Police v Paki - [2014] NZHC 3112

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000234 [2014] NZHC 3112

BETWEEN
NEW ZEALAND POLICE

Appellant

AND

KOROTANGI PAKI Respondent

Hearing: 17 November 2014

Appearances:

M Downs and K Cooper for the Appellant
P Wicks QC and K Van Houtte for the Respondent

Judgment:

5 December 2014

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Friday, 5 December 2014 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Crown Law (Wellington)

Counsel: P Wicks QC, City Chambers, Auckland
Chen Palmer, Auckland

NEW ZEALAND POLICE v KOROTANGI PAKI [2014] NZHC 3112 [5 December 2014]

Introduction

[1] The Crown appeals Judge Cunningham’s decision to discharge the respondent, Korotangi Te Hokinga Mai Douglas Paki, without conviction, on one charge of driving with excess breath alcohol in October 2013, and two charges of burglary and one of theft in March 2014.1

[2] The Crown submits that Judge Cunningham erred in discharging Mr Paki on all four charges, and submits convictions should be entered against his name. No further penalty or sentence is sought. Counsel for Mr Paki, Mr Wicks QC, concedes that Judge Cunningham made the errors identified by the Crown, but notwithstanding those errors submits that on the correct approach the test for discharge without conviction is met.

[3] For the reasons that follow I allow the appeal in part. Mr Paki is to be convicted and discharged on the drink driving offence. He is discharged without conviction on the two charges of burglary and one of theft.

Background

[4] The charge of drink driving dates to the early morning of Sunday, 20 October

2013. At around 2:15 am Mr Paki was driving a motor vehicle on Childers Road, Gisborne. He was stopped by the Police on an unrelated traffic matter. When spoken to, he showed signs of recent alcohol intake. He was breath tested and the result returned was 761 micrograms of alcohol per litre of breath. The legal limit at the time was 400 micrograms of alcohol per litre of breath for adults and 150 micrograms for persons aged under 20 years, meaning Mr Paki, who was 18 years old at the time, was almost twice the legal limit for an adult and five times that for a
youth. Due to the amount of alcohol involved, Mr Paki was charged as an adult.2 At
the hearing before me it became clear Mr Paki was released at large following the drink driving incident, and was not remanded on bail.

1 Police v Paki DC Auckland CRI-2014-004-003495, 3 July 2014.
2 Land Transport Act 1998, s 56(1).

[5] Mr Paki pleaded guilty to the charge of drink driving on 6 December 2013, but was not convicted nor sentenced on that date. He was instead granted interim name suppression pending an application to be discharged without conviction. Name suppression was sought on the basis of the potential effect public disclosure of the charge would have on the health of Mr Paki’s father, Te…

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 Police v Paki

Details

AGLC: Police v Paki [2014] NZHC 3112
Case: [2014] NZHC 3112
Decision Date: 5 December 2014

CaseChat Overview and Summary

In the case of Police v Paki, the Crown appealed the decision of Judge Cunningham to discharge the respondent, Korotangi Paki, without conviction on charges of driving with excess breath alcohol, burglary, and theft. The High Court was required to determine whether Judge Cunningham erred in law by discharging Mr Paki without conviction and whether the consequences of conviction were out of all proportion to the gravity of the offending. The court found that while Judge Cunningham had made some errors in law, the appeal was allowed in part. The court ordered that Mr Paki be convicted and discharged for the drink driving offence. However, he was discharged without conviction for the burglary and theft charges, as the consequences of conviction would be out of all proportion to the gravity of the offending. The court emphasised the importance of considering the totality of the offending, the consequences of conviction, and the unique circumstances of Mr Paki's potential succession to the Māori King throne.

Orders