Governor v Police - [2021] NZHC 525

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-530

[2021] NZHC 525

BETWEEN
LISA GOVERNOR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 8 March 2021

Appearances:

J Yi for the Appellant

O Klinkum for the Respondent

Judgment:

16 March 2021

JUDGMENT OF GORDON J

This judgment was delivered by me on 16 March 2021 at 3.30 pm

Registrar/Deputy Registrar Date:

Solicitors: Crown Solicitor, Auckland Counsel: J Yi, Auckland

GOVERNOR v POLICE [2021] NZHC 525 [16 March 2021]

Introduction

[1] The appellant, Lisa Governor, appeals Judge Mathers’ decision in the Auckland District Court on 3 December 20201 refusing to grant her a community-based sentence in place of disqualification under s 94 of the Land Transport Act 1998 (LTA) and refusing to grant her a discharge without conviction.2

[2] Ms Governor pleaded guilty to one charge of driving while disqualified under s 32(1)(a) and s 32(4) of the LTA. This was Ms Governor’s seventh conviction for driving while disqualified. She was sentenced to 80 hours community work and disqualified from driving for one year.

Factual background

[3] Prior to the current offending, on 11 September 2019, Ms Governor was convicted of one charge of driving with excess breath alcohol (third and subsequent) in the Auckland District Court. It was in fact Ms Governor’s sixth conviction for driving with excess blood alcohol. The Court sentenced her to an alcohol interlock sentence under s 65AC(1) of the LTA. The effect of that was Ms Governor was disqualified from driving for 28 days, which ended on 8 October 2019, and was required to apply for an alcohol interlock licence at the end of the disqualification period.

[4] Ms Governor failed to apply for an alcohol interlock licence, and by operation of s 65AC(2)(c) and s 65AF, she was disqualified indefinitely as a result.

[5] On 12 July 2020, at around 3.50 pm, (while still disqualified) Ms Governor was driving on Sandringham Road in Auckland. Police stopped Ms Governor at a checkpoint, saw she was disqualified from driving, and impounded her vehicle for 28 days.

1 New Zealand Police v Governor [2020] NZDC 25140.
2 Sentencing Act 2002, s 106.

[6] Ms Governor explained that she had just finished lunch with her sister. She claimed she was driving home and was waiting for her income from Inland Revenue so she could install an alcohol interlock device into her car.

[7] On 2 September 2020 (before sentencing), Ms Governor applied for and was granted an alcohol interlock licence.

The Judge’s decision

[8] In the District Court, Judge Mathers considered Ms Governor’s respective requests for a community-based sentence under s 94 of the LTA or a discharge without conviction pursuant to s 106 of the Sentencing Act 2002. Judge Mathers noted Ms Governor’s “quite appalling” traffic conviction history for driving under the influence of alcohol and driving while disqualified and other offences.

[9] Mr Yi, who appeared for Ms Governor in the District Court, conceded that Ms Governor…

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.

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Details

Case: [2021] NZHC 525
Decision Date: 16 March 2021

CaseChat Overview and Summary

Lisa Governor appeals the decision of the Auckland District Court which refused to grant her a community-based sentence in place of disqualification under s 94 of the Land Transport Act 1998 and refused to grant her a discharge without conviction. Governor's appeal was dismissed by the High Court. The court held that the statutory interpretation of s 94(4)(aa) in Scadden was correct, that is, s 94(4)(aa) applies to preclude the substitution of a community-based sentence if an alcohol interlock sentence has been ordered and is extant. The court also found that the Judge's decision to refuse Governor a discharge without conviction was correct, and that the consequences of conviction on Governor were not out of all proportion to the gravity of the offending. The appeal was dismissed.

Orders