W v Police HC Christchurch CRI 2006-409-26

[2006] NZHC 204

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2006-409-000026

W

Appellant

v

POLICE

Respondent

Hearing:         9 March 2006

Appearances: S Sluis for Appellant

R Roberts for Respondent

Judgment:      9 March 2006

JUDGMENT OF FOGARTY J

[1]      This is an appeal against a refusal of Judge Doherty to discharge the appellant without conviction.  She had pleaded guilty to a charge of careless driving causing injury.   She had sought diversion on this matter and that process in itself had an unhappy history starting from the first interview and possibly because she chose as her support person another senior constable.  But in any event it led to her making a complaint to the Police Complaints Authority.  That had the effect of also ultimately delaying the resolution of this case for some time.

[2]      I am satisfied that the learned District Court Judge may have been a little unfair on the appellant by saying in his sentencing remarks:

W  V POLICE  HC CHCH CRI 2006-409-000026  9 March 2006

You could have pleaded guilty at a very early opportunity and then dealt with the matter by way of diversion.

Also that he may have overstated the matter by criticising the appellant for taking so long to accept responsibility.

[3]      In  that  sense  he  may  have  taken  some  irrelevant  matters  into  account. However, reading his sentencing remarks as a whole it seems to me that he was impressed by the fact that the accident arose by way of a significant driving fault, being turning across a road in front of another person coming the other way, which he regarded as a dangerous manoeuvre.    He also took the view that the cosmetic injury to the other person was, in the circumstances, a significant injury in the face of arguments that it was not.  He was of the view that he would have to be satisfied before a discharge that the direct and indirect consequences of the conviction would be out of all proportion to the gravity of the offence and reiterated again that the type of lack of judgment, that is, the careless driving, was more than slight.

[4]      I am  of  the view  that  were  this  matter  sent  back  to  the  same  Judge  to reconsider the history of the derailed diversion process more sympathetically that the Judge would still decline to discharge because of the gravity of the offence and its consequences on the other driver, for the reasons that I have just relayed.  Were I to allow the appeal and address discharge here, I am of a similar view to the Judge, that the gravity of the offence and the consequences of it are such that a discharge without conviction is not appropriate.

[5]      For these reasons the appeal is dismissed.

Fogarty J

Solicitors:

Community Law Canterbury, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent