Teisina v Police

[2022] NZHC 3379

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.

3      Sentencing Act 2002, ss 106–107; and Scott v R [2019] NZCA 261 at [78]–[80], citing Prasad v R [2018] NZCA 537 at [11].

4      Dickins v R [2012] NZCA 265 at [14], citing H (CA680/11) v R [2012] NZCA 198 at [30] (citing R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11], citing R v Rajamani [2007] NZSC 68, [2008] 1 NZLR 723 at [5]).

5      Sentencing Act, s 107; Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [14] (cited in Bailey v R [2022] NZCA 335 at [30]); Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8] (cited in Doyle v R [2022] NZCA 307 at [10]); R v Hughes, above n 4, at [16]–[17] (cited in McKenzie v R [2022] NZCA 172 at [47]); and Scott v R, above n 3, at [79].

likelihood.6 Only then may a sentencing judge decide if to exercise residual discretion.7

[4]    Judge McNaughton assessed Mr Teisina’s offending as “low level”, further mitigated by Mr Teisina’s “guilty plea,… offer of restorative justice, [completion of] a defensive driving course and … youth”.8 His Honour took the view conviction for careless driving causing injury “does not say anything about that person’s character”.9 Observing either conviction or discharge without conviction would have to be disclosed in response to any criminal record check,10 the Judge concluded the consequences of conviction were of “low seriousness” and therefore “not out of all proportion to the gravity of the offending”.11

[5]    The Judge sentenced Mr Teisina to six months’ disqualification from driving, backdated to his guilty plea on 21 June 2022, and payment of $1,000 in reparation for “emotional harm” to the victim.12 He reinforced:13

Again, that is a lenient outcome in terms of penalty.

If any employer were to assess your application in the future that is something that will be immediately obvious, no fine, an order for reparation and a backdated disqualification.

[6]    On appeal, Mr Teisina contends the sentence is manifestly excessive and the least restrictive outcome available to him was to be discharged without conviction. For Mr Teisina, Eilish O’Connor argues Mr Teisina Judge McNaughton erred in giving weight to the victim’s injuries; assessing conviction as not a substantial hurdle; using Mr Teisina’s good character to reduce the consequences of conviction; and failing to weight the shame and stigma of conviction. She reinforced, at 23 years old, Mr Teisina should be given the benefit of his youth as contributory to his offending’s lack of judgement and material to consideration of conviction’s consequences. Conviction would be a “permanent reminder” of his brief lapse.

6      DC (CA47/13) v R [2013] NZCA 255 at [43].

7      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.

8      Section 106 decision, above n 1, at [17].

9 At [18].

10 At [19].

11 At [20].

12     Sentence decision, above n 1, at [2].

13     At [4]–[5].

Approach on appeal

[7]    An appeal against a refusal to grant a discharge without conviction is an appeal against conviction and sentence.14

[8]    There is divergence in binding authority on how I am to address the appeal against conviction: on the one hand, I am directed to reach my own view as to whether the direct and indirect consequences are out of all proportion to the gravity of the offending, and only then to determine if the first instance court erred in principle;15 on the other, only if Mr Teisina establishes Judge McNaughton was wrong am I to consider his application for discharge without conviction afresh.16

[9]    I must allow an appeal against conviction if I am satisfied the Judge “erred in his … assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or if I am satisfied “a miscarriage of justice has occurred for any reason”. Otherwise I must dismiss the appeal.17 By ‘miscarriage of justice’ is meant something has occurred in relation to trial to create a real risk against a more favourable outcome for Mr Teisina or has resulted in an unfair trial or a nullity.18 The threshold is high; not every error will amount to a miscarriage of justice.19

[10]   If the conviction appeal fails, I then may determine if the correct sentence was imposed.20 I must allow the sentence appeal only if I am satisfied both there is error in the sentence, and a different sentence should be imposed.21 In any other case, I must dismiss the appeal.22 The approach previously taken by courts on sentencing appeals continues to apply: the measure of error is the sentence be “manifestly excessive”;23 the principle is “well-engrained” in this Court’s approach to sentencing appeals.24

14 At [9].

15     McKenzie v R, above n 5, at [48].

16     Maraj v Police [2016] NZCA 279 at [11]; and Austin, Nichols & Co Inc v Stichting Lodestar

[2007] NZSC 103, [2008] 2 NZLR 141 at [13].

