Ashworth v Police [2020] NZHC 1587 (7 July 2020)

Last Updated: 17 July 2020

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI 2020-463-000022 [2020] NZHC 1587

BETWEEN	DEAN GRAEME ASHWORTH Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	6 July 2020
Counsel:	A Bean for the Appellant O M Salt for the Respondent
Judgment:	7 July 2020

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 7 July 2020 at 11:00am

..............................

Registrar/Deputy Registrar

Solicitors/Counsel:

Bean Law Ltd, Hamilton Crown Solicitor, Tauranga

ASHWORTH v NEW ZEALAND POLICE [2020] NZHC 1587 [7 July 2020]

Introduction

• [1] Dean Graeme Ashworth appeals against his conviction for two offences under the Land Transport Act 1998 (LTA).

The offending

• [2] On 21 September 2019, Mr Ashworth, the holder of a zero-alcohol licence, was stopped by police as he drove along SH2 near Mangatarata. A breath test returned a reading of 600 micrograms of alcohol per litre of breath.

• [3] Prior to the date of this offending, Mr Ashworth had two previous convictions for drink driving.

The District Court trial and sentence

• [4] On 17 December 2019, in the District Court in Gisborne, Mr Ashworth pleaded guilty to two offences under the Land Transport Act 1998 (LTA) and convictions were entered.

• [5] The two offences were:

(a) Under s 57AA(4), driving with breath alcohol exceeding 250 micrograms of alcohol per litre of breath, in contravention of a zero-alcohol licence.¹

(b) Under s 56(1), driving with breath alcohol exceeding 400 micrograms of alcohol per litre of breath.²

• [6] Because of Mr Ashworth’s prior drink driving convictions, the maximum penalty for each offence is the same: two years’ imprisonment or a fine of $6,000.00;

1. Carrying a maximum penalty, provided by s 57AA(6) LTA, of two years’ imprisonment or a fine of $6,000.00, and the court must order the person be disqualified from holding or obtaining a driver licence for 1 year or more.
2. Because of Mr Ashworth’s previous convictions, carrying a maximum penalty, provided by s 56(4), of two years’ imprisonment or a fine of $6,000.00, and the court must order the person be disqualified from holding or obtaining a driver licence for more than 1 year.

in addition, the court must make an order disqualifying the person convicted from holding or obtaining a driver’s licence for more than one year.

• [7] On 10 March 2020, in the District Court in Thames, Judge R G Marshall imposed a sentence of nine months’ supervision for each charge, and a period of disqualification of one year and one day, and 150 hours of community work.³

Mr Ashworth’s appeal

• [8] On 20 March 2020, Mr Ashworth’s counsel filed a notice of appeal in the High Court in Rotorua. The appeal was only in respect of Mr Ashworth’s conviction. The grounds of appeal referred to s 10 of the Crimes Act 1961 and stated that the two offences for which Mr Ashworth had been convicted arose from the same incident and he should not be punished twice for the same offence.

• [9] The notice of appeal did not specify under which section of the Criminal Procedure Act 2011 (CPA) the appeal was brought. However, submissions filed by his counsel, Mrs Bean, state that the appeal is brought under s 232(c) of the CPA, namely that there has been a miscarriage of justice.

• [10] Mr Ashworth seeks to have the conviction under s 56 of the LTA quashed, leaving the conviction under s 57AA standing or, in the alternative, to have the matter remitted back to the District Court in order to vacate Mr Ashworth’s guilty plea for the s 56 charge and to enter a special plea of previous conviction under s 46 of the CPA.

• [11] Mr Ashworth’s appeal was originally set down for hearing on 18 May 2020. However, at the request of Mr Ashworth’s counsel and counsel for the Police, the hearing was adjourned to 6 July 2020 to allow account to be taken of the outcome of an appeal to be heard by Osborne J on 19 May 2020 and which counsel considered was likely to be relevant to the present appeal. That decision, NZ Police v Mitchell, was issued on 27 May 2020.⁴

³ NZ Police v Ashworth [2020] NZDC 7549.

⁴ NZ Police v Mitchell [2020] NZHC 1143.

