Gribble v Police HC Auckland CRI-2011-404-96 [2011] NZHC 678 (27 June 2011)

Last Updated: 20 July 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2011-404-96}

BETWEEN SAMUEL LEWIS GRIBBLE Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 27 June 2011

Appearances: N Bourke for the Appellant

K L Bannister for the Crown

Judgment: 27 June 2011

_{ORAL JUDGMENT OF ELLIS J}

Solicitors: Crown Solicitors, PO Box 2213, Auckland 1140

Public Defence Service, PO Box 90 243, Auckland 1142

GRIBBLE V POLICE HC AK CRI-2011-404-96 27 June 2011

[1] On 14 December 2010, Mr Gribble was convicted of operating a motor vehicle on a road in a manner that caused the vehicle to undergo a sustained loss of traction.[1] The maximum penalty for that offence is a term of three months imprisonment or a fine of $4500.

[2] The facts can briefly be stated. At about 6:30pm on 7 December 2010

Mr Gribble drove his car in a deserted car park, applying heavy and sustained acceleration causing the tyres to lose traction and spin as he drove around.

[3] Judge Holderness in the District Court imposed a fine of $250 and the minimum disqualification period of six months.

[4] Mr Gribble appeals seeking a discharge without conviction under ss 106 and

107 of the Sentencing Act.

[5] Leave to appeal out of time due to Legal Aid issues was granted by me without opposition from the Crown.

[6] Section 11 of the Sentencing Act requires a Court to consider discharge without conviction before imposing a sentence. In the present case, it seems that the possibility was not raised with Judge Holderness. The leading authority on ss 106 and 107 is R v Hughes.[2] At [10], the Court held that the Court must first consider whether the s 107 test is met, before considering the discretion conferred by s 106. At [11], the Court held that the s 107 threshold is a “matter of fact requiring judicial assessment”, not an exercise of discretion. It follows that the ordinary principles governing general appeals, as prescribed in Austin Nichols & Co Inc v Stichting Lodestar[3] apply.

[7] Application of the s 107 test requires consideration of all relevant circumstances of the offence, the offending and the offender, and the wider interests

_{of the community including ss 7, 8, 9 and 10 of the Sentencing Act.}[4]

[8] At [12], the Court noted that in exercising the s 106 discretion, the Court would consider the same factors as under s 107, so “both stages will overlap to a large degree”, and a favourable outcome in the s 107 assessment will generally lead to a favourable outcome under a s 106 assessment.

[9] The Court emphasised that in applying s 107 it was necessary to focus on the wording of the Act rather than on earlier cases. However it accepted that in general terms the provision requires that the Court:

(a) identify the gravity of the offending with reference to the particular facts of the case;

(b) identify the direct and indirect consequences of a conviction; and

(c) determine whether those consequences would be out of all proportion to the gravity of the offending.

[10] In terms of the gravity of Mr Gribble’s offending, Mr Bourke submitted on that:

(a) The learned District Court Judge clearly accepted that the offending was at the lower end of the scale;

(b) Mr Gribble was only 17 years old at the time of the offending;

(c) Mr Gribble cooperated with the Police completely, pleaded guilty at first opportunity and expressed remorse;

(d) Mr Gribble had no previous convictions or demerit points and has good character;

(e) Mr Gribble has completed his six month disqualification period without incident.

[11] In terms of the consequences of a conviction, Mr Bourke submitted:

(a) A conviction will have a real affect on his aspirations to join the New Zealand Navy. Prior to his conviction he had competed some training towards becoming a Marine Technician;

(b) His disqualification results in an automatic 12 month stand-down period that begins from the end date of the disqualification period. That means an effective stand-down period of 18 months before he may join the Navy (six months of which has already passed in Mr Gribble’s case); and

(c) That this is a significant impediment and is out of proportion to the gravity of the offending.

[12] I record that the Crown did not oppose the admission under s 119 of the Summary Proceedings Act 1957 of an affidavit from Mr Gribble. That affidavit discloses further detail of Mr Gribble’s remorse and also of the steps he has taken to pursue a career in the Navy.[5] These steps have led to a positive response (subject to the stand down issue) from the New Zealand Defence Force.

[13] In all the circumstances of this case Miss Bannister for the Crown advised that it she was neutral on the appeal and simply and helpfully set out the proper considerations for the Court to take into account.

[14] Both Mr Bourke and Miss Bannister referred me to the decision of Winkelmann J in Waight v Police,[6] in which an appeal was allowed in similar circumstances. In that decision her Honour held that the Navy’s effective 18 month stand-down period was a consequence disproportionate to the seriousness of Mr Waight’s drink driving offending. Notably she also specifically considered whether the Court had jurisdiction to discharge without conviction where the penalty for the relevant offence entailed and included mandatory disqualification. She

_{concluded that the Court did have jurisdiction and ultimately discharged Mr Waight}

without conviction and replaced his fine with an order that he donate the equivalent amount to the Auckland City Mission.

[15] It is notable that the offending at issue in Waight was more serious than Mr Gribble’s (Mr Waight had driven after consuming six cans of Woodstock, being almost two times the legal limit) and the consequences also (inter alia) involved an

18 month stand-down from the Navy. Mr Gribble’s youth is an additional factor in

his favour in this case.

[16] In light of the matters raised by the appellant and recorded by me above, the decision in Waight and the absence of any real opposition by the Crown, I consider Mr Gribble’s appeal should be allowed. I am satisfied that the consequences of a conviction are out of all proportion to the seriousness of Mr Gribble’s offending.

[17] Accordingly:

(a) The orders convicting and fining Mr Gribble are quashed;

(b) Under s 106 of the Sentencing Act 2002 he is discharged without conviction, subject to the following orders:

(i) The disqualification ordered by Judge Holderness remains in place. As I have noted the disqualification period has in any event expired.

(ii) Upon refund of the $250 fine he has already paid, he is to donate that money to the Auckland City Mission.

Rebecca Ellis J

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[1] _{Land Transport Act 1998, s 36A(1)(c).}
[2] _{R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222.}
[3] _{Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.}
[4] Hughes at [41].

[5] McCabe v Police HC Hamilton AP26/95, 26 June 1995, Penlington J; R v Bain [2004] 1 NZLR _{638 (CA).}

[6] Waight v Police HC Auckland CRI-2006-404-465, 24 May 2007.