H v Police HC Napier CRI-2010-441-38 [2010] NZHC 2100 (23 November 2010)

Last Updated: 27 January 2017

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

_{CRI-2010-441-38}

BETWEEN H

Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 22 November 2010

Appearances: A Malik for Appellant

F E Cleary for Respondent

Judgment: 23 November 2010

_{JUDGMENT OF BREWER J}

This judgment was delivered by me on 23 November 2010 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

_{Registrar/Deputy Registrar}

SOLICITORS

Elvidge & Partners (Napier) for Crown

_{Amit Malik (Hastings) for Prisoner}

H V POLICE HC NAP CRI-2010-441-38 23 November 2010

Introduction

[1] The appellant appeals against convictions and sentences on one charge of driving with excess breath alcohol, two charges of wilful damage and one charge of offensive behaviour.

[2] The appellant submits that he should have been discharged without conviction pursuant to s 106 of the Sentencing Act 2002.

[3] His grounds of appeal are:

1. The sentence was manifestly excessive for the following reasons:

(i) The Learned Judge failed to consider relevant considerations

- in particular the Judge failed to consider all matters relating to the gravity of the offending;

(ii) The Learned Judge failed to consider all of the consequences of a conviction;

(iii) The decision was plainly wrong.

2. To be further advanced by counsel at the hearing of this appeal.

The facts

[4] At approximately 11.20 pm on 5 June 2010 the appellant was driving a motor vehicle. He was stopped by police in the course of a routine screening of drivers for consumption of alcohol. Breath testing procedures were carried out and the appellant returned a result of 642 micrograms of alcohol per litre of breath. He said he had been drinking at the rugby clubrooms and was on his way into town.

[5] Following the completion of the procedures which followed naturally upon such a result, the appellant was released. He went to West Quay in Napier and continued drinking. By 3.45 am he was highly intoxicated. He was arrested for urinating in public. That is the foundation for the charge of offensive behaviour.

[6] Having been arrested he was put into a police cell. He then deliberately tore up his mattress cover following which he damaged the sprinkler system in the

ceiling. This resulted in the flooding of the cell block. It took seven police officers more than an hour to mop up the mess. This is the foundation for the two charges of wilful damage.

[7] The appellant was not eligible for police diversion because on 24 April 2009 he had been intoxicated and was refused service in a hotel. He stayed in the bar of the hotel, leaning against the bar awaiting service and while doing so urinated against the bar. On that occasion he was not arrested but warned and issued a trespass notice.

Grounds of appeal

[8] The basis of the appeal can be summarised in this way: the appellant is a rugby player of some promise and is concerned that unless he is discharged without conviction on these charges there is a real risk that his ability to pursue his rugby career overseas will be compromised. Such an outcome would be out of all proportion to the gravity of his offending.

[9] Specifically, Mr Malik submitted that the sentencing Judge did not give Mr H enough credit for his good character and did not look at the real and appreciable risk to Mr H 's career of the consequences of convictions.

The law

[10] My task is to arrive at an assessment of my own on the merits of the case.^[1]

[11] The test I have to apply is expressed in s 107 of the Sentencing Act 2002:

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[12] There is a three-step inquiry.^[2] The court must first give consideration to the gravity of the offending, then the consequences of a conviction, and then finally whether the latter is out of all proportion to the former.

(1) The gravity of the offending

[13] The first offence to consider is the offence of driving with excess breath alcohol. Mr Malik submits that the reading of 642 was a moderate excess. Nevertheless it was well over the legal limit. Mr Malik also submits that there was no actual example of careless or dangerous driving; the appellant was stopped during a routine screening exercise. However, I take it that inherent in the offence of driving with excess breath alcohol is a danger to the public because of the well known effects of alcohol on a driver's ability to exercise proper driving standards.

[14] The charge of offensive behaviour is a minor one. However, it followed a previous incident in 2009 of intoxicated behaviour leading to urination in a public place.

[15] The two charges of wilful damage do not relate to trifling behaviour. The acts which caused the damage were not spontaneous or fleeting. It required effort and perseverance to tear up the mattress cover and then to damage the sprinkler system.

[16] Further, I take into account that these are separate offences; not part of the same incident but being three separate incidents of offending albeit on the same night and with the common factor of intoxication.

(2) Consequences (direct and indirect) of convictions

[17] Mr H filed an affidavit in support of his application to the District Court for discharge without conviction. This was sworn on 5 August 2010. In his affidavit he deposed to his record in provincial rugby and to his representative career

in polo during which, in 2001, he toured England with the under 21 team. So far as rugby is concerned, at the time of the affidavit he was proposing to return to North Canterbury because he had an injured knee and would not be able to play for the rest of the season.

