PAGE v NEW ZEALAND POLICE [2020] NZHC 904

PAGE v NEW ZEALAND POLICE [2020] NZHC 904 [5 May 2020]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI 2019-463-000054[2020] NZHC 904BETWEEN BLAITHIN PATRICIA PAGEAppellantAND NEW ZEALAND POLICERespondentHearing: 26 February 2020 (heard at Hamilton)Appearances: A Shulze for AppellantM Jenkins for RespondentJudgment: 5 May 2020JUDGMENT OF DUFFY JThis judgment was delivered by me on 5 May 2020 at 3.00 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors:Lance Lawson, RotoruaCrown Solicitor, Rotorua[1] The appellant, Dr Blaithin Page, pleaded guilty to one charge of careless useof a motor vehicle causing death. Her application for a discharge without convictionwas unsuccessful. Hence this appeal.1Facts[2] The following are taken from the NZ Police summary of facts, on whichDr Page's guilty plea rests. At approximately 7:25am on the morning of Tuesday25 September 2018, Dr Page was driving a Nissan X-trail motor vehicle on RangiuruStreet, Rotorua. The weather conditions were overcast and there were isolated periodsof drizzle. She was travelling to work at the Rotorua Hospital. She approached theT-intersection of Rangiuru Street and Arawa Street, which is controlled by a give waysign. At the same time the victim was travelling on her motorcycle in an easterlydirection. As the victim approached the intersection of Rangiuru and Arawa Streets,Dr Page pulled out onto Arawa Street and into the path of the victim, who had no timeto react. The victim was knocked from her motorcycle and slid to the other side of theroad. She later died of her injuries. When spoken to by Police at the scene of theincident Dr Page stated that she did not see the victim coming.Personal circumstances[3] The following is taken from unchallenged affidavit evidence from Dr Page.She has not previously appeared before the court. At the time of the incident Dr Pagewas 47 years old and she is now almost 49 years old. Dr Page was born in Dublin,Republic of Ireland in 1971. Her evidence does not say when she left Dublin. Shegraduated from Glasgow University, Scotland in 1996 with an MB, ChB and a BSc(Honours) in gross anatomy. Her post-graduate training was under the West ofScotland Higher Surgical Training Scheme culminating in CCT in 2009. The sameyear she completed an MD thesis on the topic of chronic pain and inguinal herniarepair. She spent a year as a post-CCT Fellow in New Zealand in 2010. For the nextfive years Dr Page worked as a consultant surgeon in two large teaching hospitals inScotland and Singapore.1 Section 38 Land Transport Act 1998 maximum penalties three months' imprisonment or $4,500fine.[4] She is currently employed as consultant general and colorectal surgeon at theRotorua Hospital. She has been employed in this position since March 2016. Herwork consists of two operating sessions, two clinics and two endoscopy lists. She alsocovers emergency surgery and trauma. She is involved in quality improvement forolder colorectal patients and is the chair of the perioperative frailty committee. Thisis a committee she started and participates in on a voluntary basis, its purpose is toimprove the care of elderly patients with surgical pathology (hips, knees and cancers)from primary health care to secondary health care. Dr Page was also involved insetting up and participating in a clinic for all patients with colorectal cancer. This is aclinic that assists people with getting better after they have received surgery, to helpthem with functioning in society.[5] At the time of the incident Dr Page was in the process of applying forpermanent residency in New Zealand. In her affidavit she expresses her remorse forcausing the victim's death and describes herself as absolutely devastated that shecaused the death of someone else. She reiterates the explanation given to the Policethat she pulled out into an intersection and failed to see the victim travelling on hermotorcycle. Dr Page says she will regret this mistake every day for the rest of her life.She contrasts the outcome with her duty as a doctor which is to do the best for herpatients. She also says she is sorry for the pain and hurt that the victim's family havesuffered. She says that since the incident she has done everything she can to ensurethis never happens again, and in this regard, she has completed a defensive drivingcourse. A copy of the relevant certificate is attached to her affidavit. She has alsoattended a restorative justice conference with some of the victim's family. Somefamily members chose not to attend that conference. The victim impact reportsindicate there are family members who feel bitterness and anger towards Dr Page.They strongly oppose her being discharged without conviction.Decision of the District Court[6] The Judge correctly recognised that s 107 of the Sentencing Act 2002 requiresa balancing exercise when considering whether to exercise the discretion under s 106to discharge without conviction; and that the s 107 considerations are a prerequisite orgateway to deciding whether to discharge under s 106.2[7] Before Judge Snell the factors on which Dr Page relied were:(a) that conviction would provide a black mark on what was an otherwiseclear record;(b) she was applying for residency and hoped to remain in New Zealandand to work in her present occupation here in New Zealand;(c) a conviction would undermine the trust and confidence that her patientswould have in her as a surgeon; and(d) she was genuinely remorseful, she was apologetic, she had displayedempathy and she had done everything within her power to demonstratethis.[8] The prosecution opposed a discharge without conviction. This was primarilybecause the consequences put forward by Dr Page were said to be "speculative only".The prosecution submitted that there was a direct and devastating consequence herenamely, the loss of the victim's life. The culpability of Dr Page was assessed asmoderate. In this regard the Judge records the prosecution as relying on factors thatwere not included in the Police summary of facts. Namely that the victim was ridinga yellow motor scooter, the headlight was on and the victim was wearing a brighthelmet. Those factors coupled with the summary of facts led the prosecution to submitthat Dr Page had committed a serious error.[9] The Judge adopted the three-step approach set out in Z v R3 the first step ofwhich is to assess the gravity of the offending which includes all the aggravating andmitigating factors relating to the offending and the offender. He began with anassessment of the driving conditions based on the factual circumstances as I have2 Police v Page [2019] 9706.3 Z v R [2012] NZCA 599, [2013] NZAR 142.outlined from his sentencing notes. In this regard he noted that the intersection wascontrolled by a give way sign. He accepted the submission from Dr Page's counselthat she had stopped, looked and then driven without seeing the victim coming towardsthe vehicle. He then said he took into account the prosecution's submissions that themotor scooter was bright, being coloured yellow and the headlight was on, and thevictim was wearing a bright coloured helmet so that the victim and the motor scooterwere "probably as visible as you could see". The Judge does not state from where theprosecution's reference to the brightly lit scooter, the headlight and the helmet beingbright came. He also took into account the poor weather conditions, namely it wasearly morning, overcast and drizzling, which he acknowledged may have had an effecton the victim's visibility. However, the Judge also found that such weather conditionswould probably highlight to most drivers the need for extra caution.[10] The Judge then turned to assess the level of carelessness of Dr Page's actions.He described it as a single incidence of carelessness. He acknowledged it was not aprotracted situation where there were examples of carelessness over a lengthy periodof time. He accepted the submissions of counsel for Dr Page that what occurred wasan isolated incident, a moment's inattention with tragic consequences.