Simmonds v Police [2014] NZHC 2488 (10 October 2014)

Last Updated: 29 October 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000145 [2014] NZHC 2488

BETWEEN	KAREN LEE SIMMONDS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	6 October 2014
Counsel:	R K Treloar for the Appellant S R Jacobs for the Respondent
Judgment:	10 October 2014

JUDGMENT OF DUFFY J

_{[Re Appeal Against Refusal to Grant Discharge Without Conviction]}

This judgment was delivered by Justice Duffy on 10 October 2014 at 3.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors: Ministry of Justice (Public Defence Service), Manukau, Auckland

_{Meredith Connell, Auckland}

SIMMONDS v POLICE [2014] NZHC 2488 [10 October 2014]

[1] The appellant was convicted with driving with excess blood alcohol under s 56(2) of the Land Transport Act 1998. The maximum penalty is three months’ imprisonment, or a fine of $4,500 and disqualification for six months or more. The appellant appeals against the District Court decision not to grant a discharge without conviction.

Background facts

[2] At 8.20 pm on Friday, 1 November 2013, the appellant was driving in Papakura when the vehicle was stopped by police. The appellant exhibited signs of recent alcohol intake. A blood sample was taken, containing 115 milligrams of alcohol per 100 millilitres of blood. The limit is 80 milligrams of alcohol per 100 millilitres of blood.

[3] The appellant is 43 years of age. She is the mother and custodial parent of a seven year old boy.

District Court decision

[4] The appellant was sentenced on 23 May 2014 by Judge Harvey. The Judge referred to the appellant’s prior conviction for drink driving in 2010 where her breath alcohol level was 944 micrograms per litre of breath. On that occasion, she was fined and disqualified for six months.

[5] In terms of gravity of the offending, the Judge said that the appellant was caught drink driving and that the tests proved positive. There were no aggravating or mitigating factors in relation to the circumstances of the offending. In regards to the consequences of a conviction, the Judge referred to the impact that a conviction would have on the appellant’s family and work responsibilities, but opined that those consequences are no different from what any other person would suffer from a conviction. Accordingly, the Judge concluded that the consequences of the conviction did not disproportionally outweigh the gravity of the offence.

[6] The Judge expressed another concern with granting discharges without conviction for drink driving offences. His concern was related to the increase in the maximum penalty for third of subsequence offences and that if the appellant was discharged on a second offence, the true nature of the offending would not be apparent if the appellant offends again.

[7] The Judge then turned to s 94 of the Land Transport Act and whether disqualification should be substituted for a community-based sentence. The Judge noted that the appellant’s circumstances were not unique and that the effects on her of a further disqualification were no different from any other person that comes before the court.

[8] The appellant was convicted and fined $500 plus court costs, medical costs and an analyst fee. She was disqualified from driving for six months.

Appellant’s submissions

[9] The appellant submits that Judge Harvey erred in deciding not to grant a discharge without conviction.

[10] The appellant submits that she consumed three 300 millilitre bottles of Lindauer on 1 November 2013 and did not feel impaired to the extent that she considered she should not drive. Further, there was no evidence that the appellant was stopped due to the manner of her driving.

[11] With regards to the gravity of the offending, the appellant submits that discharges without conviction for drink driving are not unique, relying on the case Police v M [2013] NZHC 1101. The appellant submits that Judge Harvey erred in assessing the gravity of the offending. Whilst the appellant’s blood alcohol level was over the permissible limit, there was no bad driving on the part of the appellant. Further, the appellant has acknowledged responsibility for the offending by engaging in community alcohol counselling, and she is remorseful.

[12] The appellant submits that Judge Harvey did not give adequate consideration to the direct and indirect consequences of the conviction under ss 106 and 107 of the Sentencing Act 2002. In this regard, the appellant submits that the Judge did not turn his mind to the consequences of a disqualification on the appellant’s employment.

