Denden v Police [2014] NZHC 1814 (4 August 2014)

Last Updated: 4 December 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000394 [2014] NZHC 1814

IN THE MATTER OF	an appeal against conviction and sentence
BETWEEN	SONMEZ DENDEN Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	28 July 2014
Counsel:	R M Mansfield for the Appellant R K Thomson for the Respondent
Judgment:	4 August 2014

_{JUDGMENT OF DUFFY J}

This judgment was delivered by Justice Duffy on 4 August 2014 at 12.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Counsel: R M Mansfield, Auckland

_{Solicitors: Meredith Connell, Auckland}

DENDEN v POLICE [2014] NZHC 1814 [4 August 2014]

[1] On 7 October 2013, Judge C Ryan convicted the appellant, Sonmez Denden, in relation to three charges:¹

(a) driving a vehicle with excess blood alcohol contrary to s 56(2) of the

Land Transport Act 1998;

(b) failing to stop for police contrary to s 59 of the Land Transport Act;

and

(c) refusing to accompany the police contrary to s 52 of the

Land Transport Act.

The Judge declined an application by Mr Denden to be discharged without conviction under s 106 of the Sentencing Act 2002.

[2] Mr Denden appeals against this conviction on the basis that the Judge should have discharged him without conviction. Mr Denden submits that the Judge failed to give appropriate weight to the effect that a conviction would have on his intended career as a pharmacist by restricting or preventing him from being registered. These consequences, Mr Denden argues, would be out of all proportion to the gravity of the offending and so the threshold test under s 107 of the Sentencing Act was satisfied and the Judge should have discharged Mr Denden without conviction under s 106.

[3] The police submit that the Judge was correct in considering that the threshold test in s 107 was not satisfied and so a discharge without conviction under s 106 could not be granted.

[4] The issues to be determined in this appeal are:

(a) Should leave be granted to bring the appeal out of time? (b) Should “fresh” evidence be adduced? and

(c) Was the judge wrong to hold that the consequences were not out of proportion to the gravity of the offending, and if so, should the Court exercise its discretion under s 106 to grant a discharge without conviction?

Background to the appeal

[5] In the early morning of 8 September 2012, Mr Denden was stopped in Central Auckland by police after he drove through a red light. He had been drinking alcohol in town with a friend that night and made the fateful decision to drive home, thinking that he might still be under the permitted alcohol limit.

[6] When the police stopped Mr Denden, he showed some signs of having consumed alcohol and so the police officer administered a breath test. This showed that Mr Denden was over the legal limit of 400 micrograms of alcohol per litre of breath. The police officer instructed Mr Denden to turn the car off, hand over the keys and to accompany the police officer for the purposes of an evidential breath test. Rather than comply with the police officer’s request, Mr Denden decided to try to escape. He sped off through a red light, but sense prevailed and he stopped the vehicle approximately 200 metres down the road. He exited the vehicle and surrendered himself to the police officer.

[7] After he was arrested, Mr Denden underwent an evidential breath test and blood test. These produced results of 529 micrograms of alcohol per litre of breath and 102 milligrams of alcohol per 100 millilitres of blood. The legal limit is 400 micrograms of alcohol per litre of breath and 80 milligrams of alcohol per 100 millilitres of blood.² He was charged with driving with excess blood alcohol, failing to stop and failing to accompany the police officer.

[8] Initially, Mr Denden pleaded not guilty to the charges and attempted to run a defence of automatism. Common sense prevailed and Mr Denden pleaded guilty during his trial. At sentencing, Mr Denden sought a discharge without conviction on the basis that the conviction may cost him his job, it may prevent him from working

in forensics, which he was studying towards (along with pharmacology), and, as a practising Muslim, the conviction will cause considerable embarrassment to himself and his family.

