Leask v Police - [2017] NZHC 2074

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2017-406-000009 [2017] NZHC 2074

BETWEEN
RAWIRI KERO BRIAN LEASK

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 29 August 2017

Counsel:

R M Gould for Appellant
J R Crawford for Respondent

Judgment:

29 August 2017

JUDGMENT OF COLLINS J

Introduction

[1] On 17 July 2017, Judge Zohrab sentenced Mr Leask to 40 hours community work and six months’ disqualification from driving1 in relation to a charge of driving while disqualified.2

[2] The Judge declined Mr Leask’s application under s 94 of the Land Transport Act 1998 (the Act) to substitute the period of disqualification with a community- based sentence. Mr Leask appeals that aspect of the Judge’s decision.

[3] This judgment explains why I am dismissing Mr Leask’s appeal. I have done

so because Mr Leask has not demonstrated Judge Zohrab erred in any material way.3

In particular, the Judge did not make any error of law, or principle. Nor did he fail to

1      New Zealand Police v Leask [2017] NZDC 15837.
2    Land Transport Act 1998, s 32(1)(a) and (3).   Maximum penalty three months’ imprisonment/$4,500 fine and the court must, subject to s 81 (which refers to s 94), order the person be disqualified from holding or obtaining a driver licence for six months or more.
3      Criminal Procedure Act 2011, s 250; Tutukangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

LEASK v NEW ZEALAND POLICE [2017] NZHC 2074 [29 August 2017]

take into account relevant matters or take into account irrelevant matters. In

addition, the Judge’s decision was not plainly wrong.

Background

[4] On 27 March 2017, Mr Leask appeared in the Blenheim District Court where he was convicted of driving whilst his learner licence was suspended due to the number of demerit points he had accumulated. Mr Leask was disqualified from driving for six months.

[5] On 5 May 2017, the police located Mr Leask driving a vehicle at night in Picton. He admitted he was a disqualified driver but explained he was driving in order to ensure an intoxicated woman in the car got home safely. Mr Leask pleaded guilty to a charge of driving while disqualified on 15 May 2017.

[6] Mr Leask is 25 years old and lives in Picton. He is working in a vineyard in Blenheim and receives transport from a neighbour. Mr Leask’s neighbour does not however work every day and I am told public transport is limited. Mr Leask says he prefers to work in the furniture removal business where a current driving licence is considered essential. Mr Leask has other previous convictions for which he has been sentenced to community work. He has served those previous sentences without any difficulties being reported.

Section 94 of the Land Transport Act 1998

[7] Section 94 of the Act provides:

94 Substitution of community-based sentences

(1) This section applies if—

(a) the offender has previously been ordered on conviction for an offence to be disqualified from holding or…

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 Leask v Police

Details

AGLC: Leask v Police [2017] NZHC 2074
Case: [2017] NZHC 2074
Decision Date: 29 August 2017

CaseChat Overview and Summary

The case of Leask v Police, which was heard in the High Court of New Zealand at Blenheim, revolves around the appellant, Rawiri Kero Brian Leask, appealing the decision of Judge Zohrab in the District Court, who sentenced him to 40 hours of community work and disqualified him from driving for six months due to his conviction of driving while disqualified. The appellant had sought to substitute the period of disqualification with a community-based sentence under section 94 of the Land Transport Act 1998, but the Judge declined his application. The primary legal issue was whether the Judge erred in declining the application under section 94 of the Act. The court examined if the Judge made any material error in law, failed to take into account relevant matters or took into account irrelevant matters, and whether the decision was plainly wrong.

The court found that the Judge did not make any material error. Despite omitting the words "or otherwise" in his summary of the requirements under section 94(1)(b) of the Act, this was not a material error as the sentencing notes showed that the Judge had assessed the effectiveness of previous disqualification orders. The court also found that the Judge had taken into account all relevant matters, including the appellant's limited history of criminal offending, his ability to comply with community work sentences, the extenuating circumstances of his offending, and the desire to keep him in employment. Additionally, the court ruled that the Judge did not fail to consider relevant case law, as the case of Hoffman v Police relied upon by the appellant was distinguishable on the facts. The court concluded that the Judge's decision was appropriate, and dismissed the appeal.

This decision underscores the importance of the discretion exercised by the sentencing Judge under section 94 of the Act, where the court must consider the circumstances of the case, the effectiveness of previous orders, the impact on the offender, and the interests of the public in determining the appropriateness of a disqualification order versus a community-based sentence. The court's ruling reinforces that the decision of the District Court Judge was well-founded and should not be interfered with on appeal.

Orders