17     Sentencing Act, ss 232 and 240.

18     Section 232(4); and R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].

19     Otis v Police [2019] NZCA 231 at [4]; and McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [38].

20     Jackson v R, above n 7, at [13].

21     Criminal Procedure Act 2011, s 250(2).

22     Section 250(3).

23     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

24     At [33] and [35].

I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.25

Further evidence on appeal

[11]   Mr Teisina  also seeks leave to submit  a medical assessment report dated    24 July 2021, concluding he had “some persistent post-concussion symptoms” — most likely caused by minor traumatic brain injury, and as “a likely adjustment reaction to the traumatic event” — which were improving and for assistance with medication and therapy. Ms O’Connor says:

Mr Teisina did not feel comfortable discussing with his counsel the full impacts this offending has had on his mental and physical health until the day of his sentencing, as he felt ashamed.

For the police, Katie Karpik opposes the report’s admission, contending for medical circumstances 14 months prior to sentencing, as unreasonably belated and irrelevant.

[12]   Leave will be granted if the interests of justice favour admission of new evidence on appeal.26 If the evidence is both credible and fresh, it generally should be admitted.27

Discussion

[13]   The proposed evidence plainly is not at all fresh. Neither does it address either the gravity of the offending or the consequences of conviction. It is at best just information Mr Teisina could have put before the Judge, irrespective of its marginal relevance. But there was no legal onus on him to do so.28

[14]   Given the threshold for consequences to be ‘out of all proportion’ to the gravity of the offending, the interests of justice do not require the evidence’s admission. The evidence does not offer a basis for any more, much less ‘real and appreciable’,

25     Ripia v R [2011] NZCA 101 at [15].

26     Criminal Procedure Rules 2012, r 8.8; Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119]; and Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].

27     Lundy v R, above n 26, at [120].

28     R v Hughes, above n 4, at [49] and [53]; and DC (CA47/13) v R, above n 6, at [43].

favourable outcome for Mr Teisina. But, given the divergence to which I referred at

[8] above, the interests  of justice are met by ensuring I have  all the information      I require to form my own view. Mr Teisina has leave to file the further evidence.

[15]   Assessing the gravity of the offending requires consideration of aggravating and mitigating factors relating to both the offending and the offender.29 This is an evaluative, highly fact-dependent exercise.30 I cannot identify any error in the Judge’s assessment of Mr Teisina’s offending as “low level offending”.31

[16]   His Honour’s disagreement with the seriousness of injury being an aggravating factor appears to be in assessment of the gravity of the particular offence itself within the range of prospective injury, rather than of the offending for the purpose of s 106.32 On turning to the latter, the Judge’s assessment was expressly “regardless of the injuries caused or even if death had resulted … regardless of the injuries or even death, this is offending in the low category”.33

[17]   Neither do I see any error in the Judge’s assessment of the consequences of Mr Teisina’s conviction as of “low seriousness”.34 I do not comprehend the Judge to have held Mr Teisina’s good character ‘against’ him, in the sense he faced any higher threshold to establish disproportionate consequences, but to recognise assessments of character are more broadly drawn than on the basis of conviction alone.

[18]   The particular materiality of either conviction or discharge is claimed to be in its impact on future assessments of Mr Teisina’s character for admission to medical school or otherwise in pursuing a professional career in the sciences. Mr Teisina accepts either is to be disclosed on any police vetting check, or possibly in self-declaration of good character, but Ms O’Connor submits discharge would be more favourably regarded. That is supposition, not supported by any evidence. There is no evidence  conviction  may be effective to exclude  exercise of any discretion. Even if

29     Rahim v R [2018] NZCA 182 at [15]; Z (CA447/12) v R, above n 5, at [27]; DC (CA47/13) v R,

above n 6, at [35]; and Waine v R [2017] NZCA 287 at [21].