[13] The appellant is a sales representative and her role requires her to travel to different locations within the upper North Island region. The appellant submits that she will not be able to continue her employment if she cannot drive. The appellant has no other legal remedies as she is statute barred from applying for a limited licence or making a s 94 application to substitute disqualification for a community- based sentence.

[14] The appellant submits that her loss of employment would be inevitable, especially as she was driving a company vehicle at the time of the offending. Further, as she is a single parent, her son is reliant upon her for transport to his school, which is some distance from the family home, as well as for financial support.

[15] The appellant submits that Judge Harvey did not sufficiently evaluate whether the consequences would be out of proportion to the gravity of the offending. The appellant submits further that the Judge considered irrelevant matters, namely the progressive way in which drink driving is dealt with under the statutory scheme.

Respondent’s submissions

[16] The respondent submits that whilst the appellant carries the burden of establishing an error, this Court has to reach a view on whether it is satisfied that there should be a discharge without conviction.

[17] The respondent submits the Judge did not err in his assessment of the gravity of the offending. His comment that “the offence in and of itself is grave” is not controversial. He was simply making the point that the offence of drink driving is inherently serious. The respondent submits that the Judge considered the offending as moderately serious and that this assessment was correct. Whilst the offending was

not associated with any bad driving, the blood alcohol level was nearly 1.5 times the legal limit and that the appellant had consumed the equivalent of more than a bottle of wine.

[18] The respondent says that the appellant relies on the Community Legal Services South Trust opinion to show that she may lose her job if she cannot drive. The respondent says that the usefulness of this opinion is limited as it is not specific to the appellant’s circumstances. The respondent submits that the opinion does not say that that it would be inevitable that the appellant would lose her job. Further, the appellant has not provided any information from her employer on the effect of a conviction and disqualification on her employment. Indeed, she has not informed her employer of the offending. Therefore, the appellant has not shown that there is a real and appreciable risk that she will lose her job.

[19] The respondent submits that the consequences of a conviction are not out of proportion to the gravity of the offending. The only consequences that the appellant can show are the inconveniences of being unable to drive. The respondent says that such consequences occur in virtually all cases.

Discharge without conviction

Substantive law

[20] The relevant sections of the Sentencing Act provides:

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—

(a) make an order for payment of costs or the restitution of any property; or

(b) make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—

(i) loss of, or damage to, property; or

(ii) emotional harm; or

(iii) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:

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

...

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 established in R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 that:

[10] ... the court must first consider whether the disproportionality test in s 107 has been met. If (and only if) the court is satisfied the s 107 threshold has been met, may the court proceed to consider exercise of the discretion to discharge without conviction under s 106.

[11] The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles: Rajamani, at para 5. The discretionary power of the Court to discharge without conviction under s 106 arises and exists only if the Court is satisfied that the s 107 threshold has been met.

[22] Therefore, the normal appellate principles in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 applies to the s 107 analysis.

[23] The Court of Appeal in A (CA747/10) v R [2011] NZCA 328 at [22] concisely set out the three step approach to s 107 assessments:

[22] Section 107 codifies the common law criteria for a discharge without conviction and requires a three-step process:

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

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

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

[24] I will consider each of the three factors in turn.

Analysis

Gravity of the offending

[25] The appellant relies on Franks v Police [2013] NZHC 3556. In that case, the offender was found to have a breath alcohol level of 653 micrograms of alcohol per litre of breath. Courtney J at [13] assessed such offending as “inherently serious” but then found that the gravity of the offending could be offset “somewhat” by the lack of bad driving, the fact that the offending was out of character and that the offender has acknowledged responsibility for her actions. But despite those factors, Courtney J nevertheless considered the gravity of the offending to be moderately serious. The offender was not discharged without conviction. The Judge accepted the consequences of a conviction on future employment prospects, but concluded that given her previous good character and professional abilities, it seemed unlikely that the consequences would be severe.

