Hurstfield v Police HC Auckland CRI-2011-404-195 [2011] NZHC 992 (11 August 2011)

Last Updated: 28 September 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2011-404-195}

ALEX HURSTFIELD

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 9 August 2011

Appearances: M Read for Appellant

L Clancy for Respondent

Judgment: 11 August 2011

_{JUDGMENT OF WHITE J}

This judgment was delivered by me on 11 August 2011 at 10.00 am pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar

Date: ......................

Counsel: M Read, Auckland: [e-mail]

Solicitors: L Clancy, Crown Solicitors, Auckland: [e-mail]

HURSTFIELD V NZ POLICE HC AK CRI-2011-404-195 11 August 2011

[1] Mr Hurstfield, who pleaded guilty in the District Court at Manukau to a third drink driving offence, was convicted by District Court Judge C S Blackie on 17 May

2011 on the charge under s 56(2) of the Land Transport Act 1998, fined $750 plus court costs of $132.89, medical expenses of $80 and an analyst’s fee of $93, and disqualified from holding or obtaining a driver licence for 12 months and one day commencing on 17 May 2011.

[2] The District Court Judge declined an application by Mr Hurstfield for a discharge without conviction under s 106 of the Sentencing Act 2002. A discharge without conviction had been sought in order to avoid mandatory disqualification and consequential prohibition on obtaining a limited licence.

[3] This appeal is against the decision of the District Court Judge declining to discharge Mr Hurstfield without conviction. The essential ground of the appeal is that the District Court Judge erred in failing to be satisfied that the direct and indirect consequences of the conviction would be out of all proportion to the gravity of the offence because without a limited licence Mr Hurstfield’s business would need to employ a new driver and the employment of an existing employee would have to be terminated with serious adverse financial consequences for the business.

Factual background

[4] Mr Hurstfield had been convicted of drink driving offences on two previous occasions: August 1992 and November 2009. On both occasions he was fined and disqualified for periods of six months.

[5] The present incident occurred when Mr Hurstfield was driving home on Pakuranga Road. He was stopped at a checkpoint and exhibited signs of having recently drunk alcohol. A blood sample was taken and found to contain 93 milligrams of alcohol per 100 millilitres of blood.

[6] Mr Hurstfield is a director and owner of ESP Mechanical Limited, a building and air conditioning/heating engineering business employing three people. He is required to attend callouts promptly at any time of the day or night, from Dargaville to Tauranga, carrying tools and equipment with him. When he was last disqualified he employed an apprentice to drive him. That apprentice is no longer available. According to Mr Hurstfield, if a driver had to be employed by the company, the employment of an existing employee would have to be terminated.

[7] Further affidavit evidence from Mr Hurstfield and his accountant, Ms Binney, shows that his business has gross annual sales of $772,000 and a net annual profit of

$200,000 for its shareholders, Mr and Mrs Hurstfield. Mr Hurstfield’s drawings

were $96,000 in the year to 1 April 2011 and three skilled employees were paid

$75,000, $52,000 and $90,000 respectively. A replacement driver would be expected to be paid less than these employees.

[8] Mr Read accepted that the business had sufficient income to employ a driver again on the same basis as previously and that either that driver or one of the skilled employees would be able to drive outside office hours. There would be a cost involved to Mr Hurstfield in doing so, but there was no suggestion that that cost could not be met by the business. There was no evidence before the Court relating to the company’s assets or the personal financial position of Mr and Mrs Hurstfield suggesting otherwise.

[9] The further affidavit evidence from Mr Hurstfield and his accountant also showed that since the hearing in the District Court the business had lost a significant client in the form of Sky City Auckland Limited. Although Mr Hurstfield claimed that this had occurred because of delays involved in taking taxis to a callout by Sky City, an email from Sky City attached to his affidavit suggested that the decision not to retain the services of Mr Hurstfield’s company was because Sky City had decided to self-deliver its maintenance requirements along with a couple of strategic partners.

