Deciding body (English)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Further areas addressed
Outcome of the decision
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.
In the judgment, the Court sentenced the Defendant to 14 days’ imprisonment, taking into account the Covid-19 situation. The Court considered the imprisonment appropriate in terms of deterrence and in terms of the overall circumstances.
Facts of the case
The Defendant was brought before the Court for sentencing on a charge of breaching the COVID-19 Public Health Response Act 2020. Namely the Defendant, along with others, intentionally failed to comply with section 11 of the Act by leaving a managed isolation facility. The events surrounding this episode were as follows: the former partner and father of her children died in July 2020. Soon after, the Defendant and her children arrived in New Zealand, wishing to attend the funeral. They arrived on 20 July 2020. It was anticipated the funeral would be held on 25 July. They were then placed in quarantine. The quarantine or managed isolation meant that they would miss the funeral. Accordingly, an application was made for compassionate leave to attend the funeral and it was denied.
Type of measure challenged
Measures, actions, remedies claimed
- Deterrence measure
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
The Court 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. The Court noted that, although the risk to the community could have appeared speculative, as we have seen in Victoria, it can begin to spread again by only a couple of people returning to the community. In setting a starting point for sentencing, the Court assessed the gravity of the offence, any aggravating or mitigating factors, and took into account the way the courts had dealt with similar offences. 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 Court concluded that it was not the worst level of offending, but it was nonetheless serious.
Although there had been no previous cases under this particular section, the Court considered cases relating to other lockdown breaches and concluded that a starting point of 2-3 months imprisonment was appropriate. The Court then applied discounts for grief clouding judgement, the attempts made to seek compassionate leave, and the defendant’s guilty plea. The Court considered a community-based sentence to be most appropriate.
Conclusions of the deciding body
Taking into account the seriousness of the offence, plus the need for general deterrence in a time of crisis, the Court sentenced the Defendant to 14 days’ imprisonment.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Right to compassionate leave
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- State of emergency or necessity
Balancing techniques and principles (proportionality, reasonableness, others)
The Court argued that having the opportunity to see the deceased and say goodbye is important. The Court understood that it is something that great weight is put on in terms of Māoridom, but it needed to strike a balance between those factors and protection of the wider community. The Court finally stated that putting self before protection of the community does not accord with tikanga.
- Police v Tui  NZDC 7175
- Police v Cooper  NZDC 6922
- Police v Te Tau  NZDC 9268
- Police v Tahuri  NZDC 8424
- Police v Matangi  NZDC 8358
- Police v Scott  NZDC 6514
- Abdullah v Police  NZDC 7240
Impact on Legislation/Policy
The governmental measure has been upheld.