Page v Police
[2020] NZHC 904
•5 May 2020
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 two operating sessions, two clinics and two endoscopy lists. She also covers emergency surgery and trauma. She is involved in quality improvement for older colorectal patients and is the chair of the perioperative frailty committee. This is a committee she started and participates in on a voluntary basis, its purpose is to improve the care of elderly patients with surgical pathology (hips, knees and cancers) from primary health care to secondary health care. Dr Page was also involved in setting up and participating in a clinic for all patients with colorectal cancer. This is a clinic that assists people with getting better after they have received surgery, to help them with functioning in society.
[5] At the time of the incident Dr Page was in the process of applying for permanent residency in New Zealand. In her affidavit she expresses her remorse for causing the victim’s death and describes herself as absolutely devastated that she caused the death of someone else. She reiterates the explanation given to the Police that she pulled out into an intersection and failed to see the victim travelling on her motorcycle. Dr Page says she will regret this mistake every day for the rest of her life. She contrasts the outcome with her duty as a doctor which is to do the best for her patients. She also says she is sorry for the pain and hurt that the victim’s family have suffered. She says that since the incident she has done everything she can to ensure this never happens again, and in this regard, she has completed a defensive driving course. A copy of the relevant certificate is attached to her affidavit. She has also attended a restorative justice conference with some of the victim’s family. Some family members chose not to attend that conference. The victim impact reports indicate there are family members who feel bitterness and anger towards Dr Page. They strongly oppose her being discharged without conviction.
Decision of the District Court
[6] The Judge correctly recognised that s 107 of the Sentencing Act 2002 requires a balancing exercise when considering whether to exercise the discretion under s 106
to discharge without conviction; and that the s 107 considerations are a prerequisite or gateway to deciding whether to discharge under s 106.2
[7]Before Judge Snell the factors on which Dr Page relied were:
(a)that conviction would provide a black mark on what was an otherwise clear record;
(b)she was applying for residency and hoped to remain in New Zealand and to work in her present occupation here in New Zealand;
(c)a conviction would undermine the trust and confidence that her patients would have in her as a surgeon; and
(d)she was genuinely remorseful, she was apologetic, she had displayed empathy and she had done everything within her power to demonstrate this.
[8] The prosecution opposed a discharge without conviction. This was primarily because the consequences put forward by Dr Page were said to be “speculative only”. The prosecution submitted that there was a direct and devastating consequence here namely, the loss of the victim’s life. The culpability of Dr Page was assessed as moderate. In this regard the Judge records the prosecution as relying on factors that were not included in the Police summary of facts. Namely that the victim was riding a yellow motor scooter, the headlight was on and the victim was wearing a bright helmet. Those factors coupled with the summary of facts led the prosecution to submit that Dr Page had committed a serious error.
[9] The Judge adopted the three-step approach set out in Z v R3 the first step of which is to assess the gravity of the offending which includes all the aggravating and mitigating factors relating to the offending and the offender. He began with an assessment of the driving conditions based on the factual circumstances as I have
2 Police v Page [2019] 9706.
3 Z v R [2012] NZCA 599, [2013] NZAR 142.
outlined from his sentencing notes. In this regard he noted that the intersection was controlled by a give way sign. He accepted the submission from Dr Page’s counsel that she had stopped, looked and then driven without seeing the victim coming towards the vehicle. He then said he took into account the prosecution’s submissions that the motor scooter was bright, being coloured yellow and the headlight was on, and the victim was wearing a bright coloured helmet so that the victim and the motor scooter were “probably as visible as you could see”. The Judge does not state from where the prosecution’s reference to the brightly lit scooter, the headlight and the helmet being bright came. He also took into account the poor weather conditions, namely it was early morning, overcast and drizzling, which he acknowledged may have had an effect on the victim’s visibility. However, the Judge also found that such weather conditions would probably highlight to most drivers the need for extra caution.
[10] The Judge then turned to assess the level of carelessness of Dr Page’s actions. He described it as a single incidence of carelessness. He acknowledged it was not a protracted situation where there were examples of carelessness over a lengthy period of time. He accepted the submissions of counsel for Dr Page that what occurred was an isolated incident, a moment’s inattention with tragic consequences.
[11] The Judge next considered the matters that mitigated or decreased the gravity of the offence. Dr Page had attempted to render assistance to the victim as best she could. She had no previous convictions in New Zealand or elsewhere in the world. She had entered a guilty plea at the earliest possible opportunity, she had displayed genuine remorse and empathy. She had attended a restorative justice conference, and the Judge had the benefit of a detailed restorative justice report. She had faced and apologised directly to members of the victim’s family who had attended the restorative justice conference, she had emphasised her total and utter acceptance of the offending and her acute distress at the consequences for them.
[12] The Judge noted from the restorative justice report, that there were some family members who supported a discharge without conviction for Dr Page. However, he also noted that in written material he had received from other family members, they did not support that outcome. The Judge went on to say it takes significant courage to front up and admit when you are wrong, and this had been demonstrated by Dr Page.
He also acknowledged Dr Page has been seriously affected by the incident, initially she had been unable to work as a surgeon for some time and had required counselling to continue with her work. She had attended a defensive driving course. He said there was little more that he could suggest that Dr Page could have done after the incident occurred.
[13] In short, it was generally accepted by Judge Snell that Dr Page had done everything that she could do to address matters appropriately. She had offered to do voluntary work in terms of a humanitarian type of service, that being to honour the victim’s own humanitarian service.
[14] The Judge concluded the level of carelessness involved and the gravity of the offending in the particular factual context was in the range of low to moderate.4 He went on to say it went higher than simply the lowest form of gravity because Dr Page had proceeded through a give way sign failing to see the oncoming vehicle with right of way, and in his view the conduct was “in that grey area between low and moderate seriousness”. 5
[15] The Judge then turned to the second step which required him to identify direct and indirect consequences of a conviction. Here he noted correctly that it was not necessary that the identified consequences would inevitably or probably occur, rather it is sufficient that the court reaches a decision that there is real and appreciable risk that those consequences may occur. He identified the consequences as being: (a) a black mark on Dr Page’s character; (b) potential consequences to her immigration status and application; and (c) damage to her reputation as a doctor not so much personally for her but that patients she needed to treat may lose confidence and trust in her as their treating doctor.