Appellant’s submissions

• [12] Mrs Bean sets out the background to Mr Ashcroft being charged with, pleading guilty to and being sentenced for two offences. Briefly:

(a) On 9 October 2019, a charge of contravening the breath alcohol limit of a zero-alcohol licence under s 57AA of the LTA was brought in the District Court in Pukekohe and the matter transferred to the District Court in Gisborne.

(b) On 4 November 2019, a further charge of driving with breath alcohol in excess of 400 micrograms of alcohol per litre of breath under s 56 of the LTA was brought in the District Court in Gisborne.

(c) On 17 December 2019, convictions were entered on both charges and Mr Ashworth applied for legal aid. In his application, he referred only to the charge under s 56.

(d) On 10 March 2020, Mr Ashworth was sentenced in the Thames District Court. It was only after sentence had been passed that Mr Ashworth’s counsel understood Mr Ashworth had been convicted and sentenced on two charges, that is under both s 57AA and s 56.

• [13] Mrs Bean submits that both charges arose out of the same factual matrix. She refers to s 10(3) and (4) of the Crimes Act which provide:

(3) Where an act or omission constitutes an offence under 2 or more provisions of this Act or of any other Act, the offender may be prosecuted and punished under any one of those provisions.

(4) No one is liable to be punished twice in respect of the same offence.

• [14] Mrs Bean submits that, in accordance with s 10(3) of the Crimes Act, Mr Ashworth should have been charged with one or other of the two charges, which arise from the one episode of drink driving, and that to be convicted of the two charges offends against s 10(4).
• [15] Mrs Bean submits that there appear to be no circumstances where someone with a zero-alcohol licence who commits an offence under s 56 would not also commit an offence under s 57AA. She also says that a driver with a zero-alcohol licence, whose breath alcohol level exceeds 400 micrograms of alcohol per litre of breath, commits both offences with one act of driving.

• [16] She also submits that the charge under s 57AA is the more appropriate charge because it would recognise both the breach of the zero-alcohol licence as well as drink driving and that the breath alcohol level of 600 micrograms of alcohol per litre of breath would be an aggravating feature to be considered on sentence.

• [17] In her submissions, Mrs Bean refers to Waddell-Stephens v NZ Police,⁵ which concerned an appeal against a ruling by the District Court that the defendant in that case was liable for conviction on a charge under s 57AA of the LTA after conviction had been entered of an offence under s 56 of the LTA, after being found to have had excess blood alcohol levels under both sections. In that case, Mander J had allowed the appeal and referred the matter back to the District Court for consideration of whether Mr Waddell-Stephens could enter a special plea under s 46 of the CPA in respect of the charge under s 57AA.

• [18] Mrs Bean also refers to the Court of Appeal’s decision in Rangitonga v Parker⁶ where the Court of Appeal considered the principles applying to the entry of special pleas under ss 46 and 47 of the CPA and had endorsed the approach set out by Katz J in the High Court decision in that case.⁷

⁵ Waddell-Stephens v NZ Police [2016] NZHC 1480.

⁶ Rangitonga v Parker [2016] NZCA 166, [2018] NZLR 796.

⁷ Rangitonga v Parker [2015] NZHC 1772, [2016] 2 NZLR 73.

Respondent’s submissions

• [19] Counsel for the Police, Mr Revell in written submissions and Mr Salt in the hearing on 6 July 2020, do not dispute the history of the proceedings as set out by Mrs Bean.

• [20] Counsel for the Police also accept there is a distinction between s 32 of the LTA, under which it is an offence to drive contrary to a zero-alcohol licence, and s 57AA, in that s 57AA sanctions both driving in contravention of a licencing condition and driving with excess breath alcohol. They note the maximum penalty under s 57AA(4) and (5) is the same as under s 56(4): two years’ imprisonment and a

$6,000.00 fine. They submit that in Mr Ashworth’s case there is no further culpability arising from the underlying facts which is not already addressed by the s 57AA charge and its penalty. They say that it appears s 57AA has been drafted to address precisely the type of offending by Mr Ashworth.

