Seiuli v Police [2012] NZHC 2673 (11 October 2012)

High Court of New Zealand

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Seiuli v Police [2012] NZHC 2673 (11 October 2012)

Last Updated: 2 November 2012

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000079 [2012] NZHC 2673

VALASI SEIULI

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 11 October 2012

Appearances: S Boele for appellant

T J Mackenzie for respondent

Judgment: 11 October 2012

_{ORAL JUDGMENT OF CHISHOLM J}

[1] This is an appeal against a conviction for driving whilst forbidden to do so which resulted in the appellant being convicted and discharged. She seeks a discharge without conviction. Two primary grounds are advanced: first, the prosecutor failed to consider whether the appellant should be diverted; and, secondly, the Justices failed to provide a fair opportunity for the appellant to state her case before sentence was passed.

Background

[2] Some of the background information that follows comes from an affidavit filed in support of this appeal, for which leave is sought. There is no opposition to

SEIULI V NEW ZEALAND POLICE HC CHCH CRI-2012-409-000079 [11 October 2012]

the application for leave to adduce further evidence, and the application is granted accordingly.

[3] Ms Seiuli is a university student of Samoan descent. At the relevant time she was 20 years of age. She was living with her aunty; her mother, father and three siblings having just moved to Australia.

[4] On 17 May 2012 she was stopped by Police and warned to obtain a licence before she drove again. Six days later she was stopped again and charged with failing to comply with a lawful direction. Her explanation was that when she was caught the second time she was dropping off material relating to a university assignment. There is no evidence of poor driving on either occasion.

[5] In due course Ms Seiuli received a Notice to the Defendant from the Ministry of Justice. The notice directed her to complete and return the form to the District Court as soon as possible. She was asked to tick one of four listed options. She ticked the option which states:

I may be eligible for the Police Adult Diversion scheme and wish to explore this option. (To find out whether you are eligible you must attend Court on the date of hearing and speak with a Police Prosecutions Service representative).

The other three options referred to situations where the defendant wished to plead not guilty; wished to plead guilty to the charge and appear before the Court; or wished to plead guilty to the charge and not appear in Court.

[6] On 8 August 2012 Ms Seiuli went to the Court with her uncle. By this time she had obtained a licence and had the licence with her. A counter attendant directed Ms Seiuli and her uncle were directed to the police prosecutor.

[7] At this point it is appropriate to pick up the narrative from the affidavit of

Mr Fidow, Ms Seiuli’s uncle:

3. THERE I spoke with the police prosecutor before the court hearing

began. I showed him VALASI’S driving license.

4. I asked the police prosecutor whether there was any way of avoiding a conviction. He answered: “That is up to the Judge. But if she shows her license she won’t get fined”. The officer did not mention Diversion. He told us to wait till her name was called.

5. WHEN VALASI’s name was called I stood beside my niece and told

the Judge who I was and that I was speaking for her.

6. AFTER VALASI pleaded guilty I raised my hand to speak but the police prosecutor motioned for me to be quiet.

7. THE Judge sentenced VALASI to conviction and discharge.

8. AFTER THE JUDGE convicted and sentenced VALASI, I stood up to talk on her behalf. Again the police prosecutor motioned for me to be silent. This time I ignored him.

9. I asked the Judge whether discharge without conviction was possible and gave reasons. But the Judge did not want to change the conviction and discharge the sentence.

The contents of this affidavit are not contested, and I proceed on the basis that they are accurate.

[8] According to a transcript of the hearing an appearance was entered by Mr Fidow who indicated that he had talked to the constable earlier on and had shown Ms Seiuli’s licence. The prosecutor confirmed that he had viewed the licence. Then one of the Justices said:

We haven’t got the guilty letter. Let’s just put the charge then please.

The charge was read and Ms Seiuli pleaded guilty. The Court then imposed sentence by convicting and discharging her and indicating that she was free to go.

[9] It was at this point that Mr Fidow told the Justices that Ms Seiuli wanted a discharge without conviction to which the Court responded “No. Unless there is some very good reason”.

[10] Mr Fidow explained: Ms Seiuli was very busy and stressed at the time because of her studies and relocation of her studies from Canterbury University; she was trying to obtain a licence when she was caught; her parents had recently relocated to Australia; she was under a lot of stress and living by herself at the time; and that a conviction would probably prohibit her from travelling.