[11] The Judge next considered the matters that mitigated or decreased the gravityof the offence. Dr Page had attempted to render assistance to the victim as best shecould. She had no previous convictions in New Zealand or elsewhere in the world.She had entered a guilty plea at the earliest possible opportunity, she had displayedgenuine remorse and empathy. She had attended a restorative justice conference, andthe Judge had the benefit of a detailed restorative justice report. She had faced andapologised directly to members of the victim's family who had attended the restorativejustice conference, she had emphasised her total and utter acceptance of the offendingand her acute distress at the consequences for them.[12] The Judge noted from the restorative justice report, that there were some familymembers who supported a discharge without conviction for Dr Page. However, healso noted that in written material he had received from other family members, theydid not support that outcome. The Judge went on to say it takes significant courage tofront up and admit when you are wrong, and this had been demonstrated by Dr Page.He also acknowledged Dr Page has been seriously affected by the incident, initiallyshe had been unable to work as a surgeon for some time and had required counsellingto continue with her work. She had attended a defensive driving course. He said therewas little more that he could suggest that Dr Page could have done after the incidentoccurred.[13] In short, it was generally accepted by Judge Snell that Dr Page had doneeverything that she could do to address matters appropriately. She had offered to dovoluntary work in terms of a humanitarian type of service, that being to honour thevictim's own humanitarian service.[14] The Judge concluded the level of carelessness involved and the gravity of theoffending in the particular factual context was in the range of low to moderate.4 Hewent on to say it went higher than simply the lowest form of gravity because Dr Pagehad proceeded through a give way sign failing to see the oncoming vehicle with rightof way, and in his view the conduct was "in that grey area between low and moderateseriousness". 5[15] The Judge then turned to the second step which required him to identify directand indirect consequences of a conviction. Here he noted correctly that it was notnecessary that the identified consequences would inevitably or probably occur, ratherit is sufficient that the court reaches a decision that there is real and appreciable riskthat those consequences may occur. He identified the consequences as being: (a) ablack mark on Dr Page's character; (b) potential consequences to her immigrationstatus and application; and (c) damage to her reputation as a doctor not so muchpersonally for her but that patients she needed to treat may lose confidence and trustin her as their treating doctor.[16] The Judge then addressed each of those matters. Regarding the "black mark"on Dr Page's character he acknowledged the consequences of a conviction have a highdegree of importance for somebody with no previous history. However, he consideredan offence involving carelessness causing death was unlikely to have the same effect4 At [13].5 At [13].as other convictions. This was because he considered there were no real generalemployment consequences from a conviction of this type. He understood fromDr Page's affidavit and her counsel's submissions that she maintains the support ofher peers and her employers, and she was not in jeopardy of losing her employment.The Judge considered that for the future most employers could and would look beyondthe bare face of a conviction, and instead they would look at all of the circumstancesof the offending and mitigating factors, especially where a person is of good character.Accordingly, relying on Edwards v R,6 the Judge concluded that the known facts ofthe case and the level of the gravity or carelessness meant that the conviction wasunlikely to have any particular long-lasting effects on Dr Page in terms of a blackmark.[17] Next, the Judge considered the impact of a conviction on Dr Page'simmigration status. It was argued for Dr Page that a conviction may well affect herapplication for permanent residency in New Zealand. The Judge stated he hoped itwould not, but that it was now well-established that courts should not usurp thefunction of the immigration authorities who have a statutory obligation to considerwhether convicted persons ought to be allowed to remain in the country.7 Further, theJudge considered that it would be surprising if a conviction had any effect at all onDr Page's immigration status given the level of carelessness involved in the offendingand it was an isolated incident by someone who has an otherwise unblemished recordof driving.8[18] The Judge then considered the damage to reputation that would follow from aconviction.9 He found that while a conviction is likely to impact adversely on aperson's reputation he did not think it would undermine the confidence patients hadin Dr Page. He also concluded that patients have a right to know who their doctor isand to decide in whom they will have confidence. He differentiated the type ofsentence and conviction for the present offending from that involving dangerous,6 Edwards v R [2015] NZCA 583.7 At [18] – [19] citing Ho v R [2016] NZCA 229; Ji v R [2015] NZCA 308; A v R [2011] NZCA328. The Judge also referred specifically to Zhang v Ministry of Economic Development HCAuckland CRI-2010-404-453.8 At [20].9 This was a factor recognised in Thomas v R [2019] NZHC 396.reckless or drink-driving causing injury or death. He doubted that anybody who knewthe facts would lose any confidence in Dr Page as a general surgeon at all. This ledhim to conclude that the direct and indirect consequences of conviction would have a"very negligible effect on [Dr Page's] immigration application" and may have somelimited effect on the potential trust and confidence patients would have in her.10However, he did not think those outcomes would be significant or undue. He didaccept there would be a black mark on her reputation.[19] Taking those consequences into account the Judge then proceeded to the thirdstep, namely whether the consequences of a conviction would be out of all proportionto the gravity of the offending. He found that they would not lead to such an outcome.Dealing specifically with the effect of a conviction on Dr Page's immigration statusthe Judge found:11In this case, I would be surprised if this particular case with the level ofcarelessness in an isolated incidence for someone who has an otherwiseunblemished record of driving, I would be surprised if it had any effect at allon her immigration status. I make that statement deliberately knowing youwill have the ability to put this decision before the immigration authorityconsidering your residency.[20] Then, more generally, the Judge concluded:12On that basis, having assessed those consequences and potentialconsequences, I consider that they are not out of all proportion to the gravityof the offending. With careless use causing death, the gravity of the offendingmust be assessed in the context of someone having lost their life. I agree withthe prosecuting Sergeant that part of sentencing process the court is deterrenceand denunciation an in terms of deterrence it is not necessary for you butgeneral deterrence for other road users. In my view a discharge withoutconviction would be inappropriate on the facts of this case when all mattersare taken into account.[21] Accordingly, a discharge without conviction was refused.