• [21] Counsel for the Police submit that the Court’s approach in Waddell-Stephens should be followed, and the matter should be remitted back to the District Court so that Mr Ashworth may vacate his plea under s 56 LTA and enter a special plea of previous conviction under s 46 of the CPA. Alternatively, they say the Court may adopt the alternative course of action proposed by Mrs Bean of quashing the conviction and dismissing the s 56 LTA charge in accordance with s 46 of the CPA if the Court is satisfied that Mr Ashworth has been convicted of another offence arising from the same facts. If this course is adopted, counsel for the Police submit that no adjustment to Mr Ashworth’s sentence is necessary for the remaining offending under s 57AA because they say there was no extra sentence imposed for the s 56 charge and that the sentences were concurrent.

Legal principles

• [22] The CPA provides that a first appeal against conviction⁸ must be allowed if the Court is satisfied that the Judge in the first instance erred in their assessment of the

⁸ Sections 229-230.

evidence to such an extent that a miscarriage of justice has occurred, or if the Court is satisfied that a miscarriage of justice has occurred for any other reason.⁹

• [23] Section 232(4) of the CPA provides that a miscarriage of justice means any error, irregularity or occurrence in relation to or affecting a trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.

• [24] While s 10(4) of the Crimes Act protects the rule against double jeopardy, s 46 of the CPA provides for that rule to be effected by permitting a defendant to enter a special plea of previous conviction. Section 49 of the CPA provides the process for doing so:

46 Previous conviction

(1) If a plea of previous conviction is entered in relation to a charge, the court must dismiss the charge under section 147 if the court is satisfied that the defendant has been convicted of—

(a) the same offence as the offence currently charged, arising from the same facts; or

(b) any other offence arising from those facts.

(2) Subsection (1) does not apply if—

(a) the defendant was convicted of an offence and is currently charged with a more serious offence arising from the same facts; and

(b) the court is satisfied that the evidence of the more serious offence was not readily available at the time the charging document for the previous offence was filed.

49 Procedure for dealing with special plea

(1) If a special plea is entered, the availability of that plea must be decided by a Judge.

(2) In deciding whether a special plea is available to the defendant, the Judge may consider any evidence the Judge considers appropriate.

(3) If the Judge decides that the special plea entered is not available to the defendant, the defendant must be required to enter a plea of guilty or not guilty to the charge.

⁹ Section 232(2).

(4) Despite subsection (1), if a special plea is entered in relation to a charge for a category 4 offence, the availability of that plea must be decided by a High Court Judge.

Discussion

• [25] Two questions arise under this appeal:

(a) Does the entry of convictions under both ss 57AA(4) and 56 (1) of the LTA in relation to the same act of driving with an excess of breath alcohol offend against the principle of double jeopardy in s 10(4) of the Crimes Act?

(b) If the answer to the first question is yes, what is the correct procedure to follow in resolving the appeal?

Does entry of convictions under ss 57AA(4) and 56(1) of the LTA amount to double jeopardy?

• [26] The first question was not decided in Waddell-Stevens. Because of the way in which the appeal arose, Mander J referred that issue back to the District Court for consideration.¹⁰ He did so because a conviction had been entered only in respect of the charge under s 56 so it was open to the District Court to consider whether a special plea of previous conviction under s 46 of the CPA was available to the defendant in relation to the charge under s 57AA. Accordingly, Waddell-Stevens is not authority for the proposition that the entry of convictions under ss 56 and 57AA of the LTA in relation to the same act of driving with an excess of breath alcohol amounts to double jeopardy. As far as I am aware, therefore, there is no senior Court decision on the specific point.

• [27] In Mitchell, Osborne J considered a similar but not identical point to that which Mander J had referred back to the District Court in Waddell-Stevens: whether a special plea of previous conviction under s 46 of the CPA was available where a defendant was charged under both ss 32 and 56 of the LTA in relation to the same act of driving with an excess of breath alcohol and had been convicted on one of the charges.

¹⁰ At [16].

