VIVEK SHARMA v NEW ZEALAND POLICE [2018] NZHC 2471

VIVEK SHARMA v NEW ZEALAND POLICE [2018] NZHC 2471 [20 September 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-000182[2018] NZHC 2471BETWEEN VIVEK SHARMAAppellantAND NEW ZEALAND POLICERespondentHearing: 10 September 2018Appearances: O Martell for the AppellantH T Reid for the RespondentJudgment: 20 September 2018JUDGMENT OF HINTON JThis judgment was delivered by me on 20 September 2018 at 3.00 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarCounsel/Solicitors:Owen Martell, Barrister, AucklandMeredith Connell, Auckland[1] In the evening of 28 May 2017, Vivek Sharma was caught by police driving amotor vehicle on Queen Street with a blood-alcohol level of 86 mg of alcohol per100 ml of blood.1 He told the police he had consumed one can of "strong beer". Hepleaded guilty on 5 October 2017 to one charge of drink-driving. His application fora discharge without conviction was declined by Judge R G Ronayne on 4 May 2018.2Mr Sharma now appeals against that decision.District Court decision[2] Judge Ronayne applied the well-accepted approach to an application for adischarge without conviction set out by the Court of Appeal in Z (CA447/12) v R. First,the gravity of the offence is assessed. Second, the direct and indirect consequences ofa conviction are assessed. And third, it is considered whether those consequences areout of all proportion to the gravity of the offence.3The gravity of the offending[3] Judge Ronayne assessed Mr Sharma's offending as "moderate". In doing sohis Honour took into account the following:(a) Drink-driving is an "inherently relatively serious offence" regardless ofthe maximum sentence for such offending being only three months'imprisonment.(b) The reading produced by the blood-alcohol test was "relatively low".(c) Mr Sharma has two prior convictions:1 The limit prescribed by s 56(2) of the Land Transport Act 1998 is 80 mg per 100 ml of blood. Thismeans Mr Sharma was 7.5 per cent over the legal limit. Mr Martell submitted that the correctreading was 82 mg. Both the summary of facts and the District Court decision refer to 86 mg. Ineither event, the reading was just over the limit.2 Police v Sharma [2018] NZDC 12168.3 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8].(i) first, for drink-driving which involved a "very high"breath-alcohol reading of 943 mcg of alcohol per litre of breath4and took place on 15 September 2013; and(ii) second, for driving whilst disqualified from driving inconnection with the above offending, which took place on28 March 2014.(d) Mr Sharma has completed a defensive driving course. (However, theJudge considered this to be skills-based as opposed to somethingdirected towards Mr Sharma's repeated offending.)(e) Mr Sharma had attended a Community Alcohol & Drugs Services(CADS) programme and a One for the Road course, and had completed312 hours of voluntary community work.(f) Mr Sharma pleaded guilty in circumstances that would have attractedin the normal course a 20 per cent discount on sentence.The consequences of a conviction[4] As for the consequences of a conviction, Mr Sharma argued before the Judgethat, having gained residency in New Zealand as a citizen of India and having firstheld a residence class visa on 13 August 2013, his visa would be revoked under s 161of the Immigration Act 2009.5[5] The Judge did not accept it was inevitable Mr Sharma would have his residencevisa revoked. Rather, his Honour considered that Mr Sharma's liability for deportationmay be reactivated following which a new liability for deportation notice would beserved on him.4 The limit prescribed by s 56(1) of the Land Transport Act 1998 is 400 mcg of alcohol per litre ofbreath. This means Mr Sharma was at more than double the legal limit.5 The relevant section was in fact s 172 of the Act, as discussed subsequently.Whether the consequences are out of all proportion[6] The Judge identified two features as readily apparent from Mr Sharma'soffending:(a) First, Mr Sharma was on notice of the possible consequences of furtheroffending.(b) Second, there is no certainty of outcome either way should a convictionbe entered.[7] The Judge declined to identify actual deportation as a consequence in respectof which there was a real and appreciable risk, on the basis that there was no evidenceof such a risk.[8] Taking into account decisions such as Linterman v Police6 and Livingstone vPolice,7 the Judge observed that discharges ought to be "exceptional" for drink-drivingoffending. In addition, the Judge said that it is well-established that the courts shouldnot usurp the function of Immigration New Zealand in deciding whether a personshould be deported or not.[9] The Judge observed that Mr Sharma's affidavit made no attempt to explain hisdecision to drive after consuming alcohol. The Judge therefore considered it safe toassume that Mr Sharma had simply made a deliberate decision to drink and drive.