Police v Gan [2020] NZDC 26986 (23 December 2020)

Last Updated: 21 September 2021

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

IN THE DISTRICT COURT AT AUCKLAND I TE KŌTI-Ā-ROHE KI TĀMAKI MAKAURAU

CRI-2019-004-003098

[2020] NZDC 26986

NEW ZEALAND POLICE

Prosecutor v

ANDREW DIMITRI GAN Defendant

Hearing:	23 December 2020
Appearances:	H Steele for the Prosecutor T Simmonds for the Defendant
Judgment:	23 December 2020

NOTES OF JUDGE E M AITKEN ON SENTENCING

[1] Mr Gan, you appear for sentence having been found guilty of one charge of driving in a manner which having regard to all the circumstances was dangerous to the public. I found the facts to be that close to midnight on 9 October 2018, you were with your shift partner [Constable A] in the area of the Auckland Domain, that area having been the subject of a number of burglaries and when a car drove past the two of you had cause for suspicion. You noted its registration, sought a NIA check, became aware that it was wanted for failing to stop at an incident that arose three weeks prior and made a decision to follow it. Having followed the car it stopped, your partner got out but as she did so the driver of the other vehicle took off at speed and from there a pursuit started, ultimately running for nine minutes over 16 and a half kilometres before the Eagle helicopter was overhead and continued the pursuit. The car you

NEW ZEALAND POLICE v ANDREW DIMITRI GAN [2020] NZDC 26986 [23 December 2020]

pursued was eventually abandoned, the four occupants all of whom fled initially were arrested and the driver ultimately charged with offending.

[2] The prosecution alleged that while in pursuit on Symonds Street you drove dangerously and that you drove at speed through red lights. The Court heard the evidence and I was satisfied that you travelled at speeds in excess of 100 kilometres per hour before entering Symonds Street; and that on Symonds Street you travelled at speeds on average of 154 to 156 kilometres an hour while travelling through two red lights. The first red light had been red for over 10 seconds and the second red for about 1.5 seconds but to aggravate that second situation, there was a car waiting to turn left on a green light, that light having been green for approximately 0.6 of a second. At those speeds, travelling through those red lights, it would have taken you up to 160 metres to stop had you been required to. In those situations, I was well satisfied that your driving was dangerous.

[3] You appear now for sentence. No application is made for a discharge without conviction, however it is submitted on your behalf that there are special reasons relating to the offence such that the Court should exercise its discretion not to disqualify you. There is no dispute that, pursuant to s 81 of the Land Transport Act 1998, the Court has such a discretion not to disqualify you if there are special reasons that exist relating to the offence and the Court must consider firstly whether in law the reasons or the facts or the circumstances are capable of constituting special reasons. Secondly, whether special reasons exist on the facts and then, and only if they do, whether the Court should exercise its discretion.

[4] There have been a number of cases over the years considering the definition of a special reason. Specifically it has been defined as a mitigating or extenuating circumstance not amounting in law to a defence to the charge yet directly connected with the commission of the offence and one which the Court ought properly to take into account in imposing punishment. In Anderson v R Wylie J observed that special reasons embrace only factors of particular or exceptional character.1 The reasons must

1 Anderson v R [2019] NZCA 145.

arise from the circumstances in which the offence was committed or the manner of its commission as a whole.

[5] Personal circumstances are not relevant except to the extent that they influence the events leading up to the commission of the offence or a part and parcel of the offending itself. The special reason must be of a sufficiently compelling nature to justify a departure from the usual consequences. A special reason must not conflict with the essential purpose of the statutory provision and my final observation in terms of the law is that ‘special reasons’ is a phrase that has to be given its ordinary meaning and refer to some facts or circumstances that justify the Court treating the case as one which falls outside of the ordinary.

[6] The onus of proof rests with the defendant, with you Mr Gan, as you seek the operation of s 81 and the standard of proof is on the balance of probabilities. In this particular case the prosecution accepts that the facts as found are capable of amounting to special circumstances. Properly the Crown observes that it is a matter for the Court as to whether those special circumstances are made out but if they are, then the Crown is not opposed to the Court exercising its discretion.

[7] Having heard and carefully considered all of the evidence, I find the following facts relevant to the Court’s assessment of whether special circumstances are made out:

• (a) You were driving solely in the course of your employment in good faith and in pursuit where a certain degree of speed would have been entirely acceptable.
  
• (b) You were driving with the support or assistance of a co-pilot, your fellow officer, [Constable A], in other words with the benefit of the additional eyes and ears that she provided, and you had your lights and sirens flashing, all of those factors reducing the risk of harm.
  
• (c) You were driving with the explicit approval of no less than four more senior officers, in other words Mr Gan I am satisfied that the exercise

of your judgement was reinforced by your superiors, although of course it is a matter of fact that they were not aware of the actual details of your speed. Certainly, your co-pilot was and it was her evidence, which I accept, that you were calm and controlled at all times and at no time did she as your passenger feel at risk.

(d) You were driving at night on a wide street, that is Symonds Street, with reasonably good lighting, with limited traffic and pedestrians albeit not entirely void of either.

(e) Finally, of course this is a situation where no accident was involved, there were no near misses, no one was in fact injured or harmed.

[8] Were you not driving in the course of your employment and in those circumstances then there would be absolutely nothing special about you driving through two red lights at exceptional speed. Here, however, there are a number of facts and I stress that this is a situation where the evidence as to the surrounding circumstances on which the Court will rely has been rigorously tested. It has permitted me to make robust findings of facts and I distinguish this case in particular from others where the Court is asked to draw conclusions entirely on the basis of counsel’s submissions - that is not the case here, there has been as I said a rigorous testing of the evidence.

[9] As to the essential purpose of the statutory provision, it is obviously to reduce the risk of harm to others on the road by requiring drivers to maintain an appropriate standard of driving at all times. Here, given the reasons for your driving, this was a legitimate police pursuit albeit at excessive and dangerous speed, but this is not a situation where you were travelling at speed for personal or other reasons.

[10] I am well satisfied that those circumstances are not found in common with other cases and in particular that as a matter of law, these circumstances are capable of amounting to special circumstances. They exist on the facts. As noted it is not a matter of submission or conjecture and the single and sole remaining question is whether the Court should exercise the discretion I now find to be available to me.

[11] In that regard I am satisfied that you are a first offender, that you have an exemplary record as a police officer. I had the benefit of hearing evidence directly from your four superior officers, all of whom regarded you as a very competent driver in the course of police pursuits, someone well qualified in his field. There is no evidence at all that any of your driving on that night could be described as flamboyant or with a sense of entitlement on the basis of your status as a police officer in pursuit. Your not guilty plea and your defence cannot be criticised given the views of your senior officers.

[12] In all of the circumstances Mr Gan I am satisfied that this is a matter where the Court should exercise its discretion and there will be no disqualification on the grounds of special reasons.

[13] As to other penalty, a conviction will be entered - to your credit you do not seek to be discharged without conviction. As to other penalties, the prosecution do not seek any further penalty other than that a conviction be entered. It is unusual in a case such as this for there to be no other penalty, but I am satisfied that the circumstances of this case are unusual and verging on unique. I am satisfied there is no appreciable risk that you will repeat this sort of conduct and that the whole process of being charged, prosecuted, being brought before the Court given the length of time and what has been involved in that, has well and truly held you accountable for this offending. I am also satisfied that the entry of a conviction could have some ongoing consequences for you given your occupation and career.

[14] For all of those reasons, Mr Gan, unusually but appropriately in my view, you are simply convicted and discharged.

Judge E M Aitken

District Court Judge

Date of authentication: 10/02/2021

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.