IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE	
CRI-2022-463-108
[2022] NZHC 3003	

BETWEEN	MICHAEL BRYANT
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	15 November 2022 (Heard at Rotorua)	
Appearances:	T Conder and S Hartley for Appellant P F Lee for Respondent	
Judgment:	16 November 2022	

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 16 November 2022 at 3:30 pm.

Registrar/Deputy Registrar

Solicitors:	Holland Beckett Law, Tauranga
Pollett Legal Ltd (Office of the Crown Solicitor), Tauranga

BRYANT v NEW ZEALAND POLICE [2022] NZHC 3003 [16 November 2022]

[1]	On 4 October 2021, Michael Douglas Bryant pleaded guilty to two charges of driving with excess blood alcohol (third or subsequent) causing injury.1 On 12 May 2022, Judge C L Cook in the Tauranga District Court declined his application for discharge without conviction.2 Mr Bryant appeals that decision. The Judge instead sentenced Mr Bryant to three months’ community detention and ordered him to pay a fine of $2,500 plus costs. She also disqualified him from driving for a year and a day to be followed by an alcohol interlock sentence.

[2]	The appeal was filed some two months out of time. In an affidavit filed in support, Mr Bryant deposes that when first convicted he chose to focus on dealing with the fallout on his family and business. He concentrated on endeavouring to put workarounds in place and cooperate with the Department of Corrections. When an issue with the administration of his community detention sentence arose making the workarounds untenable, he identified the need to bring an appeal. The Police acknowledge they will suffer no specific prejudice by my hearing the appeal out of time and I grant leave accordingly.

Factual background

[3]	At around 10.49 pm on 13 February 2021, Mr Bryant was driving an all-terrain vehicle (ATV) on Stella Place, Papamoa. He had two passengers in his vehicle, one in the front passenger seat and one in the left rear passenger seat.

[4]	As Mr Bryant approached the intersection of Stella Place and Papamoa Beach Road, he executed a right-hand turn. Part-way through the turn, the vehicle rolled onto its left-hand side, trapping the rear-seat passenger by his arm.

[5]	A blood sample was taken from Mr Bryant while he was being treated in the aftermath of the crash. It showed a blood alcohol level of 185 mg per 100 ml of blood.

1	Land Transport Act 1998, s 61(1)(b), 61(3)(a) and 61(3A). Maximum penalty: five years’ imprisonment or a $20,000 fine, and a 12-month disqualification from driving.
2	Police v Bryant [2022] NZDC 15518.

[6]	Mr Bryant’s two passengers were hospitalised. The front seat passenger sustained a severe concussion; the rear seat passenger broke a bone in his left ankle and suffered a concussion and haematuria.

Judgment under appeal

[7]	In the District Court, Judge Cook said the first thing she had to do when considering an application for a discharge without conviction was ascertain the gravity of Mr Bryant’s offending in its context. The Judge said Mr Bryant’s offending was serious, as evidenced by the maximum penalty Parliament has attached to it.3 Aggravating the offending was that there were two victims of Mr Bryant’s offending, both of whom were injured. The Judge took into consideration, however, that the victims’ injuries were not of a long-standing or permanent nature.

[8]	The Judge said a further aggravating feature was the high level of alcohol in Mr Bryant’s blood. But she accepted that Mr Bryant’s past convictions were historical, that Mr Bryant had demonstrated genuine remorse and that he had taken steps to assess whether his use of alcohol is a risk. Overall, having regard to the circumstances and the injuries the victims sustained, the Judge considered the gravity of Mr Bryant’s offending was medium to serious.

[9]	Turning to the consequences of Mr Bryant’s conviction, the Judge noted the risk to the financial livelihood of Mr Bryant’s businesses. The Judge observed that Mr Bryant was sometimes required at short notice to travel throughout New Zealand for business, and that there were no ready substitutes for his attending in person. She took into consideration that Mr Bryant needed to have regular and ongoing contact with his employees and that it would be financially infeasible for Mr Bryant to employ a full-time driver.

[10]	The Judge, however, stated there were reasons to question whether the consequences of Mr Bryant’s conviction would be as severe as he submitted. She said that COVID-19 had meant that a large amount of business had been conducted electronically throughout New Zealand. And she said there was the possibility of

3	Five years’ imprisonment and/or $20,000 fine.

Mr Bryant securing somebody to drive him only as required, or for somebody to stand in for him on occasion. So, while the Judge accepted there would be real costs of a conviction for Mr Bryant, she queried the extent of their impact.