[26] The gravity of the appellant’s offending is similar to that in Franks. The appellant was almost 1.5 times the legal blood alcohol level. She admitted in her affidavit filed in the District Court that she decided to drink 900 millilitres of wine without eating. The appellant said she felt fine to drive. However, in my view, it was not responsible behaviour on the part of the appellant to drink a substantial amount of wine, without food, and to assume that she would not be impaired in her driving abilities. Further, unlike the offender in Franks, the appellant has previously offended in this way. Thus, she cannot say that the present offending is out of character.

[27] Like Courtney J in Franks, I consider that a blood alcohol level that is more than minimally above the permissible level constitutes inherently serious offending. In the present case, there are fewer ameliorating factors than there were in Franks.

Despite the presence of some ameliorating factors, I consider the offending to be moderately serious.

[28] Further, I am not persuaded by the appellant’s argument that the absence of bad driving can reduce the seriousness of her offending, though I realise that Courtney J accepted a similar argument in Franks. In my view, the presence of bad driving is an aggravating feature of the present type of offending. The absence of bad driving is in my view no more than a neutral factor.

Direct and indirect consequences of a conviction

[29] Randerson J’s comments in Iosefa v Police HC Christchurch CIV-2005-409-

64, 21 April 2005 are relied on regarding this consideration:

[34] ... [I]t is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient if the Court is satisfied that there is a real and appreciable risk that such consequences would occur.

[35] However, the nature and seriousness of the consequences and the degree of likelihood of their occurring will be material to the Court's assessment of whether those consequences would be out of all proportion to the gravity of the offence. In other words, the higher the likelihood and the more serious the consequences, the more likely it is that the statutory test can be satisfied.

[30] The appellant also relies on the decision Brown v Police [2013] NZHC 2190 where Young J granted a discharge without conviction to a truck driver based on the loss of employment if he were to be disqualified from driving and the impact that loss of income would have on family members who were reliant on him. In addition, the seriousness of the offending here was low. Mr Brown had not intended to drive but received a call from his employer telling him to drive to his next location urgently. Further, he was only 15 per cent over the breath alcohol limit. The usefulness of Brown to the appellant is limited as the gravity of the offending in the appellant’s case is significantly higher than in Brown.

[31] In Brown, the Court stressed that Mr Brown would have difficulty obtaining other employment at 65 years of age and without qualifications or training in any

other industry apart from the transport service industry. Young J said “it seems clear that he will lose his employment”: [20].

[32] In the present case, the appellant relies upon the opinion provided by the Community Legal Services South Trust and contends that her “loss of employment would be inevitable”. I do not consider the Trust’s opinion to support the appellant’s submissions. The opinion states that “theoretically, you should not lose your employment merely because of a conviction or lose [sic] of driver licence”. Further, as the appellant’s employment contract is silent on the effect of a conviction or loss of licence, the termination of employment cannot be a foregone conclusion. The opinion goes on to say that even if a drink driving conviction is seen to amount to serious misconduct, the employer still must show that there is no other alternative to termination. Accordingly, I cannot be sure that a conviction for the present offending will result in the appellant losing her job.

[33] The Court in M v Police [2013] NZHC 1101 cautioned against granting a discharge when the consequences are unclear and where there is insufficient evidence to support counsel’s assertions as to the consequences. In that case, Allan J held there was insufficient material to support the assertion that a conviction would ruin the appellant’s chances to travel to England and that she would not be able to obtain an employment position that she had accepted.

[34] In the present case, there is no evidence from the appellant’s employer to confirm that she will be dismissed if convicted of the present offending. Indeed, the opinion from the Community Legal Services South Trust is to the contrary as it expresses the view that the appellant should not automatically lose her employment as a result of a conviction. Following Iosefa, it is not arguable that there is a “real and appreciable” risk that the appellant will lose her job. It is possible that the appellant may be offered another position within the same company for the period that she is disqualified.

