Rewi v Police HC Auckland CRI-2010-404-429

[2011] NZHC 1042

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-429

BETWEEN  CELINA PRISCILLA REWI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         27 June 2011

Appearances: R K Treloar for the Appellant

K L Bannister for the Respondent

Judgment:      27 June 2011

ORAL JUDGMENT OF ELLIS J

Solicitors:      Crown Solicitors, PO Box 2213, Auckland 1140

Public Defence Service, PO Box 76-715, Manukau 2241

REWI V POLICE HC AK CRI-2010-404-429 27 June 2011

[1]      On  8  November  2010  Miss  Rewi  was  convicted  and  ordered  to  pay reparation on a wilful damage charge and convicted and discharged on a charge of unlawfully getting into a motor vehicle.  She now appeals that conviction seeking a discharge without conviction.

Background facts

[2]      On 23 April 2009, Ms Rewi was travelling in the rear passenger seat of a car which had been stolen from the Mitre 10 car park in Hamilton.   As the vehicle approached a police checkpoint on State Highway 16 near Kumeu, at about 9.30pm, the driver performed a U-turn.  When asked to stop by an unmarked police car, the driver initially stopped and talked to police before speeding away.   The car was travelling at speeds of up to 100kph in a 60kph zone whilst overtaking vehicles on the wrong side of the road. This continued in a 80kph zone with speeds of up to

120kph.  Oncoming traffic was forced to move over to avoid collision.

[3]      Ms  Rewi,  together  with  the  other  occupants  of  the  car,  began  throwing various items at the pursuing police car.   These included bottles, a coat and some paper, some of which caused damage to the police car.  Other road users were also hit and police vision was impeded by the objects.  When the car came to a two lane roundabout it stopped.  It then reversed into the police vehicle following it causing damage to the bumper, registration plate and lights.

[4]      The occupants were finally apprehended by police tracker dogs after fleeing

the vehicle when it crashed into a road workers’ truck and concrete wall.

[5]      Ms Rewi was 17 years old at the time of the offending.

Statutory framework

[6]      The appeal seeks a discharge without conviction under ss 106 and 107 of the

Sentencing Act 2002. Those sections involve a four step process: (a)           Identifying the gravity of the particular offending;

(b)      Identifying the direct and indirect consequences of a conviction for

Ms Rewi;

(c)       Determining whether the consequences of a conviction would be out of all proportion to the gravity of her offending; and

(d)      Determining whether the s 106 discretion should be exercised.

[7]      The appeal is by way of rehearing and thus I must approach this process and the issue of disproportionality afresh.

Decision in the District Court

[8]      In the District Court, Judge Inglis considered that the offending was not at the lowest end of the spectrum but rather of moderate seriousness. The throwing of bottles, some of which made contact with the police car, was relevant to this assessment.

[9]      In  terms  of  the  likely  consequences  of  a  conviction,  the  Judge  noted Ms Rewi’s contentions that a conviction would affect employment as a carer for the elderly, a career in nursing and her ability to travel, which could be required given her  modelling  aspirations.    She  noted  that,  with  reference  to  a  letter  from  the Counties Manukau District Health Board, while disclosure would be required to a District Health Board as a potential employer, it would not operate as an absolute bar.    She  said  that  the  regulatory  bodies  should  not  have  an  applicant’s  past concealed from them.   The Judge concluded that all the consequences were speculative.  Ultimately she concluded that the consequences of a conviction would not be out of all proportion to Ms Rewi’s offending.  She also took into account the principles of sentencing including the need for deterrence and responsibility for the offending.   She also recognised the early guilty pleas, Ms Rewi’s youth and her previous good record.

[10]     As a result the Judge convicted Ms Rewi of wilful damage and ordered her to pay $1060 in reparation at $20 a week.  A conviction and discharge was entered on the unlawfully getting into a motor vehicle charge.

Appellant’s submissions

[11]     Essentially counsel for Ms Rewi contended that the gravity of the offending was  overstated  and,  conversely,  that  the  consequences  of  a  conviction   are understated by her Honour Judge Inglis.

[12]     Ms Treloar said that the offending is at the lower end of the scale and stressed that Ms Rewi was 17 at the time of the incident, that she initially did not know the car was stolen and that she had no control over the speed of the car during the chase. She also emphasised the remorse that Ms Rewi has expressed and her early guilty plea.

[13]     In terms of the consequences, Ms Treloar submitted that the Judge failed to consider the implications of a conviction on Ms Rewi’s nursing career.  She accepted however, that there was no evidence regarding the impact of a conviction on future travel or how it might affect Ms Rewi’s modelling aspirations.

[14]     However, she says there is a real and appreciable risk of undue consequences as evidenced by the letter from the Counties Manukau District Health Board.  She said that the learned District Court Judge placed too much emphasis upon the speculative nature of those consequences.  A discharge without conviction, she said, would demonstrate to a potential employer the Court’s confidence in Ms Rewi.

Discussion

[15]     I agree with Judge Inglis and the Crown that this offending is appropriately assessed as moderately serious.  Throwing the bottles from a fast moving car put the safety of the police and the general public at risk with the matter of chance that no injury occurred.  Equally I agree that the consequences of a conviction are almost entirely speculative.  The “Support of an Older Person” course in which Ms Rewi

had enrolled had not begun at the time of sentencing. There was no evidence offered that she would face any particular hurdle to employment that flows from such a qualification.

[16]     Similarly, it is far from clear that a conviction would be a bar to entering the nursing profession.  As noted by the learned District Court Judge, the Court should be hesitant about  action that conceals an applicant’s past from a body that is charged with regulating a particular occupation.  I agree that the Nursing Council or whatever other professional body, should not be deprived of the opportunity to make its own fully informed assessment of Ms Rewi’s suitability in due course.

[17]     What she does next with her life will plainly be important in that respect.  I am sure that Ms Rewi’s youth, her genuine remorse and her very responsible early guilty plea will all be taken into account by anyone who, in future, has any influence over her career.  The events that led to her conviction appear to me certainly to be a product of her young age and her alcohol consumption.  I am hopeful that she will not be so foolish again.   The reality is however, that someone could have been seriously hurt by her actions.  It cannot be said that the gravity of what she did is outweighed by the consequences of conviction.

[18]     The appeal must be dismissed accordingly.

Rebecca Ellis J