Ovtcharenko v Police [2016] NZHC 2572 (27 October 2016)

Last Updated: 11 November 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2016-404-265 [2016] NZHC 2572

BETWEEN	DANEEL OVTCHARENKO Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	25 October 2016
Counsel:	C Mitchell for Appellant A Park for Respondent
Judgment:	27 October 2016

_{JUDGMENT OF HEATH J}

This judgment was delivered by me on 27 October 2016 at 4.00pm pursuant to

Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Auckland

Counsel:

_{C Mitchell, Takapuna}

OVTCHARENKO v NEW ZEALAND POLICE [2016] NZHC 2572 [27 October 2016]

The appeal

[1] Mr Ovtcharenko entered pleas of guilty in the District Court at North Shore to one charge of driving with an excess breath alcohol concentration, and one of driving at an excessive speed. Although he sought to be discharged without conviction,¹ Judge Hinton declined that application. Instead Mr Ovtcharenko was convicted, fined $300, and disqualified from driving for six months.²

[2] Mr Ovtcharenko appeals against conviction and sentence on the grounds that the Judge erred in not granting a discharge without conviction. If that appeal were unsuccessful, there is no challenge to the sentence imposed in the District Court.

The facts

[3] In the early hours of 16 April 2015, a concerned motorist reported to the Police that a car was travelling at an excessive speed on the Northern Motorway, near Orewa. A police officer located the vehicle and attempted to stop it. The driver of the motor vehicle did not comply.

[4] A chase ensued over a distance of some five kilometres. During that period, the speed at which the vehicle was travelling exceeded 200 km/h. When the vehicle eventually stopped, Mr Ovtcharenko was found to be the driver.

[5] At the time of his apprehension, Mr Ovtcharenko was 18 years old and exhibited signs of recent alcohol intake. An evidential breath test was undertaken and returned a result of 525 micrograms of alcohol per litre of breath. As an 18 year old, the legal limit was nil.³ Indeed, the breath alcohol concentration level exceeded

_{by 125 micrograms the adult limit of 400 micrograms of alcohol per litre of breath.}⁴

¹ _{Sentencing Act 2002, ss 106 and 107.}

² _{Police v Ovtcharenko [2016] NZDC 16460.}

3. Land Transport Act 1998, s 57(1A). However, a conviction may only be entered if the breath alcohol concentration exceeds 150 micrograms of alcohol per litre of breath: see s 57(1).

⁴ Ibid, s 56.

Sentencing in the District Court

[6] Having pleaded guilty to the two offences, counsel for Mr Ovtcharenko submitted that his client should be discharged without conviction. The power to grant such a discharge springs from ss 106 and 107 of the Sentencing Act 2002. Relevantly, they 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—

(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.

[7] Judge Hinton commenced his analysis by reference to Linterman v Police.⁵

In that case, Miller J considered the circumstances in which a discharge ought to be granted, in the context of drink-driving offending. His Honour said:

⁵ Linterman v Police [2013] NZHC 891.

[9] ... 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.

[8] Having referred to that passage, Judge Hinton continued:⁶

[9] Those words, I suggest, reflect the community view and expectations, so that from my perspective, an obvious conclusion that this is reasonably serious offending and that the gravity is thus marked, is open. That is not all, however, that informs the Court’s overall assessment of gravity. You are a person without previous convictions. You are a young man of good character and promise. You have acknowledged responsibility for this offending, you have co-operated with the police. You are a young man now at university, pursuing an engineering degree. Your affidavit outlines your personal circumstances, this is currently your first year. You wish to work, following graduation, obviously as a civil engineer and you have your eye on opportunities which might still then be available and most likely will be in the Christchurch rebuild.

