Haskell v Police [2018] NZHC 1016 (10 May 2018)

Last Updated: 24 May 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-089 [2018] NZHC 1016

BETWEEN	MICHAEL BRUCE HASKELL Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	7 May 2018
Counsel:	S M Kilian for Appellant J V Barry for Respondent
Judgment:	10 May 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 10 May 2018 at 3:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Kilian & Associates (Auckland) for Appellant Meredith Connell (Auckland) for Respondent

HASKELL v POLICE [2018] NZHC 1016 [10 May 2018]

Introduction

[1] On 9 March 2018,¹ Judge D J Sharp refused to discharge Mr Haskell without conviction on a charge of refusing to permit a blood specimen to be taken after having been required to do so by an enforcement officer.² Mr Haskell now appeals that decision.

Approach on appeal

[2] I must allow the appeal if I am satisfied that, for any reason, Judge Sharp made an error such that Mr Haskell should have been discharged without conviction.

[3] The law recognises that sometimes the consequences for an offender of being convicted of their offending will be so harsh that justice is better served by not entering a conviction. The test is set out in s 107 of the Sentencing Act 2002:

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.

[4] It can be seen there is a high threshold between an offender and a discharge without conviction. It is not enough to satisfy the Judge that the consequences of a conviction would be disproportionate to the gravity of the offence. The Judge must be satisfied that the consequences would be out of all proportion to the gravity of the offence.

[5] To apply the test properly, a Judge must (as did Judge Sharp) conduct a three- step analysis:³

(a) Assess the gravity of the offending. That means first looking at all the relevant circumstances of the offending and of the offender, and then standing back and deciding how serious the offending is.

¹ Police v Haskell [2018] NZDC 4509.

² Land Transport Act 1998, s 60(1)(a).

³ Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8]-[9].

(b) Determine the direct and indirect consequences of a conviction for the offender.

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

[6] I will examine Judge Sharp’s reasoning against the circumstances before him and, in doing so, I will make my own assessment as to whether there is an error and, if so, whether there should be a different result.

Did the Judge make an error such that Mr Haskell should be discharged without conviction?

(a) The gravity of the offending

[7] On 17 August 2016, Mr Haskell was stopped by Police who were concerned about the speed at which Mr Haskell was driving. Mr Haskell is an American who was unfamiliar with New Zealand law. He refused to undergo a breath screening test, refused to give a specimen of breath and ultimately refused a blood test.

[8] Mr Haskell asked to contact his lawyer, but the Police were unable to reach the lawyer by telephone. The Police did contact by telephone a lawyer on their list of lawyers able to assist people in Mr Haskell’s situation. It is common ground that Mr Haskell spoke to the lawyer thus contacted, was advised to give the blood sample, and this advice was rejected by Mr Haskell.

[9] Mr Haskell defended the charge. On 30 November 2017, he was found guilty of the charge by Judge D M Wilson QC.⁴ Mr Haskell’s defence was that he had drunk only four bottles of beer quite a long time before driving, and did not comply with the directions of the Police because he felt intimidated by what was said to him by the attending police officer. However, Judge Wilson found that the officer behaved in a professional manner in dealing with Mr Haskell.

⁴ Police v Haskell [2017] NZDC 27302.

[10] Mr Haskell provided an affidavit to Judge Sharp in support of his application for a discharge without conviction. In it, he said:⁵

9. I am a libertarian, and coming from the USA, this means that I am able to test the processes that are imposed by the legislation especially when I feel threatened by law enforcement.

10. On the evening of the 17^th of August 2016, this is what happened. I felt threatened by the approach of the officer that was dealing with me, and the manner in which he was dealing with me.

11. It felt as if I was being profiled as a specific type of person and because I was American certain statements made by the Police officer scared me.

12. The fact that I was not immediately allowed to call my lawyer on my cell phone only escalated matter a (sic) I just needed to talk to someone that I trusted.

13. I knew that I was not over the limit and I was honest with the officer about how much I had drunk, prior to one of the hearings starting the prosecutor admitted to my counsel in front of me that if I had of (sic) taken the test I would have in all probability passed it.

[11] So far as personal circumstances are concerned, Judge Sharp noted Mr Haskell’s previous good history (he has no convictions) and said he is “a worthwhile citizen who provides benefits here and abroad”.⁶ Judge Sharp accepted that Mr Haskell is unlikely to reoffend and he also accepted what Mr Haskell said about his alcohol consumption. Nevertheless, Judge Sharp was of the view that this was offending of moderate seriousness.

