Brunton v Police [2012] NZHC 1197 (30 May 2012)

Last Updated: 16 July 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-89 [2012] NZHC 1197

RODNEY JOHN WAYNE BRUNTON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 28 May 2012

Appearances: M Edgar for the appellant

J Wall for the respondent

Judgment: 30 May 2012

This judgment was delivered by the Hon Justice Clifford on Wednesday, 30 May 2012 at 5.30pm pursuant to Rule 540(4) of the High Court Rules.

_{JUDGMENT OF CLIFFORD J}

Introduction

[1] On 17 February 2012 the appellant, Mr Brunton, pleaded guilty before a community magistrate in the Manukau District Court to one charge of being a person under 20 years of age and driving a motor vehicle with excess breath alcohol exceeding 150 micrograms of alcohol, namely 177 micrograms of alcohol per litre of

_breath.

BRUNTON v POLICE HC AK CRI-2012-404-89 [30 May 2012]

[2] The community magistrate convicted Mr Brunton, disqualified him from holding or obtaining a driver’s licence for three months, fined him $100 and ordered Court costs of $132.89. Mr Brunton now appeals against his conviction. He acknowledges his offending, but says he should have been discharged without conviction pursuant to s 106 of the Sentencing Act 2002. Mr Brunton says that that conviction would have consequences out of all proportion to the gravity of his offending, namely adversely affecting his ability to travel to Canada for study purposes and, subsequently, adversely affecting his likely future application to be registered as a chartered accountant.

Facts

[3] Mr Brunton was stopped at a routine police check on Sunday 5 February

2012 at about 1.07am. Earlier that evening he had attended what he describes as a “non-alcohol paint party under age rave”. Before going to that party, he says he and a friend had consumed two cans of a bourbon and cola drink in a car outside the party venue. They had entered the party at 9.00pm and left at 1.00am. He says no further alcohol had been consumed. When stopped by the Police, Mr Brunton acknowledged having drunk alcohol earlier that evening. When tested, Mr Brunton’s breath showed 177 micrograms of alcohol per litre of breath. The maximum permissible reading for someone under the age of 20 is 150 micrograms of alcohol per litre of breath.

[4] On 17 February Mr Brunton was represented by a duty lawyer. His instructions were that he wished to plead guilty at the first opportunity so that he could resolve the matter without his parents necessarily becoming concerned. He says he did not think about the consequences of a conviction or that he would be burdened with a criminal record. Therefore, he did not discuss with the duty lawyer seeking a remand so that legal advice could be sought, nor were any submissions made in favour of a discharge without conviction.

Analysis

[5] In the circumstances, the Police accept that I may consider afresh the question of whether or not Mr Brunton should have been discharged without conviction. I proceed on that basis.

[6] Mr Brunton was at the time of his offending, and is now, 18 years old. He is a full time student at the Auckland University of Technology, studying for his Bachelor of Business. This is the first time Mr Brunton has offended. He has an unblemished and impressive record. He lives at home with his parents and six of his seven siblings. The family are Seventh Day Adventists. Mr Brunton was home schooled until the age of 13 and attended Auckland Seventh Day Adventists High School from the age of 13 to 18. In his last years at school he was a prefect and peer mentor, and deputy head boy. He was coach and captain of the football team and participated in other extra-curricular activities. He was granted a Vice-Chancellor’s scholarship to the Auckland University of Technology for three years.

[7] In addition to setting out those details in an affidavit, Mr Brunton provided the Court with a number of references written in support of his application for a scholarship to the Auckland University of Technology. A more recent reference was provided by a Māori Liaison Services Adviser from that university. Mr Brunton liaises with that adviser as part of the conditions of his scholarship. The adviser writes that he has found Mr Brunton to be highly intelligent, diligent and an extremely considerate person. Mr Brunton had disclosed to his adviser his conviction.

[8] Section 106 of the Sentencing Act provides that a Court may discharge without conviction an offender who is found or pleads guilty and in so doing make any orders that the Court might otherwise have made on conviction. Section 107 provides that the Court must not so discharge an offender without conviction unless satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[9] In his affidavit, Mr Brunton identified two matters by reference to which he said that test had been satisfied. First, he pointed to difficulties that could arise in obtaining permission to travel to Canada, where he intends to study as an exchange student for part of his under-graduate degree. He also pointed to possible difficulties in subsequently being registered as a chartered accountant.

