Police v Wen - [2021] NZHC 3610

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-485-54

[2021] NZHC 3610

BETWEEN
NEW ZEALAND POLICE

Applicant

AND

SHAO PENG WEN

Respondent

Hearing: 24 November 2021

Appearances:

J M O’Sullivan for Appellant

L Ord and E T Blincoe for Respondent

Judgment:

22 December 2021

JUDGMENT OF ISAC J

Introduction

[1] Rachel Pawsey was only 30 years old when she was killed in a road accident caused by the respondent. She was travelling home to her partner’s house in Upper Hutt after netball practice. She was the only child of her parents, and a much- loved teacher in a local secondary school.

[2] While this appeal concerns Mr Wen and the criminal legal process which followed the accident, I wish to acknowledge at the outset the profound loss and grief that is at the heart of the case.

NEW ZEALAND POLICE v WEN [2021] NZHC 3610 [22 December 2021]

The appeal

[3] Mr Wen was charged with careless driving causing Rachel’s death.1 He initially pleaded not guilty. Following a sentence indication before Judge Tompkins, he entered a guilty plea. At sentencing Mr Wen sought a discharge without conviction, pointing to the immigration consequences should a conviction be entered.

[4] Judge Tompkins granted the discharge. The Crown appeals that decision based on an error of law.

Background

[5] The relevant events leading to the accident are outlined in the Judge’s sentencing notes:2

The offending occurred on the night of 27 August 2020. At the time, Rachel, who was employed in the boarding house of a Wellington secondary school, was on her night off and was travelling northwards on State Highway 2 past Upper Hutt to where her partner lived. At the same time the defendant, who had been having dinner with friends, was returning home. At about 8.30 pm, the defendant drove his car down Moonshine Hill Road to the intersection with State Highway 2, as that State Highway passes from the Hutt River Bridge past Upper Hutt to the Remutaka Hill. The intersection is known as a “seagull” intersection because of the shape of the intersection when viewed from above. In essence, the intersection between Moonshine Hill Road and the northbound land is a T-intersection, but the southbound traffic is divided from the northbound traffic by a raised barrier. The effect of that being that vehicles turning right onto State Highway 2, so intending to travel south, have to cross the northbound lane, but then that turning vehicle moves into a separate area of the road before having to join the southbound lane.

Unusually, the defendant had fitted his vehicle with a video recorder to the rear vision mirror and when the crash was investigated, the precise sequence of events was revealed by that video record. That showed that Mr Wen stopped at the stop sign which controls the intersection for a little over 40 seconds, during which a number of cars passed on State Highway 2 in both directions before…

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 Wen

Details

AGLC: Police v Wen [2021] NZHC 3610
Case: [2021] NZHC 3610
Decision Date: 22 December 2021

CaseChat Overview and Summary

The appeal concerns the conviction of Shao Peng Wen for careless driving causing the death of Rachel Pawsey. Wen initially pleaded not guilty but later changed his plea to guilty. He sought a discharge without conviction, citing potential immigration consequences, including deportation. The District Court granted the discharge, and the Crown appealed, claiming an error of law. The appeal was heard on the question of law, with the applicant arguing that the District Court erred in considering the immigration consequences of conviction and in distinguishing between the consequences of the offence and a conviction. The Court found no error in the District Court's approach, noting that the Judge had applied the correct legal test and that the evidence supported the conclusion that the consequences of a conviction were out of proportion to the gravity of the offence. The appeal was dismissed, and the discharge without conviction was upheld.

Orders