Hopkins v Police [2019] NZHC 1858 (1 August 2019)

Last Updated: 14 August 2019

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

CRI-2019-404-000113 [2019] NZHC 1858

BETWEEN	JAMES MICHAEL HOPKINS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	22 July 2019
Counsel:	E Gresson (on behalf of R Chambers) for Appellant S T L Teppett for Respondent
Judgment:	1 August 2019

JUDGMENT OF BREWER J

This judgment was delivered by me on 1 August 2019 at 4:00 pm Registrar/Deputy Registrar

Solicitors:

Meredith Connell (Auckland) for Respondent

Counsel:

Roger Chambers (Auckland) for Appellant

HOPKINS v POLICE [2019] NZHC 1858 [1 August 2019]

Introduction

[1] Mr Hopkins pleaded guilty to a charge of driving while impaired by a drug.¹ The maximum sentence is three months’ imprisonment and/or a fine of up to $4,500.² Mr Hopkins asked Judge RG Ronayne to discharge him without conviction. The Judge declined to do so and fined Mr Hopkins $350, ordered him to pay Court costs of $130, an analyst’s fee of $652.63 and medical expenses of $100.³ The Judge also disqualified Mr Hopkins from holding or obtaining a driver’s licence for a period of six months. Mr Hopkins now appeals Judge Ronayne’s refusal to discharge him without conviction.

Approach on appeal

[2] I must allow the appeal if I am satisfied that, for any reason, Judge Ronayne made an error such that Mr Hopkins should have been discharged without conviction.⁴

[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.⁵ 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 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 Ronayne) conduct a three-step analysis:⁶

¹ Land Transport Act 1998, s 57A(1).

² Section 57A(2).

³ Police v Hopkins [2019] NZDC 1214.

⁴ See Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12]–[13].

⁵ Sentencing Act 2002, s 106.

⁶ Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8]–[9].

(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.

(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 Ronayne’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.

Background

[7] Mr Hopkins was 28 years old when he was stopped randomly by the Police while driving. The smell of cannabis was detected, and a police officer required Mr Hopkins to complete a compulsory impairment test. The form of the test administered to Mr Hopkins is not in evidence before me but Mr Teppett, consulting the file, was able to tell me it had a physical balancing component. Mr Hopkins was then required to give a blood sample and that revealed the presence of lorazepam, a Class C controlled drug (for which Mr Hopkins had a prescription), and tetrahydrocannabinol (THC), which is the active ingredient of cannabis. Mr Hopkins pleaded guilty to the charge at the first reasonable opportunity.

[8] Judge Ronayne equated the charge of driving while impaired by a drug with charges involving drink-driving. He commented that discharges without conviction are rare in the latter class of cases in the absence of exceptional circumstances. That is because the danger to public safety inherent in driving while under the influence of alcohol, or any other drug, is serious.

[9] The Judge took into account there was no driving fault, Mr Hopkins’s lack of previous convictions, his remorse and his early guilty plea. Nevertheless, the Judge characterised the gravity of the offence as moderately serious.
[10] As to the consequences which could arise from a conviction, the Judge noted Mr Hopkins’s submission that his employment was likely to require travel to the United States of America and the likelihood of disruption to such travel if a conviction were entered. It was also submitted on Mr Hopkins’s behalf there could be an impact on future employment opportunities and also a future impact on his mental health and independence.

[11] Judge Ronayne decided there was no material before him which would establish anything more than a possible impediment to travel. A letter tendered on behalf of Mr Hopkins from his employer contained no suggestion that a conviction would jeopardise his employment.

[12] As to future impact on mental health and wellbeing, again the Judge took the view that nothing put before him established any appreciable consequences from the entry of a conviction. He then said, and I set it out here because it forms part of the appeal argument:⁷

... except of course for the inevitable and quite usual unpleasantness of conviction.

[13] In summary, the Judge did not find that entering a conviction would result in an appreciable risk of consequences outside the ordinary consequences of a conviction for this sort of offending. Accordingly, having regard to the last component of the test, the Judge was of the view that those ordinary consequences are not disproportionate or out of all proportion to the gravity of the offending.

The appeal

[14] The basis of the appeal is that Judge Ronayne overstated the gravity of the offending and gave insufficient weight to the direct consequences of the conviction for Mr Hopkins.

[15] Mr Hopkins is a 28-year-old web designer and musician. He suffers from anxiety, depression and panic disorder. He has in the past resorted to self-harm and

⁷ Police v Hopkins (above n 3) at [12].

was prescribed lorazepam, a drug used to combat chronic anxiety, depression and panic disorder.

[16] Mr Hopkins’s position on the use of cannabis was that he was feeling stressed on the evening he was stopped and attempted to self-medicate by taking two puffs of a cannabis cigarette.

[17] Ms Gresson for Mr Hopkins submits Judge Ronayne was wrong to equate driving while drug impaired with driving while under the influence of alcohol. That is because the culpability of driving under the influence of alcohol can be assessed by having regard to the level of alcohol present in breath or blood. That cannot be done with driving while impaired by a drug.

