Moana v Police [2016] NZHC 3174 (21 December 2016)

Last Updated: 31 March 2017

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2016-419-000028 [2016] NZHC 3174

BETWEEN	TAIPU ERIC MOANA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	31 August 2016
Counsel:	D Allan for Appellant J E Tarrant for Respondent
Judgment:	21 December 2016

_{JUDGMENT OF DUFFY J}

This judgment was delivered by me on 21 December 2016 at 10 am pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors / Counsel:

Gavin Boot Law, Hamilton

David Allan, Barrister, Hamilton

Crown Solicitor, Hamilton

MOANA v NEW ZEALAND POLICE [2016] NZHC 3174 [21 December 2016]

[1] Mr Moana was charged with refusing to permit a blood specimen to be taken when required to do so by an enforcement officer.¹ He was found guilty following a Judge-alone trial in the District Court at Huntly on 22 January 2016.² Mr Moana subsequently made an application for a discharge without conviction pursuant to s 106 of the Sentencing Act 2002. On 12 April 2016, Judge Connell declined the

_{application for discharge.}³ _{Mr Moana was fined $450 and disqualified from holding}

or obtaining a driver’s license for a period of six months. Mr Moana appealed.

Facts of offending

[2] On the morning of the day of the offending Mr Moana attended the tangi of a noted Huntly Kaumatua from Waahi Paa Marae with his son. They spent most of the day there until 3.00 pm in the afternoon. Mr Moana had dinner at home and then he went to the Huntly Workingmen’s Club to watch a cricket game. He arrived at the Club at around 6.30 pm and stayed there until approximately 10 pm. During this time he says he drank “five handles of beer.”

[3] On his way home, Mr Moana passed through a police checkpoint. He was apprehended, and then began to behave in a manner which Judge Connell found was designed to frustrate the purpose of roadside breath testing. At one stage, Mr Moana wandered some 15 or 20 metres from the mobile testing station and apparently chewed on some leaves from a tree nearby. Mr Moana said that he was merely chewing the leaves but the police officer who was tasked with minding him inferred that Mr Moana was making a misconceived attempt to alter the results of the breath testing. In any event, the end result was that police officers were unable to take an evidential sample of Mr Moana’s breath and/or blood as required under the Land Transport Act 1998.

[4] Mr Moana acknowledges now that he should have left his car and walked home. The distance was short enough for him to do so. However, he said he did not

_{feel intoxicated and so decided to drive.}

¹ _{Land Transport Act 1998, s 72.}

² _{New Zealand Police v Moana [2016] NZDC 906 (Moana No 1).}

³ New Zealand Police v Moana [2016] NZDC 6199 (Moana No 2).

District Court judgment

[5] Judge Connell found that the charge of refusing to give a blood alcohol specimen was a reasonably serious charge within the realms of alcohol-related driving charges, and that there were a number of aggravating factors which increased the culpability of Mr Moana’s offending. In particular, Mr Moana was himself employed as a counsellor for others who were struggling with alcohol addiction and should have possessed the knowledge and experience to make better choices on the night in question.

[6] The Judge then considered the consequences of conviction for Mr Moana. He referred to a contract of employment and a letter written by a Mr McLean which appeared to indicate that Mr Moana’s current work would be terminated in the event of a conviction. However, Judge Connell was not convinced that a conviction would necessarily mean the loss of Mr Moana’s job. The Judge also considered the related effect of a conviction on Mr Moana’s family, particularly if his family were to lose its sole source of income; and on his chances of finding future employment.

[7] Judge Connell concluded:⁴

Whilst the consequences of conviction to my mind are considerable, there is still a possibility of them not eventuating. The offence is not trivial. It is a reasonably serious driving related charge that has been aggravated in my view by the defendant’s conduct as I have referred to it.

...

There might be seen a risk of ss 106 and 107 providing something of a blank cheque for offenders who work in sensitive areas, because the consequences of a conviction will always be considerable. Mr Moana was aware of the effects of alcohol and he knew that he was going to drive home. He made a choice to get in the car after having five handles of beer and drive that car. He willingly and intentionally obstructed the police when he was asked to co-operate with them and in my view did so to avoid the very thing that has happened for him now, and that is the fact that he has been found guilty of the offence.

[8] Judge Connell therefore dismissed the application for a discharge without conviction. He imposed a fine of $450 and a disqualification from driving for

_{6 months.}

⁴ Moana No 2, above n 3, at [34]-[35].

Grounds of appeal

[9] Mr Moana appeals against Judge Connell’s refusal to grant a discharge without conviction on the basis that the Judge erred in fact and in law, when he found that:

(a) Mr Moana’s expert knowledge within the field of alcohol abuse and

addiction was an aggravating factor which elevated his culpability;

(b) Any loss of employment as a result of conviction was not a foregone conclusion;

(c) That the Court should not conceal criminal wrongdoing by granting a discharge without conviction in order to protect future employment prospects.