[16] The Judge then addressed each of those matters. Regarding the “black mark” on Dr Page’s character he acknowledged the consequences of a conviction have a high degree of importance for somebody with no previous history. However, he considered an offence involving carelessness causing death was unlikely to have the same effect
4 At [13].
5 At [13].
as other convictions. This was because he considered there were no real general employment consequences from a conviction of this type. He understood from Dr Page’s affidavit and her counsel’s submissions that she maintains the support of her peers and her employers, and she was not in jeopardy of losing her employment. The Judge considered that for the future most employers could and would look beyond the bare face of a conviction, and instead they would look at all of the circumstances of the offending and mitigating factors, especially where a person is of good character. Accordingly, relying on Edwards v R,6 the Judge concluded that the known facts of the case and the level of the gravity or carelessness meant that the conviction was unlikely to have any particular long-lasting effects on Dr Page in terms of a black mark.
[17] Next, the Judge considered the impact of a conviction on Dr Page’s immigration status. It was argued for Dr Page that a conviction may well affect her application for permanent residency in New Zealand. The Judge stated he hoped it would not, but that it was now well-established that courts should not usurp the function of the immigration authorities who have a statutory obligation to consider whether convicted persons ought to be allowed to remain in the country.7 Further, the Judge considered that it would be surprising if a conviction had any effect at all on Dr Page’s immigration status given the level of carelessness involved in the offending and it was an isolated incident by someone who has an otherwise unblemished record of driving.8
[18] The Judge then considered the damage to reputation that would follow from a conviction.9 He found that while a conviction is likely to impact adversely on a person’s reputation he did not think it would undermine the confidence patients had in Dr Page. He also concluded that patients have a right to know who their doctor is and to decide in whom they will have confidence. He differentiated the type of sentence and conviction for the present offending from that involving dangerous,
6 Edwards v R [2015] NZCA 583.
7 At [18] – [19] citing Ho v R [2016] NZCA 229; Ji v R [2015] NZCA 308; A v R [2011] NZCA
328. The Judge also referred specifically to Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453.
8 At [20].
9 This was a factor recognised in Thomas v R [2019] NZHC 396.
reckless or drink-driving causing injury or death. He doubted that anybody who knew the facts would lose any confidence in Dr Page as a general surgeon at all. This led him to conclude that the direct and indirect consequences of conviction would have a “very negligible effect on [Dr Page’s] immigration application” and may have some limited effect on the potential trust and confidence patients would have in her.10 However, he did not think those outcomes would be significant or undue. He did accept there would be a black mark on her reputation.
[19] Taking those consequences into account the Judge then proceeded to the third step, namely whether the consequences of a conviction would be out of all proportion to the gravity of the offending. He found that they would not lead to such an outcome. Dealing specifically with the effect of a conviction on Dr Page’s immigration status the Judge found:11
In this case, I would be surprised if this particular case with the level of carelessness in an isolated incidence for someone who has an otherwise unblemished record of driving, I would be surprised if it had any effect at all on her immigration status. I make that statement deliberately knowing you will have the ability to put this decision before the immigration authority considering your residency.
[20]Then, more generally, the Judge concluded:12
On that basis, having assessed those consequences and potential consequences, I consider that they are not out of all proportion to the gravity of the offending. With careless use causing death, the gravity of the offending must be assessed in the context of someone having lost their life. I agree with the prosecuting Sergeant that part of sentencing process the court is deterrence and denunciation an in terms of deterrence it is not necessary for you but general deterrence for other road users. In my view a discharge without conviction would be inappropriate on the facts of this case when all matters are taken into account.
[21]Accordingly, a discharge without conviction was refused.
[22] The Judge then went on to determine the appropriate sentence. This led to him imposing a sentence of 100 hours community work, directing payment of emotional harm reparation of $5,000 to the family and disqualifying Dr Page from driving for
10 At [24].
11 At [20].
12 See [25] of the decision.
15 months. He then added a further comment that was relevant to the refusal to discharge without conviction stating:13
I would hope that this decision would go to an immigration authority considering your application for residence and my view on matters having looked at this case is that this should not affect any application for residency. This is isolated offending, entirely out of character on one occasion with terrible and tragic consequences.
The appeal
[23] The appeal hearing proceeded in two parts. This was because, as was noted by the prosecution at sentencing, many of the concerns Dr Page raised about the consequences of conviction were either speculative or lacking in any real foundation, and this remained so for the appeal. Particularly in relation to two matters: (a) the impact on her immigration status; and (b) her ability to continue to work as a medical practitioner. The full impact of a conviction on the first matter was not before the Judge and the second matter, which required an assessment of the impact of conviction on Dr Page’s employment both in New Zealand and abroad, was never raised before him despite its importance. This was because if she was required by Immigration New Zealand (INZ) to leave the country (which is the usual prelude to deportation) there would then be a question of whether a New Zealand conviction would adversely affect her ability to find employment in Scotland, which is where she had previously worked. I considered it to be in the interests of justice for Dr Page to be given an opportunity to place more substantial material before the Court, because otherwise there was a real risk the appeal would miscarry. Accordingly, the appeal was adjourned to give Dr Page the opportunity to provide more substantial material to support her appeal.
[24] At the resumed hearing Dr Page provided a helpful report from a lawyer Jerome Williamson, with significant experience in immigration law, which outlined the actual and potential consequences of a conviction on Dr Page’s immigration status. She was also able to provide some account of the registration requirements she would face should she return to Scotland to practice. The respondent did not challenge the contents of this material or its admission.
13 At [30].
[25] Dr Page’s appeal is essentially brought on the broad bases that the Judge failed to assess properly the gravity of the offending and he failed to recognise the consequences of a conviction were out of all proportion to the gravity of the offending.
