Lankshear v Police - [2012] NZHC 3300

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-94 [2012] NZHC 3300

CHRISTOPHER FRANCIS LANKSHEAR

v

NEW ZEALAND POLICE

Hearing: 4 December 2012

Counsel: J P Miller for Appellant
A J Ewing for Respondent

Judgment: 7 December 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 2.15 pm on the 7 December 2012.

JUDGMENT OF WILLIAMS J

CHRISTOPHER FRANCIS LANKSHEAR V NEW ZEALAND POLICE HC WN CRI-2012-485-94 [7
December 2012]

[1] This is an appeal against conviction and sentence. The appellant is Christopher Lankshear. He pleaded guilty to one charge of dangerous driving causing injury.

[2] The appellant left his parents’ house in Blenheim after an argument with them and then raced off in his car. He drove at speed through an intersection and rear- ended another car, owned by Mr Rhodes. The appellant’s own car then careened off the road and damaged a fence owned by Mr Peipi.

[3] The appellant applied for a discharge without conviction under s 106 of the Sentencing Act, citing several personal mitigating factors including mental impairment. Mr Lankshear now appeals against the learned Judge’s refusal to grant a discharge without conviction.

The offending

[4] The background to the offending was said to be an argument the appellant had with his parents.

[5] I repeat the detailed facts as found by the District Court Judge:

[3] About 8.30 at night on 10 January this year you were driving along Wither Road in Blenheim at an estimated speed of 120 kilometres an hour and where the road is a residential area where the speed limit is
50 kilometres an hour.

[4] The victim was travelling in the same direction as you but in front of you. He was travelling at approximately 50 kilometres an hour. He had just driven past an intersection. He heard a noise, checked his rear vision mirror and saw a vehicle approaching him at speed from behind.

[5] There was another vehicle towing a trailer which was travelling in an opposite direction travelling towards you. Because you were travelling at excessive speed, as I say, the estimate being 120 kilometres an hour, you could not reduce your speed, you could not overtake because there was a vehicle coming towards you.

[6] You were unable to do either of those things. As a consequence you drove into the back of the victim’s vehicle and caused it to stall. It shunted it [sic] approximately 110 metres from the point of impact. You lost control of the car. You were driving. You veered off to the left, mounted the kerb, hit two trees, a fence, letterbox and then came to rest against a third tree in the front yard of a residential property. Emergency services were all called to

the scene and due to the extensive damage to your car you had to be cut out of the car.

[7] The victim’s vehicle suffered major chassis damage. Your car was a right-off [sic].…

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 Lankshear v Police

Details

AGLC: Lankshear v Police [2012] NZHC 3300
Case: [2012] NZHC 3300
Decision Date: 7 December 2012

CaseChat Overview and Summary

The appellant, Christopher Lankshear, appealed against his conviction and sentence for dangerous driving causing injury. The appellant had rear-ended another car at high speed, causing significant damage to both vehicles and injuries to both drivers. Lankshear had applied for a discharge without conviction under the Sentencing Act, citing personal mitigating factors including mental impairment, but this was refused by the District Court Judge. The central legal issue was whether the District Court Judge correctly applied the disproportionality test under s 107 of the Sentencing Act in refusing to grant a discharge without conviction. The appellant argued that the Judge placed too much weight on speed as an aggravating factor and did not properly consider the mitigating factors affecting his culpability, particularly his mental state at the time of the offence. The Crown argued that personal factors should not influence the assessment of the gravity of the offending and that the Judge had already considered Lankshear’s mental impairment when assessing the gravity of the offending.

The High Court held that the offending was moderately serious, given the high-speed driving, the context of the intersection, the duration of the dangerous driving, the injuries caused, and the damage to property. The Court agreed with the District Court that Lankshear’s mental state, while it went to his culpability, did not materially reduce his culpability to the point of rendering the offending low seriousness. Regarding the consequences of conviction, the Court noted the risk of deterioration in Lankshear’s mental state and the increased difficulty in finding employment, but found these consequences were not so disproportionate to the gravity of the offending as to warrant a discharge without conviction. The appeal was dismissed.

Orders