[22] The Judge then went on to determine the appropriate sentence. This led to himimposing a sentence of 100 hours community work, directing payment of emotionalharm reparation of $5,000 to the family and disqualifying Dr Page from driving for10 At [24].11 At [20].12 See [25] of the decision.15 months. He then added a further comment that was relevant to the refusal todischarge without conviction stating:13I would hope that this decision would go to an immigration authorityconsidering your application for residence and my view on matters havinglooked at this case is that this should not affect any application for residency.This is isolated offending, entirely out of character on one occasion withterrible and tragic consequences.The appeal[23] The appeal hearing proceeded in two parts. This was because, as was noted bythe prosecution at sentencing, many of the concerns Dr Page raised about theconsequences of conviction were either speculative or lacking in any real foundation,and this remained so for the appeal. Particularly in relation to two matters: (a) theimpact on her immigration status; and (b) her ability to continue to work as a medicalpractitioner. The full impact of a conviction on the first matter was not before theJudge and the second matter, which required an assessment of the impact of convictionon Dr Page's employment both in New Zealand and abroad, was never raised beforehim despite its importance. This was because if she was required by Immigration NewZealand (INZ) to leave the country (which is the usual prelude to deportation) therewould then be a question of whether a New Zealand conviction would adversely affecther ability to find employment in Scotland, which is where she had previously worked.I considered it to be in the interests of justice for Dr Page to be given an opportunityto place more substantial material before the Court, because otherwise there was a realrisk the appeal would miscarry. Accordingly, the appeal was adjourned to giveDr Page the opportunity to provide more substantial material to support her appeal.[24] At the resumed hearing Dr Page provided a helpful report from a lawyerJerome Williamson, with significant experience in immigration law, which outlinedthe actual and potential consequences of a conviction on Dr Page's immigration status.She was also able to provide some account of the registration requirements she wouldface should she return to Scotland to practice. The respondent did not challenge thecontents of this material or its admission.13 At [30].[25] Dr Page's appeal is essentially brought on the broad bases that the Judge failedto assess properly the gravity of the offending and he failed to recognise theconsequences of a conviction were out of all proportion to the gravity of the offending.[26] The respondent contends the Judge's assessment of the gravity of the offendingwas accurate. Despite the additional material before the Court relevant to the effectof a conviction on Dr Page's immigration status and her ability to practice in Scotlandshould she be required to leave New Zealand, the respondent maintains that theconsequences of conviction would not be out of all proportion to the gravity of theoffence.[27] In relation to the alternative limb of Dr Page's appeal, which is that the drivingdisqualification period is excessive, the respondent responsibly recognised the meritin this aspect of the appeal. The respondent helpfully referred to two decisions of thisCourt each of which shares similarities with the present offending. In Ramsay v Policethe offender momentarily turned her head to wave at an acquaintance and collidedwith a mobility scooter resulting in the death of an elderly man.14 A disqualificationof 15 months imposed by the District Court was on appeal to this Court reduced to11 months' disqualification. In Barr v Police the offender went to drive out of herrural driveway. Before doing so she looked both ways then pulled out. She had failedto see the victim, who was riding a motor cycle, he hit the offender's car and suffereda fatal injury. The two years' six months disqualification imposed in the District Courtwas reduced on appeal to nine months' disqualification.15[28] Here, both counsel are of the view that 12 months' disqualification isappropriate.14 Ramsay v Police HC Timaru CRI 2008-476-23 10 September 2008.15 Barr v Police HC Rotorua CRI-2011-463-000042, 28 November 2011.DiscussionAppeal principles[29] Whether the test in s 107 is met is a question of fact, which requires judicialassessment.16 The appellate Judge must therefore determine if the sentencing Judgewas wrong in the sense expressed in Austin Nichols v Lodestar Stitchting for generalappeals by way of re-hearing.17The gravity of the offending[30] I have concerns about the way in which the Judge assessed the gravity of theoffending. The sentencing notes show that he was influenced by matters that were notpart of the summary of facts on which the guilty plea was entered. Here I refer to theJudge's references to: (a) the yellow colour of victim's motor cycle, which had theheadlight on; (b) her bright coloured helmet; and (c) the conclusion that totalappearance of the victim and the motorcycle was "probably as visible as you couldsee". Those matters should be contrasted with the Police summary of facts whichsimply described the weather conditions as "overcast" with "isolated periods ofdrizzle".[31] At the first appeal hearing Dr Page's counsel referred me to two civilianwitness statements prepared by Police and in particular one in which the witnessreferred to the motorcycle being yellow and the victim's helmet red, but in which thewitness also said: "As soon as I saw the scooter I remember thinking that she was hardto spot due to the glare as the weather was overcast." Thus, for this witness the brightcolours she described as associated with the victim had little ameliorating effect on theovercast conditions and glare from the morning sun. At both the first and secondappeal hearing Dr Page's counsel sought to rely on this witness statement asevidencing poor visibility, which could account for Dr Page not seeing the motorcycle.The respondent sought to counter the effect of these witness statements by drawingattention to the statement of the other civilian witness who had described traffic asbeing light. However, he had not seen the accident take place, his attention was16 R v Hughes [2008] NZCA 546; the Criminal Procedure Act 2011 has not changed this principle.17 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.attracted when he heard the noise of the collision. He said nothing about the visibilityat the time. At the second hearing the respondent invited me to view CCTV footageof the accident. At both hearings the respondent relied on the bright colour of thevictim's helmet and motorcycle as well as the headlight being on as factors that raisedthe level of offending to between low and moderate. Accordingly, on appeal counselwere not agreed on the factual matters covered by the additional material, which leavesme concerned about the basis on which this material came before Judge Snell.[32] Section 24 of the Sentencing Act 2002 is clear about proof of facts indetermining a sentence or other disposition of a case:24 Proof of facts(1) In determining a sentence or other disposition of the case, a court—(a) may accept as proved any fact that was disclosed by evidenceat the trial and any facts agreed on by the prosecutor and theoffender; and(b) must accept as proved all facts, express or implied, that areessential to a plea of guilty or a finding of guilt.(2) If a fact that is relevant to the determination of a sentence or otherdisposition of the case is asserted by one party and disputed by theother,—(a) the court must indicate to the parties the weight that it wouldbe likely to attach to the disputed fact if it were found to exist,and its significance to the sentence or other disposition of thecase:(b) if a party wishes the court to rely on that fact, the parties mayadduce evidence as to its existence unless the court is satisfiedthat sufficient evidence was adduced at the trial:(c) the prosecutor must prove beyond a reasonable doubt theexistence of any disputed aggravating fact, and must negatebeyond a reasonable doubt any disputed mitigating fact raisedby the defence (other than a mitigating fact referred to inparagraph (d)) that is not wholly implausible or manifestlyfalse:(d) the offender must prove on the balance of probabilities theexistence of any disputed mitigating fact that is not related tothe nature of the offence or to the offender's part in theoffence:(e) either party may cross-examine any witness called by theother party.