[26] The respondent contends the Judge’s assessment of the gravity of the offending was accurate. Despite the additional material before the Court relevant to the effect of a conviction on Dr Page’s immigration status and her ability to practice in Scotland should she be required to leave New Zealand, the respondent maintains that the consequences of conviction would not be out of all proportion to the gravity of the offence.
[27] In relation to the alternative limb of Dr Page’s appeal, which is that the driving disqualification period is excessive, the respondent responsibly recognised the merit in this aspect of the appeal. The respondent helpfully referred to two decisions of this Court each of which shares similarities with the present offending. In Ramsay v Police the offender momentarily turned her head to wave at an acquaintance and collided with a mobility scooter resulting in the death of an elderly man.14 A disqualification of 15 months imposed by the District Court was on appeal to this Court reduced to 11 months’ disqualification. In Barr v Police the offender went to drive out of her rural driveway. Before doing so she looked both ways then pulled out. She had failed to see the victim, who was riding a motor cycle, he hit the offender’s car and suffered a fatal injury. The two years’ six months disqualification imposed in the District Court was reduced on appeal to nine months’ disqualification.15
[28] Here, both counsel are of the view that 12 months’ disqualification is appropriate.
14 Ramsay v Police HC Timaru CRI 2008-476-23 10 September 2008.
15 Barr v Police HC Rotorua CRI-2011-463-000042, 28 November 2011.
Discussion
Appeal principles
[29] Whether the test in s 107 is met is a question of fact, which requires judicial assessment.16 The appellate Judge must therefore determine if the sentencing Judge was wrong in the sense expressed in Austin Nichols v Lodestar Stitchting for general appeals by way of re-hearing.17
The gravity of the offending
[30] I have concerns about the way in which the Judge assessed the gravity of the offending. The sentencing notes show that he was influenced by matters that were not part of the summary of facts on which the guilty plea was entered. Here I refer to the Judge’s references to: (a) the yellow colour of victim’s motor cycle, which had the headlight on; (b) her bright coloured helmet; and (c) the conclusion that total appearance of the victim and the motorcycle was “probably as visible as you could see”. Those matters should be contrasted with the Police summary of facts which simply described the weather conditions as “overcast” with “isolated periods of drizzle”.
[31] At the first appeal hearing Dr Page’s counsel referred me to two civilian witness statements prepared by Police and in particular one in which the witness referred to the motorcycle being yellow and the victim’s helmet red, but in which the witness also said: “As soon as I saw the scooter I remember thinking that she was hard to spot due to the glare as the weather was overcast.” Thus, for this witness the bright colours she described as associated with the victim had little ameliorating effect on the overcast conditions and glare from the morning sun. At both the first and second appeal hearing Dr Page’s counsel sought to rely on this witness statement as evidencing poor visibility, which could account for Dr Page not seeing the motorcycle. The respondent sought to counter the effect of these witness statements by drawing attention to the statement of the other civilian witness who had described traffic as being light. However, he had not seen the accident take place, his attention was
16 R v Hughes [2008] NZCA 546; the Criminal Procedure Act 2011 has not changed this principle.
17 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
attracted when he heard the noise of the collision. He said nothing about the visibility at the time. At the second hearing the respondent invited me to view CCTV footage of the accident. At both hearings the respondent relied on the bright colour of the victim’s helmet and motorcycle as well as the headlight being on as factors that raised the level of offending to between low and moderate. Accordingly, on appeal counsel were not agreed on the factual matters covered by the additional material, which leaves me concerned about the basis on which this material came before Judge Snell.
[32] Section 24 of the Sentencing Act 2002 is clear about proof of facts in determining a sentence or other disposition of a case:
24 Proof of facts
(1)In determining a sentence or other disposition of the case, a court—
(a)may accept as proved any fact that was disclosed by evidence at the trial and any facts agreed on by the prosecutor and the offender; and
(b)must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.
(2)If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—
(a)the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:
(b)if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the trial:
(c)the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:
(d)the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender’s part in the offence:
(e)either party may cross-examine any witness called by the other party.
(3)For the purposes of this section,—
aggravating fact means any fact that—
(a)the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and
(b)the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case
mitigating fact means any fact that—
(a)the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and
(b)the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case.
[33] Here, in terms of s 24(1)(a) the guilty plea meant there was no trial and therefore no evidence disclosed at trial. In terms of s 24(1)(b) whether the motorcycle was brightly coloured and the victim was wearing a brightly coloured helmet were not facts essential to a plea of guilty for the charged offence. The fact Dr Page had proceeded across an intersection governed by a give way sign and in doing so collided with an oncoming vehicle with right of way, which she admitted to not seeing, were sufficient to establish carelessness on her part. This leaves applicable the balance of s 24(1)(a), which deals with facts on which the prosecutor and the offender are agreed. Those are generally whatever else is in the summary of facts, apart from the essential facts to support the charge.
[34] Typically, the entry of a guilty plea means there is no dispute over the summary of facts. If there is a dispute it is usually raised by the offender because the prosecutor has control over the preparation of the summary and so ensures it reads in the way the prosecutor considers appropriate. In this way the prosecutor can include details that act as aggravating features going to the gravity of the offending. Disputes by an offender about the contents of a summary of facts either lead to amendment of the summary or a disputed facts hearing, which is provided for in s 24(2). The typical did not happen here.
[35] The summary of facts gives a neutral account of a moment of carelessness on the part of Dr Page on a day when weather conditions gave poor visibility. She would
have had no basis to object to that account and nothing suggests that she did. On the other hand, the Judge’s reference to the bright colour of the victim’s helmet and motorcycle, the latter with the headlight on, coupled with his comment the victim was “probably as visible as you could see”18 suggests he regarded those additional matters (the additional matters) as aggravating facts that influenced his assessment of Dr Page’s culpability.
