Backhouse v Police [2015] NZHC 1178 (2 June 2015)

Last Updated: 27 July 2015

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2015-416-011 [2015] NZHC 1178

BETWEEN	HEATH RUSHTON BACKHOUSE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	28 May 2015
Appearances:	A Robinson for Appellant C R Walker for Respondent
Judgment:	2 June 2015

JUDGMENT OF LANG J [on appeal against conviction]

This judgment was delivered by me on 1 June 2015 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date...............}

BACKHOUSE v NEW ZEALAND POLICE [2015] NZHC 1178 [2 June 2015]

[1] Mr Backhouse pleaded guilty in the District Court to a charge of driving with excess breath alcohol. On 13 March 2015, Judge Mackintosh dismissed an application by Mr Backhouse for an order that he be discharged without conviction.¹

Mr Backhouse appeals against that decision.

The offending

[2] The charge was laid after the police stopped Mr Backhouse at a roadside checkpoint at 7.45 pm on 31 July 2014. He acknowledged that he had been drinking, and breath testing procedures were carried out. These returned a reading of

442 micrograms of alcohol per litre of breath.

The application for discharge

[3] The grounds underpinning Mr Backhouse’s application for discharge without conviction were contained in two affidavits that he filed in support of the application. The police did not file any affidavits in opposition to his application.

[4] Mr Backhouse deposed that he had gone into town on the afternoon of

31 July 2014 to purchase some groceries. He then drove his vehicle to the beach, where he took his dog for a walk. He said that he then sat in his vehicle and consumed one small bottle of beer and two quart bottles of beer before beginning the journey home. He encountered the checkpoint whilst on that journey. He said that he was surprised at the reading that he returned because he did not consider he would have been over the legal limit.

[5] At the time of the offending, Mr Backhouse was employed as a casual farm labourer. He had taken preliminary steps, however, to become a self-employed commercial possum hunter. He said that the most effective form of possum hunting is to use poison traps baited with potassium cyanide. In order to legally handle, store and use potassium cyanide he was required to obtain a controlled substance licence issued under the Hazardous Substance and New Organisms (Personnel Qualifications) Regulations 2001.

[6] WorkSafe New Zealand (WorkSafe) is responsible for issuing controlled substance licences. It has produced a Technical Guide setting out the criteria that it will apply when determining whether or not to issue a licence. Mr Backhouse was about to lodge his application when the offending occurred. He has now put the application on hold until the outcome of the present appeal is known.

[7] Mr Backhouse believes that a conviction for driving with excess breath alcohol will inevitably mean that his application will be declined. He has reached this conclusion because he understands that WorkSafe’s declared policy will require him to wait three years from the date of his conviction before being eligible to apply for a controlled substance licence. This will effectively prevent him from undertaking his new career until 31 July 2017. He considers that this outcome would be out of all proportion to the gravity of his offending.

Relevant principles

[8] Applications for discharge without conviction are governed by s 106 of the

Sentencing Act 2002 (the Act), which relevantly provides as follows:

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.

...

[9] In applying s 106, the Court must follow the guidance contained in s 107 of the Act. This 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.

[10] When determining an application under s 106 the Court is required to consider three issues.² It must first assess the gravity of the offending having regard

to the facts of the particular case. Next, it must identify the direct and indirect consequences of a conviction being entered. Thirdly, it must determine whether the consequences of a conviction would be out of all proportion to the gravity of the offending.

The Judge’s decision

[11] The Judge acknowledged at the beginning of her decision that Mr Backhouse has no previous convictions. This was the first occasion on which he had appeared before the Court.

[12] In assessing the gravity of the offending, the Judge observed that Mr Backhouse had intentionally consumed alcohol in the certain knowledge that he would subsequently be driving. He had drunk approximately 1.83 litres of beer shortly before driving. The Judge viewed this as a significant amount of alcohol to consume in such circumstances. She also observed that Mr Backhouse, as a mature adult, ought to have known that he might be over the legal limit to drive. This increased the gravity of the offending.

