New Zealand Police v Lowery [2020] NZDC 17370

Published 03 September 2020

Sentencing — failure to comply with order under COVID-19 legislation — breach of managed isolation — compassionate leave — discharge without conviction — coronavirus — global pandemic — Shi v Police [2020] NZHC 59 — Nash v Police HC Wellington CRI-2009-485-07, 18 May 2009. The defendant appeared for sentence on one charge of failing to comply with an order under the COVID-19 Public Health Response Act 2020. The defendant had returned from overseas with family to attend the funeral of their father but, due to the COVID-19 border restrictions, the family were all required to remain in a managed isolation facility for 14 days upon arrival. The family's first application for compassionate leave from managed isolation to attend the tangi had been declined; the second was undecided the night before the tangi. They decided to escape the facility and were later apprehended by authorities. The defendant applied for a discharge without conviction. The maximum penalty for the offending was 6 months' imprisonment. The Judge considered that the offending was on the low end of the spectrum for various reasons: all family members had been tested for COVID-19 and returned negative results giving them a mistaken belief that it was unlikely they had COVID-19; the age of the defendant and the family dynamic meant the defendant had been led by their mother in this case; the defendant and the family had suffered a sudden and unexpected loss of a close family member so their actions were fueled by grief. Turning to the consequences of a conviction, the Judge did not give great weight to any impact on overseas travel. The Judge considered employment impacts were relevant but noted, with respect to the defendant's intended training as a nurse, that disclosure of the charge and any discharge to nursing authorities may be necessary. The Judge also noted that a conviction can be a greater potential burden for a younger person. The Judge also noted the existence of a parity issue in regard to the younger siblings, who were dealt with in the Youth Court. Overall, the Judge considered that the consequences of a conviction outweighed the gravity of the offending and granted a discharge without conviction. The Judge also noted that the name suppression order was to continue. Judgment Date: 27 August 2020 * * * Note: names have been changed to comply with legal requirements. * * *