Lawrence v Police - [2013] NZHC 3372

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-000112 [2013] NZHC 3372

DEAN ANDREW LAWRENCE Appellant

v

POLICE Respondent

Hearing: 13 December 2013

Counsel: Appellant in person
S J Jamieson for the Crown

Judgment: 13 December 2013

JUDGMENT OF WHATA J

[1] Mr Lawrence pleaded guilty to a charge of driving with excess breath alcohol. It was his third such offence. He was convicted and fined $850. He was ordered to pay costs and disqualified from holding or obtaining a driver’s licence for a period of one year plus one day.

[2] I understand that the primary grounds for the appeal were that:

... [T]his is my 3rd and 2nd was over 20 years ago, and about the very bad accident Im still recovering from and trying to enjoy being alive and still living.

Background

[3] The background is mercifully short. The appellant pleaded guilty to a charge of driving with excess breath alcohol. The level was 89 milligrams which Judge
Garland acknowledged was a low level. The Judge also accepted there were no

LAWRENCE v POLICE [2013] NZHC 3372 [13 December 2013]

aggravating factors in relation to the driving. Rather the only aggravating factor is the fact that Mr Lawrence had two prior convictions for drink/driving, although it is noted that they were back in 1992 and 1993. The reasons for the sentence are helpfully succinct, namely:

[2] I have read the letter that you have carefully written to the Court. I can see from your letter that things have been pretty tough for you, to say the least, over the last year or two. I would normally consider imposing community work as the least restrictive outcome for a third time before the Court on drink-driving but I think in this case there are some exceptional circumstances which allow me to step back from a sentence of that kind. However, the sentence that I do impose must have a significant aspect of deterrence incorporated in it. In part that is achieved by the minimum period of disqualification that I must impose but also in this case the fine needs to reflect the fact that it is your third time before the Court.

Submissions

[4] Mr Lawrence is self-represented and has prepared a detailed letter in support of his appeal and I am grateful for the measured way in which he has approached the appeal. The following matters have some relevance:

(a) Mr Lawrence is a 47 year old self-employed artist;

(b) The blood test showed an excess blood result of 89 (as compared to

80), but that Mr Lawrence felt fine at the time;

(c) He accepts that this his third conviction, but his second was over 20 years ago in 1993 and that a disqualification for a year and a day seems to be “overkill”;

(d)In June 2011 he was in an accident while riding a motorcycle suffering serious injuries and he is still rehabilitating, having only recently started to go out occasionally;

(e) On the night…

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 Lawrence v Police

Details

AGLC: Lawrence v Police [2013] NZHC 3372
Case: [2013] NZHC 3372
Decision Date: 13 December 2013

CaseChat Overview and Summary

Dean Andrew Lawrence appealed against his conviction and sentence for driving with excess breath alcohol. The appellant pleaded guilty to the charge, which was his third such offence. The court was tasked with determining whether the sentence imposed was appropriate, particularly considering the appellant's personal circumstances and the mandatory nature of disqualification periods under the law. The appeal hinged on whether the sentence imposed was disproportionate given the appellant's low level of offending, the significant time elapsed since his last conviction, and his unique personal circumstances, including ongoing recovery from a serious accident.

The court examined the statutory provisions governing disqualification periods and the exceptions that allow for community-based sentences. The Crown pointed out that the appellant's disqualification period was the minimum required by law, as per the Land Transport Act 1998. However, the court noted that the appellant's case could fit under Section 94 of the Act, which allows for community-based sentences instead of disqualification if deemed appropriate. The court also acknowledged the appellant's personal hardships, including his ongoing rehabilitation from a motorcycle accident, his role in supporting his family, and the long gap between his previous and current convictions.

After careful consideration of the submissions and the statutory framework, the court found that the original sentence was disproportionate. The appellant's low level of offending, coupled with the significant time lapse since his last conviction and his personal circumstances, warranted a more lenient sentence. The court quashed the disqualification and imposed a sentence of 80 hours of community work, considering it appropriate under the circumstances. The court also noted that the appellant could apply for a limited licence if necessary.

The final orders of the court were that the appeal was allowed, the disqualification was quashed, and substituted with an order of 80 hours’ community work. This decision aimed to balance the need for deterrence with the appellant's personal circumstances and the low level of his current offending.

Orders