Governor v Police - [2021] NZCA 403

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA134/2021
[2021] NZCA 403

BETWEEN	LISA ROBYN GOVERNOR Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	13 May 2021
Court:	Miller, Venning and Peters JJ
Counsel:	J Y Yi for Appellant Z A Fuhr for Respondent
Judgment:	24 August 2021 at 2.00 pm

JUDGMENT OF THE COURT

ALeave to bring a second appeal is granted in part.
B The appeal against sentence is allowed. We quash the sentence and remit the matter back to the District Court for re-sentencing in light of this judgment.

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REASONS OF THE COURT

(Given by Peters J)

The appellant, Ms Governor, seeks leave to bring a second appeal against conviction and sentence.
The proposed appeal is against a decision of Gordon J in the High Court, delivered on 16 March 2021, upholding a decision of Judge Mathers in the District Court on 3 December 2020.[1]
[1]Governor v Police [2021] NZHC 525 [High Court appeal]; and Police v Governor [2020] NZDC 25140 [District Court sentencing].
Ms Governor was before Judge Mathers on a charge of driving while disqualified (third or subsequent), this being an offence under s 32(1) of the Land Transport Act 1998 (the Act). She sought a community-based sentence under s 94 of the Act in lieu of the otherwise mandatory period of disqualification.[2]
[2]A community-based sentence is one within the meaning of Part 2 of the Sentencing Act 2002, that is a sentence of community work, supervision, intensive supervision, or community detention: s 44.
Applying the decision of van Bohemen J in Scadden v Police, the Judge held that she did not have jurisdiction to impose a community-based sentence because Ms Governor was subject to an alcohol interlock sentence (interlock sentence) imposed in September 2019 on a charge of driving with excess breath alcohol.[3]
[3]District Court sentencing, above n 1, at [4], citing Scadden v Police [2020] NZHC 1619.
Ms Governor had sought a discharge without conviction in the event she did not obtain a community-based sentence. Mr Yi advised us that this is not an unusual course for a defendant who is excluded from seeking a community-based sentence. If the discharge is granted, the offender simply continues on their interlock sentence as if the underlying offending had never occurred. It is clear from her sentencing notes that Judge Mathers was not impressed by that suggestion, and she was certainly not satisfied the consequences of conviction were out of all proportion to the gravity of the offending.[4] The Judge declined the application, convicted Ms Governor, disqualified her from driving for one year, and sentenced her to a period of community work.[5]
[4]At [7]–[10].
[5]At [14].
Gordon J declined Ms Governor’s appeal, largely for the same reasons as van Bohemen J on the jurisdiction issue.[6]
[6]High Court appeal, above n 1, at [28]–[47].
Ms Governor seeks leave to bring a second appeal against Gordon J’s decision regarding s 94 and, if unsuccessful in that, against the refusal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Governor v Police

Details

AGLC: Governor v Police [2021] NZCA 403
Case: [2021] NZCA 403
Decision Date: 24 August 2021 at 2.00 pm

CaseChat Overview and Summary

In the case of Governor v Police, the Court of Appeal of New Zealand was presented with an appeal by Ms Lisa Robyn Governor against the New Zealand Police. The central dispute revolved around the interpretation of section 94 of the Land Transport Act 1998, specifically whether Ms Governor, who was subject to an alcohol interlock sentence, was eligible for a community-based sentence instead of a further period of disqualification from driving. Ms Governor argued for a narrow interpretation of the statute, allowing for a community-based sentence in lieu of disqualification under certain conditions, while the Crown maintained a broader interpretation that excluded such sentences altogether for those under an interlock sentence.

The Court had to determine the correct interpretation of section 94(4)(aa) of the Land Transport Act 1998, which excludes certain offenders from a community-based sentence. The Court found that the broad interpretation, which precluded any offender under an interlock sentence from a community-based sentence, was not consistent with the purpose of section 94, which is to provide an alternative to disqualification when appropriate. The Court held that section 94(4)(aa) should be construed narrowly, allowing for a community-based sentence if it is deemed appropriate, except in cases where the interlock sentence itself imposes a disqualification period. This interpretation was in line with the aim of section 94 to prevent a cycle of repeated disqualifications while still allowing for alternatives when suitable.

Consequently, the Court granted leave for a second appeal on the sentencing issue, quashed the sentence imposed by the District Court, and remitted the matter back to the District Court for re-sentencing in light of the Court's interpretation. The appeal against conviction was dismissed, and no leave was granted for a second appeal on that matter. The decision highlighted the importance of interpreting legislation in a way that aligns with its purpose and context, and it underscored the need for careful consideration when dealing with complex statutory interactions within the realm of sentencing under the Land Transport Act 1998.

Orders