Basnyat v Police [2018] NZHC 51 (5 February 2018)

Last Updated: 21 February 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-345 [2018] NZHC 51

BETWEEN	SHREESH BASNYAT Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	5 February 2018
Counsel:	C Mitchell for Appellant D Houghton for Respondent
Judgment:	5 February 2018

_{JUDGMENT OF BREWER J}

This judgment was delivered by me on 5 February 2018 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Colin Mitchell (Auckland) for Appellant

_{Meredith Connell (Auckland) for Respondent}

BASNYAT v POLICE [2018] NZHC 51 [5 February 2018]

Introduction

[1] On 13 March 2017, Mr Basnyat pleaded guilty to one charge of driving with excess blood alcohol.¹ On 18 September 2017 Judge Ellis, in the District Court at Auckland, refused Mr Basnyat’s application for a discharge without conviction² and instead convicted and fined him $800, plus court costs and medical fees. Mr Basnyat was also disqualified from driving for six months. Mr Basnyat now appeals against the refusal to discharge him without conviction.

Facts

[2] On the evening of 26 October 2016 Mr Basnyat was driving in Avondale when he turned into a schoolyard immediately prior to a police alcohol checkpoint. He was stopped by a mobile patrol. When spoken to by police, Mr Basnyat exhibited signs of recent alcohol intake. He underwent a breath test and gave a blood sample – the latter generated a blood alcohol reading of 84 milligrams of alcohol per 100 millilitres of blood. When spoken to by police Mr Basnyat said he had consumed three bottles of beer prior to driving.

District Court decision

[3] The key passages of Judge Ellis’s decision are as follows:³

[9] The evidence does not indicate any immediate likelihood of your losing your job. You are obviously thought of highly by your employer, and your employer is in the best position to assess your abilities and determine whether or not this should slow your progress through the ranks.

[10] I accept that there is a possibility that if you were to apply for other jobs you would have to explain this conviction. It may be that having to explain that would put you at a disadvantage, but that is a consequence of your choosing to drink and drive, not of my choosing to hold you accountable for

it.

[11] The ordinary consequences of drinking and driving have been well publicised in all sorts of media through the country. You can expect to be stopped by the police, and what will follow then is you will be brought to Court and held accountable.

1. Land Transport Act 1998, s 56. The maximum penalty is three months’ imprisonment or a fine not exceeding $4,500.

² Pursuant to ss 106 and 107 of the Sentencing Act 2002.

³ Police v Basnyat [2017] NZDC 21099.

[12] I am not persuaded that the consequences that are pointed to in your case are – to quote the section – “out of all proportion,” to the seriousness of the offending.

Approach on appeal

[4] Section 106 of the Sentencing Act 2002 provides that the Court may discharge an offender without conviction following a plea or finding of guilty.

[5] Under s 107, the discretion is to be exercised only if “the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending”. The s 107 proportionality test is not discretionary, but rather is a matter of fact requiring judicial assessment and is therefore subject to general appellate principles.⁴ Accordingly, if an appellant can show that the first instance decision on proportionality was wrong, he or she is entitled to a fresh assessment by the appellate court.⁵

Did the Judge err in finding that the consequences of conviction would not be out of all proportion to the gravity of the offending?

[6] The Court of Appeal in Z (CA447/12) v R observed that s 107 requires consideration of three factors:⁶

(a) the gravity of the offence;

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

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

The gravity of the offence

[7] Mr Basnyat has been convicted of driving with excess blood alcohol. Pursuant to s 22 of the Land Transport Act, drivers may not drive or attempt to drive a motor

⁴ H (CA680/11) v R [2012] NZCA 198 at [30]; Holloway v Police [2017] NZHC 2562 at [19]. The general appellate principles were summarised in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

⁵ Maraj v Police [2016] NZCA 279 at [11]; Austin Nichols.

⁶ Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8].

vehicle while the proportion of alcohol in their blood exceeds 50 milligrams of alcohol per 100 millilitres of blood. If the level of blood alcohol is between 50 and 80 milligrams then the person will have committed an infringement offence. If, however, the level exceeds 80 milligrams then the person will have committed an offence.

[8] Mr Basnyat’s level was 84 milligrams per 100 millilitres of blood. While this significantly exceeds the permitted level of blood alcohol under the Act (50 milligrams of alcohol per 100 millilitres of blood) it is only marginally over the level of full criminal liability (80 milligrams of alcohol per 100 millilitres of blood).

[9] When assessing the gravity of an offence, aggravating and mitigating factors of the offending will be considered, as well as the aggravating and mitigating factors relating to the offender.⁷

[10] Mr Mitchell, on behalf of Mr Basnyat, submitted that the Judge did not properly assess the gravity of the offending because he failed to take into account relevant circumstances. In particular, Mr Mitchell submitted that the Judge failed to properly take into account the low extent to which the relevant blood-alcohol limit was exceeded and also that Mr Basnyat is a first-time offender.