[11]	Finally, the Judge turned to consider whether the consequences of Mr Bryant’s conviction would be out of all proportion to the gravity of his offending. The Judge stated that discharges without conviction ought to be exceptional for drink driving offending. The Judge was not satisfied that the consequences of conviction would reach a level that would justify her discharging Mr Bryant without conviction.

[12]	Accordingly, she declined to grant Mr Bryant’s application for a discharge without conviction. Instead, she sentenced Mr Bryant to three months’ community detention and ordered him to pay a fine of $2,500 plus costs. She also disqualified him from driving for a year and a day to be followed by an alcohol interlock sentence.

Fresh evidence on appeal

[13]	On appeal, Mr Bryant seeks to admit fresh evidence contained in his affidavit dated 15 August 2022. He had filed affidavits with his application in the District Court, but says he swore the August affidavit with updating information on how the negative consequences of his conviction have come to pass. Police responsibly accept the evidence in the August affidavit could not have been provided on the sentencing date, and I grant leave to admit it accordingly.

Legal principles

[14]	Section 106 of the Sentencing Act 2002 governs applications for discharge without conviction. It relevantly provides:

106	Discharge without conviction

(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

…

[15]	In applying s 106, the court must first be satisfied the threshold in s 107 is met:4

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.

[16]	In assessing whether the s 107 threshold is met, a court must consider three issues.5 It must first assess the gravity of the offending on the facts of the particular case, taking into account all aggravating and mitigating factors of both the offending and the offender;6 secondly, it must identify the direct and indirect consequences of a conviction being entered; and thirdly, it must determine whether those consequences would be out of all proportion to the gravity of the offending.

[17]	An appeal of this nature is primarily one against conviction.7 The Court must dismiss the appeal if it considers the Judge erred in assessing the evidence to such an extent that a miscarriage of justice has occurred, or if a miscarriage of justice has occurred for any reason.8 A miscarriage of justice means any error, irregularity or occurrence in relation to the trial that has created a real risk the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.9 A “trial” includes a proceeding like this one in which the appellant pleaded guilty.10

[18]	Usually, an appeal against the refusal to discharge an offender without conviction is also secondarily an appeal against sentence. However, Mr Conder clarifies Mr Bryant’s appeal is one against conviction only.

[19]	Because the pre-requisite s 107 threshold is a question of fact requiring judicial assessment, an appeal against a refusal to discharge an offender without conviction is in that respect a general appeal by way of rehearing.11 The question on appeal is,

4	The Court of Appeal noted in R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8] that although the heading to s 107 refers to “Guidance…”, the wording clearly makes the s 107 requirement mandatory.
5	R v Hughes, above n 4, at [16]–[17].
6	Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27].
7	Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [9].
8	Criminal Procedure Act 2011, ss 232(2)(b) and (c).
9	Section 232(4).
10         Section 232(5).
11 R v Hughes, above n 4, at [11]; and H (CA680/11) v R [2012] NZCA 198 at [30].

therefore, whether in my view the consequences of Mr Bryant’s offending are out of all proportion to the gravity of his offending. If that is my view, it follows a miscarriage of justice has occurred in that the Judge erred by entering a conviction.

[20]	Even if satisfied the consequences of the offending are not out of all proportion to the gravity of the offending, the court retains a residual discretion under s 106 not to grant a discharge without conviction; but it will rarely exercise that discretion where the s 107 threshold is met.12 Again, however, Mr Conder clarifies this appeal is only in respect of s 107.

Submissions

Gravity of the offending

[21]	Mr Conder, counsel for Mr Bryant, submits that his offending is of low to moderate seriousness. He points to a number of mitigating factors the sentencing Judge correctly identified. Mr Bryant’s last relevant conviction, which he received in 2006 aged 22, is historic. His early guilty pleas implied remorse, which he also expressly demonstrated by referring himself for a drug and alcohol assessment. Save for the level of intoxication, there are no other aggravating features in the offending beyond those inherent in the charges to which Mr Bryant pleaded guilty. And while injury did result, the passengers recovered quickly.

