AKH McManus for appellant L K McMaster for respondent
Date of judgment:
17 May 2024
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 17 May 2024 at 3.00pm.
………………………… Registrar/Deputy Registrar
Solicitors:
Lance Lawson, Rotorua Gordon Pilditch, Rotorua
IRVINE v POLICE [2024] NZHC 1231 [17 May 2024]
[1] By application dated 22 March 2024, Luke Irvine seeks leave to appeal out of time the 18 January 2024 decision of Judge G C Hollister-Jones in the District Court at Rotorua,1 declining to discharge Mr Irvine without conviction and convicting him on his guilty pleas to two charges of impersonating a police officer each in 2022 and 2023,2 and sentencing him to fines of $800. I heard the application for leave together with the substantive appeal.
Background
[2] Mr Irvine is now just 21 years old. He suffers from type 1 diabetes and poor mental health, for which he is receiving therapeutic counselling. He is employed fulltime as a loss prevention worker by a national retail chain, engaged to prevent thefts and shoplifting at the store in which he works. He understands his “dreams of being involved with emergency services” presently are curtailed by his uncontrolled diabetes, and his applications for employment with the Department of Corrections or as a private security officer with other firms all have been unsuccessful “at least in part, due to [his] having to disclose active charges”.
[3] After failing to be accepted for training as a police officer, to his personal devastation, Mr Irvine became known to emergency services for arriving at incidents they attended. He drives a white Mazda station wagon, considered to bear “a striking resemblance to an unmarked [p]olice patrol car”. The car is equipped with flashing amber lights on the front grill and both front and rear windscreens, and festooned with aerials. The aerials may be linked to a police-style radio (although not capable of frequencies used by police) installed in his vehicle’s centre console. At his home, police found a scanner capable of monitoring emergency transmission frequencies and sought its destruction.
[4] Distinctly from such attendances, at about 7.30 pm on Monday, 11 April 2022, police stopped Mr Irvine, driving on Pukuatua Street running through Rotorua’s central business district, when they observed him across the road operating his
1 R v Irvine [2024] NZDC 1179.
2 Policing Act 2008, s 48. Maximum penalty 12 months’ imprisonment and/or a $15,000 fine.
vehicle’s flashing amber lights. Police considered he was attempting to stop another vehicle by using the lights.
[5] Separately, at about 2.50 pm on Monday, 24 July 2023, Mr Irvine stopped at a traffic light on Amohau Street, also in Rotorua’s central business district. He saw people fighting on the grass verge. When the light turned green, he drove into a…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Irvine v Police [2024] NZHC 1231
Case
[2024] NZHC 1231
Decision Date
CaseChat Overview and Summary
Luke Irvine sought leave to appeal out of time a decision of the Rotorua District Court convicting him of two charges of impersonating a police officer and imposing fines. Irvine's appeal was filed a month late, after confirmation of legal aid for the appeal and counsel became available to attend to its filing. The High Court granted leave to appeal out of time and extended the time for filing the appeal to 22 March 2024. However, the appeal was dismissed. The High Court found that the District Court did not err in its assessment of the gravity of Irvine's offending or in its consideration of the consequences of conviction. The court held that the consequences of conviction were not out of all proportion to the gravity of the offending, and therefore, there was no miscarriage of justice. The court also found that the consequences of conviction were not likely to disqualify Irvine from employment in emergency services or private security firms, as those employers would assess each situation on its merits.
The court considered the gravity of Irvine's offending to be low, given his youth, mental health issues, remorse, lack of previous convictions, and compliance with bail conditions. However, the court also noted that Irvine's offending involved dishonesty and breach of trust, which carried some social weight. The court held that the consequences of conviction were condign and did not re-traumatise Irvine, as he had the opportunity to demonstrate that his convictions were not material to his future from his present supportive employment. The court held that it was not appropriate to interfere with the discretion of employers to assess Irvine's suitability for employment based on his convictions.