(3) For the purposes of this section,—aggravating fact means any fact that—(a) the prosecutor asserts as a fact that justifies a greater penaltyor other outcome than might otherwise be appropriate for theoffence; and(b) the court accepts is a fact that may, if established, have thateffect on the sentence or other disposition of the casemitigating fact means any fact that—(a) the offender asserts as a fact that justifies a lesser penalty orother outcome than might otherwise be appropriate for theoffence; and(b) the court accepts is a fact that may, if established, have thateffect on the sentence or other disposition of the case.[33] Here, in terms of s 24(1)(a) the guilty plea meant there was no trial andtherefore no evidence disclosed at trial. In terms of s 24(1)(b) whether the motorcyclewas brightly coloured and the victim was wearing a brightly coloured helmet were notfacts essential to a plea of guilty for the charged offence. The fact Dr Page hadproceeded across an intersection governed by a give way sign and in doing so collidedwith an oncoming vehicle with right of way, which she admitted to not seeing, weresufficient to establish carelessness on her part. This leaves applicable the balance ofs 24(1)(a), which deals with facts on which the prosecutor and the offender are agreed.Those are generally whatever else is in the summary of facts, apart from the essentialfacts to support the charge.[34] Typically, the entry of a guilty plea means there is no dispute over the summaryof facts. If there is a dispute it is usually raised by the offender because the prosecutorhas control over the preparation of the summary and so ensures it reads in the way theprosecutor considers appropriate. In this way the prosecutor can include details thatact as aggravating features going to the gravity of the offending. Disputes by anoffender about the contents of a summary of facts either lead to amendment of thesummary or a disputed facts hearing, which is provided for in s 24(2). The typical didnot happen here.[35] The summary of facts gives a neutral account of a moment of carelessness onthe part of Dr Page on a day when weather conditions gave poor visibility. She wouldhave had no basis to object to that account and nothing suggests that she did. On theother hand, the Judge's reference to the bright colour of the victim's helmet andmotorcycle, the latter with the headlight on, coupled with his comment the victim was"probably as visible as you could see"18 suggests he regarded those additional matters(the additional matters) as aggravating facts that influenced his assessment ofDr Page's culpability.[36] However, I cannot see how the Judge could take the additional matters intoaccount when: (a) they were not part of the summary of facts; (b) there is nothing toindicate Dr Page's counsel agreed to them being included in the sentencingconsiderations; and (c) they formed no part of a disputed facts hearing on which theJudge gave a ruling. The sentencing notes should have included some explanation asto the legal basis for including the additional matters in the sentencing considerations.Their inclusion was untypical, and therefore an explanation would be helpful to anappellate court seeking to understand how they came to be considered.[37] Both counsel attempted on appeal to continue the dispute about thesignificance of the additional matters. However, an appellate court is in no position toresolve factual disputes that emanate in this way. I refused to consider the CCTVfootage because that appeared to me to be a late and informal attempt by therespondent to adduce fresh evidence on appeal, when no such application had beenmade. Further it seemed to me that to allow in that evidence without giving Dr Pagethe opportunity to respond to it would have been procedurally unfair. By this time theappeal was at the second hearing and any further delay was to be avoided. I consideredthe respondent had every opportunity earlier to adduce the CCTV footage had itwanted to do so. The correct time for doing so would have been at the sentencinghearing before Judge Snell. As to the witness statements they were no more thanuntested proposed briefs of evidence and therefore not evidence. Insofar as theycontained controversial information (counsel were not agreed on the import of thematerial) that went beyond what is contained in the summary of facts I consider thewitness statements should be put to the side. Neither witness statement had referredto the headlights of the motorcycle being on; one witness could not recall if they were18 At [8].on or not and the other witness never mentioned the headlights. The source of thisinformation is unknown to me.[38] I consider the Judge was wrong to refer to the additional matters and to allowthem to influence his assessment of the gravity of Dr Page's offending. There isnothing to explain why this sentencing was different from any other and in terms ofgeneral principles the Judge should have proceeded on the basis of the summary offacts alone. Given the ongoing dispute between counsel I consider the properapproach for me to take is to confine assessment of the offending to the summary offacts.[39] In doing so, I consider the gravity of the offending is low. I acknowledge thevictim died as a result of Dr Page's carelessness, but that is an element inherent in thecharge itself, it cannot be seen as an aggravating factor. Further, as French Jrecognised in Ramsay v Police, an appeal against sentence for the same offence, "thereis no doubt that in law the Court's focus in cases of this sort must be on the level ofculpability rather than consequences".19[40] The early morning light coupled with overcast conditions and isolated drizzlemay have impeded visibility. The summary of facts states that Dr Page pulled out andinto the path of the victim. It does not state she proceeded through the give waycontrolled intersection without stopping, which would entail a higher level ofcarelessness. There is no evidence of speeding. All of which suggests to me that theconduct is not as bad as that in Ramsay v Police where the offender knowingly engagedin a distraction by taking her concentration away from her driving to wave at anacquaintance, with tragic consequences for the victim. I consider that the conduct isanalogous with that in Barr v Police where the offender looked before driving off butfailed to see the oncoming victim.20 Accordingly, I consider the Judge overstated thegravity of the actual offending when he described it as low to moderate.19 Ramsay v Police HC Timaru CRI 2008-476-23 10 September 2008 at [13].20 Barr v Police HC Rotorua CRI-2011-463-000042, 28 November 2011.[41] The assessment of the gravity of offending for the purposes of s 107 requiresassessing factors relevant to the offender as well as the offending.21 Here the Judgecorrectly recognised the many mitigating factors relevant to Dr Page. In summarythese were: her previous blemish free record, her genuine deep remorse (bothexpressed and as is reflected in her pleading guilty at the earliest opportunity) and theseriousness with which she viewed her error, her conduct after the accident in termsof the immediate assistance she gave to the victim, her participation later in arestorative justice process with those family members who were willing to engagewith her, and her seeking to improve her driving through a defensive driving course toreduce the chances of any further driving incidents. I am satisfied there are significantand multiple mitigating factors relevant to the offender. There are no aggravatingfeatures relevant to Dr Page. Accordingly, here the factors relevant to the actualoffending and the offender all operate to place the gravity of the offending at a lowerlevel than was recognised by the Judge. Rather than "low to moderate" I woulddescribe it as low.Consequences of a conviction[42] By the second hearing of this appeal a clearer view of the consequences ofconviction emerged. In this regard I note that Mr Williamson, the immigration expertengaged by Dr Page, commented in his report that Dr Page's "immigration situationwas not completely and adequately described" to Judge Snell. I agree.