[36] However, I cannot see how the Judge could take the additional matters into account when: (a) they were not part of the summary of facts; (b) there is nothing to indicate Dr Page’s counsel agreed to them being included in the sentencing considerations; and (c) they formed no part of a disputed facts hearing on which the Judge gave a ruling. The sentencing notes should have included some explanation as to the legal basis for including the additional matters in the sentencing considerations. Their inclusion was untypical, and therefore an explanation would be helpful to an appellate court seeking to understand how they came to be considered.
[37] Both counsel attempted on appeal to continue the dispute about the significance of the additional matters. However, an appellate court is in no position to resolve factual disputes that emanate in this way. I refused to consider the CCTV footage because that appeared to me to be a late and informal attempt by the respondent to adduce fresh evidence on appeal, when no such application had been made. Further it seemed to me that to allow in that evidence without giving Dr Page the opportunity to respond to it would have been procedurally unfair. By this time the appeal was at the second hearing and any further delay was to be avoided. I considered the respondent had every opportunity earlier to adduce the CCTV footage had it wanted to do so. The correct time for doing so would have been at the sentencing hearing before Judge Snell. As to the witness statements they were no more than untested proposed briefs of evidence and therefore not evidence. Insofar as they contained controversial information (counsel were not agreed on the import of the material) that went beyond what is contained in the summary of facts I consider the witness statements should be put to the side. Neither witness statement had referred to the headlights of the motorcycle being on; one witness could not recall if they were
18 At [8].
on or not and the other witness never mentioned the headlights. The source of this information is unknown to me.
[38] I consider the Judge was wrong to refer to the additional matters and to allow them to influence his assessment of the gravity of Dr Page’s offending. There is nothing to explain why this sentencing was different from any other and in terms of general principles the Judge should have proceeded on the basis of the summary of facts alone. Given the ongoing dispute between counsel I consider the proper approach for me to take is to confine assessment of the offending to the summary of facts.
[39] In doing so, I consider the gravity of the offending is low. I acknowledge the victim died as a result of Dr Page’s carelessness, but that is an element inherent in the charge itself, it cannot be seen as an aggravating factor. Further, as French J recognised in Ramsay v Police, an appeal against sentence for the same offence, “there is no doubt that in law the Court’s focus in cases of this sort must be on the level of culpability rather than consequences”.19
[40] The early morning light coupled with overcast conditions and isolated drizzle may have impeded visibility. The summary of facts states that Dr Page pulled out and into the path of the victim. It does not state she proceeded through the give way controlled intersection without stopping, which would entail a higher level of carelessness. There is no evidence of speeding. All of which suggests to me that the conduct is not as bad as that in Ramsay v Police where the offender knowingly engaged in a distraction by taking her concentration away from her driving to wave at an acquaintance, with tragic consequences for the victim. I consider that the conduct is analogous with that in Barr v Police where the offender looked before driving off but failed to see the oncoming victim.20 Accordingly, I consider the Judge overstated the gravity of the actual offending when he described it as low to moderate.
19 Ramsay v Police HC Timaru CRI 2008-476-23 10 September 2008 at [13].
20 Barr v Police HC Rotorua CRI-2011-463-000042, 28 November 2011.
[41] The assessment of the gravity of offending for the purposes of s 107 requires assessing factors relevant to the offender as well as the offending.21 Here the Judge correctly recognised the many mitigating factors relevant to Dr Page. In summary these were: her previous blemish free record, her genuine deep remorse (both expressed and as is reflected in her pleading guilty at the earliest opportunity) and the seriousness with which she viewed her error, her conduct after the accident in terms of the immediate assistance she gave to the victim, her participation later in a restorative justice process with those family members who were willing to engage with her, and her seeking to improve her driving through a defensive driving course to reduce the chances of any further driving incidents. I am satisfied there are significant and multiple mitigating factors relevant to the offender. There are no aggravating features relevant to Dr Page. Accordingly, here the factors relevant to the actual offending and the offender all operate to place the gravity of the offending at a lower level than was recognised by the Judge. Rather than “low to moderate” I would describe it as low.
Consequences of a conviction
[42] By the second hearing of this appeal a clearer view of the consequences of conviction emerged. In this regard I note that Mr Williamson, the immigration expert engaged by Dr Page, commented in his report that Dr Page’s “immigration situation was not completely and adequately described” to Judge Snell. I agree.
[43] Putting to the side for the moment the damage a conviction can do to reputation, the relevant consequences here are the impact of a conviction on Dr Page’s immigration status and her ability to practice as a surgeon both in New Zealand and abroad. The latter is relevant because were Dr Page to be deported or advised to leave New Zealand in order to avoid deportation, she would then have to face obtaining approval to practice as a surgeon in another country.
[44] Dr Page has provided me with helpful information from Mr Williamson on the impact of a conviction on her immigration status in New Zealand. I also have information relevant to the impact of a conviction on her ability to practice medicine
21 Z v R [2012] NZCA 599, [2013] NZAR 142 at [27].
in New Zealand and in Scotland, which is the country where she qualified as a medical practitioner and where she lived and worked for some time before arrival in New Zealand.
[45] I propose to start with the consequences of a conviction on Dr Page’s immigration status in New Zealand. They fall into two categories: (a) real and known consequences; and (b) real and appreciable consequences.
[46] Dr Page is the holder of a long term skill shortage list resident visa, which was issued to her on 24 March 2017. Mr Williamson’s advice is that the holder of this type of visa can travel out of New Zealand and return as a resident for two years from the grant of the first resident visa. The holder can then apply at the conclusion of the two- year period for a permanent resident visa, provided he or she meets the requisite criteria. A permanent resident visa gives the holder the permanent right to travel outside of New Zealand and return as a resident.
[47] On 9 April 2019 INZ received Dr Page’s application for a permanent resident visa. On 29 August 2019 she was advised by INZ that her conviction means she is now liable for deportation22 and by operation of s 169(1) of the Immigration Act she no longer meets the criteria for the granting of a permanent resident visa.23
[48] Mr Williamson refers me to s 167(1) of the Immigration Act, which provides that Dr Page will remain liable for deportation for a period of 10 years following the date this liability arose (being 21 May 2019). Whether the liability for deportation is executed is a separate matter that I will come to later. However, Mr Williamson’s advice is that liability for deportation is something that carries certain adverse consequences for her.
