin the manner advanced. They make the offending a moderately serious example ofits kind, it having been a serious example.[21] A somewhat similar point arose in Basnyat. The mitigating features in thatcase were also unconnected to the commission of the offence and had little apparentpurchase:21[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 requireoverseas travel as part of his current employment or in search of employmentoffshore given his transferable skill set; and he is an important contributor tothe life of the Nepalese community in Auckland.[25] There is nothing in particular about the offending that reduces its gravitybelow the low end of moderately serious. Mr Basnyat pulled into a schoolyardbefore being stopped so was plainly aware that he was at risk of being over19 Police v John, above n 1, at [7].20 At [7].21 Basnyat v Police, above n 11, at [24]–[25] (emphasis added).the limit. While the degree of excess was small, that alone will not besufficient to justify a discharge. More will be required. In this caseMr Basnyat is young, but at 31, not so young that it might be said the gravityof the offending is mitigated thereby, or that the consequences for him will bedisproportionate. It is acknowledged that he is in a responsible position witha bright future, but that is not an uncommon circumstance, at least amongthose employed in responsible positions. As we have said, excess alcoholconsumption is pervasive in New Zealand.[22] Mr Basnyat's mitigating features appear fewer than Mr John's; for example,there is no suggestion Mr Basnyat engaged in voluntary community work. However,Mr Basnyat's offending was less serious; he was only a little over the limit and did notcrash. All of which is to emphasise the mitigating features in Mr John's case operateto make it a moderately serious example of its kind.[23] This brings me to the consequences of conviction. The Judge acceptedMr Ryken's evidence. The Judge concluded, however, Mr John's potential deportationwas a matter better left to immigration authorities. Mr John's lack of family inNew Zealand was considered to buttress this conclusion.[24] Ms Priest contends the Judge gave undue weight to the last factor, notingMr John has spent four years in New Zealand and now has a life here. Brief reviewof some of the case law is necessary.[25] Abdul Rahim pleaded guilty to a charge of indecent assault "low on the scaleof seriousness".22 Mr Rahim, his wife and their child were recent immigrants fromPakistan. They had worked for up to 10 years to come here. Conviction was "likelyto result" in Mr Rahim being deported.23 The Court of Appeal found that would be"devastating for him and his family".24 It reversed the Courts below and dischargedMr Rahim without conviction.[26] Quanwen Yu was convicted for driving with excess breath alcohol.25 Herreading was 500 micrograms of alcohol per litre of breath. Ms Yu received adeportation notice as she already had a criminal record (for minor drugs offending).22 Rahim v R [2018] NZCA 182 at [22].23 At [30].24 At [30].25 Yu v Police [2021] NZHC 3000.Ms Yu had been in New Zealand for 12 years. She arrived at the age of 16. Ms Yuwas in a stable relationship and had a daughter here. Ms Yu said she knew nothingabout Chinese society and had no contacts in China beyond her immediate family.Eaton J concluded the consequences of conviction—deportation—were out of allproportion to the gravity of the offending. Ms Yu's conviction was quashed.[27] Ravi Kumar was convicted for assault with a weapon after holding a knife tothe throat of a co-worker.26 The offending occurred in the face of ongoing provocation(racial taunts over months). Mr Kumar and his pregnant wife had residency here andwere good candidates for citizenship. Conviction put them at risk of deportation for10 years. Wylie J found this was out of all proportion to the gravity of the offendingand quashed the conviction.[28] In each of these cases—and another cited by Ms Priest27—presence of otherfamily members in New Zealand was treated as important, even decisive. It followsthe Judge did not err.[29] The Judge did not err either in concluding deportation was better addressed byimmigration authorities. While, as the examples above demonstrate, Courts are moreprepared than they once were to intervene in this context, they remain careful not tousurp the role of officials in the enforcement of law. As the Court of Appeal explainedrecently, "this is justified for reasons of institutional competence and comity".28Another aspect is also important here. Mr Ryken acknowledges Mr John may bedeported even if his conviction were quashed.[30] Perhaps anticipating this reasoning, Ms Priest observes conviction may scuttleMr John's residency application. She observes Immigration New Zealand notifiedMr John on 22 September 2022 that because of his conviction, he would "not normallybe granted a residence class visa unless granted a character waiver".29 Ms Priest26 Kumar v Police [2015] NZHC 3293.27 Chand v Police [2017] NZHC 2188.28 Sok v R [2021] NZCA 252, (2021) 29 CRNZ 962 at [48]; and Almarzouqi v Police [2020] NZCA398 at [14].29 Ms Priest offered, without opposition, this aspect as fresh evidence.reminds me of Mr Ryken's evidence, which is that "there is a slightly greater than evenchance that a character waiver would not be granted" if Mr John were convicted.[31] I am not persuaded this feature alters the calculus, for, if residency weredeclined, that outcome, even in combination with other consequences, including lossof income to Mr John's mother consequent on his loss of New Zealand employment,would not be wholly disproportionate to the gravity of the offending. The inescapablefeature of this case endures: Mr John committed a moderately serious offence in amoderately serious manner.30 Consequences of conviction, while potentially serious,would not be out of all proportion to the gravity of the offending.[32] This conclusion is not offered as commentary on Mr John's character. It doesnot, therefore, circumscribe Immigration New Zealand's statutory obligations.Result[33] The appeal is dismissed...Downs J30 See [18]–[22].