The sentencing decision

[9] At sentencing, Judge Ryan considered that s 106 required the Judge to take three steps:

(a) Consider the gravity of the offending;

(b) Consider the consequences of the conviction; and

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

[10] The Judge considered that the offending was of moderate seriousness. The offending involved three separate offences and driving in a dangerous manner placing the public at risk. The Judge relied on Judge O’Driscoll’s decision in Police v Ferguson where the Judge considered that drink driving posed a serious risk to the public and can cost New Zealand significant amounts of money.³ The Judge accepted that Mr Denden had some personal circumstances that were detrimental in that he had obsessive compulsive disorder and was on medication, but there was no medical evidence showing that there was a link between the condition and the

offending. Despite the lack of causation, the Judge gave some credit for these personal circumstances, as well as for the level of blood-alcohol being only moderately above the legal limit, and so concluded that the offending was moderate.

[11] In relation to the consequences of the conviction, the Judge took the view that much of the argument about the punishment by the Muslim community was overstated. There was no direct evidence placed before the Court. However, it was stated in a report that Mr Denden’s father drank at home and his brother used to

drink. On this basis, the Judge failed to see how the Muslim culture and reliance on

the Qur’an stopped Mr Denden, or would punish him for drinking.

[12] Similarly, the Judge considered that the impact on Mr Denden’s pharmacology or forensics career was minimal and little evidence was presented supporting an absolute bar on a career in these fields. The Judge was not satisfied that there was a real and appreciable risk that Mr Denden would be impeded from pursuing careers in either pharmacology or forensics. The Judge considered other cases where there was clear evidence that the career would be precluded by the conviction, for example joining the Army. But in this case, there was no such evidence.

[13] Finally, in relation to existing employment, the Judge accepted that a conviction may affect obtaining a security clearance to work in a retail store at the airport. However, there was nothing to show that if Mr Denden did not get security clearance, he would not be able to work.

[14] The shame and embarrassment caused to Mr Denden were considered, but the Judge considered that these were a natural consequence of the offending.

[15] Considering the seriousness of the offending and the consequences, the Judge was not persuaded that the consequences were out of all proportion to the gravity of the offending. On this basis, the Judge declined the application to discharge Mr Denden without conviction.

Issues raised on appeal

[16] Mr Denden appeals on the basis that the Judge failed to give appropriate weight to the effect of the conviction on Mr Denden’s intended career as a pharmacist.

[17] Because the appeal was brought outside of the 28 day appeal period, Mr Denden seeks leave to appeal outside of time. He also seeks leave to adduce

further evidence under s 119 of the Summary Proceedings Act 1957. I deal with these two matters first.

Should Mr Denden be granted leave to appeal out of time?

[18] The Judge sentenced Mr Denden on 7 October 2013. The application for leave to appeal was filed on 15 December 2013, which is outside the statutory appeal period.

[19] As a result of filing the appeal outside the statutory time period, Mr Denden requires leave to file the appeal. Section 123 of the Summary Proceedings Act provides that a Judge may extend the time for filing an appeal. When deciding whether to extend the time for filing a notice, the Court is guided by the following principles:⁴

(a) The onus is on the applicant to show that there existed special circumstances why the sentence appealed from should not stand;

(b) The discretion is given essentially for the purpose of avoiding miscarriage of justice;

(c) All of the circumstances of the particular case have to be considered;

(d) One of the matters which must be established is that there is a real likelihood an appeal would succeed if leave is granted. Some authorities go so far as to say that the likelihood must be such that the applicant will establish a probability of success.

[20] Finality to litigation is the factor which weighs heavily against extending time to file notices of appeal. In R v Knight, relating to the analogous provision in

_{s 388 of the Crimes Act 1961 for granting an extension to appeal,}⁵ _{the Court of}

⁴ Summarised in Cleggs Ltd v Department of Internal Affairs HC Auckland M1032/84,

_{5 September 1984 cited more recently by Lang J in Mika v Police [2012] NZHC 2668 at [3].}

⁵ In Douglas v Police [2013] NZHC 2651 at [21], Gendall J considered that s 123 of the Summary Proceedings Act 1957 is analogous to s 388 of the Crimes Act 1961 and the same considerations apply.