[49] First, Dr Page has lost her eligibility to apply for a permanent resident visa, although it would be open to the Minister of Immigration or an INZ official “in his or her absolute discretion” to make an exception and grant a permanent resident visa.24
22 See s 161(1)(a) of the Immigration Act 2009.
23 Section 169(1) of the Immigration Act 2009 prohibits a person who becomes liable for deportation from applying for a further visa of a different class or type to the visa he or she holds.
24 The power to make such grants is found in s 169(2) of the Immigration Act 2009
Mr Williamson describes the prospect of this occurring as a “possibility.” Thus, the default position is that while Dr Page is liable for deportation she will be constrained to holding her present visa.25 Second, during the time she is liable for deportation the processing of any application for New Zealand citizenship under s 8 of the Citizenship Act 1977 is suspended.26 So, it seems that even if there is no decision to execute the liability for deportation and Dr Page is thus permitted to remain in New Zealand the automatic consequences of ss 167 and 169 of the Immigration Act will preclude her from presently advancing her intent to secure permanent rights to live and work in New Zealand. As to this intent Judge Snell refers obliquely to Dr Page applying for residency.27 The Judge does not refer to Dr Page’s intent to apply for New Zealand citizenship, but Mr Williamson refers to the report from the restorative Justice conference dated 20 May 2019, which does refer to Dr Page having this intent.
[50] I note from my reading of the Immigration Act liability for deportation can be cancelled at any time by the Minister of Immigration pursuant to s 172 of that Act, which is something that Mr Williamson does not directly address. However, I note that like s 169(2) it is exercisable in the absolute discretion of the Minister.28 So, cancellation would be no more than a possibility.
[51] Mr Williamson’s advice is that even if there is no decision to execute the liability for deportation the liability will remain in effect for a period of 10 years, and during that time Dr Page will be confined to her present resident visa status. This advice needs to be qualified by the prospect of the discretions in s 169(2) and/or s 172 being exercised in her favour. Nonetheless, the automatic statutory consequences of ss 161, 167 and 169 are real actual consequences that flow from the conviction.
[52] Mr Williamson is of the view that Dr Page may remain liable for deportation for a period of 10 years. I have been unable to find in the legislation any statutory process that would permit Dr Page to make a pre-emptive request that execution of
25 See s 169(1) of the Immigration Act 2009.
26 See s 169(4) of the Immigration Act 2009. Section 8 of the Citizenship Act 1977 permits the Minister of Internal Affairs to grant New Zealand citizenship to any person who is entitled in terms of the Immigration Act 2009 to be in New Zealand indefinitely and has lived in New Zealand for the requisite number of days within five years preceding the application.
27 Police v Page [2019] NZDC 9706 at [30].
28 See s 172(5) of the Immigration Act 2009.
this liability not proceed. It seems, therefore, that she must wait to see if the execution process is commenced. If INZ decide not to execute the deportation that decision will not of itself bring the liability for deportation to an end. It seemingly runs its 10-year course, unless cancelled or suspended by the Minister.
[53] Mr Williamson is also of the view that without a permanent resident visa, in the future Dr Page will be unable to travel outside New Zealand without losing her permanent resident visa. However, I note that in 2019 INZ granted Dr Page a 12 month variation of her travel conditions, so future travel may also be permitted but only if further variations are granted.
[54]The respondent has not disputed the content of Mr Williamson’s advice.
[55] Judge Snell considered it would be surprising if a conviction had any effect on Dr Page’s immigration status, and he went further by stating that in his view it should not affect any application for residency. However, this was said without the benefit of an opinion on the various real and potential adverse consequences in the Immigration Act for persons in Dr Page’s position.
[56] Were it not for the conviction Dr Page would have been eligible to pursue an application for a permanent resident visa and given her otherwise exemplary record, both personal and professional, it is more probable than not in my view that she would have obtained that visa. That would have set her up to obtain New Zealand citizenship once she qualified under s 8 of the Citizenship Act. In short, the conviction has derailed the smooth progress of her plan to settle in this country and must now leave her future plans looking very uncertain.
[57] For a professional woman of 49 years of age the loss of what would otherwise have been an obtainable goal, namely the ability to settle permanently in New Zealand, is a serious consequence. Dr Page is no doubt at a stage in her life when most persons seek security in terms of their workplace and where they will reside for the rest of their lives. It can be more difficult to start afresh both professionally and personally in a new country at this time of life, and even more so later on. At this stage of life to live with a potential 10 year prospect of being liable for deportation and the inability to
gain a more permanent right to reside in New Zealand during that period would be more onerous than it would be for a younger professional person, who may be more ready to take a chance that all would work out for the best at the end of the 10 year period. Moreover, Dr Page’s ability to stay this course and at the end of it to then pursue the grant of a permanent resident visa will depend on whether she continues in her work as a surgeon.
[58] If during the 10-year period or afterwards (but while any permanent residency application is outstanding) there is a material change of circumstance (something such as ill health stops her continuing to work as a surgeon) the temporary nature of her current immigration status will become a real issue for her. This last point answers the respondent’s submission that the current visa enables Dr Page to remain in New Zealand indefinitely. That visa is a long-term skill shortage list resident visa. For as long as Dr Page is employed as a surgeon she will qualify for this visa. If her circumstances change at any time, so that she is unable to work in this role, she will no longer be eligible for this visa. The 10-year time frame between the ages of 49 and 59 years may well see her continue in her present employment. But circumstances can change, especially over time. The current visa does not provide the same level of security as a permanent resident visa. Moreover, the fact she applied for permanent residency indicates to me she is alive to the risks I have identified.