[10] You have an excellent testimonial from the headmaster and housemaster of the secondary school in Auckland that you attended. You are obviously a young man of some promise. You have done 20 hours of voluntary community work at a local primary school in Christchurch. You have attended a defensive driving course and completed a defensive driving course and you have attended an interview at CADS, the report from which discloses that you do not have any evident issues with alcohol. So that, overall, one could say the gravity here of the offending is serious but ameliorated somewhat by those other factors to which I have referred, making this, in the circumstances, moderately serious offending which is not quite the starkly serious offending absent consideration of other matters that the police submit it to be.

[9] Judge Hinton then reviewed evidence touching on the direct and indirect consequences of the entry of a conviction on each of the two charges. He said:⁷

⁶ Police v Ovtcharenko [2016] NZDC 16460 at paras [9] and [10].

[11] The second question for the Judge is to consider consequences direct and indirect for you, if a conviction were to be entered. You say, in your affidavit, that a criminal conviction could seriously impede your career, “as I will not be able to compete with candidates seeking the same employment opportunities as myself”. Presumably, in the civil engineering field or context. As to that, and I paraphrase, the police say that you will not be in a substantially worse position than anyone else convicted of similar offences. As your affidavit suggests, you are generally a person of good character and prospective employers will consider your future job application on its merits. There is no suggestion, the police say, that you will be denied the opportunity to become a civil engineer.

...

[13] I allow also that there are two affidavits filed in support of your application, with respect to employment consequences, by respectively a chartered accountant and a managing director of a specialist investment firm. Both of these deponents make virtually identical statements, including that their respective firms “cannot have the stigma of having employees who are convicted of criminal offences”. That statement seems inconsistent with the further identical statement that each of them makes, that if there were two similar job applicants, one with a conviction and one with no convictions, they would lean in favour of the applicant with the clean record. Both deponents say they would expect other professional organisations, including, and they name “civil engineers,” to have the same policies. So, the proposition is that you will not be able to compete with others for a civil engineering job.

[10] The District Court Judge was not persuaded that the circumstances described justified a discharge without conviction. In finding that the consequences were not out of all proportion to the gravity of the offending, Judge Hinton observed:⁸

[14] I do not accept that to be the case. You are a young man of considerable promise and ability and you are not disadvantaged from excelling academically and continuing to develop personally. I do not think there is anything in the general statements in the affidavits that means any particular prejudicial consequence for you in your chosen field of civil engineering. If there is, it is not significant, and is not sufficient to be out of all proportion to the gravity of the offending as I find it. I see no potential or actual bar to entry to your profession. There may be a general future non- specific prejudice to your opportunities, but that is not out of all proportion to the gravity as I find it. I do note for completeness that the police submissions touch on those aspects that I have just mentioned.

...

[16] For me, the general statements in the supporting affidavits are insufficient. For example, I could not sensibly conclude that the presence of a conviction, as both deponents seem to suggest, would preclude employment in the civil engineering field. So, the conclusion I have reached is that the consequences submitted for you are not out of all proportion to the

gravity of the offending as I find it, with the result that your application must be declined.

Personal circumstances

[11] Mr Mitchell, for Mr Ovtcharenko, placed a good deal of emphasis on Mr Ovtcharenko’s character, remorse, rehabilitative steps, and likely career path. Although traversed in general terms in Judge Hinton’s decision,⁹ I review them afresh.

[12] At the time of sentencing, Mr Ovtcharenko was 19 years old. Mr Ovtcharenko has no previous convictions. Indeed, he has received glowing testimonials from those who observed him during the secondary school years. He is presently attending university, in his first year of study for an engineering degree. He wishes to take up a career as a civil engineer.

[13] A number of affidavits were filed in support of the application for discharge. I summarise them:

(a) Mr Ovtcharenko deposed that he was attending the University of Canterbury and studying for a Bachelor of Civil Engineering with Honours. He aspires to graduate and become a successful civil engineer. Mr Ovtcharenko points to the likely opportunities in Christchurch due to the need to rebuild that city following the earthquakes of 2010 and 2011.