[22]	Mr Conder submits the Judge failed to consider another mitigating factor: the ATV was subject to a recall notice about a concern that the throttle pedal may stick in the depressed position, causing a potential crash hazard. Given Mr Bryant pleaded guilty, the prosecution could not establish beyond reasonable doubt his drink driving was the cause of the passengers’ injuries. He notes further the summary of facts to which Mr Bryant pleaded guilty did not describe his intoxication as the cause of the crash. Nor is causation required under s 61(1)(b) of the Land Transport Act 1998, the provision under which Mr Bryant’s charges were laid. By way of contrast, charges laid under s 61(2)(a) do require a causative link.

12	R v Hughes, above n 4, at [12].

[23]	Mr Conder respectfully submits that in referring to Mr Bryant purporting to put forward that factor as a defence to the charge at sentencing, the Judge misapprehended this as properly a sentencing issue. He submits the Judge’s misapprehension effectively meant, contrary to s 24(2)(c) of the Sentencing Act, that she inferred the existence of an aggravating fact (causation) which the prosecution was unable to establish beyond reasonable doubt. He says instead she ought, given the evidential foundation put forward by Mr Bryant regarding the recall notice, to have acted on the version of events most favourable to Mr Bryant.

[24]	Ms Lee, counsel for the Police, notes the charges carry a moderately serious penalty of five years’ imprisonment or a $20,000 fine, as well as the 12-month minimum disqualification. She submits the Judge was correct in her assessment of the aggravating factors. Namely, drink driving causing injury is more serious than drink driving simpliciter, there were two victims who were both injured, and the alcohol blood level was very high at more than double the prescribed limit.

[25]	Ms Lee notes  the  Judge  acknowledged  as  mitigating  factors  both  that  Mr Bryant’s previous convictions were historic, as well as his remorse. Further, she denies the Judge incorrectly considered causation an aggravating factor. She submits that in concluding the offending was of a medium seriousness, the Judge correctly assessed the gravity of the offending.

Consequences of conviction

[26]	Mr Conder submits the consequences of Mr Bryant’s conviction to third parties are moderate to severe. He notes the Judge considered Mr Bryant could work effectively using electronic communication and, rather than employ a full-time driver, could fly between regions where his services were required. Mr Conder submits both of those possibilities were foreclosed by the affidavit evidence before the Judge — evidence which, he notes, she accepted.

[27]	Instead, Mr Conder submits the consequences of Mr Bryant’s conviction will be, and have been, graver than the Judge found. He says Mr Bryant’s updating affidavit, which confirms his businesses have continued to suffer cashflow pressures due to COVID-19 that Mr Bryant has been unable to address, conveys as such.

[28]	Ms Lee submits the Judge correctly assessed the consequences of conviction.

[29]	In terms of the updating affidavit, Ms Lee points out Mr Bryant has now almost served his community detention sentence. As such, he will soon no longer require an EM bracelet and there will be no physical barrier preventing him flying to meetings. She also notes that Mr Bryant deposes he took approximately 50 trips between 2016 and 2021 to visit and analyse development sites; and approximately 50 trips at short notice since 2013 to branches outside the one in Bay of Plenty to resolve issues that arose. Ms Lee submits that Mr Bryant’s frequency of travel is not at a level where a full-time driver would be required as Mr Bryant asserts. She also says there are other ways for Mr Bryant to get around.

[30]	Ms Lee emphasises the point raised by Judge Cook at sentencing that all businesses have had to adapt to COVID-19. She submits further the alleged “real and appreciable consequence of a downturn in the group’s business, particularly in acquiring new developments”, is a reality for the construction industry in general. Overall, she submits the consequences of conviction are not as severe as counsel for Mr Bryant suggests.

Analysis

[31]	Causing injury while driving intoxicated is, in light of its consequences and the pervasiveness of alcohol abuse in our society, a moderately serious offence. The fact two victims were injured enhances that seriousness. So too does the high level of intoxication. On the other hand, the fact the victims recovered relatively quickly lessens that seriousness.

[32]	The gravity of the offending must also be assessed in relation to Mr Bryant’s culpability. Previous convictions of a similar or identical nature tend to increase culpability. I accept Mr Bryant’s four previous convictions for excess breath and blood alcohol are historic, but I still consider they increase his culpability, albeit slightly. I also accept his remorse is a mitigating factor.