Appeal considered that the legislative policy behind a time limit is to promote the interest in the final determination of litigation.⁶ However, the overall interests of justice may require balancing the wider interest of society in the finality of decisions against the interest of the individual applicant in having the conviction reviewed.⁷

Therefore, it is necessary to consider all the circumstances of the case, including the strength of the appeal. While not determinative, if there are no special circumstances and the likelihood of succeeding on appeal is low, the principle of finality favours leave being refused.

[21] In explanation for the delay, Mr Denden says that he was unable to find a way to instruct counsel privately and this delayed him bringing the appeal. He struggled to come up with the required funds in time and so could not instruct his original counsel to advance the appeal against sentence. He then applied for legal aid and this was eventually approved, which allowed him to instruct Mr Mansfield and it was then that the appeal was brought.

[22] This explanation does not necessarily accord with the dates. The appeal was lodged by Mr Denden’s original lawyer on 15 December 2013 (outside the time) and it was only on 6 March 2014 that his original lawyer sought to withdraw on the understanding that Mr Denden had sought alternative counsel. On 4 April 2014, Andrews J gave the original lawyer leave to withdraw and noted that Mr Denden had not yet instructed new counsel and had only just applied for legal aid.

[23] I do not see anything approaching special circumstances justifying granting leave to file out of time. The reasons for delayed filing have nothing to do with instructing a different counsel and relate solely to the original counsel and whether Mr Denden could organise payment.

[24] In Mr Denden’s favour is that the delay is only slight, being a further month. In isolation this would not usually be sufficient to justify granting leave. However, here the application for leave to appeal out of time has been heard at the same time

_{as the appeal. The respondent has adopted a neutral stance to this application. I}

⁶ _{R v Knight [1998] 1 NZLR 583 (CA).}

⁷ At 587.

propose to grant leave to appeal out of time so that the appeal can be dealt with on its merits.

Application to adduce new evidence

[25] Mr Denden seeks leave to adduce further evidence. Section 119(3) of the Summary Proceedings Act provides that the High Court has “the full discretionary power to hear and receive further evidence, if that further evidence could not in the circumstances have reasonably been adduced at the hearing”.

[26] The Court has a broad power to rehear evidence under s 119(2) and to allow further evidence under s 119(3). Where the further evidence challenges a jury verdict or even a judge-alone verdict, a Court should be hesitant to allow the evidence in unless it meets the freshness test. However, when the evidence goes to address certain evidential deficiencies in relation to sentence raised by a Judge, the evidence can be adduced and often is.⁸

[27] The Crown does not oppose the further evidence, and considers it will assist determining the issue. Accordingly, leave to adduce this further evidence is granted.⁹

Approach to appeal against refusal to grant discharge without conviction

[28] An appeal against a refusal to grant a discharge without conviction is by way of rehearing.¹⁰ Normal appeal principles apply as set out in Austin, Nichols & Co Inc v Stichting Lodestar.¹¹ In Heke v R, the Court of Appeal confirmed the application of an Austin, Nichols approach in criminal appeals where the decision under appeal involves a matter of fact requiring judicial assessment.¹² Later in Paia v R, the Court of Appeal confirmed the approach taken in Heke.¹³ Thus, when it

_{comes to a decision under s 107, the appellate court must come to its own view of}

⁸ _{Vermeulen v Police HC Wellington CRI-2010-485-141, 11 March 2011 at [2]–[3].}

⁹ _{A similar approach was adopted in Devi v Police [2014] NZHC 53 at [7].}

¹⁰ R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11]. Summary Proceedings Act 1957, s

_119(1).

