He had sought a discharge without conviction due to the impact a conviction could have on his ability to travel internationally.
His lawyer, Tom Castle, told the court his professional sport was his primary source of income, and he was required to travel internationally to compete.
There was a “real and appreciable risk” that a criminal conviction for drink-driving could be a hindrance to entry to certain countries.
Judge Justin Marinovich said there was a clear three-step process for considering a discharge without conviction.
The sportsman had a reading of 764mcg of alcohol per litre of breath.
Firstly, the gravity of the offending needed to be assessed, which in this case, the judge determined as moderate.
The man had been stopped by police for breath-testing at 11.59pm on May 17, and had a reading of 764mcg of alcohol per litre of breath. The legal limit is 250mcg.
The man had told police at the time that he had been drinking and “was worried this would affect his ability to fly for [sport]”.
He told the court, in an affidavit, he was “at a loss” as to why he chose to drive that night, and would normally have taken a taxi or Uber.
“I suspect, like many, it was simply a risk you chose to run,” said Judge Marinovich.
“You rolled that dice, and got caught.”
Judge Marinovich said there was an inherent danger to the public when people chose to drink and drive, and the man’s reading was “relatively high”.
He said it went without saying that the higher the reading, the more likely it was that the driver was impaired.
While there had been no driver fault noted by the police that prompted breath-testing, the judge didn’t see that as a mitigating factor, but rather the absence of an aggravating factor.
The sportsman’s circumstances
The judge then looked at the aggravating and mitigating features related to the man himself.
“What aggravates your offending is your prior conviction from [2017] for driving with excess breath alcohol, where you were fined and disqualified from driving,” the judge said.
“You, given that conviction, made a choice to drive, fully aware of potential consequences and risks.”
The mitigating factors were that the man “seemed to be remorseful”, having expressed his shame and embarrassment about the offending.
However, the judge said there was little to suggest the man had gone “over and above” in his expressions of remorse.
The judge said the man could have, for example, spoken to a local high school about the consequences of drink-driving, or made a formal donation.
“I use these simply as examples of what can be done to express genuine remorse, rather than saying they are requirements. But I’m asked to assess remorse, and as I’ve said, I have little to go on.”
The man had self-referred to a counsellor, but the judge said that based on the single letter from the specialist, it was difficult to know what the three sessions he’d had to date had covered.
The judge noted the man said he intended to continue with counselling, but again, there was no information about what that would look like.
Judge Marinovich accepted that “in a limited way” there seemed to be unresolved issues related to the man’s past.
The third factor was the man’s character, which Castle had submitted related to the man’s position as an “elite sportsperson representing New Zealand”.
The court had been provided with a letter from the man’s sports agent, who held him in “high regard”.
However, this needed to be balanced against his previous conviction.
“Representing New Zealand does not in and of itself correlate to good character, again more is required,” Judge Marinovich said, adding he was “careful with the weight I place on this factor”.
The consequences of conviction
Ultimately, the judge had to balance the consequences of conviction against the gravity of the offending.
Many of the specifics related to the consequences cannot be reported because of the ongoing suppression of the man’s identity, but are related to his ability to travel, and the impact that would have on his ongoing sporting career path.
The judge did note that the man had been competing in his chosen sport after his previous conviction for drink-driving, and it hadn’t impacted his ability to travel, nor his selection to represent New Zealand.
However, the judge was careful to note the issue was the impact of a further conviction.
Judge Marinovich found that while a further conviction might mean more effort was needed, in terms of applications, to gain entry to certain countries, it would not bar him entirely.
He considered the consequences of a conviction to be “moderate”.
Balancing that against the gravity of the offending, the judge did not find the consequences were “out of all proportion”, and declined the application.
“It is not the case that a person of good character with potential for national sporting selection does not have to adhere to the same legal obligations as his fellow citizens,” the judge said.
The man was fined $1400 and disqualified from driving for six months.
He had applied for permanent name suppression, arguing that given his profile, he would attract greater media attention and this would cause him extreme hardship, exacerbating his mental health issues.
The judge noted the presumption of open justice was the starting point, and said the only information he had about the man’s mental health was the one-page letter from the counsellor.
While the judge accepted the offending had caused the man distress, that was a “typical response by almost all law-abiding citizens who find themselves in trouble with the law”.
“I must say the information provided to me falls well short of what I would expect for an application for permanent name suppression,” Judge Marinovich said.
The application was declined, but the judge ordered interim suppression to continue for 20 days, to allow the man time to consider an appeal.
Hannah Bartlett is a Tauranga-based Open Justice reporter at NZME. She previously covered court and local government for the Nelson Mail, and before that was a radio reporter at Newstalk ZB.