[43] Putting to the side for the moment the damage a conviction can do toreputation, the relevant consequences here are the impact of a conviction on Dr Page'simmigration status and her ability to practice as a surgeon both in New Zealand andabroad. The latter is relevant because were Dr Page to be deported or advised to leaveNew Zealand in order to avoid deportation, she would then have to face obtainingapproval to practice as a surgeon in another country.[44] Dr Page has provided me with helpful information from Mr Williamson on theimpact of a conviction on her immigration status in New Zealand. I also haveinformation relevant to the impact of a conviction on her ability to practice medicine21 Z v R [2012] NZCA 599, [2013] NZAR 142 at [27].in New Zealand and in Scotland, which is the country where she qualified as a medicalpractitioner and where she lived and worked for some time before arrival in NewZealand.[45] I propose to start with the consequences of a conviction on Dr Page'simmigration status in New Zealand. They fall into two categories: (a) real and knownconsequences; and (b) real and appreciable consequences.[46] Dr Page is the holder of a long term skill shortage list resident visa, which wasissued to her on 24 March 2017. Mr Williamson's advice is that the holder of this typeof visa can travel out of New Zealand and return as a resident for two years from thegrant of the first resident visa. The holder can then apply at the conclusion of the two-year period for a permanent resident visa, provided he or she meets the requisitecriteria. A permanent resident visa gives the holder the permanent right to traveloutside of New Zealand and return as a resident.[47] On 9 April 2019 INZ received Dr Page's application for a permanent residentvisa. On 29 August 2019 she was advised by INZ that her conviction means she isnow liable for deportation22 and by operation of s 169(1) of the Immigration Act sheno longer meets the criteria for the granting of a permanent resident visa.23[48] Mr Williamson refers me to s 167(1) of the Immigration Act, which providesthat Dr Page will remain liable for deportation for a period of 10 years following thedate this liability arose (being 21 May 2019). Whether the liability for deportation isexecuted is a separate matter that I will come to later. However, Mr Williamson'sadvice is that liability for deportation is something that carries certain adverseconsequences for her.[49] First, Dr Page has lost her eligibility to apply for a permanent resident visa,although it would be open to the Minister of Immigration or an INZ official "in his orher absolute discretion" to make an exception and grant a permanent resident visa.2422 See s 161(1)(a) of the Immigration Act 2009.23 Section 169(1) of the Immigration Act 2009 prohibits a person who becomes liable for deportationfrom applying for a further visa of a different class or type to the visa he or she holds.24 The power to make such grants is found in s 169(2) of the Immigration Act 2009Mr Williamson describes the prospect of this occurring as a "possibility." Thus, thedefault position is that while Dr Page is liable for deportation she will be constrainedto holding her present visa.25 Second, during the time she is liable for deportation theprocessing of any application for New Zealand citizenship under s 8 of the CitizenshipAct 1977 is suspended.26 So, it seems that even if there is no decision to execute theliability for deportation and Dr Page is thus permitted to remain in New Zealand theautomatic consequences of ss 167 and 169 of the Immigration Act will preclude herfrom presently advancing her intent to secure permanent rights to live and work inNew Zealand. As to this intent Judge Snell refers obliquely to Dr Page applying forresidency.27 The Judge does not refer to Dr Page's intent to apply for New Zealandcitizenship, but Mr Williamson refers to the report from the restorative Justiceconference dated 20 May 2019, which does refer to Dr Page having this intent.[50] I note from my reading of the Immigration Act liability for deportation can becancelled at any time by the Minister of Immigration pursuant to s 172 of that Act,which is something that Mr Williamson does not directly address. However, I notethat like s 169(2) it is exercisable in the absolute discretion of the Minister.28 So,cancellation would be no more than a possibility.[51] Mr Williamson's advice is that even if there is no decision to execute theliability for deportation the liability will remain in effect for a period of 10 years, andduring that time Dr Page will be confined to her present resident visa status. Thisadvice needs to be qualified by the prospect of the discretions in s 169(2) and/or s 172being exercised in her favour. Nonetheless, the automatic statutory consequences ofss 161, 167 and 169 are real actual consequences that flow from the conviction.[52] Mr Williamson is of the view that Dr Page may remain liable for deportationfor a period of 10 years. I have been unable to find in the legislation any statutoryprocess that would permit Dr Page to make a pre-emptive request that execution of25 See s 169(1) of the Immigration Act 2009.26 See s 169(4) of the Immigration Act 2009. Section 8 of the Citizenship Act 1977 permits theMinister of Internal Affairs to grant New Zealand citizenship to any person who is entitled in termsof the Immigration Act 2009 to be in New Zealand indefinitely and has lived in New Zealand forthe requisite number of days within five years preceding the application.27 Police v Page [2019] NZDC 9706 at [30].28 See s 172(5) of the Immigration Act 2009.this liability not proceed. It seems, therefore, that she must wait to see if the executionprocess is commenced. If INZ decide not to execute the deportation that decision willnot of itself bring the liability for deportation to an end. It seemingly runs its 10-yearcourse, unless cancelled or suspended by the Minister.[53] Mr Williamson is also of the view that without a permanent resident visa, inthe future Dr Page will be unable to travel outside New Zealand without losing herpermanent resident visa. However, I note that in 2019 INZ granted Dr Page a12 month variation of her travel conditions, so future travel may also be permitted butonly if further variations are granted.[54] The respondent has not disputed the content of Mr Williamson's advice.[55] Judge Snell considered it would be surprising if a conviction had any effect onDr Page's immigration status, and he went further by stating that in his view it shouldnot affect any application for residency. However, this was said without the benefit ofan opinion on the various real and potential adverse consequences in the ImmigrationAct for persons in Dr Page's position.[56] Were it not for the conviction Dr Page would have been eligible to pursue anapplication for a permanent resident visa and given her otherwise exemplary record,both personal and professional, it is more probable than not in my view that she wouldhave obtained that visa. That would have set her up to obtain New Zealand citizenshiponce she qualified under s 8 of the Citizenship Act. In short, the conviction hasderailed the smooth progress of her plan to settle in this country and must now leaveher future plans looking very uncertain.[57] For a professional woman of 49 years of age the loss of what would otherwisehave been an obtainable goal, namely the ability to settle permanently in New Zealand,is a serious consequence. Dr Page is no doubt at a stage in her life when most personsseek security in terms of their workplace and where they will reside for the rest of theirlives. It can be more difficult to start afresh both professionally and personally in anew country at this time of life, and even more so later on. At this stage of life to livewith a potential 10 year prospect of being liable for deportation and the inability togain a more permanent right to reside in New Zealand during that period would bemore onerous than it would be for a younger professional person, who may be moreready to take a chance that all would work out for the best at the end of the 10 yearperiod. Moreover, Dr Page's ability to stay this course and at the end of it to thenpursue the grant of a permanent resident visa will depend on whether she continues inher work as a surgeon.