[10] The District Court Judge considered Mr Hurstfield’s application for a discharge without conviction under s 106 of the Sentencing Act 2002 by applying the disproportionality test under s 107 of that Act and the decisions in R v Hughes, Lee v Police and Delaney v Police.[1]

[11] Under the heading ―Direct and Indirect Consequences of a Conviction – Impact on Employment‖, the District Court Judge recognised that the consequences of conviction on the offender’s employment or career prospects and the loss of employment of other people (employees) might be taken into account: Neason v

Police.[2]

[12] In the course of summarising the case for Mr Hurstfield, the District Court

Judge recorded that:

[23] When the defendant was previously disqualified in 2009, he relied upon an apprentice to drive him to various business locations. He now says that the apprentice is no longer available and that if he were to utilise other employees within his business this would be at an unreasonable cost to his company. In all likelihood, he would have to dispense with the services of at least one other employee on account of the cost.

.....

[29] In making the current application to the Court, the defendant relies upon the indirect consequences of conviction on his employees. Various affidavits were provided to highlight the importance of the defendant being able to drive in the conduct of his business. The current financial position of the business was disclosed. In essence, it is submitted that conviction would cause undue hardship to persons unconnected with the offending, and such would be disproportionate to the offending itself.

[13] After referring to the informant’s position and the decisions in Aylwin v

Police, Mallon v Police and Jukes v Police,[3] relied on by Mr Hurstfield, the District

_{Court Judge recorded that:}

[39] In the present case, Mr Read rightly conceded that his client’s application may not be the most palatable to the Court. He suggested that in order to ameliorate this position, the following course be taken:

(a) The Court indicate the likely outcome of application on condition that the defendant produce to it a receipt for a substantial donation to a charity in a sum similar to that might be imposed by way of a fine on conviction; and

(b) The Court order that the defendant be disqualified for a period in excess of one year – an excess that might be seen to compensate for a discharge; and

(c) The Court grant an order for limited licence in the terms of a draft order that has been submitted to the Court for the duration of that disqualification.

[14] The District Court Judge then gave the following reasons for declining the application:

[40] This case is unprecedented. Applications are made to the Court for relief under s 94 of the Land Transport Act 1998. The cases of Mallon and Jukes were along those lines and in both decisions there had only been one previous EBA offence. As to a discharge without conviction on a third charge of driving with excess breath alcohol, counsel were unable to refer me to a case that was directly on point. The closest case by analogy may be Neason v Police 17/3/05, John Hansen J, (supra). In that case, the offender was stopped for drinking and driving and required to park his car and make his way home by alternative means. He duly did so. However, a short time later he decided to return to the scene and to uplift his car. His actions were seen by the Police and another breath test was administered. He was therefore charged with two separate offences arising out of basically the same incident. Having been pointed out to Hansen J that the second charge arising from the same initial incident would lead to a third and subsequent conviction, he was prepared to grant a s 106 discharge on the second charge so as to preserve the defendant’s ability to make application for a limited licence. The impact of his disqualification would have been not only on the offender but also would lead to at least a loss of two full-time jobs and one part-time job. In granting the 106 application, the learned Judge doubled the penalty on the first charge to reflect the totality of the offending.

[41] Having regard to the cases referred to and the legal principles, I am far from satisfied on the material before me that the detriment to the defendant’s business would be as serious as he makes out. He is able to call in aid the resources of his other employees and of public transport. Other matters, such as the defendant having taken steps through Care NZ and having complied with previous sentences, may be taken into account in mitigation of penalty. Similarly, the circumstances of apprehension and the blood alcohol level. Parliament has specifically restricted the Court’s ability to consider application for a limited licence in cases of repeated drink driving offences. Section 106 should not be seen as an easy way to skirt around those restrictions.

[42] Repeated drinking and driving is a serious offence, as can be seen from the sentencing levels provided. In my view, direct and indirect consequences of a conviction would not, in this case, be out of all proportion to the gravity of the offending.

Submissions for Mr Hurstfield

[15] For Mr Hurstfield, Mr Read submitted that the District Court Judge had erred in:

(a) Making an error of fact in respect of the extent of the adverse consequences of Mr Hurstfield’s disqualification on his business and employees.

(b) Failing to take into account as a relevant consideration the detriment that would be suffered by employees of Mr Hurstfield’s business.