[10] The Judge considered that even if he was wrong about there being no sufficientevidence establishing a real and appreciable risk of deportation, there was at its highestno more than a risk of exposure to that consequence, which is a normal and fullyexpected consequence of conviction in Mr Sharma's case.[11] Mr Sharma's application was accordingly dismissed. The Judge reduced whatwould otherwise have been a $750 fine to $500 to reflect the positive thingsMr Sharma had done, and ordered him to pay court costs of $130, an analyst's fee of6 Linterman v Police [2013] NZHC 891.7 Livingstone v Police HC Auckland CRI-2011-404-167, 2 August 2011.$109.25, and medical expenses of $100. Mr Sharma was disqualified from driving foreight months and the Judge made a zero-alcohol licence order.Approach to appeal[12] Mr Martell says the Judge erred in assessing the gravity of the offending, andthat the Judge should have granted a discharge without conviction given the potentialfor adverse impact on Mr Sharma should he be convicted.[13] An appeal against a refusal to grant a discharge without conviction is an appealagainst conviction. Mr Sharma must therefore establish:8(a) that a miscarriage of justice has occurred by virtue of a material errorby the Judge in entering a conviction; or(b) that the Judge has erred in applying the principles for discharging anoffender without conviction found in s 107 of the Sentencing Act 2002(Act).[14] The proportionality assessment in s 107 of the Act is a matter of judicialevaluation rather than the exercise of a discretion. Therefore, the appeal proceeds byway of general appeal.9[15] I consider each ground in turn.Did the Judge err in assessing the gravity of the offending?[16] Mr Martell submits that the Judge erred in assessing Mr Sharma's offending asmoderate. That is firstly, because the reading was only just over the limit and secondly,because the Judge failed to sufficiently consider the steps taken by Mr Sharma toaddress the issues which led to his offending. In particular, Mr Sharma's affidavitnotes that he will do his best never to appear before the New Zealand courts again forany charges; that he has completed the AA Defensive Driving course; that he has8 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12].9 H (CA680/11) v R [2012] NZCA 198 at [30].completed the two-day New Zealand Red Cross "First Aid" programme; that he hascompleted the eight-week "Getting started" programme with CADS; that he hascompleted the One for the Road programme at Harmony Trust, which involved atwo-day assessment followed by a further 10 hours of counselling; and that he hasvolunteered with the Auckland Sikh Society Inc, and completed a little over 300 hoursof volunteer work at the temple.[17] Drink-driving is not a minor offence. New Zealand has a serious problem withdrink-driving offending, particularly in relation to recidivist offenders. Dischargeswithout conviction in the drink-driving context are accordingly far fromcommonplace, as Mr Martell acknowledged. This policy was referred to by Miller Jin Linterman v Police:10[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 into thedock 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 to aprospective employer, who may wonder whether it evidences poor judgementor undue fondness for drink, and to immigration authorities, who maycategorise it as evidence of antisocial tendencies.[18] None of this is to suggest that a discharge without conviction will never begranted to a person for a drink-driving offence. However, it is important to recognisethat the risk undertaken by persons who choose to drink and drive is a serious one,even if no tangible consequences arise from the offending on a particular occasion.[19] Judges must still, as I have to here, bring a critical mind to the precise featuresof the offending. As Lang J observed in Backhouse v Police:1110 Linterman v Police [2013] NZHC 891.11 Backhouse v Police [2015] NZHC 1178.[18] This Court has held that driving with excess breath alcohol is amoderately serious offence. The seriousness of the offending obviouslydepends, however, on both the extent to which the offender has exceeded thelegal limit and the circumstances in which the offending occurred. The formerspeaks for itself; the higher the blood or breath alcohol reading the moreserious the offending will be. The latter may assume significance where thecircumstances of the offending involve added culpability. That may be thecase, for example, where the offender is apprehended after driving in adangerous manner or after having been involved in an accident.