• [28] In that case, Mr Mitchell had attempted to plead guilty to both charges but, at the invitation of the District Court Judge, pleaded guilty to the s 56 charge and entered a special plea of previous conviction under s 46 of the CPA to the charge under s 32 of the LTA. Following a separate hearing on the point, a different Judge found that the special plea of previous conviction was available and dismissed the charge under s 32.¹¹ The Solicitor-General then applied under s 296 of the CPA for leave to appeal that decision and to reinstate the charge under s 32 of the LTA.

• [29] In his decision, Osborne J discussed the High Court decision in Rangitonga where Katz J had undertaken a comprehensive review of the history of the principle of double jeopardy, discussed how it came to be reflected in s 47 and considered how the section should be interpreted in the light of that history. As Osborne J noted,¹² in considering the phrase “arising from the same facts” in s 47, Katz J had focused on the concept of “core facts” that the Court must determine and had concluded that once all of the core facts of the offending (for which a defendant had been convicted) had been identified, it was necessary to consider whether any subsequent charge arose from those facts.¹³

• [30] Osborne J also discussed¹⁴ the Court of Appeal’s decision in Rangitonga in which the Court had stated it was in general agreement with Katz J and that the reference to offences “arising from the same facts” in s 47 was intended to apply to cases where there was a common punishable act central to both the previous and new charge.¹⁵

• [31] Osborne J then discussed how the District Court had applied Rangitonga in decisions where charges had been laid under both ss 32 and 56 of the LTA.¹⁶ He also discussed two decisions of the Court of Appeal which had followed Rangitonga, Filitonga v R and O’Reilly v Chief Executive of the Department of Corrections.¹⁷ As

¹¹ NZ Police v Mitchell [2020] NZDC 1999.

¹² At [23].

¹³ Above n 7, at [80].

¹⁴ Above n 4, at [26]-[28].

¹⁵ Above n 6, at [40]-[41].

¹⁶ Above n 4, at [29]-[41]; above n 11; NZ Police v Tindall [2018] NZDC 22252; NZ Police v Smith

[2018] NZDC 2057 and NZ Police v Kumar [2019] NZDC 17758.

¹⁷ Filitonga v R [2017] NZCA 492; O’Reilly v Chief Executive of the Department of Corrections

[2018] NZCA 313, [2018] NZAR 1327.

Osborne J noted,¹⁸ in the last case, the Court had also had regard to the differing purposes of the offences when declining leave to appeal decisions of the District Court and High Court rejecting the availability of a special plea under s 47 of the CPA for parole offences arising out of the defendant’s failure to comply with the conditions of an extended supervision order for which he had been convicted.

• [32] I agree with Osborne J’s analysis of these decisions.

• [33] Osborne J proceeded to consider whether the breach of Mr Mitchel’s zero- alcohol licence under s 32 arose from the same facts as the excess breath alcohol offence under s 56, having regard to the Court of Appeal’s decisions in Rangitonga, Filitonga and O’Reilly.¹⁹ In doing so, he focused on whether the central or core punishable act or acts were common to both charges. He concluded that while there were common features to both charges – driving on a road and being affected by alcohol – they were not common core punishable acts. The key element or punishable act under the s 56 charge was an excessive alcohol level, whereas the key element or punishable act under the s 32 charge was driving with some level of breath alcohol in breach of the zero-alcohol licence.²⁰ For these reasons, he concluded that it was open to the prosecutor to lay separate charges under both ss 32 and 56.

• [34] There is a key difference in the charges brought in Mitchell and those brought in the present case. Under s 32, the offence is driving contrary to a zero-alcohol licence. Under s 57AA(4), the offence is driving with a breath alcohol level in excess of 250 milligrams where the driver holds a zero-alcohol licence. As Osborne J held, the core punishable act under s 32 is driving with some level of breath alcohol in breach of the zero-alcohol licence. However, the key element under s 57AA(4) is driving with an excess breath alcohol level while holding a zero-alcohol licence. The holding of the zero-alcohol licence provides the necessary factual basis for the offence but it is the aggravating feature of the excess breath alcohol level that is the core punishable act.

¹⁸ Above n 4, at [49].

¹⁹ At [75]-[90].

²⁰ At [84]-[85].