[35] On the other hand, it is clear to me that once the appellant loses her licence, she will no longer be able to carry out her travelling salesperson role. Unless her employer can find her an office based role, the likely outcome must be that he finds a

new person to carry out the appellant’s present job and dismisses her. However, should this outcome eventuate, I do not see it as something that is out of all proportion to the gravity of this offending. The appellant can look for other employment. It is not as if a conviction will permanently disqualify her from employment in a career that she would find hard to replace. In this regard, it seems to me that a conviction will have less impact on the appellant than it would have had in the case of the appellant in Franks, who was a nurse and who faced real obstacles to continuing in this profession if a conviction for drink driving were entered against her.

[36] The appellant already has one conviction for driving with an excess breath alcohol. That conviction did not prevent her from obtaining her present job. In the medium to long term, the entry of another such conviction should not preclude her from finding employment.

[37] The adverse consequences that the appellant will suffer appear to me to be limited to little more than the impact of the disqualification in the short term on her present employment, and any other consequences that usually follow convictions of this sort.

[38] I accept that inconvenience and her reduced ability to take her son to school is a direct consequence of the conviction. However, this is not a consequence that is out of proportion to the offending. It is a consequence that must affect many persons who commit this offence.

Proportionality

[39] I accept the appellant’s argument that Judge Harvey did not have to consider the statutory scheme of increased maximum penalties for such offending in deciding whether to grant a discharge without conviction. However, I consider that the Judge saw this as an additional point and it was not a decisive factor in his decision.

[40] The respondent relies on Linterman v Police [2013] NZHC 891 where Miller

J said (emphasis added):

[9] I agree that discharges ought to be exceptional for this offence. It is illuminating to reflect on the several reasons why that might be so. First, in the hands of a drunk a car is a dangerous thing. Second, good character and extenuating personal circumstances normally count for little. Drink-driving is a pervasive social problem which has brought many good citizens into the dock and caused the legislature to respond with a sentencing policy that emphasises personal and general deterrence. Notably, the court may relieve an offender of the minimum disqualification period only for special reasons relating to the offence. Special reasons relating to the offender will not do. Nor is ignorance of one's alcohol level a defence; a driver who chooses to drink at all takes the risk that for whatever physiological or other reason her level will prove higher than she thought. Third, an applicant must identify some extraordinary consequence of conviction, which is difficult when the ordinary consequences are unpleasant. A drink-driving conviction always carries a social stigma and the offender must normally disclose it to a prospective employer, who may wonder whether it evidences poor judgement or undue fondness for drink, and to immigration authorities, who may categorise it as evidence of antisocial tendencies.

[41] In that case, Miller J declined to grant a discharge without conviction, despite recognising a real and appreciable risk that the appellant might experience a delay in her chosen career path, but that these consequences involved neither a loss of career nor any material career disadvantage.

[42] As noted in Linterman, the offence of drink driving is “serious almost by definition”: [11]. In the appellant’s case, there are no unusual factors that might justify a discharge without conviction. For example in Waight v Police HC Auckland CRI-2006-404-465, 24 May 2007, the appellant there had consumed alcohol at a function and conducted two self-tests of his breath alcohol level. As the test kit was wrongly assembled, it falsely indicated that he had not breached the legal limit. Winkelmann J saw this factor and the fact that the appellant was a first time offender and there was nothing irregular in his driving as reducing his culpability. Therefore, the consequence of a stand-down period in the Navy was seen to be out of proportion to the gravity of the offence.

[43] In the present case, the appellant’s culpability is not reduced by unusual circumstances such as self-testing, a request from her employer to drive following the consumption of the alcohol, or any other such demand, for example, the need to take a sick child for medical attention. Another example of unusual circumstance is that which was evident in Wood v Police HC Wellington CRI-2009-485-6, 30 April

2009 where the appellant decided to sleep at an acquaintance’s flat before driving

home and was unexpectedly still over the legal limit. I do not consider, therefore, that in the appellant’s case, the statutory test under s 107 can be met.

[44] The conclusion that I have reached regarding the disproportionality under s 107 means that there is no basis for proceeding to consider the matter in terms of the exercise of the discretion in s 106.

Result

[45] The appeal is dismissed.

Duffy J