Last year in Otago four drink-drivers were discharged without conviction.
It might not sound like many but it marked a five-year high in the region and a boom in numbers which was reflected around the country.
Since 2014, the number of those who dodged a black mark on their criminal record for such offences hovered around 125 per year, but in the year 2018-19 it spiked to 186.
Was it a freak result?
It does not appear so.
Already, since mid-2019, at least six people have been discharged without conviction in the Dunedin District Court, and there have been four such occasions in the Queenstown District Court (statistically part of Southland).
Barrister Anne Stevens QC did not believe that was because the community and judiciary’s attitude to drink-driving had relaxed.
In fact, she said, the opposite was true.
The stigma of having a drink-driving conviction on one’s record was now far more severe than it was back in the days of the "one-for-the-road" culture.
"The effects [of a conviction] are so draconian and disproportionate to what’s normally youthful stupidity. If you’re beginning on a career path, it indicates such a degree of irresponsibility, of antisocial behaviour," Mrs Stevens said.
"[These convictions] absolutely cripple your future."
Sentenced
The formula for determining a discharge without conviction is relatively simple, if highly subjective.
The consequences for an applicant flowing from a conviction must be out of all proportion to the gravity or seriousness of the offending.
All but one of the 10 discharges between the Dunedin and Queenstown courts were granted by Community Magistrate Simon Heale, who began working in the region in May last year.
There are 18 community magistrates — judicial officers who have the power to hear low-level criminal matters to take the pressure off busy judges — operating around the country.
Discharges without conviction are normally the territory of first-time offenders but in December Mr Heale exercised his discretion in favour of a three-time drink-driver.
Matthew John Hall (31) had been convicted as an under-20 in 2006 and 2007 but came before the Dunedin District Court as a PhD candidate at the University of Otago preparing to apply for medical school.
Hall was stopped by police in Gowland St on August 24 where he failed a breath test and later gave a blood sample with a level of 123mg — nearly two and a-half times the legal limit.
While Mr Heale described the two previous convictions as "problematic", he considered them "markers of a past you have grown from".
In an affidavit Hall argued the potential consequences of a conviction were that: his funding could be discontinued for bringing the university into disrepute; he might be refused entry to medical school; he might not be able to travel abroad for "academic activities"; and he might be denied a firearms licence.
Although Mr Heale granted the discharge without conviction, he imposed a six-month driving ban and ordered Hall to make a $600 donation to charity.
The law
In justifying his decision during Hall’s sentencing, the community magistrate made reference to a 2018 Court of Appeal case.
University of Otago Emeritus Prof of Law Geoff Hall suggested the case of Police v Basnyat might hold the key to the increasing number of discharges without conviction.
While the defendant in that case had not been successful in overturning his conviction, Prof Hall said it had changed the way such matters were viewed.
The courts had previously adopted — informally, at least — a need for "exceptional circumstances" to be established with respect to drink-drive offending before a discharge would be granted.
That was a major hurdle to be overcome, he said.
The Court of Appeal debunked that position.
"It may, with respect, go too far to say that [discharges without conviction for drink-driving] ought only to be granted in ‘exceptional’ circumstances. As with any other offence, it is necessary to apply the statutory tests," Justice Joe Williams said in his decision on Police v Basnyat.
Len Andersen QC highlighted the fact that courts did not operate in a vacuum — if lawyers believed such applications for their clients were likely to be successful, they would continue to be made.
He put the rise in the growing numbers of discharges without conviction generally down to a tightening up in visa rules overseas.
It meant the consequences of a conviction became increasingly harsh, particularly in a world where global travel for work and leisure was becoming more common.
On track
The most recent case in the Dunedin District Court that made headlines was that of 18-year-old Alexander Grant.
Judge Michael Turner took a novel approach in sentencing the young drink-driver, who had given his mates a lift to get food after a night on the booze.
Despite Grant’s breath-alcohol level having been more than four times the legal limit, the judge granted him a discharge without conviction after he graduated from The Right Track programme and wrote a heartfelt song about his experience, which was played in court.
While the judge’s decision sparked criticism in some online forums, programme founder and director John Finch reckoned it was "absolutely brilliant".
"What would have been the point of scarring him for life because of making a huge cock-up," he said.
"Alex will never offend again and he’ll stop his mates. There’s no doubt about that."
Grant was part of The Right Track’s first Dunedin cohort and, such was its success, a second programme begins next week.
The scheme was conceived when Mr Finch, a former educator of "naughty kids", was approached by police who were desperate for a solution to immature and reckless drivers.
The result was a six-week, nine-session course targeting mostly young and recidivist bad drivers.
"All the adverts on TV and posts appeal to you and me, not the teenager that doesn’t give a toss. You have to get inside their heads," Mr Finch said.
"We don’t say to them ‘don’t drink’ — most of them, their mother has said that and they’ve heard it a thousand times and it’s not made a difference."
The programme was not about offenders achieving lighter penalties when it came to sentencing, he stressed, but judges undoubtedly took the intensive nature of the undertaking into account.
"Very very few of them are bad people," Mr Finch said.
"It’s usually a good person who has made dumb and often repeated mistakes."
Not only was The Right Track successful in stopping driving-related reoffending — 86% of those who have done it in Southland have stayed out of trouble — but it gave participants a change of mentality.
Three of the people on the first Dunedin course were coming back to be mentors in the next one.
"Their lives change, not just their driving. That's the most remarkable thing about it," Mr Finch said.