• [35] In that respect, the core punishable act under s 57AA is essentially the same as that under s 56(1) – driving with an excess breath alcohol level. I agree with Mrs Bean that it is difficult to conceive of how a person with a zero-alcohol licence who commits an offence under s 56 would not also commit an offence under s 57AA. Or, as counsel for the Police put it, there is no further culpability arising from the underlying facts in relation to a charge under s 56 that is not already in a charge under s 57AA.

• [36] In these respects, ss 57AA and 56 address the same purpose – to prevent people driving with an excess breath alcohol level. The level in s 57AA(4) is lower than that under s 56 because the starting premise is that a person with a zero-alcohol licence should not have any alcohol in their breath. In fact, s 57AA combines the charges under ss 32 and 56 so that it is, in reality, an alternative to separate charges being laid under those sections – as Osborne J observed.²¹ That analysis also confirms that the charges under s 57AA and 56 arise from the same facts. As Mrs Bean submitted, the amount by which the actual breath alcohol level exceeds the threshold levels specified in the sections is an aggravating feature to be considered at sentence.

• [37] For these reasons, I conclude that entry of convictions under both ss 57AA(4) and 56(1) of the LTA in relation to the same act of driving with an excess of breath alcohol offend against the principle of double jeopardy in s 10(4) of the Crimes Act.

What is the correct procedure to follow in resolving the appeal?

• [38] In Waddell-Stephens, Mander J observed that, while s 10 of the Crimes Act and s 26(2) of the New Zealand Bill of Rights Act 1990 establish the rule against double jeopardy, s 10 does not of itself provide the process or set the threshold by which the issue is to be determined. Mander J said that the proper procedure that should have been followed in the case before him was for Mr Waddell-Stephens either to have entered a plea of previous conviction to the s 57AA charge or to have applied for the charge to be stayed or dismissed on the basis that its continued prosecution was an

²¹ At [90].

abuse of the Court’s process.²² While neither course had been followed, because no conviction had been entered on the s 57AA charge, Mander J was able to refer the matter back to the District Court to enable Mr Waddell-Stephens to enter a plea of previous conviction on that charge and for the District Court then to decide whether the plea was available.

• [39] In the present case, convictions have already been entered on both charges. Moreover, the appeal has been brought as an appeal against conviction under s 232 of the CPA rather than an appeal on a point of law under s 296 of the CPA, the procedure by which the appeals were brought in Waddell-Stephens and Mitchell. Arguably, an appeal under s 296(3) would also have been appropriate in the present case but that was not the course followed. In these circumstances, I consider that I should decide the appeal by reference to s 232.

• [40] As noted above, s 232(2)(c) of the CPA provides that a first appeal against conviction must be allowed if the Court is satisfied that a miscarriage of justice has occurred. Section 232(4) provides that miscarriage of justice means any error, irregularity or occurrence in relation to or affecting a trial that has created a real risk that the outcome of the trial was affected. Section 232(5) provides that “trial” in subs (4) includes a proceeding in which the appellant pleaded guilty.

• [41] I am satisfied that in entering a conviction under for an offence under s 56(1) of the LTA when also entering a conviction for an offence under s 57AA(4), the District Court Judge made an error because, as I have found, the offences under both sections arose from the same facts. That error has affected the outcome of the trial and has resulted in a miscarriage of justice because convictions were entered under both sections. If, following entry of the conviction under s 57AA(4), Mr Ashworth had entered a plea of previous conviction under s 46 of the CPA in relation to the offence under s 56(1), as was his right to do so, the District Court Judge would have been required under s 46(1) of the CPA to dismiss the charge under s 147.

• [42] Since dismissal of the charge would have been mandatory, I see no point in referring the matter back to the District Court.

²² Above n 5, at [12].

Result

• [43] I allow Mr Ashworth’s appeal.

• [44] In accordance with s 233 of the Criminal Procedure Act, I set aside Mr Ashworth’s conviction for an offence under s 56(1) of the Land Transport Act, vacate Mr Ashworth’s guilty plea to that offence and dismiss the charge relating to that offence.

G J van Bohemen J