[12] Mr Kilian for Mr Haskell does not really take issue with Judge Sharp’s characterisation of the offending as being moderately serious. That is appropriate. Drivers impaired by alcohol are a major threat to other road users, and to themselves. The breath and blood alcohol testing laws are a major part of the effort to identify and remove intoxicated drivers from the roads. Refusal to co-operate with enforcement officers is a serious matter. In this case, Mr Haskell spoke to a lawyer and was given advice on his obligations. He chose not to accept that advice. He then defended the

5. Affidavit of Michale (sic) Bruce Haskell in support of my application for section 106 duscharge (sic) without conviction, dated 9 March 2018.

⁶ At [6].

charge and so is not entitled to credit for accepting responsibility for his actions. His offending is at least moderately serious.

(b) Consequences of a conviction

[13] The consequences identified by Mr Haskell in his affidavit of 9 March 2018 relate to his ability to travel for business purposes. He deposed:

22. Travelling to various jurisdictions with a criminal record creates significant difficulties wherever I go, and this has the ability to impact on me personally and on by (sic) business affairs.

23. I am aware that despite having a conviction you are still able to travel, but this requires significant additional work and explanation every time you declare the conviction. It also means that despite the type of conviction and the reasons around it, you might still be refused entry into that jurisdiction.

24. In some countries, such as Canada, a driving offence relating to alcohol is regarded as a major offence and has a significant likelihood of impeding by (sic) ability to enter that jurisdiction.

25. Canada and Singapore are significant jurisdictions for me and my business.

[14] Judge Sharp accepted a conviction would result in:

[10] ... appreciable consequences includ[ing] significant difficulties in his business. He does some travelling to Canada. He would need to have special exemptions in relation to their rules for persons who have convictions in relation to alcohol impaired driving. In relation to Singapore also there are hurdles which would need to be accommodated if Mr Haskell was to receive a conviction. It is clear that these would be matters of significance to Mr Haskell as his business, as deposed in his affidavit, depends on him travelling around the world to carry out his business interests. Those would be, I accept, serious matters for Mr Haskell.

[15] I am not prepared to characterise the potential consequences in quite the same way as Judge Sharp. While I accept there is a real risk that Mr Haskell’s business travel will be impeded because he will have to declare his conviction and make any application for entry required by the country he wishes to visit, there is no evidence – or assertion – he will be unable to enter any country. There would need to be detailed evidence of the impediment to entry to a particular country caused by a conviction before anything more than an acknowledgement of real risk can be accepted.⁷

⁷ Edwards v R [2015] NZCA 583 at [26].

(c) Proportionality assessment

[16] Judge Sharp came to the view that the consequences for Mr Haskell’s business travels are not out of all proportion to the gravity of his offence. Mr Kilian does not point to any particular error in Judge Sharp’s assessment; he submits (as I perceive it) that overall the Judge was wrong and that I should therefore intervene.

[17] I have considered Mr Haskell’s case afresh and I conclude that Judge Sharp did not make an error. Counsel, and Judge Sharp to an extent, focused attention on the importance of road safety and the mitigating evidence of Mr Haskell’s modest alcohol consumption. But this is not a case where a person who co-operated with the Police is found to be just over the legal limit, pleads guilty at the first opportunity and is palpably remorseful. It is a case of a man who consumed alcohol and drove, who refused to co-operate with Police, who disregarded legal advice to give a blood sample, and who unsuccessfully defended the charge.

[18] Whether or not Mr Haskell was over the limit will never be known because he did not co-operate. Therefore, the charge against Mr Haskell was not a charge of driving with excess blood alcohol. It was a charge of defying the law: of refusing to permit a blood specimen to be taken. I accept it was a moderately serious example of its kind, but that is the nature of the offending against which the likely consequences for Mr Haskell must be assessed.

[19] Those consequences amount to a real risk of impeded travel and of having to disclose his conviction and make whatever application is necessary to be assessed for entry to the country in which he wishes to do business. Those are normal consequences of obtaining a conviction. In Mr Haskell’s case, I do not consider them to be disproportionate to the gravity of his offending, much less out of all proportion to it.

Decision

[20] The appeal is dismissed.



Brewer J