Newing v New Zealand Police [2018] NZDC 5927

Published 03 October 2019

Appeal from ruling of Community Magistrate — discharge without conviction — driving with excess blood/alcohol — Sentencing Act 2002, s 106 — May v May [1982] 1 NZFLR 165 (CA) — Limterman v Police [2013] NZHC 891 — Basnyat v Police [2018] NZHC 51. The defendant appealed against the decision of a Community Magistrate to refuse to discharge him without conviction. The defendant had pleaded guilty to one charge of driving with excess blood/alcohol. He had been stopped by police after speeding and running a red light and was found to have a blood/alcohol level nearly three times the legal limit. The defendant had argued a conviction would result in his employment being terminated as he would not be able to travel. The Community Magistrate found no evidence that this would be the outcome of conviction and refused the application to grant a discharge without conviction. Counsel for the defendant conceded that the Community Magistrate had made no error in application or interpretation of the law, but submitted that the Community Magistrate had not properly applied his mind to the facts. This was an appeal against the exercise of a discretion. The Judge noted it is a well-known principle that an appellate court will only interfere with the exercise of a judicial discretion if satisfied that there has been a wrongful or improper exercise of the discretion in the sense that the decision-maker exercised a discretion on the basis of wrong facts, proceeded on mistaken facts, applied incorrect legal principle, took into account irrelevant considerations or failed to take into account relevant considerations. The defendant provided no new evidence to show the consequences of conviction would be out of proportion to the offending. No conclusive evidence that the defendant would be fired because he could not travel had been provided to either the Community Magistrate or the Judge. The Judge found no basis to conclude that the Community Magistrate had proceeded upon mistaken facts, had applied incorrect legal principle or had taken into account irrelevant considerations in relation to his finding as to the defendant’s ability to travel or his future employment. The Community Magistrate was entitled to make the findings expressed in his decision. There was no error in legal principle. The appeal was dismissed. The Community Magistrate’s decision, conviction and sentence were to stand. Judgment Date: 6 April 2018.