¹¹ _{Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.}

¹² _{Heke v R [2010] NZCA 476 at [17]- [19].}

¹³ Paia v R [2014] NZCA 107 at [14].

the merits;¹⁴ the weight the appellate court gives to the original decision is a matter of judgment;¹⁵ and that deference to the assessment of the original decision-maker is not necessary, even where the assessment requires a value judgment.¹⁶ If the appellate court considers that the original decision is wrong, it must act on that opinion.¹⁷

[29] The discretionary power of the court to discharge without conviction under s 106 arises only after the s 107 threshold has been passed. Appeals against the exercise of that discretion are guided by stricter principles.¹⁸ The appellant must

show:¹⁹

(a) error of law or principle;

(b) taking account of irrelevant considerations;

(c) failing to take account of a relevant consideration; or

(d) the decision is plainly wrong.

[30] In this case, the Judge did not consider whether to exercise the s 106 discretion because the Judge formed the view that the s 107 threshold had not been satisfied. Therefore, it is necessary to consider whether the threshold in s 107 had been met and then, if it had, to consider whether the discretion should be exercised.

General principles: discharge without conviction

[31] The decision to discharge under s 106 is guided by s 107. Section 107 provides:

_{107 Guidance for discharge without conviction}

¹⁴ _{Austin, Nichols, above n 11, at [3] and [5].}

¹⁵ _{At [3] and [5].}

¹⁶ _{At [16].}

¹⁷ _{At [3] and [16].}

¹⁸ _{Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].}

¹⁹ At [32].

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.

[32] Section 107 requires the Court to consider three factors:²⁰

(a) identifying the gravity of the offending by reference to the particular facts of the individual case;

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

(c) determining whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.

[33] Only if the Court is satisfied that the disproportionality test in s 107 is met, may it then consider whether to discharge.²¹ In practice, a favourable exercise of the s 106 discretion is likely to follow from a decision that the s 107 test is met;²² the Court in Blythe v R said it would be rare for an offender to have passed through the s

107 “gateway” but is not discharged under s 106.²³ The factors informing both stages have much overlap.²⁴

[34] The Court of Appeal in R v Hughes considered the relevant factors to be taken into account under the s 107 test and stated:²⁵

Application of the disproportionality test under s 107 requires consideration of all relevant circumstances of the offence, the offending and the offender, and the wider interests of the community, including the factors required by the Sentencing Act to be taken into account under ss 7, 8, 9 and 10.

[35] This was criticised by the Court of Appeal in Blythe v R, and was suggested

to be an “inadvertent misstatement”.²⁶ The Court in Blythe considered that whilst the aggravating and mitigating factors in s 9 (and s 9A in cases of offending against

²⁰ _{Z v R [2012] NZCA 599, [2013] NZAR 142 at [8]; R v Hughes, above n 10, at [12].}

²¹ _{Z v R, at [21]; R v Hughes, at [8]-[12].}

²² _{R v Hughes, at [8]-[12].}

²³ _{Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13].}

²⁴ _{R v Hughes, above n 10, at [12].}

²⁵ _{At [41].}

²⁶ Blythe v R, above n 23, at [11].

children under 14) of the Act were relevant to the gravity of the offence, the content of ss 7, 8 and 10 was not. In Z v R, the Court of Appeal considered that Blythe was wrong.²⁷ The Court considered the correct approach to be:²⁸

When considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).

[36] “What ultimately matters”, the Court of Appeal concluded was “that the terms of s 107 are applied, by whatever means that is done”.²⁹ That is ultimately to determine whether the consequences are “out of all proportion” to the gravity of the offending.

Submissions

Appellant’s submissions

[37] Mr Denden submits that the Judge erred in failing to consider the seriousness of the conviction on his proposed career as a pharmacologist and also on his current job. Mr Denden, in his affidavit, says that the conviction will put him at a significant disadvantage against his peers and will prevent him from becoming a registered pharmacologist.

[38] The Judge did not have this information before her when making the decision and so was uncertain about the impact on career. Mr Denden submits this new evidence would have meant that a discharge should have been granted.

