Lal v Police - [2017] NZHC 1944

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-230 [2017] NZHC 1944

BETWEEN
AMITESH LAL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 14 August 2017

Counsel:

E Priest for Appellant
E Smith for Respondent

Judgment:

15 August 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 15 August 2017 at 3:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Emma Priest (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent

LAL v POLICE [2017] NZHC 1944 [15 August 2017]

Introduction

[1] Mr Lal appeals his sentence of 16 months’ imprisonment handed down by Judge AJ Johns in the District Court at Waitakere on 13 June 2017.1 Ms Priest for Mr Lal submits that the sentence is manifestly excessive and should have been commuted to one of home detention.

Background

[2] Mr Lal pleaded guilty to one charge of driving with excess breath alcohol (third or subsequent offence) and one charge of driving while disqualified (third or subsequent offence).

[3] This was his fifth conviction for driving with excess breath alcohol. His previous offending took place on 20 June 2013, 26 July 2014, 1 May 2016 and
7 May 2016. The offending for which he was being sentenced took place on

31 December 2016.

[4] The conviction for driving while disqualified was his fourth. His previous offending took place on 29 December 2013, 26 July 2014 and 7 May 2016. The offending for which he was being sentenced took place on 31 December 2016.

[5] At his sentencing hearing, Mr Lal applied for an adjournment. He wanted to canvass the possibilities for an electronically monitored sentence. Judge Johns refused the application and proceeded to sentencing.

The sentencing decision

[6] It is clear that the major influence on Judge Johns was Mr Lal’s previous

offending. Having summarised it, her Honour said:2

… Of real concern to the Court is not only the number of offences that you have been convicted of, it is the closeness of them in time and the fact that on all but one occasion you have been caught driving with over twice the legal limit, and on the last occasion, just over three times the legal limit. On

1 Police v Lal [2017] NZDC 12552.

1 May 2016 you were stopped and you drove again with a level of over 900 six days later on 7 May.

[7] The Judge then dealt with matters of mitigation put forward on behalf of Mr Lal. Her Honour was unimpressed with them and, because they form part of the appeal, I will discuss each in turn.

[8] The pre-sentence report said that Mr Lal refused to consent to an electronically monitored sentence being canvassed and so the recommendation was a term of imprisonment. However, at the sentencing hearing Mr Lal’s counsel told the Judge that this was due to a misunderstanding. Mr Lal did not understand that the availability of an electronically monitored sentence might mean that he would not go to prison. He thought…

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 Lal v Police

Details

AGLC: Lal v Police [2017] NZHC 1944
Case: [2017] NZHC 1944
Decision Date: 15 August 2017

CaseChat Overview and Summary

In the case of Lal v Police, the appellant, Mr Lal, appealed against the sentence of 16 months' imprisonment imposed on him by Judge AJ Johns in the District Court at Waitakere. The appellant pleaded guilty to one charge of driving with excess breath alcohol and one charge of driving while disqualified, both of which were third or subsequent offences. The appellant submitted that the sentence was manifestly excessive and should have been commuted to one of home detention. The legal issues in the case included whether the sentence imposed by the District Court was manifestly excessive, whether the District Court should have granted an adjournment to canvass electronically monitored sentence possibilities, and whether the District Court should have treated the appellant's belief in black magic with a greater degree of cultural sensitivity.

The court held that the starting point of 18 months' imprisonment was open to the District Court and the court agreed with the District Court's decision to increase the starting point by two months. The court held that the discount of 20 per cent for the appellant's pleas of guilty was generous. The court held that the District Court should have treated the appellant's belief in black magic with a greater degree of cultural sensitivity. However, the court held that the belief was not a mitigating factor as the appellant was seeking to avoid responsibility for his actions by blaming outside processes. The court held that the District Court was wrong to speculate on the number of other occasions that the appellant might have driven undetected while under the influence of alcohol, but this did not play a discernible part in the District Court's sentencing analysis. The court held that the only assistance that the District Court might have had from the fresh evidence was the account by the appellant's new partner of his ongoing efforts to rehabilitate himself. However, the court held that this would not make the end sentence manifestly excessive.

The appeal was dismissed. The court held that the District Court did not err in refusing to grant the appellant an adjournment so that he could canvass electronically monitored sentence possibilities. The court held that the appellant's serious record of offending meant that he was not a candidate for home detention. Even if the adjournment had been granted, and the material put before the court as fresh evidence had been put before the District Court, that would not make the end sentence manifestly excessive.

Orders