[11] Ms Houghton, on the other hand, submitted that the courts have repeatedly characterised driving with excess blood alcohol as “moderately serious” or “inherently dangerous”.⁸ She noted that Mr Basnyat took a calculated risk to drive after drinking alcohol, as evidenced by the fact that he attempted to evade detection by driving into the school yard. She submitted that the offending is moderate, taking into account the low extent to which the relevant blood-alcohol limit was exceeded.

[12] Judge Ellis clearly had regard to the facts that the reading was relatively low and that Mr Basnyat had not previously been before the courts. He referred to those facts in his sentencing notes. Taking both of those factors into account, together with

_{the fact that driving with excess blood alcohol is an inherently dangerous act, and that}

⁷ At [27].

⁸ Linterman v Police [2013] NZHC 891 at [9]; and Backhouse v Police [2015] NZHC 1178 at [18].

Mr Basnyat took a calculated risk in doing so, I view his offending as being at the lower end of the moderate range.

Direct and indirect consequences of a conviction

[13] The heart of Ms Basnyat’s appeal is that Judge Ellis did not fully assess the consequences of a conviction for him.

[14] Mr Mitchell submitted that the Judge erred by understating the seriousness of the consequences of a conviction for Mr Basnyat. He further submitted that the Judge failed to have proper regard to the two affidavits that were before him. I note that an additional affidavit (sworn by Alastair Ward) is sought to be adduced as evidence on appeal. It is not fresh evidence, nor is it cogent. But the Crown consents to it being received by the Court and so I shall have regard to it.

[15] The first affidavit is from Mr Basnyat himself. He deposes that he is a headworks water engineer at Watercare. He says that a conviction would be viewed negatively by his peers, the people he leads, and others within Watercare. In addition, he says that it is “highly probable” that his “promotion prospects to the highest levels within the Company will be affected by a conviction and that I am unlikely to reach higher levels in the Executive chain.” Mr Basnyat also states that he has previously travelled overseas on courses and wishes to do so again in the future. He may also wish to travel to other countries to pursue job opportunities. He notes that there have been conferences in the United States that Watercare employees have attended. He expresses concern that he could face travel restrictions to that jurisdiction.

[16] The second affidavit before Judge Ellis is by Mr Basnyat’s supervisor at Watercare, Joseph Chaloner-Warman. He deposes that Mr Basnyat’s promotional prospects will be “seriously affected” by a criminal conviction. He states that if

Mr Basnyat were to apply for promotion to a higher position in New Zealand or overseas a criminal conviction will prejudice him at the interview stage, especially if other suitably qualified candidates have no convictions. Mr Chaloner-Warman also notes that Mr Basnyat travels overseas to attend courses for professional development reasons and that “there could be visa implications for him if he has a criminal conviction”.

[17] The new affidavit is by Alistair Ward, a chartered accountant. Mr Ward is a consultant to Walker Wayland Auckland Limited. He was previously a senior partner and director of the firm and its predecessors, for more than thirty years. Mr Ward deposes that he has previously been involved as part of an interview group when Walker Wayland is recruiting staff. He deposes that a criminal conviction, including drink-driving or a serious traffic conviction, would count against an applicant:

If we had two similar job applicants at Walker Wayland Auckland Limited and one has a conviction and the other had no convictions we would lean in favour of the applicant with the clean record. I assume other professional organisations ... would adopt the same standards in respect to the interviewing and employment of prospective applicants.

[18] Based on this evidence, Mr Mitchell submitted that a conviction will have consequences for Mr Basnyat’s promotion opportunities and also his ability to travel for work or career development purposes. Mr Mitchell submitted that the Judge failed to adequately address these issues.

[19] Ms Houghton submitted that the evidence of Mr Chaloner-Warman and

Mr Ward is very much in line with the Judge’s finding that there was a “possibility that if [the appellant] were to apply for other jobs [he] would have to explain this conviction” and that “it may be ... that would put [him] at a disadvantage.”

Ms Houghton submitted that the Judge therefore made no error in his assessment of this issue. She submitted that Mr Ward’s evidence adds little to that already before the Court. I agree.

[20] Having regard to the affidavit evidence before the Court, and counsel’s submissions, I accept that a drink-driving conviction could potentially have some impact on Mr Basnyat’s career advancement, although probably to a limited extent.

[21] Mr Basnyat works in a highly specialised area, as a headworks water engineer. He is clearly very skilled and is highly valued by his employer. There is no suggestion that his current employment is at risk in any way. If he applies for a new job, he may well have to go through the embarrassment of acknowledging his drink-driving conviction, and assuring his prospective employer that he has learned from his mistake. With the passage of time that will likely become apparent in any event,

assuming there are no repeat incidents. The conviction will become historic and will eventually become subject to the clean slate regime.

[22] As for the potential impact of a conviction on Mr Basnyat’s ability to travel, the respondent accepts that there could, in theory, be some consequences for travel and obtaining visas in certain jurisdictions. Ms Houghton noted, however, that no specific travel plans or restrictions have been identified. The only country specifically referred to in Mr Basnyat’s affidavit is the United States. The respondent referred to advice provided by the US Consulate in New Zealand on travelling with criminal convictions to the United States. It records that “a single DIC/DUI conviction is NOT grounds to deny entry into the US”. Mr Mitchell responds that it is not clear whether the Visa Waiver Programme would apply to Mr Basnyat. If it does not, then he would have to apply for a visa and its grant could not be guaranteed.

