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Page v Police

Page v Police

Case [2020] NZHC 904 5 May 2020

Criminal Liability

Sentencing

Judicial Review

Natural Justice & Procedural Fairness

Proportionality

Criminal Law

Immigration & Refugee Law

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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI 2019-463-000054

[2020] NZHC 904

BETWEEN
BLAITHIN PATRICIA PAGE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 26 February 2020 (heard at Hamilton)

Appearances:

A Shulze for Appellant

M Jenkins for Respondent

Judgment:

5 May 2020

JUDGMENT OF DUFFY J

This judgment was delivered by me on 5 May 2020 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:
Lance Lawson, Rotorua Crown Solicitor, Rotorua

PAGE v NEW ZEALAND POLICE [2020] NZHC 904 [5 May 2020]

[1] The appellant, Dr Blaithin Page, pleaded guilty to one charge of careless use of a motor vehicle causing death. Her application for a discharge without conviction was unsuccessful. Hence this appeal.1

Facts

[2] The following are taken from the NZ Police summary of facts, on which Dr Page’s guilty plea rests. At approximately 7:25am on the morning of Tuesday 25 September 2018, Dr Page was driving a Nissan X-trail motor vehicle on Rangiuru Street, Rotorua. The weather conditions were overcast and there were isolated periods of drizzle. She was travelling to work at the Rotorua Hospital. She approached the T-intersection of Rangiuru Street and Arawa Street, which is controlled by a give way sign. At the same time the victim was travelling on her motorcycle in an easterly direction. As the victim approached the intersection of Rangiuru and Arawa Streets, Dr Page pulled out onto Arawa Street and into the path of the victim, who had no time to react. The victim was knocked from her motorcycle and slid to the other side of the road. She later died of her injuries. When spoken to by Police at the scene of the incident Dr Page stated that she did not see the victim coming.

Personal circumstances

[3] The following is taken from unchallenged affidavit evidence from Dr Page. She has not previously appeared before the court. At the time of the incident Dr Page was 47 years old and she is now almost 49 years old. Dr Page was born in Dublin, Republic of Ireland in 1971. Her evidence does not say when she left Dublin. She graduated from Glasgow University, Scotland in 1996 with an MB, ChB and a BSc (Honours) in gross anatomy. Her post-graduate training was under the West of Scotland Higher Surgical Training Scheme culminating in CCT in 2009. The same year she completed an MD thesis on the topic of chronic pain and inguinal hernia repair. She spent a year as a post-CCT Fellow in New Zealand in 2010. For the next five years Dr Page worked as a consultant surgeon in two large teaching hospitals in Scotland and Singapore.

1 Section 38 Land Transport Act 1998 maximum penalties three months’ imprisonment or $4,500 fine.

[4] She is currently employed as consultant general and colorectal surgeon at the Rotorua Hospital. She has been employed in this position since March 2016. Her work consists of…

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.

Continue reading Page v Police

Details

AGLC: Page v Police [2020] NZHC 904
Case: [2020] NZHC 904
Decision Date: 5 May 2020

CaseChat Overview and Summary

Dr Blaithin Page appeals against her conviction for careless use of a motor vehicle causing death and the refusal of the District Court to discharge her without conviction. The appeal hearing was conducted in two parts to allow Dr Page to provide more substantial material relevant to the consequences of a conviction on her immigration status and her ability to continue to practice as a surgeon in New Zealand and abroad. The Court found that the sentencing Judge had misapplied the principles of sentencing, in particular he had erred in the assessment of the gravity of the offending. The Judge had also erred in considering the consequences of a conviction, which the Court found to be out of all proportion to the gravity of the offending. The appeal against the refusal to discharge without conviction was allowed and the conviction was set aside. The emotional harm reparation imposed by the District Court was upheld. The disqualification from driving was reduced to 12 months.

The Court found that the sentencing Judge had erred in his assessment of the gravity of the offending. He had referred to the victim’s motor scooter being yellow with the headlight on and the victim’s helmet being bright, which was not part of the summary of facts on which Dr Page had pleaded guilty. The Court considered that the Judge had treated these matters as aggravating facts, but they should not have been considered. The Court found the gravity of the offending to be low rather than low to moderate as assessed by the Judge. The Judge had also failed to recognise the real and appreciable consequences of a conviction on Dr Page’s immigration status in New Zealand and her ability to practice as a surgeon abroad, which the Court considered to be out of all proportion to the gravity of the offending. The Court found that the potential 10-year liability for deportation and the inability to pursue a permanent resident visa was a serious and significant consequence of the conviction. There was also a real and appreciable risk that Dr Page would not be permitted to practice in the United Kingdom if she were deported. The Court found that the consequences of conviction were out of all proportion to the gravity of the offending and that the discretion under s 106 of the Sentencing Act should be exercised in favour of granting the discharge without conviction.

Orders