30     Rahim v R, above n 29, at [16].

31     Section 106 decision, above n 1, at [17].

32     At [8]–[9], referring to Paige v Police [2020] NZHC 904 at [39].

33 At [17].

34 At [20].

Ms O’Connor is right, it only then is a marginal distinction between conviction and discharge, rather than being qualifyingly disproportionate as between offending and conviction.

[19]   Ms O’Connor proffers the Medical Deans Australia and New Zealand Inc’s guideline “Inherent requirements for studying medicine in Australia and New Zealand”. Under a heading “Ethical behaviour”, articulating medical students’ accountability and responsibility for ensuring professional behaviour, the guideline records:

At entry all medical students will be required to complete a Criminal Record Check and (if required) a self-declaration of previous ethical and/or dishonest behaviour. The self-declaration is to be in line with that completed by each registered practitioner at the time of re-registration. If there are previous misdemeanours, the onus will be on the student to convince the School that such misdemeanours no longer pose a substantial risk.

If that onus only is engaged by conviction, and not discharge, is not evidenced. Neither is there evidence of what may constitute any ‘misdemeanour’. But it seems likely, given conviction or discharge each is founded on guilt, the onus arises indistinguishably in either instance. All the same, the guideline is effective to undermine Mr Teisina’s concern his conviction alone may cause the medical school to “cast [his] application aside”. It is good evidence Mr Teisina’s application will be considered on its merits.35

[20]   Where actual consequences turn on a third party’s assessment of the relevant facts, whether for career or travel (as Mr Teisina also raises for consideration), and there is no reason to think the assessment would be made otherwise than in good faith, the better approach is to leave the assessment for that party than for this Court to influence those decisions by discharge.36  That very much is be the case here, if     Mr Teisina’s conviction additionally is, or is required, to be disclosed to decision-makers.37 This is not one of those “rare cases” where decision-makers’ scrutiny itself is of qualifying disproportionality.38 The judge did not err.

35     Doyle v R [2022] NZCA 307 at [38]–[39], citing R v Taulapapa [2018] NZCA 414.

36     R v Taulapapa, above n 35; and Ho v R [2016] NZCA 229.

37     Maraj v Police, above n 16, at [28], citing Roberts v Police (1989) 5 CRNZ 34 (HC) at 36 (followed in Graves v Police HC Rotorua CRI-2010-463-57, 28 February 2011 at [26]).

38     Zhang v Police [2018] NZHC 285 at [32]. See also George v Police [2014] NZHC 1725 at [46].

[21]   On sentence, Mr Teisina’s six months’ disqualification and $1,000 reparation is unobjectionable in itself. Disqualification of at least six months’ duration is the minimum mandatory penalty. Mr Teisina acknowledges the injuries incurred by his victim, a “good friend”, and their ongoing impact on him. Those are incidents of emotional (and physical) harm for which reparation is available.39 Mr Teisina’s ‘shame’ and ‘stigma’ plainly and commendably is not a consequence of conviction, but of his underlying guilt, as evidenced by his psychological attendances before sentencing.

[22]   In any event, payment of an amount comparable to reparation is not necessarily avoided by discharge.40 Last, I acknowledge Mr Teisina has pointed to his disqualification as preventing him from continuing to work as an Uber Eats driver, thereby losing “a major source of [his] income” and limiting his contributions to his extended family. Given disqualification’s mandatory nature, it cannot be thought disproportionate. And the medical assessment report indicates the sequelae of the accident also prevented his part time work.

[23]Justice has not miscarried. The sentence cannot be said manifestly excessive.

Result

[24]The appeal is dismissed.

—Jagose J

39     Sentencing Act, s 32.

40     Section 106(3)(b) and (3A).