[23] A discharge on grounds that travel will be impeded will be unlikely where those future travel plans are speculative or not yet planned. As Clifford J observed in Brunton v Police, in the context of drink-driving offending:⁹

The Courts have held on numerous occasions that tentative future travel plans carry little weight in a s 107 context. Potential problems with travel overseas have often been seen as a universal consequence, and unless real evidence can be shown that a conviction would impede entry into another country, such speculative consequences will not form the basis for a discharge without conviction.

[24] And as to how a Court might approach this task, the Court of Appeal in

Edwards v R comprehensively explained that:¹⁰

[24] The court must be “satisfied” that the consequences of conviction are out of all proportion to the gravity of the offence. It is settled law that an applicant for a discharge need only point to a real and appreciable risk that adverse consequences will ensue. That standard recognises that the court is being asked to predict what will happen in the future. So, for example,

Mr Edwards need only point to a real and appreciable possibility that he will need to travel overseas for work.

[25] It does not follow, however, that a court will permit an applicant to speculate about matters of present fact, in which we include any existing travel restrictions that are said to preclude travel. Proof of these matters may require

⁹ Brunton v Police [2012] NZHC 1197 at [16].

¹⁰ Edwards v R [2015] NZCA 583.

expert evidence if they are not agreed and cannot be established in any other way.

[26] It seems to us, speaking generally, that a court will ordinarily expect to be satisfied that under the law and practice of the jurisdiction concerned:

(1) the conviction must be disclosed but, assuming a discharge is given, the fact that the offence was committed need not be; and

(2) in consequence of the conviction, the applicant is prima facie inadmissible, and for how long; and

(3) there is no alternative entry process available or that, if there is, such process is unreasonably difficult and uncertain in all the circumstances.

[27] If all of these things can be established, a sentencing court must further be satisfied that the offence is not so serious that it would be wrong to allow the applicant to present himself or herself to foreign immigration authorities without disclosing it.

[25] I accept Mr Mitchell’s submission that the evidence shows Mr Basnyat is likely to want to travel overseas to attend courses and conventions. I accept he may well wish to travel to the United States of America. There is no evidence, however, that a conviction for drink-driving would impede or prevent such travel.

Proportionality assessment

[26] I now turn to the proportionality assessment.

[27] Parliament has contemplated that those who are caught drink-driving, if their level exceeds exceeds 80 milligrams of alcohol per 100 millilitres of blood, will suffer the consequence of a criminal conviction.

[28] The courts have observed on a number of occasions that a discharge without conviction for drink-driving will be granted only in exceptional circumstances. For example, Miller J stated in Linterman v Police that:¹¹

[9] I agree that discharges ought to be exceptional for [driving with excess blood or breath alcohol]. 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

¹¹ Linterman v Police [2013] NZHC 891 at [9].

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 judgment or undue fondness for drink, and to immigration authorities, who may categories it as evidence of antisocial tendencies.

[29] The ordinary consequences of a criminal conviction are that employers and future employers will be made aware of the conviction and future travel plans may be impacted in some sense, though perhaps less so in the case of drink-driving than for convictions of violence or dishonesty.

[30] The consequences of a conviction on an offender’s future employment or career prospects is a relevant matter, but only carries significant weight where those consequences are out of all proportion to the gravity of the offending. While it is not necessary to demonstrate how a conviction will lead to employment issues, there must be a “real and appreciable risk”.¹²

[31] Judge Ellis noted that there was a possibility that Mr Basnyat would have to explain his conviction to future employers and that he might therefore face at least some disadvantage. Such a conclusion is consistent with the evidence, including the additional evidence of Mr Ward.

[32] As for the issue of travel, the evidence does not establish any material consequences that meet the standard set out in the case law to which I have referred. Not all convictions will give rise to travel difficulties. There is no specific evidence before me of a country that Mr Basnyat wishes to travel to, or work in, that is likely to

_{prohibit him entry on the basis of a single drink-driving conviction.}

12. Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007; and Adamson v Police [2015] NZHC 2031.

Conclusion

[33] Mr Mitchell has done his careful best to put his client’s case into a context which is outside the usual run of cases. He emphasised the importance of

Mr Basnyat’s job and submitted that therefore any consequences which might impede him performing his work would be out of all proportion to the gravity of his offending.

[34] I disagree. Judge Ellis had a straightforward case and he dealt with it in a straightforward manner. It is true that the Judge did not plod through the detailed analysis as I have done, but he was not required to. It is clear from the Judge’s sentencing notes that he considered the relevant factors.

[35] In my view, Judge Ellis was correct to find that the evidence fell short of establishing that the impact of a drink-driving conviction on Mr Basnyat’s career prospects or future ability to travel will be out of all proportion to the gravity of his offending. The evidence of Mr Ward does not change that.

_{[36] The appeal is dismissed.}

Brewer J