[59] In many respects Dr Page’s case falls within the realm to which Brewer J referred in George v Police where even the consequence of being subject to the scrutiny of INZ may be seen to be undue. 29
[60] Accordingly, I consider the potential 10-year liability for deportation and the adverse impact that has on Dr Page’s ability to improve her present immigration status to be serious and significant consequences of the conviction. Whilst as a foreign national she has no right to stay in New Zealand, until her conviction she would have had a reasonably sound expectation that she would be able to gain the right to stay here. The loss of that is significant.
29 George v Police [2014] NZHC 1725 at [46].
[61] The next consequence for consideration is the effect of a conviction on Dr Page’s professional status. The publicity surrounding Dr Page’s sentencing led to the New Zealand Medical Council contacting her about the conviction. They are aware of the appeal but have sought explanations from her. Their concerns about the conduct that led to the conviction can lead to several outcomes, the most serious of which would be an enquiry into her continued fitness to practice medicine, followed by an adverse outcome for her. On appeal no argument was advanced of there being any real risk that Dr Page’s ability to continue to practice was in jeopardy. In this regard I note that no advice was obtained from lawyers who practice in the medical disciplinary field and who may therefore have been able to offer some advice on the likelihood of how the New Zealand Medical Council might view Dr Page’s conduct. Accordingly, there is nothing to inform me there is a real and appreciable risk of the conviction adversely affecting Dr Page being able to practice in New Zealand.
[62] There remains the question of whether Dr Page’s ability to practice in Scotland may be in jeopardy. This would only be an issue of concern if either INZ decided that Dr Page should be deported, and she decided not to challenge that decision, or Dr Page found it untenable to remain in New Zealand for the length of time during which she was liable for deportation, and therefore unable to secure a stronger foothold in New Zealand. It would also only be relevant if Dr Page were to return to Scotland, which would depend upon her ability to reside and work in that country.30
[63] The respondent submits that Dr Page has indicated that she did not want to return to Scotland. That may be so, however, if her immigration status makes it difficult to remain in New Zealand she will have little option but to leave New Zealand. Further, she has taken the opportunity to provide the Court with information about resuming practice in Scotland with a conviction, so I infer from this action that she must see this as the next best option available for her.
30 Dr Page was born in the Republic of Ireland. Since the establishment of the Irish Free State there has been freedom of movement between Ireland and the United Kingdom. Membership of the European Union would have added to this. Now that the United Kingdom has left the European Union there would presumably be a need for other arrangements to permit continued freedom of movement between the two States. This subject was not addressed, however, the fact Dr Page sought information on her ability to practice in Scotland suggests to me she must believe she can still reside and work there, even with a foreign conviction.
[64] The General Medical Council of the United Kingdom (GMC) controls and manages a medical practitioner’s ability to practice in all parts of the United Kingdom. Enquiries made by Dr Page’s counsel have produced two documents from the GMC, each of which addresses how the GMC deals with convictions. They reveal that to practice in the United Kingdom Dr Page would have to be both registered and hold a licence to practice. To achieve those, she would need to disclose her New Zealand conviction.
[65] Both GMC documents contain guidelines that look at the types of practice or behaviour which may result in a finding of impaired fitness to practice by the GMC or result in a warning. Convictions which result in a custodial sentence are referred by the Registrar of the GMC to the Medical Practitioners Tribunal.
[66] Certain categories of criminal cases result in a presumption of impaired fitness to practice. These are generally: sexual assault or indecency, violence, improper sexual/emotional relationships, knowingly practicing without a licence, unlawfully discriminating in relation to characteristics protected by law, dishonesty, and gross negligence or recklessness about a risk of serious harm to patients. Dr Page’s offence does not fit within any of these categories.
[67] However, the GMC guidelines do state that any criminal conviction or caution is a serious matter and needs careful consideration. Although they recognise that there will be some misconduct where despite a conviction or caution it may not be appropriate to find a doctor’s fitness to practice impaired. Given examples of such conduct are drink driving where there are no aggravating features, or a lower level misconduct that might in other circumstances result in a fixed penalty notice, such as urinating in public, kicking a car while drunk, or a conviction for verbal abuse during a row with a bouncer. Dr Page’s conviction does not fit within any of these categories either.
[68] The second GMC document gives more specific examples for guidance on convictions, cautions and determinations and other methods of Police disposal. This document provides that motoring offences which result in a charge or summons to appear before a criminal court require disclosure to the GMC. Speeding offences
unless with specific aggravating features are said not to raise questions about a doctor’s fitness to practice. This document lists certain “minor motoring offences” that can be dealt with by the Registrar of the GMC. These include speeding, traffic light offences, talking on a mobile phone while driving, not wearing a seatbelt and careless driving (which is distinct from dangerous driving). These minor motoring offences will not generally be investigated regardless of whether they resulted in a conviction or another method of disposal by the Police. Dr Page’s conviction does not fit into these categories of offences.
[69] Regarding overseas convictions generally the document notes that if a doctor is convicted of an offence outside the United Kingdom the GMC must establish whether there is a comparable offence under UK law. It will seek legal advice on this issue if there is any doubt. If there is a comparable offence the overseas conviction is then considered in the same way as a conviction which took place in the UK, depending on the nature of the conviction and the sentence passed. Overseas convictions where no comparable offence exists under UK law are treated in the same way as non-criminal cases and investigated where appropriate as an allegation of misconduct. There is a presumption that overseas determination cases will proceed directly to the Medical Practitioners Tribunal.
[70] It is difficult to assess how the GMC or the Medical Practitioners Tribunal (UK) would view Dr Page’s conviction. The careless use of a motor vehicle aspect of the offence would of itself lead to the offence being viewed as a minor motoring offence. However, the fact that it resulted in the death of a person may well give rise to serious concerns by the GMC. The offence is unusual in the sense that often the level of carelessness involved may bear little relation to the consequence of death resulting. There are times when a serious careless use of a motor vehicle may result in minimal or even no harm to another person. At the other end of the spectrum low level carelessness can tragically result in the death of another person.