[39] Mr Denden submits that the offending has to be seen in the context of a reckless decision by a young person who has accepted responsibility. Further, the

²⁷ _{Z v R, above n 20, at [26].}

²⁸ _{At [27].}

²⁹ At [22].

driving off was a result of panicking and his obsessive compulsive disorder and being on medication, in combination with alcohol, “is at the heart of this incident”.

[40] The direct and indirect consequences are said to be serious. Mr Denden says that it is a “real and indeed likely consequence of conviction that he will be prevented from becoming a registered practitioner”. This denial of career would be out of all proportion to the gravity of the offending.

Respondent’s submissions

[41] The respondent submits that the offending was moderately serious offending. In relation to the consequences, the respondent submits that the consequences are not likely to prevent Mr Denden from becoming registered. While Mr Denden will have to disclose his convictions, the Pharmacy Council will still determine whether to allow him to become registered. They will not stand as an absolute impediment. Further, the respondent points to Mr Denden already having other non-related convictions, which will need to be disclosed if Mr Denden applies for registration in any event.

[42] The respondent also points out that Mr Denden’s affidavit discloses that he is studying a Bachelor of Science majoring in pharmacology. This is different from a Bachelor of Pharmacy, which is needed to be studied in order to become a pharmacist. Therefore, the aim of becoming a pharmacist is further away than Mr Denden says.

Discussion

[43] When it comes to the application of s 107, this Court must make its own decision whether the consequences of the conviction are out of all proportion to the gravity of the offending, relying on the evidence presented in the District Court, as well as the further evidence adduced on appeal.

Gravity of the offending

[44] The starting point is to identify the gravity of the offending. This involves considering all aggravating and mitigating factors relating to the offending and the offender.³⁰ In the District Court, the Judge considered that the offending was of moderate seriousness, taking into account Mr Denden’s obsessive compulsive disorder and the negative impact of the medication.

[45] Drink driving is a serious offence. In Aylwin v Police, the Supreme Court commented that:³¹

Every driver of a motor vehicle on the roads of this country should by now be aware that driving after consuming more than a small amount of alcohol is dangerous, illegal and socially unacceptable.

[46] While drink driving is dangerous and socially unacceptable, it is not as serious as other offending. The maximum penalty for drink driving is three months’ imprisonment, a fine not exceeding $4,500 and disqualification from driving for at least six months.³² None of the aggravating features in s 9 of the Sentencing Act apply. Therefore, it is possible to consider this offending, in isolation, as at the lower end of seriousness. However, the offending needs to be seen in relation to the other offending, which involved refusing to accompany the police officer to the station and then briefly attempting to flee by driving off through a red light, momentarily being

on the wrong side of the road. When considered in totality, this offending was moderately serious.

[47] Mr Denden submits that the culpability should be reduced by reference to his medical condition. He argues that his obsessive compulsive disorder and being on medication, in combination with alcohol, “is at the heart of this incident”. But he has not led any evidence that shows that the medical condition lowered his culpability or impacted on his offending. So I reject this submission. There is no evidence to suggest that his obsessive compulsive disorder led him to drive after

_{drinking more than a small amount. It did not lead him to flee the police. The Judge}

³⁰ _{Z v R, above n 20, at [27].}

³¹ _{Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].}

³² Land Transport Act 1998, s 56(3).

was generous to consider that Mr Denden’s obsessive compulsive disorder and the medication lowered the seriousness of the offending. Mr Denden has not adduced any evidence showing a causative link.

[48] In my view, the offending was moderately serious. I see the obsessive compulsive disorder and ill-effects of the medication as being largely irrelevant to determining the gravity of the offending.

Consequences of the offending

[49] The second step is to identify the direct and indirect consequences of the offending. Mr Denden in his affidavit says that he is “currently studying towards a Bachelor of Pharmacy”. At present, his academic grades have precluded him gaining admission to the Bachelor of Pharmacy degree. There are limited places for this degree at Auckland University. Competition for those places is high. Admission depends on good academic grades and on presenting well at a selection interview.

