TEISINA v POLICE [2022] NZHC 3379

TEISINA v POLICE [2022] NZHC 3379 [13 December 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-383[2022] NZHC 3379BETWEEN TEVITA TEISINAAppellantAND NEW ZEALAND POLICERespondentHearing: 13 December 2022Appearances: E R O'Connor and S P Poulton for appellantKFR Karpik for respondentDate of judgment: 13 December 2022JUDGMENT OF JAGOSE JThis judgment was delivered by me on 13 December 2022 at 3.00pm.Registrar/Deputy RegistrarSolicitors:Public Defence Service, ManukauKayes Fletcher Walker, Manukau[1] Tevita Teisina appeals against the 16 September 2022 decisions ofJudge D J McNaughton in the District Court at Manukau.1 His Honour declined todischarge Mr Teisina without conviction, and sentenced him to six months'disqualification from driving and payment of $1,000 in reparation, on his guilty pleato a charge of careless driving causing injury.2Background[2] The charge arose from Mr Teisina's brief pursuit to identify another vehicle heperceived to have cut him off when driving through an intersection in Auckland'sPakuranga on 10 April 2021. At excessive speed at night in wet conditions approachinga slight bend in the road, Mr Teisina lost control of his car, which spun into a lightingstandard 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 directand indirect consequences of his conviction were out of all proportion to the gravityof the offences.3 The proportionality test is a question of fact requiring judicialassessment.4 A three-step analysis — the gravity of the offending; the direct andindirect consequences of a conviction; and if those consequences are out of allproportion to the gravity — is required.5 There must be a "real and appreciable" riskany given consequence will arise; this recognises the court is assessing future1 Police v Teisina [2022] NZDC 18272 ["Section 106 decision"]; and Police v Teisina [2022] NZDC24460 ["Sentencing decision"].2 Land Transport Act 1998, s 38; mandatory disqualification from holding or obtaining a driverlicence for six months or more, and maximum penalty of three months' imprisonment or $4,500fine.3 Sentencing Act 2002, ss 106–107; and Scott v R [2019] NZCA 261 at [78]–[80], citing Prasad vR [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] (citingR 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 Baileyv 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 inMcKenzie 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 residualdiscretion.7[4] Judge McNaughton assessed Mr Teisina's offending as "low level", furthermitigated 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 forcareless driving causing injury "does not say anything about that person's character".9Observing either conviction or discharge without conviction would have to bedisclosed in response to any criminal record check,10 the Judge concluded theconsequences of conviction were of "low seriousness" and therefore "not out of allproportion 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:13Again, that is a lenient outcome in terms of penalty.If any employer were to assess your application in the future that is somethingthat will be immediately obvious, no fine, an order for reparation and abackdated disqualification.[6] On appeal, Mr Teisina contends the sentence is manifestly excessive and theleast restrictive outcome available to him was to be discharged without conviction. ForMr Teisina, Eilish O'Connor argues Mr Teisina Judge McNaughton erred in givingweight to the victim's injuries; assessing conviction as not a substantial hurdle; usingMr Teisina's good character to reduce the consequences of conviction; and failing toweight the shame and stigma of conviction. She reinforced, at 23 years old, Mr Teisinashould be given the benefit of his youth as contributory to his offending's lack ofjudgement and material to consideration of conviction's consequences. Convictionwould 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 appealagainst conviction and sentence.14[8] There is divergence in binding authority on how I am to address the appealagainst conviction: on the one hand, I am directed to reach my own view as to whetherthe direct and indirect consequences are out of all proportion to the gravity of theoffending, and only then to determine if the first instance court erred in principle;15 onthe other, only if Mr Teisina establishes Judge McNaughton was wrong am I toconsider his application for discharge without conviction afresh.16[9] I must allow an appeal against conviction if I am satisfied the Judge "erred inhis assessment of the evidence to such an extent that a miscarriage of justice hasoccurred", 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 somethinghas occurred in relation to trial to create a real risk against a more favourable outcomefor Mr Teisina or has resulted in an unfair trial or a nullity.18 The threshold is high; notevery error will amount to a miscarriage of justice.19[10] If the conviction appeal fails, I then may determine if the correct sentence wasimposed.20 I must allow the sentence appeal only if I am satisfied both there is errorin the sentence, and a different sentence should be imposed.21 In any other case, I mustdismiss the appeal.22 The approach previously taken by courts on sentencing appealscontinues to apply: the measure of error is the sentence be "manifestly excessive";23the principle is "well-engrained" in this Court's approach to sentencing appeals.2414 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 764at [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 acceptedsentencing principle. Whether 'manifestly excessive' is to be assessed in terms of thesentence given, rather than the process by which it is reached.25Further evidence on appeal[11] Mr Teisina also seeks leave to submit a medical assessment report dated24 July 2021, concluding he had "some persistent post-concussion symptoms" —most likely caused by minor traumatic brain injury, and as "a likely adjustmentreaction to the traumatic event" — which were improving and for assistance withmedication and therapy. Ms O'Connor says:Mr Teisina did not feel comfortable discussing with his counsel the fullimpacts this offending has had on his mental and physical health until the dayof his sentencing, as he felt ashamed.For the police, Katie Karpik opposes the report's admission, contending for medicalcircumstances 14 months prior to sentencing, as unreasonably belated and irrelevant.