Approach on appeal

[10] This is a first appeal against conviction and sentence under ss 229 and 244 of the Criminal Procedure Act 2011. Under s 232, the High Court can only allow an appeal from a Judge-alone trial if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason”.

[11] An appeal against a refusal of discharge is by way of rehearing. The court hearing the appeal makes a new assessment in accordance with its own opinion.⁵

The Court of Appeal in R v Hughes concluded that as the s 107 test is not discretionary, an appeal against the court’s decision on this matter is not an appeal against discretion.⁶ An appeal against discretion will only arise if the court of first instance holds that s 107 is satisfied but nonetheless chooses not to discharge the

_offender.

⁵ _{R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 at [11].}

⁶ At [11].

Law

[12] A discharge without conviction is available under s 106 of the Sentencing Act

(the Act). Section 107 of the Act guides the application of s 106 and 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.

[13] For the court to be satisfied, there only needs to be a “real and appreciable”

risk that the contended consequences will occur.⁷

[14] The approach to be followed in applying the s 107 test is set out in Z v R

where Arnold J held:⁸

...[w]hen 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...

This approach was subsequently approved in DC v R.⁹

[15] This is a factual inquiry which requires the court to consider all relevant circumstances of the offence, offending and the offender, as well as the wider interests of the community.¹⁰

[16] If the s 107 test is met, then the court has a discretion to discharge without conviction as per s 106. In determining whether to exercise that discretion the court should take into account the factors listed in ss 7, 8, 9, 9A and 10 of the Sentencing

_Act.¹¹

⁷ _{Papuni v Police [2013] NZHC 1958 at [12].}

⁸ _{Z v R [2012] NZCA 599, [2013] NZAR 142 at [27]}

⁹ _{DC v R [2013] NZCA 255 at [35].}

¹⁰ _{R v Hughes, above n 5, at [41].}

¹¹ R v Blythe [2011] NZCA 190, 2 NZLR 620 at [12].

Further evidence

[17] When the Judge refused the discharge without conviction he was not convinced Mr Moana would lose his job with Hauora Waikato Nga Ringa Awhina, where he worked as a senior alcohol and drug (AOD) counsellor. However, once the conviction was entered Mr Moana did lose his job.

[18] I gave Mr Moana the opportunity to file further evidence regarding the impact of a conviction on his employment prospects. Accordingly, I have more evidence before me than was available to the District Court Judge. The evidence available to me reveals that Mr Moana’s employment with Hauora Waikato Nga Ringa Awhina was terminated because:

(a) the conviction precluded him from access to Department of

Corrections facilities;

(b) the above difficulty was compounded by his loss of a driver’s licence;

(c) if his employment continued the conviction placed his employer in breach of its contract with the Waikato District Health Board;

(d) his employment post-conviction was at odds with the high standards expected by the professional body, the Drug and Alcohol Practitioners’ Association Aotearoa New Zealand (DAPAANZ), and of a counsellor of Mr Moana’s experience and standing; and

(e) entry of a criminal conviction was a breach of his employment agreement as it constituted serious misconduct.

[19] The security manager for Waikeria Prison, Department of Corrections, Mr Alty, has confirmed that once Corrections became aware Mr Moana was facing active charges he was stood down from being able to access Corrections facilities in the Waikato region. The stand down period in matters of this nature is discretionary and not subject to a national policy. Mr Alty has stated that post–conviction, the stand down period is also discretionary. In the present case the nature of the

conviction is seen to conflict with the type of service Mr Moana would be delivering on site at the Corrections facilities. Mr Alty advised that on discussion with the prison director the view was formed that a stand down period of at least 24 months would be considered reasonable.

[20] The information from Mr Alty informs me that the conviction will not result in Mr Moana being permanently barred from accessing Corrections facilities in his role as an AOD counsellor but when such access might be given in the future is discretionary and some time off. Accordingly, any employment opportunities in Mr Moana’s area of expertise will be limited by the stand down period.

[21] Mr Moana is 49 years old. He has been married to his wife Allison for the past 28 years. They have four children and six grandchildren. He has not previously appeared before the Court. Mr Moana is an alumnus of Otago University and has a postgraduate diploma in health science, specialising in co-existing mental health and addictions from the School of Psychological Medicines. He also holds a Bachelor of Alcohol and Other Drug Counselling from Wellington Technical Institute and has a Level 6 diploma in cultural clinical integration studies with Te Rau Matatini Maori Workforce Development Unit. Mr Moana has worked in the mental health and addictions area for approximately 16 years. His career started in 1999 as a cultural advisor for the inpatient adult acute wards, Henry Rongomau Bennett Centre, Waikato DHB, the main focus of his employment being to apply cultural safety/integration to personnel and whanau. He spent two years at Waikato University studying psychology until the demands at the Waikato DHB overwhelmed his time when he was then appointed Maori Cultural Advisor (Kaitakawaenga) roles across the Waikato DHB mental health services. He moved to community mental health services and established cultural roles in the community including service delivery, treatment and care. For a time he was contracted to Community Alcohol and Drug Services (CADS). He specialised in the treatment and delivery of family/individuals on the opiate (methadone) substitution programme.

