Police v Ferguson DC Dunedin CRI-2011-045-830 [2012] NZDC 402 (15 March 2012)

Last Updated: 3 January 2020

IN THE DISTRICT COURT AT DUNEDIN

CRI-2011-045-000830

NEW ZEALAND POLICE

Informant

v

SHAUN NIA FERGUSON

Defendant

Hearing: 15 March 2012

Appearances: Senior Sergeant S Armitage for the Informant S A Saunderson-Warner for the Defendant

Judgment: 15 March 2012

NOTES OF JUDGE S J O’DRISCOLL ON SENTENCING

[1] The defendant Shaun Ferguson is before me today. He had originally entered a plea of not guilty to a charge of driving with an excess breath alcohol level on 27 November 2011. It appears that there was some issue over whether or not the defendant had been driving his motor vehicle on a road as defined under the Land Transport Act 1998 and for that reason a not guilty plea was entered.

[2] Various enquiries were made and after disclosure was received and further information it appears that a decision was made to amend the plea from one of not guilty to one of guilty. Accordingly, the defendant has today pleaded guilty to a charge of driving with an excess breath alcohol level on 27 November 2011 at Oamaru.

POLICE V FERGUSON DC DUN CRI-2011-045-000830 [15 March 2012]

[3] In anticipation that there would be a change of plea, I have had written submissions filed in respect of both special reasons not to disqualify the defendant from the mandatory driving period and also submissions in support of an application to discharge the defendant without conviction pursuant to s 106 Sentencing Act 2002. I am informed that the police take a neutral view in respect of the application.

[4] The test in relation to discharge without conviction under s 106 is set out in s 107 and there are a number of Court of Appeal decisions which set out the guidelines that the Court should follow when considering an application to discharge without conviction.

[5] Section 107 Sentencing Act says that a Court must not discharge an offender without conviction unless the Court is satisfied that the direct and indirect consequences would be out of all proportion to the gravity of the offence. I have had the opportunity, before coming into Court today, to read the submissions filed on behalf of the defendant and also I have had the opportunity to read the affidavit filed by the defendant and the various appendices and other material attached to his affidavit.

[6] It is submitted in the written submissions that have been filed that the gravity of the offending is low and while the defendant was under police observation the public were not at risk. It is submitted that the principal consequence of a conviction against the defendant will be his inability to travel to Canada and that the Canadian Immigration Authorities will deny his entry into Canada. That is because he will be what is termed “criminally inadmissible”. The material before me indicates that if the defendant was discharged without conviction pursuant to s 106, he would be able to enter Canada because the Court would not then have recorded a conviction against his name.

[7] I have been given a number of authorities which say that in appropriate cases, a bar to travelling overseas is a significant factor and one that the Court can take into account when deciding to discharge without conviction. I have also been given cases and am aware that there are cases where discharges without conviction have been

granted by the Court for defendants who have pleaded guilty to a charge of driving with an excess breath or blood alcohol level.

[8] However, it is not simply a case of saying that a conviction will bar a defendant from overseas travel and as a consequence a discharge without conviction should be granted. It is necessary to look at the facts of each particular case and apply the facts and the law and in particular s 107 to the case before the Court.

[9] In addition to the specific consequence of an inability to travel to Canada, the defendant has also said that there are other general consequences that can arise as a result of a conviction and I am being asked to consider those matters alongside the more specific matter that has been placed before me.

[10] In terms of whether the consequences of a conviction are out of proportion to the gravity of the offence, I accept that the consequence does not have to be something which will inevitably occur but there must be an appreciable risk of prejudice to travel.

[11] I also accept that there is no policy reason why drink drivers should be specifically excluded from being discharged without conviction and, as I have said, I have been given cases and am aware that in appropriate cases where the test is satisfied, the Court can and will discharge without conviction.

[12] The defendant is aged 23. He is completing a Master’s degree. He has no previous convictions. He has pleaded guilty to the charge. The affidavit filed by the defendant sets out the background to his offending and in particular the background leading to his decision to get into a motor vehicle and drive. The affidavit filed by the defendant also sets out the effects and consequences from the defendant’s perspective if a conviction is entered against him.

[13] The defendant deposes that he was upset and drunk and that he made an extremely bad and reckless decision to drive. He intends to submit his thesis this month. He has spoken to a Canadian professor about the possibility of work in Canada and the possibility of getting into a PhD programme in Canada. That

material is before me as an annexure to the defendant’s affidavit in the form of email correspondence between the defendant and that other person. There are also character references that have been placed before me relating to the defendant.

[14] There is also an extract from frequently asked questions from a website which sets out the consequences if a conviction is entered against the defendant. It seems from the website material before me that should a conviction be entered the defendant would be criminally inadmissible to enter Canada for a period of five years. If a discharge without conviction was granted, the defendant would not be criminally inadmissible and would be able to enter Canada. Those matters are marked F and G in the defendant’s affidavit. So there is concern about the defendant’s ability to travel to Canada if convicted and there are other aspects relating to general employment issues and insurance.