[71] Just as it is difficult for me to assess how the GMC might view the present conviction, I consider it would be difficult for the GMC to form an accurate view on the gravity of Dr Page’s offending. Any legal guidance they might seek is likely to be given by a lawyer practising in the United Kingdom, who may have little if any
practical knowledge and experience of how the offence of careless use causing death is approached in New Zealand. Accordingly, if Dr Page finds herself back in the United Kingdom she may have difficulty placing the conviction in the context in which it would be viewed in New Zealand.
[72] Moreover, if Dr Page gets to the point where she must apply to the GMC for registration and a licence to practice it will no doubt be because the immigration outcome here had not gone well for her. At that point full disclosure of her circumstances would reveal the conviction, the fact she was refused a discharge without conviction and was required by INZ to leave New Zealand.
[73] To explain the conviction Dr Page would necessarily have to provide the GMC with a copy of the sentencing notes. They show a description of the offending that went beyond the summary of facts. A foreign reader of the sentencing notes may be adversely influenced by the reference to the additional matters and so form a dimmer view of Dr Page’s carelessness than I consider is warranted. The sentencing notes also show that a discharge without conviction was legally available and sought by Dr Page, but the Judge refused to grant one. To a foreign reader who is unfamiliar with how discharges without conviction are granted in New Zealand this may be understood to suggest the Judge refused to exercise a legal power that was available to him because he considered that outcome would not adequately reflect the gravity of the offending. Finally, execution of the liability for deportation by INZ is likely to suggest to a foreign reader that the offending was so serious it warranted Dr Page’s removal from New Zealand. Faced with such a scenario the GMC might well conclude that the offending was serious and should be treated by the GMC in that light, which creates a real and appreciable risk to her ability to obtain registration and a licence to practice in Scotland.
[74] The respondent contends that the documents from the GMC show that Dr Page would have to disclose the circumstances of the offending whether she was convicted or not. I do not read them to go so far. Under New Zealand law a discharge without conviction is deemed to be an acquittal.31 There is nothing in the GMC’s documents
31 Section 106(2) of the Sentencing Act 2002.
to suggest that a criminal charge which leads to an acquittal in a foreign country would require disclosure to the GMC.
Are the consequences of conviction out of all proportion to the gravity of the offending?
[75] The consequences of the conviction identified above are significant and serious; they include consequences that are real and actual (the liability for deportation) and others for which there is a real and appreciable risk that they will occur (the risk of Dr Page not being permitted to practice in the United Kingdom if she were to be deported).
[76] Judge Snell considered the impact of the conviction on Dr Page’s immigration status was something that should be left to INZ to determine, and that it was not for the Courts “to usurp the function of the immigration authorities which have a statutory obligation to consider whether convicted persons ought to be allowed to remain in the country”.32 However, this is to misstate as a hard and fast rule something that the Courts have developed as a general policy, and also it reveals omission to distinguish between the automatic statutory consequences of a conviction (liability for deportation) and the discretionary consequences (execution of the liability for deportation) which do hinge on decisions by either the Minister or INZ officers. The latter error is through no fault of the Judge; he did not have the benefit of Mr Williamson’s report.
[77] As to the Judge’s first error, at [19] of the sentencing notes he referred correctly to the relevant case-law (including Ho v R33) but failed to realise that it did not bar him from considering the adverse immigration consequences for Dr Page. In Ho v R34 the Court of Appeal stated: (emphasis added)
Secondly, even if it is unlikely Mr Ho will be able to stay in New Zealand, that does not amount to a disproportionate consequence of the convictions. As a foreign national he has no general right to stay in New Zealand. It is a matter for immigration services to decide whether to renew his visa, having regard to factors including the Court’s assessment of the gravity of Mr Ho’s offending.
32 At [18].
33 R v Ho [2016] NZCA 229.
34 R v Ho [2016] NZCA 229 at [15].
The Court should not usurp that assessment. We agree with the observation of Asher J in Zhang v Ministry of Economic Development:
In relation to a conviction affecting an offender’s immigration status, or indeed ability to travel overseas, the courts often conclude that it is appropriate for the consequences of conviction to be resolved by the appropriate authorities, rather than the Court attempting to pre-empt that decision-making process by a decision to discharge without conviction: R v Foox, Liang v Police and Steventon v Police. There is nothing that requires the courts to intervene to try and impose their perception of the right immigration consequences should be. That is best left to the immigration authorities. But a Court’s assessment of culpability in the sentencing exercise may assist those authorities. And there will always be occasions where in a finely balanced case a discharge may be warranted on these types of grounds: R v Hemard. The case for discharge may not be so strong where the details of the offending will be known and closely examined by the relevant authority in any event, than when the query will be only as to prior convictions, for instance in an application for professional certification.
[78] The Court of Appeal’s approval in Ho v R of the observations of Asher J in Zhang v Minister of Economic Development must be read in its entirety, including the part where Asher J recognised there will be occasions where a discharge may be warranted. There is nothing in Ho v R that might detract from this recognition. Further the findings in Ho v R need to be understood in their context. The Court of Appeal considered it would not be a disproportionate outcome if Mr Ho were not permitted to remain in New Zealand. This is understandable considering Mr Ho’s offending, which was far more serious than that of Dr Page, involving domestic violence with offences that required a criminal intent to act in that way. Thus, the circumstances of the case are quite different from the present. Similarly, in Zhang v Minister of Economic Development Asher J was faced with an appellant seeking a discharge without conviction who had pleaded guilty to 74 charges of making false statements contrary to s 377 of the Companies Act 1993, which is also an offence requiring a criminal intent. Thus, it is understandable why Asher J refused to allow the appeal.