(footnotes omitted)[20] Mr Martell relies in particular on Dunningham J's decision in Glenn v Police,to suggest that the gravity of the offending in this case ought to be regarded as low. Inthat case, the appellant was an adventure tourism student who had pleaded guilty to acharge of drink-driving as a youth.12 He had driven with a breath-alcohol level of400 mcg per litre of breath when the legal limit for youth at the time was 150 mcgper litre of breath. Mr Glenn's reading was "on the cusp of being over the adultlevel",13 and had he been a year older no offence would have occurred.14Dunningham J assessed the gravity of Mr Glenn's offending as low:[21] I accept that driving with excess breath or blood alcohol can haveserious consequences, and is to be deterred on a policy basis. However, in thiscase the only blameworthy aspect of Mr Glenn's behaviour was that he choseto drive, with an alcohol level that exceeded the youth limit, and was close to,but did not exceed, the adult limit. No other aspect of this offendingcontributed to the gravity of it. Instead, they go to mitigate the gravity of itwhen viewed in totality. In particular, the appellant's guilty plea, and hisvoluntary steps to address the issues which led to the offending, are allmitigating factors. I assess the gravity of the offence as low.[21] In this case, Mr Sharma was only just over the legal limit and there were noadditional elements of driving-offending. However, his offending must be seen in awider context. That context is that he has offended in this manner before. Over aperiod of around four years, he has twice been found drink-driving, and has been founddriving while disqualified. On the first drink-driving charge, he was well over thelimit. In between his earlier offending and the present offending, he was served witha deportation liability notice, and yet he has continued to take unnecessary risks. Itherefore consider this case to be quite different to that of Glenn.12 Glenn v Police [2016] NZHC 928.13 At [6].14 At [16].[22] In terms of the mitigating steps Mr Sharma has taken, the Judge expressly hadregard to those features when assessing the gravity of Mr Sharma's offending. To theextent Mr Martell suggests the Judge erred in the weight he assigned to these features,I do not agree. Although the steps taken by Mr Sharma must rightly be consideredmitigating, there are ample countervailing features of Mr Sharma's offending uponwhich a finding of moderate severity could be made.[23] The recidivist aspect of Mr Sharma's offending is important in this context.This factor, in combination with the general denunciation of drink-driving moregenerally, provides an ample basis for the Judge's conclusions regarding the gravityof the offending as being moderate.Did the Judge err by not granting a discharge without conviction in light of theconsequences of conviction for Mr Sharma?[24] Mr Martell submits the Judge also erred in assessing the consequences ofconviction for Mr Sharma. The Judge said there was no real and appreciable risk ofdeportation for Mr Sharma, only of being subject to a process which may lead todeportation.[25] Mr Martell submits the effect of s 161 of the Immigration Act 2009 is thatMr Sharma is liable for deportation following conviction.[26] He points also to a letter dated 20 April 2016 by a Delegated Decision Makerfor the Minister of Immigration following Mr Sharma's prior offending several yearsago. The letter is not referred to in the District Court Judge's decision. The letter,addressed to Mr Sharma, said his liability for deportation was suspended on thefollowing terms:Although I am satisfied that you meet the criteria for deportation fromNew Zealand, I have decided to suspend your liability for deportation for aperiod of three years, pursuant to section 172(2) of the Act. The suspensionperiod begins on the date the enclosed deportation liability notice is served, ordeemed to be served.The suspension of your liability for deportation is subject to your compliancewith the following condition:• That you are not convicted, in New Zealand or elsewhere, of anyoffence committed during the suspension period.If you comply with this condition, your liability for deportation will becancelled at the end of the suspension period. Should you fail to comply withthis condition, your liability for deportation may be reactivated and a newdeportation liability notice would be served. You would have no new right ofappeal and would be required to leave New Zealand within 28 days of serviceof the notice.[27] Mr Martell submits that the true effect of that letter and the law, is thatMr Sharma will inevitably be deported by reason of conviction. He says, as the letterdoes, there will be no new right of appeal and so Mr Sharma's position is absolute.[28] However, while I agree that Mr Sharma's liability for deportation will bereactivated, as opposed to "may be reactivated", as stated in the letter,15 that does notmean it is inevitable he will be deported. Mr Sharma will still be able to request afurther suspension under s 172, or that step may be taken by the Minister. Ms Reidaccepted that appeared to be the position under the legislation.