[11] The response of the Court was:

No, I’m sorry. That is not acceptable. You could put that down to many of the people who appear before us, that they are under stress of some sort. So we will only do what we said and that is conviction and discharge.

Decision

[12] Unfortunately the process has run off the rails in this case. Rather than reflecting any one factor, it probably reflects a series of misunderstandings.

[13] First, given the Ministry of Justice form, Ms Seiuli and her uncle were entitled to think that diversion would be considered when they attended Court. Very likely Mr Fidow and the police officer were at cross purposes when they first spoke. Otherwise the prosecutor would not have said “That is up to the Judge”.

[14] Secondly, it seems to be reasonably clear that diversion was not considered by the prosecutor. From what I was told by Mr Mackenzie it seems that it would not have been granted, even if it had been considered. While the failure to consider whether there should be diversion is not for this Court to review, the point for present purposes is that the failure to address the diversion issue simply added to the confusion of these people who were obviously not particularly familiar with the Court process.

[15] Thirdly, the appellant was sentenced before she had an opportunity to make any submissions in mitigation. This probably arose from the delay before Mr Fidow was able to indicate to the Justices that he was seeking a discharge without conviction on behalf of his niece. However, it did give rise to a significant breach of the appellant’s right to be heard before sentence was imposed. Apart from that, Mr Fidow was obviously on the back foot from that point, which is relevant to the question of whether the breach of the appellant’s right to be heard could be cured.

[16] While as Panckhurst J decided in Thompson v Attorney General,[1] decisions about diversion come within the prosecutorial discretion and are not susceptible to

judicial review, fairness of Court processes is within the Court’s domain. That approach was adopted by French J in Jasper v Police[2] when she allowed an appeal against conviction, notwithstanding a plea of guilty, because of a misunderstanding about the diversion process.

[17] Given the plea of guilty in this case, I have to decide whether the plea should be vacated. It is well established that the Court will only allow a plea of guilty to be vacated in exceptional circumstances: R v Le Page[3] and R v Proctor.[4] I am satisfied that the procedural misunderstandings in this case were not cured by the Justices’ reconsideration of the matter after they had heard from Mr Fidow and that the case comes within the “exceptional” category. Moreover, the interests of justice require the plea to be vacated. It is vacated accordingly.

[18] The next issue is whether, notwithstanding the vacation of the plea, the sentence imposed by the Justices should stand. When it comes to considering that issue I am, in terms of Austin Nichols & Co Inc v Stichting Lodestar[5], in just as good a position as the Justices to assess whether there should be a discharge under s 106 of the Sentencing Act 2002. Indeed, I am in a better position because I have information from counsel for the appellant that was not available to the Justices.

[19] Applying the three step approach in R v Hughes,[6] I am satisfied that there should be a discharge without conviction in this case. The gravity of the offending is at the bottom of the scale, especially given that the appellant had obtained a licence and there is no suggestion of safety issues. While I acknowledge Mr Mackenzie’s point that the offending involved an element of defying authority, this needs to be kept in perspective. Moreover, there has been an explanation as to the circumstances surrounding the offending.

[20] As to the direct or indirect consequences of a conviction, the primary consequence is that the appellant, who previously had no convictions, will have a

_{conviction against her name. Although it is easy to minimise the consequences of a}

conviction of this nature, it is again important to be realistic and the Court is entitled to use its common sense even though there is no evidence directly on the point. In difficult times like this, where the job market is tight, a conviction could eliminate an applicant at an early stage where there is strong competition.

[21] Finally, notwithstanding Mr Mackenzie’s valiant attempt to persuade me to the contrary, I am satisfied that the direct and indirect consequences of a conviction in this case would be out of proportion to the gravity of the offending.

Result

[22] The appeal against conviction is allowed. The conviction is quashed. Ms Seiuli is discharged without conviction.

Solicitors:

Simonette Boele, Christchurch, [e-mail]

Raymond Donnelly, P O Box 533, Christchurch 8140, [e-mail]

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[1] Thompson v Attorney-General (2000) 17 CRNZ 628.
[2] _{Jasper v Police HC Christchurch, CRI-2008-409-000040 [15 May 2008].}
[3] _{R v Le Page [2005] 2 NZLR 845 at [16].}
[4] _{R v Proctor [2007] NZCA 289 at [4].}
[5] _{Austin Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC).}

[6] R v Hughes [2009] 3 NZLR 222 (CA).