[12] Leave will be granted if the interests of justice favour admission of newevidence on appeal.26 If the evidence is both credible and fresh, it generally should beadmitted.27Discussion[13] The proposed evidence plainly is not at all fresh. Neither does it address eitherthe gravity of the offending or the consequences of conviction. It is at best justinformation Mr Teisina could have put before the Judge, irrespective of its marginalrelevance. 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 gravityof the offending, the interests of justice do not require the evidence's admission. Theevidence 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 informationI 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 aggravatingand mitigating factors relating to both the offending and the offender.29 This is anevaluative, highly fact-dependent exercise.30 I cannot identify any error in the Judge'sassessment of Mr Teisina's offending as "low level offending".31[16] His Honour's disagreement with the seriousness of injury being an aggravatingfactor appears to be in assessment of the gravity of the particular offence itself withinthe range of prospective injury, rather than of the offending for the purpose of s 106.32On turning to the latter, the Judge's assessment was expressly "regardless of theinjuries 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 ofMr Teisina's conviction as of "low seriousness".34 I do not comprehend the Judge tohave held Mr Teisina's good character 'against' him, in the sense he faced any higherthreshold to establish disproportionate consequences, but to recognise assessments ofcharacter are more broadly drawn than on the basis of conviction alone.[18] The particular materiality of either conviction or discharge is claimed to be inits impact on future assessments of Mr Teisina's character for admission to medicalschool or otherwise in pursuing a professional career in the sciences. Mr Teisinaaccepts either is to be disclosed on any police vetting check, or possibly inself-declaration of good character, but Ms O'Connor submits discharge would be morefavourably regarded. That is supposition, not supported by any evidence. There is noevidence conviction may be effective to exclude exercise of any discretion. Even if29 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 anddischarge, rather than being qualifyingly disproportionate as between offending andconviction.[19] Ms O'Connor proffers the Medical Deans Australia and New Zealand Inc'sguideline "Inherent requirements for studying medicine in Australia and NewZealand". Under a heading "Ethical behaviour", articulating medical students'accountability and responsibility for ensuring professional behaviour, the guidelinerecords:At entry all medical students will be required to complete a Criminal RecordCheck and (if required) a self-declaration of previous ethical and/or dishonestbehaviour. The self-declaration is to be in line with that completed by eachregistered practitioner at the time of re-registration. If there are previousmisdemeanours, the onus will be on the student to convince the School thatsuch misdemeanours no longer pose a substantial risk.If that onus only is engaged by conviction, and not discharge, is not evidenced. Neitheris there evidence of what may constitute any 'misdemeanour'. But it seems likely,given conviction or discharge each is founded on guilt, the onus arisesindistinguishably in either instance. All the same, the guideline is effective toundermine 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 beconsidered on its merits.35[20] Where actual consequences turn on a third party's assessment of the relevantfacts, whether for career or travel (as Mr Teisina also raises for consideration), andthere 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 toinfluence those decisions by discharge.36 That very much is be the case here, ifMr Teisina's conviction additionally is, or is required, to be disclosed todecision-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 reparationis unobjectionable in itself. Disqualification of at least six months' duration is theminimum mandatory penalty. Mr Teisina acknowledges the injuries incurred by hisvictim, a "good friend", and their ongoing impact on him. Those are incidents ofemotional (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 beforesentencing.[22] In any event, payment of an amount comparable to reparation is not necessarilyavoided by discharge.40 Last, I acknowledge Mr Teisina has pointed to hisdisqualification 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 hisextended family. Given disqualification's mandatory nature, it cannot be thoughtdisproportionate. And the medical assessment report indicates the sequelae of theaccident 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 J39 Sentencing Act, s 32.40 Section 106(3)(b) and (3A).