[29] Section 172 provides:172 Minister may cancel or suspend liability for deportation(1) The Minister may at any time, by written notice, cancel a person'sliability for deportation.(2) The Minister may at any time, by written notice, suspend a residenceclass visa holder's liability for deportation—(a) for a period not exceeding 5 years; and(b) subject to the visa holder complying with any conditionsstated in the notice (which take effect from the date specifiedin the notice, being a date not earlier than the date ofnotification).(2A) The Minister may exercise his or her powers under this sectionwhether or not the person who is liable for deportation—(a) has given good reason under section 155(2), 156(2)(b), or157(2) why the person should not be deported; or(b) has purported to apply to the Minister for any other reason.15 The letter is an explanatory document, rather than one of strict legal status.(3) Where a person fails to comply with the conditions stated in a noticeunder subsection (2),—(a) the Minister may reactivate the person's liability fordeportation by causing a deportation liability notice to beserved on the person that sets out the grounds of thereactivation; and(b) subject to section 175A(4), the person has 28 days from thedate the deportation liability notice is served to leaveNew Zealand.(4) In the case of a person who has appealed against his or her liabilityfor deportation, the Minister must notify the Tribunal if the person'sliability for deportation is cancelled, suspended, or reactivated undersubsection (1), (2), or (3)(a).(5) The decision to cancel or suspend a person's liability for deportationis in the absolute discretion of the Minister.(6) In the case of a person in imprisonment, the period referred to insubsection (2) commences on the date of the person's release.(7) The cancellation or suspension of a person's liability for deportationdoes not prevent the person from becoming liable for deportation onother grounds.[30] Also, while it would seem there is no longer a right of appeal (Mr Sharmawould have had to exercise this instead of relying on the letter of 20 April 2016), Iexpect he would still have a right to seek judicial review of whatever decision theMinister might still make. Ms Reid again accepted that was the likely position.[31] Having further considered these matters, Mr Martell agreed that the door wasnot closed on Mr Sharma.[32] I accept that the Judge may have understated the position when he said thereis, at its highest, no more than a risk of deportation, but nonetheless, there is littleevidence as to the approach likely to be taken by Immigration New Zealand toMr Sharma's recent offending and the extent of the risk of deportation. It may be, forexample, that Immigration New Zealand will approach the task in a similar way to itsapproach to the previous offending. In any event, I expect it will take into account themany factors raised in this case by both counsel, and more importantly, possibly otherfactors not known to, or before me. Ms Reid submits that Immigration New Zealandwill make a "careful assessment". There is no basis to conclude otherwise.[33] I consider it is appropriate in a case such as this that Immigration New Zealandevaluate Mr Sharma's position.[34] I agree with Brewer J's comments in George v Police:16[46] I do not hold that the risk of deportation is a factor that the Courtshould never take into account in deciding the s 107 proportionality test. Thesection does not exclude effect on immigration status from consideration as aconsequence. There will be situations where even the consequence ofsubjecting an offender to the scrutiny of Immigration New Zealand would beundue. But, in the usual run of cases, the Court should not take it upon itselfto, in effect, decide immigration status.[35] The recidivist aspect of Mr Sharma's offending must be regarded as significant.Repeated offending — even minor — cannot be justified on the grounds that therewould be disproportionate consequence as against each individual offence. Theoffending must be seen in its wider context. I do not consider it out of all proportionfor Mr Sharma to be subject to the statutory immigration process given this context.To the contrary, I consider it would not set a good precedent for a discharge withoutconviction to be granted in this case.[36] I also take into account that discharges without conviction on excess bloodalcohol charges are rare.[37] For the above reasons, I do not consider the consequences of a conviction areout of all proportion to the gravity of the offence, such that a discharge should begranted.Conclusion[38] Mr Sharma's appeal is dismissed.---------------------------------------------Hinton J16 George v Police [2014] NZHC 1725.