New Zealand Police v Huber [2020] NZDC 17361

Published 03 September 2020

Sentencing — COVID-19 — leaving quarantine — breach of managed isolation — compassionate leave — coronavirus — global pandemic — COVID-19 Public Health Response Act 2020, s 11 — Abdullah v Police [2020] NZDC 7240 — Police v Tui [2020] NZDC 7175 — Police v Cooper [2020] NZDC 6922 — Police v Te Tau [2020] NZDC 9268 — Police v Tahuri [2020] NZDC 8424 — Police v Matangi [2020] NZDC 8358 — Police v Scott [2020] NZDC 6514. The defendant appeared for sentencing on a charge of breaching the COVID-19 Public Health Response Act 2020, having intentionally left a managed isolation facility. The defendant and her children arrived in New Zealand from Australia on 20 July 2020 following the death of the children’s father. A tangi was to be held on 25 July 2020. While in managed isolation, the defendant made two applications for compassionate leave to attend the tangi. The first was denied; and the second remained undecided the night before the tangi. At about 7pm that night, the defendant and her children left the managed isolation facility, intending to travel to Auckland to either attend the tangi or to visit the body, pay their respects, and say goodbye. Arrangements had been made for friends to pick them up and take them to Auckland. One of the children made it to Auckland, but the defendant and the other children were found by police soon after leaving. The Judge first noted the risk of COVID-19 to the community and the vital importance of compliance with quarantine, even in the face of personal hardship. In these cases, the importance of having an opportunity to say goodbye to the deceased must be balanced against the protection of the community. Although the risk to the community may have appeared speculative, spread by only a couple of people in Victoria had, in fact, led to the virus spreading again. In setting a starting point for sentencing, the Judge assessed the gravity of the offending, any aggravating or mitigating factors, and took into account the way the courts had dealt with similar offending. While noting that it was to the defendant’s credit that she initially tried to obtain permission to leave the managed isolation facility, the inference from the facts was that a back-up plan had been made in case the application did not succeed. The Judge concluded that it was not the worst level of offending, but was serious nonetheless. Relevant to this assessment was: the degree of planning that was involved, the fact that defendant was the decision maker/leader in the offending, and the great number of family members involved which magnified the risk of transmission. Although there had been no previous cases under this particular section, the Judge considered cases relating to other lockdown breaches and concluded that a starting point of 2-3 months imprisonment was appropriate. The Judge then applied discounts for grief clouding judgement, the attempts made to seek compassionate leave, and the defendant’s guilty plea. The Judge considered a community-based sentence to be most appropriate. However, the defendant’s submissions and the pre-sentence report indicated that all community-based sentences were effectively excluded. There was no address for an electronically monitored sentence, the defendant was unable to pay a fine, and the defendant’s desire to return to Australia precluded a sentence of community work. With no community-based sentences available, the defence proposed a sentence of come up, if called upon. Taking into account the seriousness of the offending, plus the need for general deterrence in a time of crisis, the Judge rejected this proposal. An end sentence of 14 days’ imprisonment was imposed. Judgment Date: 27 August 2020 * * * Note: names have been changed to comply with legal requirements. * * *