[22] In 2013 an opportunity arose for Mr Moana to work in the kaupapa Maori environment with Hauora Waikato Kaupapa Maori Mental Health Services where he

continued to practice, specialising in cultural clinical integration practices with youth/rangitari until his employment was terminated on his conviction.

[23] He is a fluent speaker of Te Reo and is well regarded within his hapu and iwi. At his sentencing there were a number of testimonials from well respected members of the community, all of which expressed a high regard for Mr Moana and recognised the important contribution that he makes to his community. The Chairman of Hauora Waikato, Wayne McLean, has provided affidavit evidence setting out the high respect and regard with which Mr Moana is viewed in the community. The affidavit also informs me that Mr Moana’s qualifications in both te ao Pakeha and te ao Māori worlds make him uniquely qualified and a highly sought after practitioner in the area of health that has traditionally been poorly serviced and with an under supply of clinicians with the right skills. Mr Moana is viewed as a highly skilled and sound clinician with much to offer those to whom he delivered services. Mr McLean’s evidence makes it clear to me that if Mr Moana can no longer perform his clinician’s role those to whom he delivered services will be the poorer.

[24] Since the offending Mr Moana has self referred to Pai Ake Solutions Ltd and attended a number of interviews and counselling sessions. The report from Pai Ake Solutions Ltd notes that Mr Moana developed an early use of alcohol from the age of

13 years while on the pa where whanau were drinking and he would share alcohol with them. By the age of 17 he was a regular drinker, though this seems to have been confined to one to two days per week. He undertook an alcohol use disorder identification test which placed him at a risky drinking level, but was not indicative of a substance use disorder. There is no suggestion of any other substance use disorders. The report ascribes what the report writer recognises to be an out of character lapse on Mr Moana’s part with the offending being attributed to heavy work pressure and the impact of his young sister’s death. She had died in the six months before the offending. He was particularly close to her and the report writer considers that he had not sufficiently dealt with her death, instead trying to busy himself more than usual in order to avoid processing his feelings about her death.

[25] The report writer recognises Mr Moana as having good insight into the problems that his drinking and the drink driving offending caused him, describes him as highly motivated, aware and willing to address and take responsibility for the offending, and considers him highly likely to respond positively to the assistance he has received from Pai Ake Solutions Ltd. Mr Moana is seen as being someone who has the ability to learn from his past mistakes. He is seen to be “an intelligent male who voices a determination to make changes necessary in his drinking attitudes and behaviours because he fully understands how this charge has affected his standing in the community and brought enormous shame upon him and his family which he does not want to repeat.”

[26] Mr Moana says the incident at the police checkpoint where he refused to take an evidential breath test was a massive wake up call for him and has caused him to reflect on his use of alcohol and the consequences of drinking alcohol, not just for himself but for other road users and other members of the community.

[27] As a result of the conviction Mr Moana was required to notify DAPAANZ. The conviction will impact on his ability to continue practising in the alcohol and drug counselling area. Accordingly it will be difficult for him to find further employment in that area. The loss of his employment with Hauora will cause financial problems and make it difficult for Mr Moana to meet existing mortgage commitments. Since losing employment with Hauora he has obtained a part-time cultural role of limited duration as a cultural advisor at the Te Runanga o Kirikiriroa who also have a health clinic and new residential development at Enderley. This new role does not have a clinical component and accordingly it will be a fundamental shift away from the AOD specialist expertise which Mr Moana has developed in recent years.

Discussion

[28] In accordance with the approach approved in Z v R I propose to consider the aggravating and mitigating factors relating to the offending and Mr Moana first. Then I will identify the direct and indirect consequences of conviction for Mr Moana

and consider if those consequences are out of all proportion to the gravity of the offence.

[29] I do not consider Mr Moana’s role as a AOD clinician to be an aggravating feature of the offending which elevates his culpability. The knowledge Mr Moana would gain from his clinician’s role relates to the deleterious effects of alcohol and drug addiction. However, use of alcohol is accepted and legitimate, provided it is not used to excess. Consumption of alcohol combined with driving is acceptable if the use is kept within the permissible legal limit. I acknowledge that Mr Moana should have realised some use of alcohol can affect judgment and lead to poor decision making, but that knowledge is also readily available to, and to be expected of other members of the community.