[13] The Judge acknowledged that the evidence supported Mr Backhouse’s claim that he intended to go into business as a commercial possum culler. She also accepted that there was a real or appreciable risk that the conviction would result in Mr Backhouse not being able to obtain a controlled substance licence. The Judge then observed:

[9] The ultimate question for the Court is whether the ability to get this licence or not get it is out of all proportion to the gravity of the offending. On the face of it drink-driving is inherently serious. The defendant’s breath alcohol level was marginally over. It has to be noted that Parliament obviously takes drink-driving and views it seriously and that is, of course, highlighted by the recent amendments to the law that took effect from 1

December last year. However, I do note that this incident took place prior to that.

[10] However, it does seem to me that Mr Backhouse must have been aware, given the fact that he was part-way through getting the paperwork organised for this particular licence, that a conviction for drink-driving could have serious consequences for him. Nevertheless, he still proceeded on this particular day to take the risk. His consumption of alcohol on this day, in my view, was reckless when he knew, in fact, that he should be driving.

[11] The police also have put information before the Court in relation to what kind of work he may or may not be able to do. As far as I am concerned it seems that Mr Backhouse’s desired work opportunity is to be a commercial possum tracker. Without this licence it is likely that he will be unable to pursue that particular occupation.

[12] It does have to be said that there is some discretion within the licensing process to grant a licence despite the conviction although I do accept that there is a real risk that he will not be granted it and that is to be weighed in assessing whether or not the consequences of the conviction are out of all proportion to the offending.

[13] At the end of the day Mr Backhouse did make conscious or reckless choice to consume what has to be said to be a reasonably significant amount of alcohol and then drive. He may not be able to get a licence because of this conviction. That does not mean to say that he does not have other work choices available to him but not just in this line of business.

[14] These factors prompted the Judge to conclude that the consequences of a conviction were not out of all proportion to the gravity of the offending. She therefore declined the application.

Appellate approach

[15] Although s 106 is cast in permissive terms, the determination of an application for discharge without conviction is not a wholly discretionary exercise. It involves a judicial determination as to whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. Unless the applicant satisfies this test, there is no jurisdiction to grant the application.

[16] An appeal against refusal to grant a discharge without conviction is therefore determined in accordance with conventional appellate principles. The appellant is entitled to the views of the appellate court in relation to the issue of the proportionality of the consequences of the conviction to the gravity of the offending. This Court is entitled to reach its own view regarding that issue, although it will not

_{interfere of the decision of the Court below unless it concludes that it was wrong.}³

³ Austin Nicholls & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 (SC).

Decision

The gravity of the offending

[17] This issue is not restricted to the circumstances in which the offence was committed. The gravity of the offence must be determined having regard to all relevant factors relating to both the offence and the offender.⁴

[18] This Court has held that driving with excess breath alcohol is a moderately serious offence.⁵ The seriousness of the offending obviously depends, however, on both the extent to which the offender has exceeded the legal limit and the circumstances in which the offending occurred. The former speaks for itself; the higher the blood or breath alcohol reading the more serious the offending will be. The latter may assume significance where the circumstances of the offending involve added culpability. That may be the case, for example, where the offender is apprehended after driving in a dangerous manner or after having been involved in an accident.

[19] A reading of 442 micrograms of alcohol per litre of breath is clearly at the lower end of the scale for offending of this type given the fact that an offence is not committed until the offender produces a reading in excess of 400 micrograms per litre of breath.

[20] Like the Judge, however, I consider that the circumstances in which Mr Backhouse consumed the alcohol are relevant. He consumed the equivalent of six small bottles of beer in circumstances where he knew he would have to drive home immediately after he had finished drinking. In that sense I consider the Judge was entitled to describe Mr Backhouse’s decision to consume beer and then drive as reckless. I take this observation to mean that Mr Backhouse must have been aware of the risk that he would be over the limit, but nevertheless elected to drive. Having said that, there is nothing to suggest that Mr Backhouse was driving in a dangerous

_{or unsafe manner.}

⁴ _{Z v R [2012] NZCA 599 at [27]; DC vR [2013] NZCA 255 at [35].}

⁵ Wickham v Police HC Wanganui, CRI-2009-483-8, 12 March 2009 at [11].