(b) Mr Bruce Robertson is the Managing Director of JB Were Ltd, a specialist investment firm with offices throughout Australasia. He deposes as to involvement in interview processes when that company has sought candidates for employment. Mr Robertson emphasises that “it is essential that the candidate is candid about their past and that will include admitting to any criminal convictions that that

_{particular candidate has”.}

⁹ Police v Ovtcharenko [2016] NZDC 16460, at para [10], set out at para [8] above.

(c) Mr Robertson considers that a conviction for driving with an excess breath alcohol concentration would count against Mr Ovtcharenko on interview “as it will reflect upon his judgement” and a firm such as his “cannot have the stigma of having employees who are convicted of criminal offences”. Uncontroversially, he adds that if two applicants of equal ability sought employment and one had a conviction it is more likely that the applicant who did not would be successful.

(d) Mr Alistair Ward is a chartered accountant based in Auckland. His firm is part of a worldwide accountancy business. Like Mr Robertson, he deposes as to the difficulties that an applicant in the position of Mr Ovtcharenko with a criminal conviction would have, when compared with one who had not offended. Mr Ward’s affidavit takes the position no further than does Mr Robertson.

(e) Mr Vladimir Ovtcharenko, the appellant’s father, deposes as to the character of his son. He describes his son’s actions on the night in question as “totally out of character to the usual way he behaves and has behaved” in the past. He deposes that this “was a one-off incident which will never be repeated” and says that his son “is acutely aware that he has let the family down”.

[14] I am prepared to accept that Mr Ovtcharenko has an unblemished past and that his behaviour was out of character. Further, I am prepared to assume that Mr Ovtcharenko is a studious young man who is likely to excel at university and to achieve his ambition to become a civil engineer. I am also satisfied that he is truly remorseful for his actions. Having said all of that, while he has apologised for his actions in driving the motor vehicle with an excess breath alcohol concentration, Mr Ovtcharenko’s affidavit is notable for the lack of any explanation as to the reasons why an event so apparently out of character occurred. I am troubled by the lack of any candid explanation as to the circumstances in which he came to be

driving with such a high breath alcohol reading, particularly given the speed at which he was travelling for much of the time.¹⁰

[15] While unchallenged, the evidence of Mr Robertson and Mr Ward has little probative value. Both accept that an employer would expect to be informed of any conviction. Both focus on the need for a candidate for an employment position to be “candid” about their past. Their reasons are understandable; the existence of unacceptable behaviour (whether or not coupled with a conviction) may influence a future employer when considering the relative merits of prospective employees, particularly in relation to their character.

[16] As I read their evidence, just as an employer would expect to be told about a conviction, so too would it want to know if a person had offended. The questions of character and judgement to which Mr Robertson and Mr Ward both refer are relevant, whether or not a person is discharged without conviction.

[17] The position with regard to disclosure is not dissimilar to that which pertains if a person seeks a visa to travel overseas. Many countries will require disclosure of circumstances that give rise to an offence, even if no conviction were to follow.¹¹ It would be concerning if a prospective applicant for employment failed, if asked, to disclose a relevant factor going to character, namely driving with an excess breath alcohol concentration at extreme speed, simply because a discharge without

conviction had been ordered.

Analysis

[18] It is now settled that the question whether a discharge without conviction should be ordered is determined through two steps. The first is evaluative in nature. The question is whether the “consequences of a conviction would be out of all proportion to the gravity of the offence”.¹² When considering the gravity of the

_{offence, the sentencing court is required to consider all aggravating and mitigating}

¹⁰ _{See paras [3]–[5] above.}

¹¹ _{For example, see Edwards v R [2015] NZCA 583 at paras [21] and [22].}

¹² Sentencing Act 2002, s 107, set out at para [6] above.

factors relating both to the offending and the offender.¹³ The second is whether, if the first hurdle is overcome, the Court should grant a discharge in any event.¹⁴ Judge Hinton concluded that Mr Ovtcharenko’s application failed at the threshold level.¹⁵

[19] On appeal, the District Court’s decision on the evaluative question is considered by reference to whether this Court is satisfied the conclusion reached was correct.¹⁶ On the other hand, any challenge to the discretion whether to grant a discharge is undertaken on the basis of an appeal against the exercise of a discretion.¹⁷ On my view of this appeal, I need only consider the evaluative conclusion reached by the Judge.