[10] Consideration of whether a person who pleads or is found guilty should be discharged without conviction pursuant to ss 106 and 107 involves, as is well understood, a three part test. The Court must:

(a) assess the gravity of the offending;

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

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

[11] In confirming that test, the Court of Appeal in Blythe v R clarified that whereas aggravating and mitigating factors set out in ss 9 and 9A of the Sentencing Act are relevant to the question of disproportionality in the matters referred to, ss 7,

8, 10 and 10B are not.[1] Those matters will, together with ss 9 and 9A, be relevant at

the point the discretion is exercised under s 106.

[12] Drink driving offending is serious offending, particularly where young people are involved. This is reflected in the, then, lower permissible level of micrograms of alcohol per litre of breath (150) for persons under the age of 20 as opposed to 400 for those 20 or over. At the same time, I acknowledge that Mr Brunton’s offending is at the lower end of seriousness for this type of offending. He was detected at a routine police test. It was not his driving which attracted police attention. Moreover, the level of alcohol in his blood is at the lower end of the scale. Also, in terms of the s 9(2) mitigating factor, there is, I accept, a high level of remorse reflecting – I infer

_{– Mr Brunton’s personality and background.}

[13] Assessing the consequences of this conviction, the first issue raised is the effect of this conviction on Mr Brunton’s wish to travel to Canada. In his affidavit, Mr Brunton put it this way:

I have been advised by the Canadian Embassy in New Zealand that to be eligible to study in Canada I must be a law abiding citizen with no criminal record.

[14] That very general statement requires some further consideration. In material downloaded from the website which was provided to me by Mr Edgar, the following information appears:

What are the common convictions that will make a person inadmissible to

Canada?

Drink driving or impaired driving convictions (even if they are recorded as a traffic offence) where the blood alcohol level reading is 0.08% or above – or a breath reading of 0401 micrograms mgms per/l or above, will make you inadmissible to Canada.

[15] On that basis, Mr Brunton’s conviction for this offending would not make him inadmissible, as his level was 170mgm per/l. Moreover, for the New Zealand Police Mr Wall accessed a website of the Canadian Consulate in Sydney. Based on that access, the following material was provided to me by Mr Wall:

As set out in the frequently asked questions on the website to the Canadian Consulate in Sydney, it is possible that the Appellant falls below the threshold of alcohol intake that would render him ‘inadmissible’ as a visitor:

Yes, provided the conviction or traffic infringement notice was not for

Impaired Driving, a drink driving offence alone with a blood alcohol reading

0.08% exactly or below will not make you inadmissible. You may proceed to Canada. You do not have to contact the Canadian Consulate General in Sydney, Australia.

[16] As I observed to Mr Edgar, there is therefore considerable uncertainty as to whether or not this conviction will have any effect at all on Mr Brunton’s ability to travel to Canada. The Courts have held on numerous occasions that tentative future travel plans carry little weight in a s 107 context. Potential problems with travel overseas have often been seen as a universal consequence, and unless real evidence can be shown that a conviction would impede entry into another country, such speculative consequences will not form the basis for a discharge without conviction. Here the evidence before me is that this conviction will not have any real effect on

Mr Brunton’s ability to travel to Canada. On the basis of that evidence there is not a real and appreciable risk of an adverse consequence. I am, therefore, not persuaded on the basis of that consideration that there is a direct or indirect consequence that is relevant.

[17] Furthermore, I am simply not persuaded, and nor did Mr Edgar pursue the point, that such a conviction might seriously prejudice any application Mr Brunton might make in the future for registration as a chartered accountant.

[18] I acknowledge, as I have already indicated, that Mr Brunton personally regards this conviction as a matter of considerable regret, and perhaps embarrassment. That, however in my view, does not constitute a consequence here that is out of all proportion to the gravity of the offence. Rather, it is a very understandable human reaction.

[19] I am therefore not persuaded that the test in s 107 is satisfied. Therefore, the residual question of the exercise of the discretion under s 106 does not arise and Mr Brunton’s appeal is dismissed.

“Clifford J”

Solicitors:

M A Edgar, Barrister, Auckland for the appellant ([e-mail]). Meredith Connell, Auckland for the respondent ([e-mail]).

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[1] Blythe v R [2011] 2 NZLR 620 (CA).