[58] If during the 10-year period or afterwards (but while any permanent residencyapplication is outstanding) there is a material change of circumstance (something suchas ill health stops her continuing to work as a surgeon) the temporary nature of hercurrent immigration status will become a real issue for her. This last point answersthe respondent's submission that the current visa enables Dr Page to remain in NewZealand indefinitely. That visa is a long-term skill shortage list resident visa. For aslong as Dr Page is employed as a surgeon she will qualify for this visa. If hercircumstances change at any time, so that she is unable to work in this role, she willno longer be eligible for this visa. The 10-year time frame between the ages of 49 and59 years may well see her continue in her present employment. But circumstancescan change, especially over time. The current visa does not provide the same level ofsecurity as a permanent resident visa. Moreover, the fact she applied for permanentresidency indicates to me she is alive to the risks I have identified.[59] In many respects Dr Page's case falls within the realm to which Brewer Jreferred in George v Police where even the consequence of being subject to thescrutiny of INZ may be seen to be undue. 29[60] Accordingly, I consider the potential 10-year liability for deportation and theadverse impact that has on Dr Page's ability to improve her present immigration statusto be serious and significant consequences of the conviction. Whilst as a foreignnational she has no right to stay in New Zealand, until her conviction she would havehad a reasonably sound expectation that she would be able to gain the right to stayhere. The loss of that is significant.29 George v Police [2014] NZHC 1725 at [46].[61] The next consequence for consideration is the effect of a conviction onDr Page's professional status. The publicity surrounding Dr Page's sentencing led tothe New Zealand Medical Council contacting her about the conviction. They areaware of the appeal but have sought explanations from her. Their concerns about theconduct that led to the conviction can lead to several outcomes, the most serious ofwhich would be an enquiry into her continued fitness to practice medicine, followedby an adverse outcome for her. On appeal no argument was advanced of there beingany real risk that Dr Page's ability to continue to practice was in jeopardy. In thisregard I note that no advice was obtained from lawyers who practice in the medicaldisciplinary field and who may therefore have been able to offer some advice on thelikelihood of how the New Zealand Medical Council might view Dr Page's conduct.Accordingly, there is nothing to inform me there is a real and appreciable risk of theconviction adversely affecting Dr Page being able to practice in New Zealand.[62] There remains the question of whether Dr Page's ability to practice in Scotlandmay be in jeopardy. This would only be an issue of concern if either INZ decided thatDr Page should be deported, and she decided not to challenge that decision, or Dr Pagefound it untenable to remain in New Zealand for the length of time during which shewas liable for deportation, and therefore unable to secure a stronger foothold in NewZealand. It would also only be relevant if Dr Page were to return to Scotland, whichwould depend upon her ability to reside and work in that country.30[63] The respondent submits that Dr Page has indicated that she did not want toreturn to Scotland. That may be so, however, if her immigration status makes itdifficult to remain in New Zealand she will have little option but to leave New Zealand.Further, she has taken the opportunity to provide the Court with information aboutresuming practice in Scotland with a conviction, so I infer from this action that shemust see this as the next best option available for her.30 Dr Page was born in the Republic of Ireland. Since the establishment of the Irish Free State therehas been freedom of movement between Ireland and the United Kingdom. Membership of theEuropean Union would have added to this. Now that the United Kingdom has left the EuropeanUnion there would presumably be a need for other arrangements to permit continued freedom ofmovement between the two States. This subject was not addressed, however, the fact Dr Pagesought information on her ability to practice in Scotland suggests to me she must believe she canstill reside and work there, even with a foreign conviction.[64] The General Medical Council of the United Kingdom (GMC) controls andmanages a medical practitioner's ability to practice in all parts of the United Kingdom.Enquiries made by Dr Page's counsel have produced two documents from the GMC,each of which addresses how the GMC deals with convictions. They reveal that topractice in the United Kingdom Dr Page would have to be both registered and hold alicence to practice. To achieve those, she would need to disclose her New Zealandconviction.[65] Both GMC documents contain guidelines that look at the types of practice orbehaviour which may result in a finding of impaired fitness to practice by the GMC orresult in a warning. Convictions which result in a custodial sentence are referred bythe Registrar of the GMC to the Medical Practitioners Tribunal.[66] Certain categories of criminal cases result in a presumption of impaired fitnessto practice. These are generally: sexual assault or indecency, violence, impropersexual/emotional relationships, knowingly practicing without a licence, unlawfullydiscriminating in relation to characteristics protected by law, dishonesty, and grossnegligence or recklessness about a risk of serious harm to patients. Dr Page's offencedoes not fit within any of these categories.[67] However, the GMC guidelines do state that any criminal conviction or cautionis a serious matter and needs careful consideration. Although they recognise that therewill be some misconduct where despite a conviction or caution it may not beappropriate to find a doctor's fitness to practice impaired. Given examples of suchconduct are drink driving where there are no aggravating features, or a lower levelmisconduct that might in other circumstances result in a fixed penalty notice, such asurinating in public, kicking a car while drunk, or a conviction for verbal abuse duringa row with a bouncer. Dr Page's conviction does not fit within any of these categorieseither.[68] The second GMC document gives more specific examples for guidance onconvictions, cautions and determinations and other methods of Police disposal. Thisdocument provides that motoring offences which result in a charge or summons toappear before a criminal court require disclosure to the GMC. Speeding offencesunless with specific aggravating features are said not to raise questions about adoctor's fitness to practice. This document lists certain "minor motoring offences"that can be dealt with by the Registrar of the GMC. These include speeding, trafficlight offences, talking on a mobile phone while driving, not wearing a seatbelt andcareless driving (which is distinct from dangerous driving). These minor motoringoffences will not generally be investigated regardless of whether they resulted in aconviction or another method of disposal by the Police. Dr Page's conviction does notfit into these categories of offences.