[18] In relation to the possible consequences of convictions, he deposed:

39. I am keen to pursue a professional rugby career and it is my dream to play sport professionally in the future. Attached and marked "C" is a copy of a letter [from] Mike Warren, the Marist Rugby Coach, attesting to my ability to play sport professionally in the future.

40. During 2009 I received a number of offers to play rugby professionally overseas. The majority of these contracts were in England and Scotland however I was not prepared to go over at that time in my life.

41. I am still very interested in playing rugby overseas and there are increasingly more opportunities for young players from New Zealand to play all over the world - from Japan to Europe to North America.

42. It can be very competitive and I would hate to think that a criminal conviction would jeopardise my chances of securing a contract overseas.

43. I am aware that a criminal conviction can be an obstacle that may stop me travelling overseas.

44. I haven’t yet had an opportunity to travel on an O/E although I spent

5 months in America, living in West Virginia. I made lots of friends there and would love to return some day. However when I was in America I was able to travel without issues as I did not have any criminal convictions.

45. I have been advised that in the event that I received a criminal conviction I would no longer be eligible to enter America as part of the Visa Waiver Programme. I would need to apply for a Visa and there is no guarantee that I would be allowed entry as it is at the Discretion of the Immigration Officer.

46. I understand that Canada is even stricter than America and both are countries that I would like to visit and try to play sport over there as both have developing rugby programmes and both countries are keen to have New Zealand rugby players come to play for them.

47. I have also been advised that people who apply for jobs are often required to undergo Police checks to see whether they have any criminal convictions. I am worried that if I receive a conviction for this offending I will face real difficulties in finding employment in the future.

(3) Whether the consequences are out of all proportion to the gravity of the offences

[19] Section 107 does not have a low threshold. It is not the case that a person of moderately good character with potential for pursuing a career overseas does not have to adhere to the same legal obligations as his fellow citizens. Section 107 requires the court to be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offences.^[3] The Court of Appeal has held that those words point to an extreme situation that speaks for itself.^[4]

[20] This is not a case where there is a specifically identified consequence that would flow from a conviction.^[5] There is no sporting contract in place that would be jeopardised. A general desire to travel overseas is not one which is particular to the appellant.

[21] Driving with excess breath alcohol is a serious offence, notwithstanding the maximum sentence of imprisonment is only three months. Further, the linking factor of excessive alcohol consumption relating to all the appellant's offending on the evening in question is not an isolated or one-off event. The 2009 incident in the hotel demonstrates that.

[22] Judge Adeane had the advantage of what he described as a carefully researched and detailed submission by the appellant's then counsel which he commended for its content. His Honour then observed:^[6]

[4] ... But at the end of the day [Mr H ] now has the problem, if he wishes to be treated differently from other people, of showing that the consequences of conviction would be out of all proportion to the culpability of his conduct. Clearly the words in the section contain an emphasis which it is not for the court to ignore.

[5] ... In substance Mr H has two submissions to support a discharge without conviction. First of all that convictions will adversely

affect his future employment prospects in a general fashion; but secondly, that convictions will interfere with his ability to travel internationally and thereby has a particular relevance to his aspirations to become a professional rugby player. At this stage Mr H has a short but fairly accomplished rugby career up to provincial level. Whether it will go further remains to be seen.

[6] While there may be some concerns in his mind, as there well should be, about the consequences that his conduct to date will have on his future prospects generally, the enquiry the court has to undertake now is whether it can be seen that convictions would have a disproportionate adverse effect. Despite the care which counsel has taken in advancing the case it seems to me clear enough that this is a routine case of relatively minor offending for which convictions can properly be entered.

[23] I agree with the District Court Judge. However, I would go further and say that given the 2009 incident, the fact that the three incidents of offending in this case were separate save for their linkage by excessive alcohol consumption and the importance of denouncing and deterring drunk driving, Judge Adeane had little choice other than to enter convictions.

_{[24] The appeal is dismissed.}

Brewer J

---

^[1] Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103

^[2] Police v Roberts [1991] 1 NZLR 205.
^[3] _{My emphasis.}
^[4] _{Police v Roberts, above n 2, at 210.}

^[5] As was the case in Waight v Police HC Auckland CRI-2006-404-465, 24 May 2007, Winkelmann J.

^[6] Police v H DC Napier CRI-2010-041-1794, 11 August 2010.