[30] That he did not co-operate with the police and undergo either an evidential breath test or a blood test reflects poorly on Mr Moana but that is the nature of the offence with which he was charged. I do not consider that the way in which he conducted himself in refusing to undergo either of those tests is an aggravating factor. It is simply the commission of the elements of the particular offence for which he was charged.

[31] I note that there was nothing about Mr Moana’s driving that brought him to the attention of the Police, and that the request to submit to the alcohol testing regime came about through him encountering a police checkpoint. This informs me that there was nothing apparently bad about his driving at the time. My view, therefore, is that this offending was no more than a standard refusal to provide an evidential breath or blood test that arose from a request of a driver at a random police checkpoint. Accordingly I view the offending as having neither aggravating or mitigating circumstances.

[32] As regards Mr Moana, I see no aggravating circumstances in relation to him. At the time of the offending he was 48 years old and it was his first offence. I consider therefore that his previous good character is a mitigating factor.

[33] On the day of the offending he had attended the tangi of a noted Huntly kaumatua and so this death would have affected him. In addition, the tangi and death would have brought back memories of the death of his sister, who was younger than he and who had died some six months earlier. On the day of the offending Mr Moana may well have been feeling sad and emotionally vulnerable. This in turn may have affected his decision-making on that day. Accordingly I see the offending as a specific response to a particular and peculiar set of circumstances.

[34] The career path that Mr Moana has chosen identifies him as someone who later in life has sought to better his circumstances through engaging in adult education up to the tertiary level. It is not easy to succeed in completing tertiary education later in life, but he is someone who has accomplished that achievement. His career path also shows that he has sought to utilise the skills he has acquired, from the steps he has taken to improve himself to assist others. It is clear from the evidence before me that he has made a big contribution to his local community and that he would do so in the future if he were able to. The brief insight I have been given to his early life as a teenager and exposure then to alcohol informs me that he would have faced challenges earlier in his life but was able to find a pathway through those challenges which has taken him to where he is today. It is much to his credit that he has avoided criminal convictions in the past, has formed a happy and stable family and has reached a valuable and socially worthwhile role in life. I consider there are significant mitigating factors relevant to Mr Moana.

[35] As regards the direct and indirect consequences of conviction for Mr Moana there is the loss of his employment with Hauora and all that entails in terms of the loss of the career he has worked hard to establish for himself and the financial loss that will come from losing a skilled and worthwhile job at Mr Moana’s stage in life. Further, it is highly probable that he will have difficulty finding employment in the future in his chosen field of work. The impact of a conviction will weigh more heavily on him than it would do on many persons who would suffer no more than the consequences of the court imposed penalties and some social embarrassment. I recognise that the District Court Judge considered the court should not conceal criminal wrongdoing in order to protect future employment prospects. However, where a conviction will have a significant detrimental impact on future prospects this

court has on a number of occasions taken that into account as a factor supporting a discharge without conviction. Indeed, any consequence that is out of all proportion to the gravity of the offence is something that needs to be taken into account under s 107 of the Act. Further, in this case Mr Moana has provided an undertaking to the Court that a copy of the judgment on appeal will be provided to DAPAANZ to ensure that they are fully aware of the circumstances surrounding his offending. DAPAANZ will then be free to make decisions regarding Mr Moana however it sees fit.

[36] The legal test under s 107 requires only that there be a real and appreciable risk that the contended consequence will occur. Here, the most significant detrimental consequence has occurred. Further, I consider there is a real and appreciable risk that Mr Moana will find himself barred from future employment in his field of work as a result of a conviction. I am satisfied that this is a case where it can properly be said that the consequences of the conviction are out of all proportion to the gravity of the offence.

[37] Having reached the conclusion that I have under s 107 it is then a matter for me to consider the exercise of the residual discretion to grant a discharge that is available to me under s 106 of the Act. In this case the offending occurred in the context of a unique set of circumstances that in my view made Mr Moana particularly vulnerable, and which may well have affected his judgment. He has committed an error. Further, drink driving is a serious matter that carries potential adverse consequences for the community. It can place lives at risk. However, the circumstances of the offending in this case are at the low end of the scale for the offence he committed. Until this particular offence Mr Moana has had an unblemished record of good behaviour. His previous good character and the contribution that he has made to the community needs to be recognised. Further, if he is unable to continue in his role as an AOD clinician he is not the only one who will suffer. It is clear to me that he has much to offer his community. The persons in need of his assistance will suffer if he is no longer available to give them the help that he can. A conviction will not only deprive Mr Moana of a worthwhile role in his life, but deprive others of the many benefits that he can give to them in this role.

Accordingly, I consider that the discretion should be exercised in his favour and that he be discharged without conviction.

Result

[38] The appeal is allowed. The conviction and sentence are set aside.