[21] The Court is also entitled at this stage of the enquiry to have regard to factors that are wider than the commission of the offence itself. Relevant factors under this head will include any guilty plea and expression of remorse, the Court’s assessment of the likelihood of reoffending, the offender’s character and previous convictions.⁶

All of these factors are in Mr Backhouse’s favour. He entered a prompt guilty plea, and has expressed remorse for his offending. His absence of previous convictions mean that there is nothing to suggest he will reoffend in a similar way in the future, and must for present purposes be regarded as a person of otherwise good character.

[22] These factors mean that I assess the overall gravity of the offending in the present case to be at the lower end of the scale for offending of this type. I assess it as being low to moderate.

The consequences of a conviction

[23] Importantly, a conviction will not prevent Mr Backhouse from continuing in his present occupation as a farm worker. He will be able to continue in that occupation regardless of whether or not he obtains a controlled substance licence. If his application is declined, the consequence will be that Mr Backhouse will be unable to change his present occupation. He will not, however, lose that occupation. This lessens but does not eliminate the impact of a conviction.

[24] The Judge considered that there was a real or appreciable risk that the entry of a conviction would prevent Mr Backhouse from obtaining a controlled substance licence. She said that this “could well be the outcome for him”. I agree that there must be a risk that a conviction will mean that Mr Backhouse does not obtain a licence. I consider, however, that the risk may not be as great as the Judge appears to have believed.

[25] WorkSafe will be required to determine Mr Backhouse’s application in accordance with the criteria contained in the Regulations. The Regulations do not provide that previous convictions are a barrier to the obtaining of a licence. Previous

_{convictions may, however, demonstrate that an applicant is not a fit and proper}

⁶ Delaney v Police HC Wellington CRI-2005-485-22, 22 April 2005 at [29].

person to hold a controlled substance licence. Whether or not that is the case will depend on the nature of the conviction and the circumstances that led to it.

[26] Mr Robinson points out that WorkSafe has published a Technical Guide describing the approach it will take when an applicant has criminal convictions. He submits that this approach means that Mr Backhouse’s application has virtually no chance of success if the conviction remains in place. The Technical Guide deals with this issue as follows:

Criminal History

Criminal Convictions

Convictions are grouped into those that resulted in a sentence of imprisonment (Group 1) and those that did not (Group 2). Unless good reasons exist for not doing so, significant weight should be applied to the following types of criminal convictions.

Group 1 – Convicted to a sentence of imprisonment

This group includes conviction involving a sentence, whether in New Zealand or overseas, to preventive detention or imprisonment. The applicant should demonstrate that they have successfully rehabilitated, and would normally be expected to have had no group 1 convictions for a period of 7 years from completion of the sentence to the time of the application.

Note that:

• If a sentence of imprisonment is served by way of home detention, it is still a prison sentence and is treated exactly the same as if it were served in a prison; and

• A sentence includes time spent on parole or subject to recall to prison.

Group 2 – Convicted without a sentence of imprisonment

This group includes a conviction, whether in New Zealand or overseas, that did not involve a sentence of imprisonment. The applicant should demonstrate they have been successfully rehabilitated, and would normally be expected to have had no convictions for a period of 3 years from the date of the conviction to the time of application.

Note:

• Suspended sentences that are not activated are not included in this section. This is because, unless the sentence is activated, a suspended sentence is essentially a community-based sentence.

• Traffic offences such as drink driving, reckless or dangerous driving are included in this group.

• Infringements such as speeding or driving without a licence, generally will not fit into this group (see Infringements below).

