Laing v Police - [2012] NZHC 2837

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2012-441-34 [2012] NZHC 2837

BETWEEN RAYMOND CHARLES LAING Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 26 October 2012

Counsel: E J Forster for Appellant
J D Lucas for Respondent

Judgment: 29 October 2012

JUDGMENT OF THE HON JUSTICE KÓS (Appeal against sentence)

[1] Mr Laing is a recidivist drink driver. On 6 July 2012 Judge Watson sentenced him on his 26th drink drive conviction, and his 31st driving while disqualified conviction. The sentence he imposed was a total of three years imprisonment (eighteen months on each charge) and 5 years’ disqualification.

[2] From this Mr Laing appeals.

[3] The offences occurred on 21 April 2012. Mr Laing was driving on Kennedy Road in Napier. A member of the public complained about his driving. A member of the police therefore stopped him. A breath test resulted in a reading of 1198 micrograms of alcohol per litre of breath. Almost three times the legal limit.

[4] Some background is relevant. In October 2009 Mr Laing was driving in another Kennedy road, John F Kennedy Drive in Palmerston North. He ran a red light and collided with another car. Both Mr Laing and an occupant of the other car
were injured. Mr Laing refused to give an evidential blood test. He was deemed

LAING v NEW ZEALAND POLICE HC NAP CRI 2012-441-34 [29 October 2012]

therefore to have failed that test. In February 2010 Judge Atkins QC imposed a sentence of two years four months for dangerous driving causing injury, a cumulative additional two months for an associated assault, and concurrent sentences of fifteen months on each charge of driving while disqualified and refusing to give blood. Mr Laing was disqualified from driving indefinitely. So, as a result of that incident, Mr Laing passed a lengthy period in prison.

Decision appealed

[5] Judge Watson considered the aggravating features were that Mr Laing had 6 pages of previous criminal convictions involving drugs, dishonesty, drink-driving, and driving while disqualified. He had 25 previous convictions for drink drive offences, and 30 for driving while disqualified. He had received sentences ranging from imprisonment to suspended sentences, to supervision, to periodic detention. None had deterred him. He had completed a drug and alcohol programme in prison. Yet he continued to offend.

[6] In terms of mitigation, there was the early guilty plea and the fact Mr Laing realised matters need to be addressed (evidenced by a letter he wrote to the Court).

[7] The Judge considered Mr Laing posed a risk to the safety of the community. On the drink driving charge he imposed the maximum sentence of 2 years imprisonment, with a 25% discount for the guilty plea, thus ending at 18 months. In the case of the driving while disqualified charge, Judge Watson also started at the 2 year maximum, again discounted 25% to 18 months for the guilty plea.

[8] These terms were to be served cumulatively, ending at a sentence of 3 years imprisonment. He…

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 Laing v Police

Details

AGLC: Laing v Police [2012] NZHC 2837
Case: [2012] NZHC 2837
Decision Date: 29 October 2012

CaseChat Overview and Summary

Raymond Charles Laing appealed against the sentence imposed by Judge Watson on his 26th drink driving conviction and 31st driving while disqualified conviction. The sentence imposed was a total of three years imprisonment (eighteen months on each charge) and 5 years' disqualification. The appeal was heard on 26 October 2012, with E J Forster representing the appellant and J D Lucas representing the respondent. Justice Kós delivered the judgment on 29 October 2012.

The legal issues that the court was required to decide were whether the judge erred in not taking into account the totality of the sentences, in determining the starting point, and if the sentence was manifestly excessive. The appellant argued that the judge failed to consider the totality of the sentences at all, and that there should have been a reduction for totality because there was one incident of driving, one summary of facts, and the charges were dealt with in court at the same time. The second argument was that the judge erred in determining the starting point, although it was not advanced further before the court. The third argument was that the sentence was manifestly excessive by reason of comparison with other cases, but it was advanced faintly.

The court considered the appropriateness of the final sentence that counts, not how it was made up. The court held that the judge was correct to treat the two offences as distinct and to impose cumulative sentences. The court also held that it was appropriate to consider comparable authority, and that the sentence in this case was not manifestly excessive. The appeal was dismissed.

No specific orders were made in this case, as the appeal was dismissed. However, the court's decision provides guidance on the appropriate approach to sentencing in cases involving multiple drink driving and driving while disqualified offences.

Orders