[69] Regarding overseas convictions generally the document notes that if a doctoris convicted of an offence outside the United Kingdom the GMC must establishwhether there is a comparable offence under UK law. It will seek legal advice on thisissue if there is any doubt. If there is a comparable offence the overseas conviction isthen considered in the same way as a conviction which took place in the UK,depending on the nature of the conviction and the sentence passed. Overseasconvictions where no comparable offence exists under UK law are treated in the sameway as non-criminal cases and investigated where appropriate as an allegation ofmisconduct. There is a presumption that overseas determination cases will proceeddirectly to the Medical Practitioners Tribunal.[70] It is difficult to assess how the GMC or the Medical Practitioners Tribunal(UK) would view Dr Page's conviction. The careless use of a motor vehicle aspect ofthe offence would of itself lead to the offence being viewed as a minor motoringoffence. However, the fact that it resulted in the death of a person may well give riseto serious concerns by the GMC. The offence is unusual in the sense that often thelevel of carelessness involved may bear little relation to the consequence of deathresulting. There are times when a serious careless use of a motor vehicle may resultin minimal or even no harm to another person. At the other end of the spectrum lowlevel carelessness can tragically result in the death of another person.[71] Just as it is difficult for me to assess how the GMC might view the presentconviction, I consider it would be difficult for the GMC to form an accurate view onthe gravity of Dr Page's offending. Any legal guidance they might seek is likely to begiven by a lawyer practising in the United Kingdom, who may have little if anypractical knowledge and experience of how the offence of careless use causing deathis approached in New Zealand. Accordingly, if Dr Page finds herself back in theUnited Kingdom she may have difficulty placing the conviction in the context in whichit would be viewed in New Zealand.[72] Moreover, if Dr Page gets to the point where she must apply to the GMC forregistration and a licence to practice it will no doubt be because the immigrationoutcome here had not gone well for her. At that point full disclosure of hercircumstances would reveal the conviction, the fact she was refused a dischargewithout conviction and was required by INZ to leave New Zealand.[73] To explain the conviction Dr Page would necessarily have to provide the GMCwith a copy of the sentencing notes. They show a description of the offending thatwent beyond the summary of facts. A foreign reader of the sentencing notes may beadversely influenced by the reference to the additional matters and so form a dimmerview of Dr Page's carelessness than I consider is warranted. The sentencing notes alsoshow that a discharge without conviction was legally available and sought by Dr Page,but the Judge refused to grant one. To a foreign reader who is unfamiliar with howdischarges without conviction are granted in New Zealand this may be understood tosuggest the Judge refused to exercise a legal power that was available to him becausehe considered that outcome would not adequately reflect the gravity of the offending.Finally, execution of the liability for deportation by INZ is likely to suggest to a foreignreader that the offending was so serious it warranted Dr Page's removal from NewZealand. Faced with such a scenario the GMC might well conclude that the offendingwas serious and should be treated by the GMC in that light, which creates a real andappreciable risk to her ability to obtain registration and a licence to practice inScotland.[74] The respondent contends that the documents from the GMC show that Dr Pagewould have to disclose the circumstances of the offending whether she was convictedor not. I do not read them to go so far. Under New Zealand law a discharge withoutconviction is deemed to be an acquittal.31 There is nothing in the GMC's documents31 Section 106(2) of the Sentencing Act 2002.to suggest that a criminal charge which leads to an acquittal in a foreign country wouldrequire disclosure to the GMC.Are the consequences of conviction out of all proportion to the gravity of theoffending?[75] The consequences of the conviction identified above are significant andserious; they include consequences that are real and actual (the liability fordeportation) and others for which there is a real and appreciable risk that they willoccur (the risk of Dr Page not being permitted to practice in the United Kingdom ifshe were to be deported).[76] Judge Snell considered the impact of the conviction on Dr Page's immigrationstatus was something that should be left to INZ to determine, and that it was not forthe Courts "to usurp the function of the immigration authorities which have a statutoryobligation to consider whether convicted persons ought to be allowed to remain in thecountry".32 However, this is to misstate as a hard and fast rule something that theCourts have developed as a general policy, and also it reveals omission to distinguishbetween the automatic statutory consequences of a conviction (liability fordeportation) and the discretionary consequences (execution of the liability fordeportation) which do hinge on decisions by either the Minister or INZ officers. Thelatter error is through no fault of the Judge; he did not have the benefit ofMr Williamson's report.[77] As to the Judge's first error, at [19] of the sentencing notes he referred correctlyto the relevant case-law (including Ho v R33) but failed to realise that it did not barhim from considering the adverse immigration consequences for Dr Page. In Ho v R34the Court of Appeal stated: (emphasis added)Secondly, even if it is unlikely Mr Ho will be able to stay in New Zealand,that does not amount to a disproportionate consequence of the convictions. Asa foreign national he has no general right to stay in New Zealand. It is a matterfor immigration services to decide whether to renew his visa, having regard tofactors including the Court's assessment of the gravity of Mr Ho's offending.32 At [18].33 R v Ho [2016] NZCA 229.34 R v Ho [2016] NZCA 229 at [15].The Court should not usurp that assessment. We agree with the observationof Asher J in Zhang v Ministry of Economic Development:In relation to a conviction affecting an offender's immigration status,or indeed ability to travel overseas, the courts often conclude that it isappropriate for the consequences of conviction to be resolved by theappropriate authorities, rather than the Court attempting to pre-emptthat decision-making process by a decision to discharge withoutconviction: R v Foox, Liang v Police and Steventon v Police. There isnothing that requires the courts to intervene to try and impose theirperception of the right immigration consequences should be. That isbest left to the immigration authorities. But a Court's assessment ofculpability in the sentencing exercise may assist those authorities.And there will always be occasions where in a finely balanced case adischarge may be warranted on these types of grounds: R v Hemard.The case for discharge may not be so strong where the details of theoffending will be known and closely examined by the relevantauthority in any event, than when the query will be only as to priorconvictions, for instance in an application for professionalcertification.[78] The Court of Appeal's approval in Ho v R of the observations of Asher J inZhang v Minister of Economic Development must be read in its entirety, including thepart where Asher J recognised there will be occasions where a discharge may bewarranted. There is nothing in Ho v R that might detract from this recognition. Furtherthe findings in Ho v R need to be understood in their context. The Court of Appealconsidered it would not be a disproportionate outcome if Mr Ho were not permitted toremain in New Zealand. This is understandable considering Mr Ho's offending, whichwas far more serious than that of Dr Page, involving domestic violence with offencesthat required a criminal intent to act in that way. Thus, the circumstances of the caseare quite different from the present. Similarly, in Zhang v Minister of EconomicDevelopment Asher J was faced with an appellant seeking a discharge withoutconviction who had pleaded guilty to 74 charges of making false statements contraryto s 377 of the Companies Act 1993, which is also an offence requiring a criminalintent. Thus, it is understandable why Asher J refused to allow the appeal.