Notes on Group 1 and 2 convictions

For both Group 1 and 2 applicants the decision-maker should consider evidence that demonstrates that the offences do not bring into doubt whether the applicant will properly use or possess a controlled substance. This evidence could include:

i) A written submission from the applicant explaining the circumstances of the conviction and why the applicant considers a Licence should be issued; and

ii) Supporting character references.

Whether convictions relate to a behavioural issue regarding the use of drugs or alcohol, or violence related actions, evidence that the applicant has successfully completed a rehabilitation programme related to the convictions would be taken into account.

[27] These passages confirm that Mr Backhouse’s conviction will fall within Group 2. Mr Robinson submits that the overall tenor of the approach contained in the Technical Guide is to the effect that no applicant who has been convicted of a drink driving offence within the last three years will be regarded as a suitable candidate to hold a controlled substance licence.

[28] This submission does not, however, accurately describe the wording used in the Technical Guide. Taken at its highest, the Technical Guide suggests that a person will not “normally” be regarded as a suitable candidate to hold a licence. The Technical Guide also confirms, however, that Mr Backhouse will be entitled to make submissions to WorkSafe regarding matters that suggest he is a fit and proper person to hold a controlled substance licence notwithstanding the present conviction. These will no doubt emphasise the fact that his breath alcohol reading was just over the legal limit, and that his previous unblemished record demonstrates that he is a fit and proper person to hold a licence notwithstanding his lapse of judgment on 31 July

2014.

[29] It cannot seriously be suggested that Mr Backhouse requires any form of rehabilitation, because nothing about his history suggests the existence of a problem

with alcohol that requires rehabilitation. It is difficult in any event to see what type of rehabilitation would be appropriate for a one-off conviction of this type.

[30] It will ultimately be for Worksafe to assess the extent to which the present conviction impacts on Mr Backhouse’s suitability as an applicant for a controlled substance licence. Mr Robinson predicts that WorkSafe will decline Mr Backhouse’s application solely on the basis that he needs to be conviction-free for a period of at least three years before being regarded as a suitable candidate to hold such a licence. I consider it highly unlikely, however, that WorkSafe would take such a rigid approach. First, it would be contrary to the approach suggested in its own Technical Guide. Secondly, it would amount to an arbitrary form of decision making that fails to take into account other factors that may be highly germane to any assessment of whether Mr Backhouse is a fit and proper person to hold a licence.

[31] Mr Backhouse is also concerned that his chances of obtaining a licence will be weakened further by the fact that the police intend to oppose his application. He points out that the Technical Guide suggests that WorkSafe will give police opposition “significant weight”. On the basis of the material currently before the Court, however, I do not see this as being an issue about which Mr Backhouse need be concerned. Sometimes the police may be aware of information going beyond the existence of a conviction that may impact on the suitability of an applicant to hold a licence. In such cases it may well be appropriate to accord significant weight to police opposition. Where police opposition is based solely on the existence of a conviction, however, it cannot carry great weight. WorkSafe is required to make its own assessment of the weight to be given to the conviction having regard to all the relevant circumstances. The fact that the police oppose the application solely on the basis of the existence of the conviction cannot take matters a great deal further.

[32] These factors persuade me that Mr Robinson’s pessimism is likely to be unfounded, and that WorkSafe will determine Mr Backhouse’s application on its merits and not solely on the basis that he needs to be conviction-free for three years before he can be regarded as a fit and proper person to hold a controlled substance licence.

[33] As a result, I consider that the consequences of the conviction are likely to be less serious for Mr Backhouse than did the Judge. I assess the likely consequences of a conviction as being low to moderate.

Would the consequences of a conviction be out of all proportion to the gravity of the offending?

[34] The above analysis leads me to conclude that offending of low to moderate gravity will produce a conviction that has low to moderate consequences for Mr Backhouse. It follows that the consequences of conviction cannot be said to be out of all proportion to the gravity of the offending. The Judge was therefore correct to decline Mr Backhouse’s application for discharge without conviction.

Result

_{[35] The appeal is dismissed.}

Lang J

Solicitors:

Crown Solicitor, Gisborne

Counsel:

T Robinson, Gisborne