[18] Ms Gresson submits the Judge should have found Mr Hopkins’s offending to be at the very lowest end of the scale, not of moderate seriousness.

[19] As to the consequences for Mr Hopkins of a conviction, Ms Gresson’s submission is Judge Ronayne failed to place appropriate weight on the likely effects on Mr Hopkins of a conviction in relation to his employment and, in particular, his travel.

[20] Mr Hopkins was sent to the United States of America by his employer in 2016 to work closely with key clients. The letter before Judge Ronayne from the employer confirmed the likelihood of further travel to the United States of America being required of Mr Hopkins from late 2018. Ms Gresson submitted there is a real and appreciable risk that a conviction on a charge like this would prevent or impede Mr Hopkins travelling to the United States of America.

[21] Further, Ms Gresson submitted Judge Ronayne too readily dismissed Mr Hopkins’s mental health issues. A medical report before the Judge from a consultant psychiatrist was clear that Mr Hopkins suffers from the mental health conditions to which he deposed and to which I have referred previously. Therefore, the Judge’s characterisation of the future impact of a conviction on Mr Hopkins’s
mental health and wellbeing as “the inevitable and quite usual unpleasantness of conviction” was wrong.

[22] Ms Gresson’s final submission is that given the gravity of the offending should be characterised as “low to negligible”, and that a conviction would result in likely consequences for Mr Hopkins of real significance, the proportionality test should conclude that such consequences would be out of all proportion to the gravity of the offending, thus warranting a discharge without conviction.

[23] Mr Teppett submits the Judge was correct to place emphasis on the danger to the public inherent in a person driving either while impaired by a drug or by the consumption of alcohol. There is no underlying distinction and the offending is inherently serious. The fact is that Mr Hopkins failed a compulsory impairment test. Mr Teppett supports the Judge’s view that notwithstanding the mitigating factors personal to Mr Hopkins the offending was moderately serious and that conclusion is consistent with the approach taken by the higher courts for drink-driving. Similarly, the Crown supports the Judge’s analysis of the likely consequences for Mr Hopkins of a conviction and the Judge’s application of the proportionality test.

Discussion

[24] I agree with Judge Ronayne that there is no distinction in the policy underlying the law prohibiting driving while drug impaired and driving while under the influence of alcohol. The policy goes to public safety. Driving while drug impaired or driving under the influence of alcohol is inherently dangerous. It is, inherently, serious offending. However, in every case it is necessary for a sentencing judge to assess the level of seriousness.

[25] The drink-driving legislation makes it easier to assess the culpability of driving under the influence of alcohol because there is a measured result of testing for alcohol levels and statutory prescriptions for when alcohol levels become unlawful. It is more difficult to assess the degree of impairment when it comes to driving impaired by a drug. As a starting point, there is the failure to pass the compulsory impairment test. Evidence could be put before a Judge of the way in which the defendant presented when stopped, the nature of the compulsory impairment test, how it was that the
defendant failed the test and details of his performance. Of course, any driving fault would be particularly relevant.

[26] In this case, all the summary of facts said on this point was that after a random stop not relating to any driving fault Mr Hopkins failed a compulsory impairment test. His blood contained a (prescribed) medication and THC. There were no details of the test administered; there was nothing about why it was failed. Mr Hopkins said he had had two puffs of a cannabis cigarette by way of self-medication for mental health conditions. The prosecution did not contest those statements. Accordingly, the factors relating to the offending put Mr Hopkins’s culpability at the lowest end of the scale. Then there are the factors personal to Mr Hopkins. There are no aggravating factors. In particular, Mr Hopkins has no previous convictions. Mitigating factors are his early guilty plea and his accepted remorse.

[27] I conclude that Judge Ronayne’s characterisation of Mr Hopkins’s offending as “moderately serious” is too strong. The offending was at the lowest degree of seriousness for this type of offending.

[28] On the other hand, I agree with Judge Ronayne’s assessment of the likely consequences for Mr Hopkins of a conviction. The onus was on Mr Hopkins to establish the likely consequences or, to put it another way, to satisfy the Court there is a real and appreciable risk that the consequences identified would occur.

[29] There was no risk to Mr Hopkins’s employment. The letter from his employer made that clear. There was a likelihood that the employer would want Mr Hopkins to travel to the United States of America in the future. However, there was no evidence as to whether, or to what extent, the conviction would affect Mr Hopkins’s ability to travel. There was just a general assertion.

[30] Further, there was no evidence of a likely impact on Mr Hopkins’s mental health if he received a conviction. The psychiatrist’s report confirmed and described Mr Hopkins’s mental health condition, and that is all.
[31] Accordingly, Judge Ronayne was correct to conclude that the direct and indirect consequences to Mr Hopkins of a conviction were no greater than the consequences which would normally pertain.

[32] I must now consider proportionality. The offending was of low seriousness, but in an area where public safety is at risk. The direct and indirect consequences are also low, and not out of the ordinary. I am not, therefore, satisfied those consequences would be out of all proportion to the gravity of the offence.

Result

[33] The appeal is dismissed.








Brewer J