[79] With s 106 of the Sentencing Act Parliament has given Judges the discretionaryauthority to discharge without conviction and that authority, like any other form ofdiscretionary authority, is not to be fettered by hard and fast rules.35 So, whilst the35 Although stated in a different context, which involved the exercise of administrative rather thanjudicial authority, the discussion in Practical Shooting v Police [1992] 1 NZLR 709 at 712-716on the well-established principle against fettering discretionary authority are relevant here.adoption of general policies is helpful and will lead to consistency of outcomes theyshould never be blindly followed. Judges should always be prepared to assess eachcase on its merits, which requires them to stand back and assess whether it isappropriate in the case before them to apply general policy or not. Brewer J recognisedthis in George v Police, where he said:36I do not hold that the risk of deportation is a factor that the Court should nevertake into account in deciding the s 107 proportionality test. The section doesnot exclude effect on immigration status from consideration as a consequence.There will be situations where even the consequence of subjecting an offenderto the scrutiny of Immigration New Zealand would be undue. But, in the usualrun of cases, the Court should not take it upon itself to, in effect, decideimmigration status.[80] Whilst Brewer J's comments pre-date Ho v R there was nothing said in thatcase that would diminish their relevance.[81] Here there is something else that in my view distinguishes Dr Page's case fromthe general run of cases like Ho v R and Zhang v Ministry of Economic Development,where the focus was concentrated on the immigration consequences for the offender.In those cases, there was no suggestion that following deportation the offenders mayface difficulty practising their profession in their home countries. Here I considerthere is a real and appreciable risk Dr Page may face such difficulty, were she to bedeported. This is a separate adverse consequence that compounds the harm she wouldsuffer if deportation were to occur.[82] The respondent referred to decisions of this Court that post-date Ho v R wherethis Court has expressed the view that a conviction's consequence on an offender'simmigration status is best left to INZ to determine.37 However, those cases all involvethe commissions of intentional offences under the Crimes Act 1961 and in none ofthem does this Court suggest there is something stronger than a general policy ofleaving the immigration consequences of a conviction to INZ.[83] Accordingly, I am satisfied that here the consequences of conviction are out ofall proportion to the gravity of Dr Page's offending. I am of the view that rendering36 George v Police [2014] NZHC 1725 at [46].37 Isaj v Police [2018] NZHC 1689; Zhang v Police [2018] NZHC 285; and Jo v Police [2019]NZHC 1369.Dr Page subject to the scrutiny of INZ for 10 years is alone a consequence out of allproportion to the gravity of her offending. On top of this, if Dr Page is deported thereis a real and appreciable risk that she will suffer further consequences relating to heremployment in Scotland.[84] On appeal Dr Page's counsel continued to pursue the ground advanced beforeJudge Snell that the black mark of a conviction to Dr Page's reputation was of itself aconsequence out of all proportion to the seriousness of the offending. In doing so herelied upon decisions of this Court in Police v SR38 and Nash v Police.39 However, Ido not see those decisions as being helpful here. The first involved a young motherwho was charged with leaving her children unattended. Woodhouse J described heras "struggling in difficult circumstances to bring up five children" and she had told theJudge she was trying to "keep my life on right track" and was worried about the effectof a conviction. The other involved a young man of 22 years who worked as anapprentice who was charged with the common assault of his partner. I have theimpression that both young adult offenders were trying hard to make the most of theirlives with little to call on, and in both cases this Court considered the entry of aconviction would be but a further burden to add to the substantial obstacles they werealready facing in life. Those circumstances are quite different from Dr Page who hasa well-established and well-earned career and reputation. The principles underlyingS v R and Nash v Police have no application here.[85] Dr Page's counsel also drew attention to two cases where manslaughteroffences had resulted in discharges without conviction.40 The circumstances of thosecases are nothing like the present.[86] Accordingly, whilst I consider the "black mark" effect will be an adverseconsequence of conviction it is not a consequence that assists the outcome of thisappeal.38 Police v SR [2013] NZHC 980.39 Nash v Police HC Wellington CRI 2009-485-000007, 22 May 2009.40 R v Illston HC Wanganui CRI 2011-034-273 26 October 2100; R v X [2015] NZHC 1244.[87] There remains the exercise of the discretion in s 106 of the Sentencing Act.The threshold requirement in s 107 is satisfied. Accordingly, I find the discretionshould be exercised in favour of granting the discharge without conviction. I see nobasis for doing otherwise.[88] It follows that the appeal against the refusal to discharge without conviction isallowed. There remains the issue of the disqualification from driving and the makingof the reparation order.[89] The challenge on appeal was directed at the length of the disqualification. InJeon v Police Woodhouse J discharged an offender on a charge of dangerous drivingwithout conviction but left in place the disqualification from driving and orderedpayment of emotional harm reparation.41 Here Dr Page was ordered and has paidreparation of $5000 to the victim's family. Dr Page has not challenged the reparationorder. Pursuant to s 106(3) I find the reparation order stands.[90] Whilst the setting aside of a conviction logically suggests that the attendantlegal consequences should also be set aside s 106(3) of the Sentencing Act providesthat if there is a discharge the Court may make any order that the Court is required tomake on a conviction. In Jeon Woodhouse J considered that the "significance of theappellant's inadvertence in his driving does need to be driven home".42 I do notconsider the same can be said here in relation to Dr Page, however, the imposition ofdisqualification will drive home to others the significance of inadvertence in driving,which will help to ensure general deterrence of this type of offending.[91] Both counsel accept that the length of the disqualification imposed wasexcessive and that a more appropriate order would be 12 months' disqualification. Incomparison to the length of disqualification imposed in Barr v Police and in Ramsayv Police, 12 months seems to me to be slightly on the high side. However, Dr Pagehas not sought anything less than 12 months and the suggested period is not so out ofkeeping with those cases that I would decide to impose something else. Accordingly,41 Jeon v Police [2014] NZHC 66.42 At [24].the 15 months disqualification from driving will be set aside and replaced with a12 months disqualification.Result[92] The appeal is allowed, and the conviction is set aside.[93] The emotional harm reparation imposed by the District Court Judge stands.[94] There is an order under s 106 of the Sentencing Act disqualifying Dr Page fromholding or obtaining a driving licence for a period of 12 months with thedisqualification commencing on 21 May 2019. The commencement of thedisqualification on 21 May 2019 is on the basis that the order made in the DistrictCourt for disqualification was not suspended following the lodging of the appeal. Ifthis order was suspended the commencement of the disqualification date will beadjusted appropriately and counsel should file memoranda to that effect.Duffy J