(c) Making an error on the face of the record in stating that in Neason v Police the second charge arising from the same initial incident would lead to a third and subsequent conviction

(d) Exercising his discretion to decline the application.

[16] Mr Read submitted that employees of ESP should not suffer undue hardship by way of the loss of their jobs because of the wrongdoing of Mr Hurstfield. Such hardship was an indirect consequence of a conviction against Mr Hurstfield out of all proportion to the gravity of the offending.

Submissions for the New Zealand Police

[17] For the New Zealand Police, Mr Clancy submitted:

(a) The District Court Judge was correct when he stated that repeated drinking and driving was serious offending.

(b) It was axiomatic that drink driving exposed both the driver and other road users to the risk of serious injury or death and property damage.

Mr Hurstfield had twice before come before the courts for similar offending, most recently just one year before he was arrested for the present offence.

(c) Notwithstanding that the blood alcohol level recorded was at the lower end of the scale, it was still clearly serious offending.

(d) The consequences put forward by Mr Hurstfield had been carefully considered by the District Court Judge.

(e) It was far from clear on the evidence that job losses would inevitably follow should the conviction (and disqualification) remain in the present case. There was no evidence that Mr Hurstfield would not be able to meet the costs of employing a driver for one year from his personal resources.

(f) The offending, involving drink driving on a third occasion, was serious. The consequences of conviction put forward by Mr Hurstfield were speculative. It had not been established with certainty that any loss of employment to company employees would necessarily follow.

(g) The direct and indirect consequences of conviction in this case were not out of all proportion to the seriousness of the offending.

Appellate approach

[18] It was common ground that:

(a) Appeals against a refusal to grant a discharge without conviction under s 106 of the Sentencing Act 2002 are to be treated as an appeal against conviction and sentence: Mohammed v New Zealand Customs

_{Service and Rutherford v Papakura District Council.}[4]

(b) The decision whether the test under s 107 of the Sentencing Act 2002 has been met is not a matter of discretion, but a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles: R v Hughes.[5]

(c) The general appellate principles described by the Supreme Court in Austin Nicholls & Co Inc v Stitching Lodestar[6] were therefore applicable: R v Hughes and Livingstone v Police.[7]

The legislative framework

[19] The relevant provisions of the Land Transport Act 1998 are: (a) s 56(4) which provides:

56. Contravention of specified breath or blood- alcohol limit

.....

(4) If a person commits a third or subsequent offence against subsection (1) or subsection (2) or any of sections 57A(1), 58(1), 60(1), or 61(1) or (2) (whether or not that offence is of the same kind as the person's first or second offence against any of those provisions), the person commits an indictable offence and on conviction—

(a) The maximum penalty is imprisonment for a term not exceeding 2 years or a fine not exceeding $6,000; and

(b) The court must order the person to be disqualified from holding or obtaining a driver licence for more than 1 year.

_{(b) s 103(2)(d)(ii) which provides:}

103. Persons who may apply to court for limited licence

.....

(2) The following persons may not apply under this section for an order under section 105 authorising the grant of a limited licence:

.....

(d) A person who is disqualified by an order made on his or her conviction—

.....

(ii) For an offence against any of sections 56, 57A, 58, 60, 61 and 62 (which relate to offences involving alcohol or drugs)

.....

committed within 5 years after the commission of any other offence specified in this paragraph and arising from a different incident (whether or not both offences are of the same kind, regardless of when convictions were entered for those offences).

[20] The relevant provisions of the Sentencing Act 2002 are:

(a) s 106(1), (2) and (3)(c) which provide:

106 Discharge without conviction

(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

(2) A discharge under this section is deemed to be an acquittal.

(3) A court discharging an offender under this section may—

.....

(c) make any order that the court is required to make on conviction.

(b) s 107 which provides:

107 Guidance for discharge without conviction

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.

[21] It was common ground that:

(a) The fact that Mr Hurstfield had committed a third drink driving offence meant that in terms of s 56(4) of the Land Transport Act 1998 in the event he was convicted of the offence the Court was required to order that he be disqualified from holding or obtaining a driver licence for more than one year.

(b) Once convicted of the offence and disqualified, Mr Hurstfield would be prevented by s 103(2)(d)(ii) of the Land Transport Act 1998 from obtaining a limited licence.

(c) The District Court had, and the High Court on appeal has, jurisdiction or power under s 106(1) of the Sentencing Act 2002 to discharge Mr Hurstfield without conviction. The mandatory penalty of disqualification under s 56(4) of the Land Transport Act 1998 did not constitute ―a minimum sentence‖ under s 106(1) preventing the Court from doing so: Hall’s Sentencing and Adams on Criminal Law –

Sentencing.[8]

(d) The power of the Court under s 106(3)(c) of the Sentencing Act 2002 to ―make any order that the court is required to make on conviction‖ includes the power to make an order for disqualification as required

_{by s 56(4) of the Land Transport Act: cf Grant v New Zealand Police.}[9]

The balancing exercise

[22] In carrying out the balancing exercise required for the disproportionality test under s 107 of the Sentencing Act 2002 in accordance with the decision of the Court of Appeal in R v Hughes, I take into account the following matters:

(a) The purpose and scheme of the drink driving provisions of the Land Transport Act 1998 make it clear that a third drink driving offence is a serious offence normally leading to mandatory disqualification and prohibition on obtaining a limited licence.

(b) While Mr Hurstfield’s blood alcohol level was not particularly high on this occasion and he pleaded guilty at the first opportunity, the fact that it was his third offence reinforced the gravity of the actual offence.

(c) The direct and indirect consequences that Mr Hurstfield claim would result from his conviction and subsequent inability to obtain a limited licence were overstated. The evidence before the Court established that Mr Hurstfield’s business was in a position to meet the cost involved in employing another driver as had occurred on the occasion of his previous conviction. Any financial impact on Mr Hurstfield or his business of doing so was simply the price of his third conviction. The suggestion that Mr Hurstfield would be forced to terminate the employment of one of his staff in order to employ a replacement driver was not persuasive. Nor was the suggestion that he had lost the Sky City business because of his disqualification.

[23] I am not therefore satisfied that in the circumstances of Mr Hurstfield’s case the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[24] The decisions in cases such as Neason and Police v Erwood[10] are distinguishable in the grounds that in the circumstances of those particular cases the disproportionality test was met. In Neason it was accepted that the appellant and his employees would in fact lose their jobs if the appellant was unable to obtain a limited licence. In Erwood the defendant was an off-duty policeman called to an emergency involving a fatal three-car collision.

[25] As the disproportionality test under s 107 of the Sentencing Act 2002 is not met in the present case, the power to discharge Mr Hurstfield without conviction under s 106 of the Act may not be exercised.

Result

_{[26] The appeal is therefore dismissed.}

_{D J White J}

---

[1] R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222; Lee v Police HC Auckland CRI-2005-404-28,

_{27 July 2005; and Delaney v Police HC Wellington CRI-2005-485-22, 22 April 2005.}

[2] _{Neason v Police HC Dunedin CRI-2204-412-49, (check) 17 March 2005.}

[3] Aylwin v Police [2008] NZSC 113, (2008) 24 CRNZ 235; Mallon v Police HC Invercargill AP 76/95,

24 April 1996; and Jukes v Police HC Christchurch AP 228/94, 5 October 1994.

[4] Mohammed v New Zealand Customs Service HC Auckland CRI-2008-404-56, 29 May 2000 at [5]- [8]; and Rutherford v Papakura District Council [2005] BCL 922 (HC).
[5] _{R v Hughes [2008] NZCA 546; (2008) 24 CRNZ 179 (CA) at [11].}
[6] _{Austin Nicholls & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.}
[7] R v Hughes at [63]; and Livingstone v Police HC Auckland CRI-2011-404-167, 2 August 2011 at [11]-[12].

[8] Geoffrey G Hall Hall’s Sentencing (online looseleaf ed, LexisNexis) at [SA 106.2] (a) and (c); and Sir Bruce Robertson (ed) Adams on Criminal Law – Sentencing (online looseleaf ed, Brookers) at [SA106.03].

[9] Grant v New Zealand Police HC Wellington CRI-2008-485-87, 29 September 2008, at [4]-[5].

[10] Police v Erwood [2007] DCR 728.