IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-383
[2022] NZHC 3379
BETWEEN
TEVITA TEISINA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing:
13 December 2022
Appearances:
E R O’Connor and S P Poulton for appellant KFR Karpik for respondent
Date of judgment:
13 December 2022
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 13 December 2022 at 3.00pm.
………………………… Registrar/Deputy Registrar
Solicitors:
Public Defence Service, Manukau Kayes Fletcher Walker, Manukau
TEISINA v POLICE [2022] NZHC 3379 [13 December 2022]
[1] Tevita Teisina appeals against the 16 September 2022 decisions of Judge D J McNaughton in the District Court at Manukau.1 His Honour declined to discharge Mr Teisina without conviction, and sentenced him to six months’ disqualification from driving and payment of $1,000 in reparation, on his guilty plea to a charge of careless driving causing injury.2
Background
[2] The charge arose from Mr Teisina’s brief pursuit to identify another vehicle he perceived to have cut him off when driving through an intersection in Auckland’s Pakuranga on 10 April 2021. At excessive speed at night in wet conditions approaching a slight bend in the road, Mr Teisina lost control of his car, which spun into a lighting standard and tree. The passenger in his car suffered a broken neck and concussion; Mr Teisina also incurred a fractured jaw, broken ribs and a head injury.
Judgment[s] under appeal
[3] Mr Teisina was entitled to be discharged without conviction only if the direct and indirect consequences of his conviction were out of all proportion to the gravity of the offences.3 The proportionality test is a question of fact requiring judicial assessment.4 A three-step analysis — the gravity of the offending; the direct and indirect consequences of a conviction; and if those consequences are out of all proportion to the gravity — is required.5 There must be a “real and appreciable” risk any given consequence will arise; this recognises the court is assessing future
1 Police v Teisina [2022] NZDC 18272 [“Section 106 decision”]; and Police v Teisina [2022] NZDC 24460 [“Sentencing decision”].
2 Land Transport Act 1998, s 38; mandatory disqualification from holding or obtaining a driver licence for six months or more, and maximum penalty of three months’ imprisonment or $4,500 fine.
[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.
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AGLC
Teisina v Police [2022] NZHC 3379
Case
[2022] NZHC 3379
Decision Date
CaseChat Overview and Summary
Tevita Teisina appeals against the decision of Judge McNaughton in the District Court at Manukau, which declined to discharge him without conviction and sentenced him to six months’ disqualification from driving and payment of $1,000 in reparation, following his guilty plea to a charge of careless driving causing injury. The charge arose from Mr Teisina's pursuit of another vehicle that cut him off when driving through an intersection in Auckland's Pakuranga on 10 April 2021. At excessive speed in wet conditions, Mr Teisina lost control of his car, resulting in a collision with a lighting standard and tree. The passenger in his car suffered a broken neck and concussion, while Mr Teisina sustained a fractured jaw, broken ribs, and a head injury.
The court was required to decide whether the consequences of Mr Teisina's conviction were out of all proportion to the gravity of the offence, and if so, whether the sentence imposed was manifestly excessive. The court applied the three-step analysis to assess the gravity of the offending, the direct and indirect consequences of a conviction, and if those consequences were out of all proportion to the gravity of the offence. The court also considered the relevance of Mr Teisina's good character and the impact of conviction on his future career prospects.
The court found that the Judge McNaughton's assessment of the gravity of the offending was not erroneous, and the consequences of conviction were of low seriousness and not out of all proportion to the gravity of the offending. The court further found that the sentence imposed was not manifestly excessive, as it was within the range properly justified by accepted sentencing principles. The court rejected Mr Teisina's argument that discharge without conviction was the least restrictive outcome available to him, as there was no evidence to suggest that conviction would have a significantly negative impact on his future career prospects.
The appeal is dismissed.
Final orders:
1. The appeal is dismissed.
2. Tevita Teisina is to pay the costs of the appeal.
3. The sentence imposed by the District Court at Manukau on 16 September 2022 is upheld.