Lally v Police - [2019] NZCA 286

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA161/2019
[2019] NZCA 286

BETWEEN	GURMAIL LALLY Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	On the papers
Court:	Gilbert, Wylie and Thomas JJ
Counsel:	N M Dutch for Applicant A D H Colley for Respondent
Judgment:	5 July 2019 at 3 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal against sentence is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

Mr Lally seeks leave to bring a second appeal against sentence, pursuant to s 253 of the Criminal Procedure Act 2011. The application is opposed by the respondent.

Background

On 16 September 2018, Mr Lally drove to a liquor store. He attempted to purchase alcohol, but he was refused service because he was intoxicated. Mr Lally then drove away.
The police were notified and they caught up with Mr Lally as he was pulling into his driveway. The police performed a breath alcohol test. Mr Lally was found to have 1,524 micrograms of alcohol per litre of breath — six times the legal limit. Further, at the time of the offending, Mr Lally was both a disqualified driver and an unlicensed driver.
Mr Lally has a history of driving whilst under the influence of alcohol and driving while disqualified. He has five previous convictions for driving with excess breath or blood alcohol and two previous convictions for driving while disqualified.
Mr Lally, pleaded guilty to a charge of driving with excess breath alcohol (third or subsequent)[1] and to a charge of driving while disqualified (third or subsequent).[2]
[1]Land Transport Act 1998, s 56(1) and (4) — punishable by a maximum penalty of two years’ imprisonment or a fine of $6,000. The Court must also order that the person be disqualified from holding a licence for one year or more
[2]Section 32(1)(a) and (4) — punishable by a maximum penalty of two years’ imprisonment or a fine of $6,000. The Court must also order that the person be disqualified from holding a licence for one year or more.
Mr Lally was sentenced on 13 November 2018 by Judge Harding at the District Court at Waihi.[3] The Judge adopted a starting point of 12 months’ imprisonment. He observed that it was Mr Lally’s sixth charge of driving with excess breath alcohol, that he was not remorseful and that, despite interventions, he continued to drink and drive. The Judge concluded that Mr Lally presents a significant danger to other road users and to himself, and that imprisonment was appropriate. The Judge sentenced Mr Lally to nine months’ imprisonment and, on the driving while disqualified charge, disqualified him from driving for two years. He also imposed a zero alcohol licence requirement.
[3]Police v Lally [2018] NZDC 24194.
Mr Lally appealed his sentence to the High Court on the basis that the Judge was required to impose an alcohol interlock licence under then recent amendments to the Land Transport Act 1998…

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 Lally v Police

Details

AGLC: Lally v Police [2019] NZCA 286
Case: [2019] NZCA 286
Decision Date: 5 July 2019 at 3 pm

CaseChat Overview and Summary

Gurmail Lally, the applicant, sought leave to bring a second appeal against his sentence, which was previously challenged in the High Court. The primary issue in this appeal was whether the Court of Appeal should grant leave for the applicant to appeal against the sentence he received. The Court of Appeal held that the criteria for leave to appeal had not been met, and therefore, the application for leave was declined.

The applicant's counsel argued that the application of the amendments to the Land Transport Act 1998, which introduced alcohol interlock sentences, was a matter of general or public importance. The counsel contended that guidance from the Court of Appeal would be useful due to the potential impact on many people. However, the Court of Appeal found that the question raised was specific to the applicant's circumstances and did not involve a matter of general or public importance. The Court of Appeal further held that there was no miscarriage of justice, as the period of disqualification imposed on the applicant in combination with the alcohol interlock sentence was appropriate.

The Court of Appeal considered the provisions of the Land Transport Act 1998 and the relevant case law. The Court found that the applicant's disqualification period was appropriate, considering his history of driving while intoxicated and disqualified. The Court of Appeal held that the criteria for leave to appeal had not been met, and therefore, declined the application for leave.

The final orders of the Court of Appeal were that the application for leave to bring a second appeal against sentence was declined.

Orders