[15] In addition to the application to discharge without conviction, there is also an application for special reasons not to disqualify the defendant for the mandatory period of disqualification. The special reason that is advanced in this case is the short distance that the defendant drove. There are a number of cases which say that in appropriate cases the short distance that a defendant drives a motor vehicle is a matter to be taken into account.

[16] In terms of my assessment of both applications, but more particularly in relation to the charge of driving with an excess breath alcohol, the first issue is the gravity of the offence. In terms of the general offence, drinking and driving is serious. It is serious because drink drivers contribute to a significant number of deaths on the roads in New Zealand. Drink drivers contribute to a significant number of serious and minor injuries short of death on our roads in New Zealand each year. In terms of the gravity, drink drivers cost the country millions of dollars as a result of drink driving. In terms of the gravity of the offence, there is also an extensive media campaign each year to attempt to prevent people from driving after they have been drinking.

[17] In terms of the specific matters relating to this case, the defendant is clearly intelligent. He is in the process of submitting a Master’s Degree and wants to complete a doctorate.

[18] In terms of the gravity of this offence, the defendant had a breath alcohol level in excess of double the limit. It was 887 micrograms of alcohol per litre of breath. In terms of the gravity of the offence, I accept that the distance driven by the defendant is minimal and can properly be said to be at the lower end of the scale. The reason for that is because a concerned observer phoned the police. The police arrived and watched the defendant. They watched him get into his car and as he was coming out of a driveway onto the road, he was apprehended and stopped by the police.

[19] In terms of the gravity of the offending, one of the matters that I must, and do, take into account is the distance travelled by the defendant. However, one of the other matters that I think affects the gravity is the distance that the defendant intended to drive. It is not clear from the material before me what distance the defendant intended to drive but it is clear that the only reason the defendant was prevented from driving was because the police had the necessary time and resources to follow up the call from the concerned observer and go to the area where the defendant was.

[20] In terms of the consequences of a conviction, I have an email which provides the basis of the defendant intending to travel to Canada and intending to apply for entry into a PhD programme. In terms of the consequences of a conviction I also have material before me from a Canadian Government website indicating that should the defendant have a conviction of this type against his name, he would be criminally inadmissible for entry into Canada.

[21] I have had part of the material from the Canadian website given to me. All of the material relating to drink drivers has not been put into the defendant’s affidavit. It is clear that there is other material on the website and that is set out at para (32) of McMillan v Police HC Wellington CRI-2010-485036, 21 July 2010, a High Court decision from Wellington given by Mellon J. That sets out the full relevant material

from the Canadian website. It is possible for a defendant to obtain relief after five years. It is also possible for the defendant to have entry into Canada within five years and an application can be made to the immigration authorities.

[22] What then is the evidence before me of the defendant’s intention to travel to Canada? It is an email which the defendant sent and received a reply to in March of this year. I accept that there only has to be a real and appreciable risk of the defendant not being allowed entry into Canada. However, I have the email before me which sets out an intention to apply to go to Canada. I also have material before me which indicates that the defendant has the ability to apply to Canadian authorities within a five-year period should he wish to have entry into Canada and that is then a matter for the Canadian authorities.

[23] Are the consequences of a conviction out of all proportion to the gravity of the offending? The view that I have taken is that they are not. In this case there is a high level of over double the limit, and there was clearly the potential for the defendant to drive some distance. I take the view that the consequences of a conviction are not out of all proportion to the gravity of the offending. I am not prepared to exercise my discretion and discharge the defendant under s 106 Sentencing Act.

[24] The offending is serious. Had the defendant not been stopped by the police, there was the potential for him to have caused a crash and for there to have been other consequences. I do not think that it can be said that a person who is immediately apprehended by the police should be more likely to have a discharge without conviction than someone who drives a considerable distance. The defendant has not, in my view, disclosed the distance he intended to drive had he not been stopped by the police.

[25] This is not a case where a defendant has deposed in an affidavit that he intended to do a u-turn or to park his car on the other side of the street as sometimes occurs, where the Court can be satisfied that both the distance the defendant did drive and intended to drive were relatively short. Combined with the high level, I

am of the view that it is not appropriate to exercise my discretion and discharge the defendant without conviction.

[26] I am similarly of the view that there are not special reasons in this case to impose other than at least the mandatory minimum period of disqualification. Again, while I accept that the defendant in fact only drove an extremely short distance, that was only because the police were able to respond to a call from a concerned person and had the means and ability to go to the scene. For those reasons, I am not prepared to find that there are special reasons in this case not to impose at least the mandatory minimum period of disqualification.

[27] I have read the material before me. I am fully aware of the defendant’s personal circumstances and consequences. I intend to enter a conviction against the defendant. He will be fined the sum of $800. He will be ordered to pay Court costs. He will also be disqualified from holding or obtaining a driver’s licence for a period of eight months commencing from today.

S J O’Driscoll District Court Judge