[20] I agree with Miller J, in Linterman v Police, that applications for discharges without conviction in alcohol related driving cases should be scrutinised with care. It may, with respect, go too far to say that they ought only to be granted in “exceptional” circumstances.¹⁸ As with any other offence, it is necessary to apply the statutory tests. In doing so, the nature of the social problem that the legislation is intended to address is something that goes to an assessment of the gravity of the offending.

[21] If anything, I consider that Judge Hinton understated the gravity of the offending. For reasons that Mr Ovtcharenko has elected not to disclose, he drove

(a) a powerful motor vehicle along a public road at about 4.00am on a

Saturday morning,

(b) at speeds in excess of 200 km/h over a distance of some five kilometres,

(c) having consumed sufficient alcohol to result in an excess breath alcohol reading of 525 micrograms of alcohol per litre of breath.

¹³ _{Z(CA447/2012) v R [2013] NZAR 142 (CA) at paras [27] and [28].}

¹⁴ _{R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 (CA).}

¹⁵ _{Police v Ovtcharenko [2016] NZDC 16460 at para [14], set out at para [10] above.}

¹⁶ _{Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 (SC).}

¹⁷ _{May v May (1982) 1 NZFLR 165 (CA).}

¹⁸ See Linterman v Police [2013] NZHC 891 at para [9], set out at para [7] above.

[22] A concerned motorist reported the driving to the Police. On any view it was both irresponsible and dangerous to drive in that way. Had any unexpected event occurred (for example, if an obstacle of some type had been lying on the road) the consequences would probably have been tragic.

[23] It is fair to say, as did Mr Mitchell, that Mr Ovtcharenko’s personal circumstances reduce the gravity of the offending. But, in a case like this, the emphasis must be placed firmly on conduct giving rise to road safety concerns. Significant prejudice would need to be established to persuade a Court that the direct or indirect consequences of the entry of convictions would be out of all proportion to the gravity of the offending.

[24] As I have already explained, the evidence as to prejudice is not compelling. A responsible potential employee would need to disclose what had occurred, irrespective of whether a conviction was entered. It is the act undertaken by the potential employee that raises the questions of character and judgement that would concern a future employer. The entry of a conviction cannot be seen in a vacuum. It is the underlying act that gives rise to the conviction that is important to an employer.

[25] Just as the absence of a conviction for a breath alcohol offence might influence an employer in assessing the seriousness of the offending, it is always open to a person in Mr Ovtcharenko’s position to provide to a potential employer a copy of the sentencing remarks of a Judge or a judgment on appeal to demonstrate his or her level of culpability. That can still be done.

[26] Mr Ovtcharenko is in the initial stages of his engineering degree. The course, I am told, takes some five years to complete. After seven years from the date of the offending he will be entitled to apply under the Criminal Records (Clean Slate) Act

2004, if qualifying criteria are met. If Mr Ovtcharenko were able to demonstrate good judgement in the intervening period and not engage in conduct of the type that occurred on this occasion, it is likely that an employer would not discriminate against him.

[27] While I have not traversed the many comparator cases to which I was referred by counsel, I am not unmindful of the need for consistency of approach in sentencing. Ultimately, as the appellate decisions recognise, a fact-specific case by case assessment is required to determine whether a discharge ought to be ordered.

[28] I am not satisfied that the Judge erred in concluding that the direct or indirect consequences of the entry of convictions were not out of all proportion to the gravity of the offending. In that situation, Judge Hinton was correct to refuse the application for discharge.

Result

_{[29] For those reasons, the appeal is dismissed.}

_{P R Heath J}

Delivered at 4.00pm on 27 October 2016