[50] Once Mr Denden’s convictions become known, they will be a further hindrance to him gaining admission to this degree. However, his chances were never good. Mr Denden’s academic transcript shows that Mr Denden is studying a Bachelor of Science majoring in pharmacology (BSc). This is different from a Bachelor of Pharmacy (BPharm), which is required to become a pharmacist. His academic grades have not been good enough to gain him admission to the courses for the BPharm degree. His game plan is to complete the BSc degree with improved grades and then to apply to do a BPharm. Thus, for Mr Denden, becoming a pharmacist is something of a long shot, even without the present convictions.

[51] Mr Denden submits that a consequence of a conviction would be that he would be unable to become a pharmacist. He says that there is a “real and indeed likely consequence of conviction that he will be prevented from becoming a registered practitioner”. However, he already has three convictions from 2009. Those are for disorderly behaviour, assault on police and resisting arrest. They all relate to one incident. When taken together with the present offences, there emerges

a pattern of offending and attempting to avoid responsibility for it by trying to avoid arrest.

[52] Mr Denden says the present convictions will probably prevent him from becoming a registered pharmacist. This is not necessarily correct. Whilst it is true that the Pharmacy Council will require him to disclose all convictions (including his previous convictions for resisting arrest and assaulting a police officer), the Pharmacy Council is concerned with whether the candidate is fit to practice.³³

Mr Denden would have to satisfy the Pharmacy Council that “the offence does not

reflect adversely on his or her fitness to practise as a health practitioner”.³⁴

Therefore, a conviction will not act as an absolute bar, although it may have some detrimental impact.

Are the consequences of the offending out of proportion to the gravity of the offending?

[53] The final, and most important step, is to consider whether the consequences, outlined above, are out of all proportion to the gravity of the offending. As discussed earlier, I am of the view that the gravity of the offending is moderately serious and that the consequences, whilst possible, are not as dramatic as Mr Denden paints them to be (or even whether they exist).

[54] It is possible that a conviction could pose a problem in that Mr Denden would have to satisfy the Pharmacy Council that the offences do not reflect on his fitness to practise as a health practitioner. However, as other decisions point out, this decision about reflecting on fitness to practice should be left to the Pharmacy Council.³⁵

Further, Mr Denden is a long way off obtaining the necessary qualifications, let along registration as a pharmacist.

[55] In the round, I consider that the offending was moderately serious. The consequences are not clear and there is no absolute bar to Mr Denden becoming a

³³ _{Health Practitioners Competence Assurance Act 2003, s 16.}

³⁴ _{Section 16(c).}

³⁵ Vermeulen v Police, above n 8, at [25], Hume v Police [2012] NZHC 4369 at [28]-[30] and R v

Roberts [1990] 7 CRNZ 197 (CA).

pharmacist. Therefore, I do not consider that the consequences are out of all proportion to the gravity of the offending. Nor do I consider that the consequences are disproportionate to the gravity of the offending. The convictions may make it more difficult for Mr Denden to become a pharmacist but it is unlikely to prevent him from doing so.

[56] Thus, the actual consequences fall considerably short of being “out of all proportion” to the gravity of the offending. On this basis, the Judge did not err in refusing to grant a discharge without conviction under s 106 on the ground that the threshold in s 107 had not been met.

[57] I acknowledge that Mr Denden has tried to improve on his position by taking the BSc degree in the hope it will enable him later to do a BPharm. I also acknowledge that his family have come to this country as refugees from Iraq and so there will have been a period of adjustment. The difficulties that his remaining family still face in Iraq must make settling in New Zealand more difficult. If Mr Denden avoids further offending, in time the Criminal Records (Clean Slate) Act

2004 will remove his present convictions. He should focus on achieving that result. If he improves his academic grades and avoids further offending, the impediment that his present convictions cause him will, in time, be removed.

Result

[58] The appeal is dismissed.

Duffy J