Two police officers who roughed up a young group of alleged ram-raiders following a pursuit through Auckland have been granted discharges without conviction, increasing their odds of being allowed to return to the force.
Matthew Sione James, 29, and Sgt Andrew Herbert Gwilliam, 40, were both found guilty of assault last year following a judge-alone trial at Auckland District Court.
They could have faced up to one year’s imprisonment for the charges, but prosecutor Taniela-Afu Veikune told Judge Claire Ryan today that the Crown was not opposed to the discharge without conviction request.
A third defendant, Officer Harry Mendoza, was granted a discharge without conviction during a separate hearing last year. Unlike the others, he pleaded guilty to the offence.
Court documents state the January 2022 incident occurred at about 2am in Mt Roskill after road spikes brought an end to a ram-raid and pursuit that started in Pt Chevalier and continued through multiple suburbs.
“At one point a flaming tyre came off the vehicle and bounced down the street,” the judge noted, adding that it was lucky that it was so early in the morning and no bystanders were around to get hurt.
“The car continued to drive with sparks and flames coming out of it.”
Just days earlier, police had been assaulted during another ram raid that ended in the same area, the judge noted, explaining “there was a background and a context to the police action”.
Mendoza and James were first on the scene and rushed to the stolen car to detain the occupants – ages 13, 14 and 17.
Mendoza, described by both lawyers and the judge as the main offender, hit the 17-year-old with an open hand to the head. He then delivered a second blow as the teen lay on his side.
Gwilliam, an officer for 21 years, then approached the 17-year-old who was at that point covering his head and told him to put his hands behind his back. He then put his knee in the teen’s back.
The incident was recorded by the Police Eagle helicopter, which was hovering overhead.
Judge Ryan described Gwilliams' actions as fleeting and almost “technical” but an assault nonetheless because it was an unnecessary use of force.
“I have no complaints about the way they were removed from the car quickly and placed on the ground,” the judge said, noting that at least two of the teens were struggling.
“I accept ... things were moving quickly. They [police] were concerned about their safety.”
James, who has been an officer for six years, was accused of illegally punching a 14-year-old girl twice as she resisted arrest. By the time the punches occurred, the girl’s struggling had already reduced.
“There was, in my view, no need for two punches to subdue her,” the judge said.
Ryan formed the view that the officer was “subduing” the 14-year-old. The punches were “significantly less” force than when she was being pulled out of the car.
“She was prone, I accepted she had behaved badly ... But there was no need for two punches to subdue her.”
Describing the night in question Ryan touched on the uncertainty which the officers encountered as they approached the car.
“Two of the young people didn’t take kindly to be removed from the vehicle and a struggle ensued” to get cuffs on them, Ryan said.
“Things were moving quickly, I accept … [the officers] were concerned about their safety, they had no idea if these people had weapons in their car.”
The 17-year-old was “definitely struggling” and Gwilliam placed “repetitive downward pressure” on his torso to handcuff him.
“I didn’t find there was any unreasonable force to place that young person’s hands behind his back and cuff him,” Ryan said.
James was also pushing down on the 14-year-old girl also and there were two clear punches to her body by James.
Defence lawyer Todd Simmonds, KC, who represented both officers in court today, emphasised that Mendoza was the main offender that night.
“These are relatively minor assaults,” he said. “That’s not to minimise ... what occurred.
“It is acknowledged by both gentlemen that, with the benefit of hindsight, there are learnings here.”
Simmonds said Mendoza was using “very significant force … without overdoing the point it’s not an apple with an apple” in the case of James and Gwilliam.
The judge agreed.
Ryan noted that both men have said they want to remain police officers, and if they are convicted they would almost surely lose their jobs.
Simmonds also asked for any possible reparation to the victims to be kept to a “very modest level”.
“Both gentlemen are family men, they have children, they are not of enormous means and obviously any form of reparation is going to impact them financially,” he said.
In discharging the officers, Ryan touched on the difficulty of their jobs, but also the huge responsibility they have in society.
“Police officers are trained in the use of force, they know when force is excessive … they have to be very careful in fast-moving situations … that [can] cause the loss of public faith in them … and for anti-police views to become more entrenched [in the public],” Ryan said.
“All these things I have to consider.”
Ryan said Gwilliam faced the “stigma and shame” of a conviction, and the financial impact of him having to be reemployed outside the police force would be significant. Ryan accepted these consequences would be out of proportion with the offending.
Gwilliam was shot at five years ago and “prides himself on his professionalism”, Ryan said in describing his career.
He has been on restricted police duties since June 1, 2023. Gwilliam has been married 15 years, has two children, is a “proud father … and enjoys spending time with his family”. He also enjoys sports, playing representative futsal and doing volunteer work, Ryan said.
Gwilliam had described “the strain on his mental health” that the charge has had.
Ryan said that “During [Gwilliam’s] career he’s had to make numerous important decisions … where snap decisions” are required during his largely frontline service.
He was disappointed his actions on the night in question have been viewed as they have, Ryan said.
Gwilliam was ordered to pay the sum of $400 to a charity of his choice, and court costs of $143.
“I suspect that reading through all the documents today I won’t be seeing you again … I’m giving you this chance today,” Ryan said
Ryan judged it would be: “Out of all proportion to convict [Gwilliams].”
Ryan said James’ punches to the 14-year-old teen make his offending slightly worse than Gwilliams.
Ryan also touched on the potential “shame and humiliation” and the loss of James’ “dream job” if he’s convicted. The judge also noted the difficulty of finding a new job if he had to explain he lost his employment as a police officer for hitting a 14-year-old girl.
“We need people like you,” Ryan said. “To convict you would be to impose on you consequences which are out of all proportion to the gravity of offending.”
James was ordered to pay $600 to a charity of his choice, and court costs of $143.
Ryan said she hoped she could see James in the back of the court doing his job as an officer in the future, but never in this context again.
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.
Tom Dillane is an Auckland-based journalist covering local government and crime as well as sports investigations. He joined the Herald in 2018 and is deputy head of news.
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