[79] With s 106 of the Sentencing Act Parliament has given Judges the discretionary authority to discharge without conviction and that authority, like any other form of discretionary authority, is not to be fettered by hard and fast rules.35 So, whilst the
35 Although stated in a different context, which involved the exercise of administrative rather than judicial authority, the discussion in Practical Shooting v Police [1992] 1 NZLR 709 at 712-716 on the well-established principle against fettering discretionary authority are relevant here.
adoption of general policies is helpful and will lead to consistency of outcomes they should never be blindly followed. Judges should always be prepared to assess each case on its merits, which requires them to stand back and assess whether it is appropriate in the case before them to apply general policy or not. Brewer J recognised this in George v Police, where he said:36
I do not hold that the risk of deportation is a factor that the Court should never take into account in deciding the s 107 proportionality test. The section does not exclude effect on immigration status from consideration as a consequence. There will be situations where even the consequence of subjecting an offender to the scrutiny of Immigration New Zealand would be undue. But, in the usual run of cases, the Court should not take it upon itself to, in effect, decide immigration status.
[80] Whilst Brewer J’s comments pre-date Ho v R there was nothing said in that case that would diminish their relevance.
[81] Here there is something else that in my view distinguishes Dr Page’s case from the general run of cases like Ho v R and Zhang v Ministry of Economic Development, where the focus was concentrated on the immigration consequences for the offender. In those cases, there was no suggestion that following deportation the offenders may face difficulty practising their profession in their home countries. Here I consider there is a real and appreciable risk Dr Page may face such difficulty, were she to be deported. This is a separate adverse consequence that compounds the harm she would suffer if deportation were to occur.
[82] The respondent referred to decisions of this Court that post-date Ho v R where this Court has expressed the view that a conviction’s consequence on an offender’s immigration status is best left to INZ to determine.37 However, those cases all involve the commissions of intentional offences under the Crimes Act 1961 and in none of them does this Court suggest there is something stronger than a general policy of leaving the immigration consequences of a conviction to INZ.
[83] Accordingly, I am satisfied that here the consequences of conviction are out of all proportion to the gravity of Dr Page’s offending. I am of the view that rendering
36 George v Police [2014] NZHC 1725 at [46].
37 Isaj v Police [2018] NZHC 1689; Zhang v Police [2018] NZHC 285; and Jo v Police [2019] NZHC 1369.
Dr Page subject to the scrutiny of INZ for 10 years is alone a consequence out of all proportion to the gravity of her offending. On top of this, if Dr Page is deported there is a real and appreciable risk that she will suffer further consequences relating to her employment in Scotland.
[84] On appeal Dr Page’s counsel continued to pursue the ground advanced before Judge Snell that the black mark of a conviction to Dr Page’s reputation was of itself a consequence out of all proportion to the seriousness of the offending. In doing so he relied upon decisions of this Court in Police v SR38 and Nash v Police.39 However, I do not see those decisions as being helpful here. The first involved a young mother who was charged with leaving her children unattended. Woodhouse J described her as “struggling in difficult circumstances to bring up five children” and she had told the Judge she was trying to “keep my life on right track” and was worried about the effect of a conviction. The other involved a young man of 22 years who worked as an apprentice who was charged with the common assault of his partner. I have the impression that both young adult offenders were trying hard to make the most of their lives with little to call on, and in both cases this Court considered the entry of a conviction would be but a further burden to add to the substantial obstacles they were already facing in life. Those circumstances are quite different from Dr Page who has a well-established and well-earned career and reputation. The principles underlying S v R and Nash v Police have no application here.
[85] Dr Page’s counsel also drew attention to two cases where manslaughter offences had resulted in discharges without conviction.40 The circumstances of those cases are nothing like the present.
[86] Accordingly, whilst I consider the “black mark” effect will be an adverse consequence of conviction it is not a consequence that assists the outcome of this appeal.
38 Police v SR [2013] NZHC 980.
39 Nash v Police HC Wellington CRI 2009-485-000007, 22 May 2009.
40 R v Illston HC Wanganui CRI 2011-034-273 26 October 2100; R v X [2015] NZHC 1244.
[87] There remains the exercise of the discretion in s 106 of the Sentencing Act. The threshold requirement in s 107 is satisfied. Accordingly, I find the discretion should be exercised in favour of granting the discharge without conviction. I see no basis for doing otherwise.
[88] It follows that the appeal against the refusal to discharge without conviction is allowed. There remains the issue of the disqualification from driving and the making of the reparation order.
[89] The challenge on appeal was directed at the length of the disqualification. In Jeon v Police Woodhouse J discharged an offender on a charge of dangerous driving without conviction but left in place the disqualification from driving and ordered payment of emotional harm reparation.41 Here Dr Page was ordered and has paid reparation of $5000 to the victim’s family. Dr Page has not challenged the reparation order. Pursuant to s 106(3) I find the reparation order stands.
[90] Whilst the setting aside of a conviction logically suggests that the attendant legal consequences should also be set aside s 106(3) of the Sentencing Act provides that if there is a discharge the Court may make any order that the Court is required to make on a conviction. In Jeon Woodhouse J considered that the “significance of the appellant’s inadvertence in his driving does need to be driven home”.42 I do not consider the same can be said here in relation to Dr Page, however, the imposition of disqualification will drive home to others the significance of inadvertence in driving, which will help to ensure general deterrence of this type of offending.
[91] Both counsel accept that the length of the disqualification imposed was excessive and that a more appropriate order would be 12 months’ disqualification. In comparison to the length of disqualification imposed in Barr v Police and in Ramsay v Police, 12 months seems to me to be slightly on the high side. However, Dr Page has not sought anything less than 12 months and the suggested period is not so out of keeping with those cases that I would decide to impose something else. Accordingly,
41 Jeon v Police [2014] NZHC 66.
42 At [24].
the 15 months disqualification from driving will be set aside and replaced with a 12 months disqualification.
Result
[92]The appeal is allowed, and the conviction is set aside.
[93]The emotional harm reparation imposed by the District Court Judge stands.
[94] There is an order under s 106 of the Sentencing Act disqualifying Dr Page from holding or obtaining a driving licence for a period of 12 months with the disqualification commencing on 21 May 2019. The commencement of the disqualification on 21 May 2019 is on the basis that the order made in the District Court for disqualification was not suspended following the lodging of the appeal. If this order was suspended the commencement of the disqualification date will be adjusted appropriately and counsel should file memoranda to that effect.
Duffy J
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