But the officer’s bid for a discharge without conviction at the same hearing this week failed, despite concerns from his lawyer that having such a mark on his record may end his career.
Auckland District Court Judge Mary-Beth Sharp instead ordered a conviction and discharge, expressing hope that the defendant’s decades of experience and otherwise good conduct with New Zealand Police will also be taken into account as the employment process plays out.
“He made a grave error of judgment on this occasion,” she said. “But ... I am sure he has a great deal to offer police and the public. I would hate to think a conviction, in the very unusual circumstances of this case, should cause police to terminate his employment.”
The 59-year-old constable has been on leave since his arrest in March last year, eight months after the death of fellow motorcyclist Levi Proctor at State Highway 18‘s Tauhinu Rd off-ramp in West Auckland.
Police investigate the scene of a fatal motorcycle crash at the Tauhinu Rd off-ramp at Greenhithe on State Highway 18 in July 2023. Photo / Hayden Woodward
He was charged with dangerous driving causing death, which would have carried a punishment of up to 10 years’ imprisonment had he been found guilty. But a jury acquitted him of that charge in February, finding him guilty instead of driving in a dangerous manner.
That charge is considered much less serious, carrying a maximum possible punishment of three months’ imprisonment and a fine up to $4500. Lawyers on both sides agreed this week that neither prison nor ongoing supervision was necessary. Their main disagreement was over whether he should receive a discharge without conviction and permanent name suppression.
Jurors were told during the five-day trial that the officer had sped along the motorway at an average 162km/h during the pursuit, which stretched over about 11km. His speed at times reached between 180 and 192km/h.
Footage from multiple traffic cameras showed both motorbikes zipping past other motorists that morning. Proctor rode a red Ducati while the defendant followed on his own police-issued motorbike with lights and siren activated.
It is not known why Proctor sped away from the officer, but Crown prosecutor Robin McCoubrey acknowledged during the trial that Proctor didn’t have a motorbike licence and had methamphetamine and cannabis in his system. Regardless, the prosecutor argued, there was “absolutely no reason at all” for the officer to have chased him as he did.
A police officer who has been granted permanent name suppression appears in Auckland District Court for sentencing after a jury found him guilty of dangerous driving. Photo / Alex Burton
There was no indication Proctor was riding in a way that was dangerous to the public before the pursuit began. While police are allowed to break the speed limit in the course of their job, especially if they believe the public is in danger, prosecutors described Proctor’s threat to the public as “nil”.
Defence lawyer Todd Simmonds, KC, argued to jurors that his client’s riding that day wasn’t dangerous at all but rather that of “a seasoned, experienced police motorcyclist”.
“This is not two boy racers out for a hoon on the motorway,” he said. “It’s a clinic in quick, safe driving from a very experienced police officer.”
Simmonds suggested the drugs in Proctor’s system – not the fact an officer was behind him – was the reason he took the off-ramp so quickly, resulting in his death.
At sentencing this week, Simmonds acknowledged that the jury’s verdict meant his client had made an error in judgment that day. But he emphasised that his client broke the law while trying to serve the public, not while out for “a joy ride” as is seen in many dangerous driving cases.
“He hasn’t sought out to offend,” he said. “He hasn’t sought out to break the law. He got it wrong.”
Publication of his name, meanwhile, “would be likely to undermine the ongoing significant work ... that has gone into his mental health issues since he was arrested and charged”, Simmonds said. He noted that his client had been assessed as having a “vulnerability to stress”, exacerbated by threats to him and his family by bikie gang members in 2023.
“If his identity was to be made public, his mental health would be likely to deteriorate significantly,” the defence lawyer said.
Defence lawyer Todd Simmonds, KC, argued his client’s riding the day of the fatal crash wasn’t dangerous but rather that of “a seasoned, experienced police motorcyclist”. Photo / Hayden Woodward
Judge Sharp began her sentencing decision by offering her condolences to Proctor’s family, who sat through the trial and returned to court for the sentencing.
But she said the defendant was likely acquitted of the more serious charge because the jury “were incapable, as am I” of determining how much the pursuit contributed to the fatal crash. It needed to be a substantial cause of his death for the officer to have been found guilty.
“Of course, it’s well known that both methamphetamine and cannabis can affect a person’s ability to drive significantly ... as clearly it did here,” she said, adding that Proctor failed to negotiate “a quite dangerous exit”, doing so “at huge speed”.
She also noted that it had been the defendant’s “lawful right” as a police officer to follow Proctor that day in an attempt to ascertain his identity.
“Other than the high speeds, [the officer’s] riding – except for one specific occasion – was consistent with good practice,” she said, describing the one exception in the CCTV footage where Proctor “weaved in and out of traffic ... followed closely” by the officer.
She agreed “completely” with the Crown that the pursuit was unnecessary and should have been discontinued early on.
In addition to the conviction and discharge, she ordered that the defendant be banned from driving for six months – standard procedure for such cases, although the defence had asked for an exception.
Identifying the defendant, however, was a different matter, the judge continued.
“Publication would be likely to cause extreme hardship to [him] ... particularly so because he is a serving police officer,” she said, adding that it is well known that stress can contribute to cancer returning once it is in remission.
“He has been through an inordinately stressful process [regarding the prosecution] and I don’t want to add to that.”
Craig Kapitan is an Auckland-based journalist covering courts and justice. He joined the Herald in 2021 and has reported on courts since 2002 in three newsrooms in the US and New Zealand.
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