[33]	I respectfully disagree with Mr Conder’s submission that the fact the prosecution could not establish causation beyond reasonable doubt is a mitigating

factor, in circumstances where the ATV was subject to a recall notice. The recall notice is dated 2 February 2021 and addressed to Mr Bryant at his home address. Mr Bryant has not given evidence as to when he received the notice, but it can be inferred that it was prior to the accident, which was 11 days later. The notice included the warning in large red coloured capital letters “DO NOT OPERATE YOUR VEHICLE UNTIL REPAIRS ARE COMPLETED”. If Mr Bryant received the notice prior to the accident, he may therefore have knowingly used the ATV in contravention of the plain warning in the notice. The fact that the ATV was subject to a safety recall notice therefore does not lessen Mr Bryant’s culpability.

[34]	The fact causation is not required under s 61(1)(b), unlike a charge under       s 61(2)(a), does not undermine the gravity of the offending in those circumstances. Offending in terms of s 61(1)(b) is still moderately serious offending. Parliament has acknowledged that seriousness both by drafting s 61(1)(b) as a strict liability offence and in terms of the penalty prescribed.

[35]	I consider  therefore  the  Judge  was  correct  in  assessing  the  gravity  of Mr Bryant’s offending as moderately serious.

[36]	I also agree with Ms Lee in relation to the consequences of a conviction. Particularly important is that Mr Bryant has now almost completed his community detention sentence and will soon no longer require an EM bracelet, so there will soon be no impediment to his flying. It is also true he has other means of transport such as Uber or other ride-share schemes. And, as Ms Lee points out, the frequency with which he has flown in the past would not suggest Mr Bryant requires a full-time driver. I do not see why colleagues or employees are unable to drive him to and from properties of interest.

[37]	It is obvious that Mr Bryant is regarded as the key man in the businesses with which he is involved, but there is no real evidence as to why others cannot temporarily undertake some of the out-of-town travel  previously  undertaken  by  Mr  Bryant. Mr Bryant’s co-director in several of the businesses has provided a character reference, but the only relevant comment made by him or the impact on the business, is “The results of Michael losing his licence would cause the business to downsize,

and the flow on effect would be loss in jobs for several staff”. It seems from information provided by the General Manager that the co-director does not have the knowledge and ability to act on Mr Bryant’s behalf.

[38]	The General Manager has also given a character reference in which he describes Mr Bryant’s role as:

The ability for Michael to get from A to B, locally and nationally is pertinent to the business’s needs, he has a very fluid role, one day he could be meeting investors in the downtown CBD of Auckland and another, he will be driving a digger at a development for a week up in Whangarei because an urgent call got put out to achieve onsite works. There is no alternative to keep a project on time and his attendance and contribution is vital.

He is our fearless leader, and I dread to think how we are going to get through the next few years without Michael being able to do what he does by being as mobile and as agile as he is, to cater for the ups and downs this business presents on the daily.

[39]	It seems to me that Mr Bryant is able to continue to lead the business (his co- director describes his presence in the office as motivating; his General Manager says he is the fabric of the place), but that some variation will be required to his out-of- town travel. As to the two examples mentioned by the General Manager, Mr Bryant is still able to meet investors in the downtown CBD of Auckland by flying to Auckland and taking an Uber or a taxi from the airport to the CBD. Similarly, Mr Bryant can still fly to Whangarei and make alternative arrangements other than the hire of a car to get to and from the property being developed. Consideration could also be given to finding an alternative digger driver locally.

[40]	In updating information provided by the General Manager, he confirms that the businesses heavily rely on Mr Bryant’s input. He says that land development and the construction industry is under particular stress at the moment because of “widely known issues and constraints with the supply of all building materials and goods”. He says:

The need for Mike to meet key stakeholders (who support the businesses stability and all the higher-level objectives set by the board), often in other regions is crucial. These meeting are very much up to Mike to attend, based on the Businesses annual plan and all associated strategies, this is and will continue to take its toll if Mike continues to be isolated to the Bay of Plenty area.

[41]	Mr Bryant will, however, be able to fly to other towns and cities throughout New Zealand when his community detention ends shortly. The General Manager also does not address whether Mr Bryant can attend meetings remotely via Microsoft Teams or similar.

[42]	In all, I agree with the Judge’s assessment of the consequences of Mr Bryant being convicted. They are certainly not “severe” as Mr Conder submits, and by no means are they “out of all proportion” to the gravity of the offending.

Result

[43]	The appeal is dismissed.

Woolford J