Leaupepe v Police

[2015] NZHC 1766

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2015-454-10 [2015] NZHC 1766

BETWEEN

TO'OTO'OLEMANINO LEAUPEPE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	22 July 2015
Counsel:	M B Ryan for Appellant D R for Respondent
Judgment:	29 July 2015

RESERVED JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

3 pm on the 29th day of July 2015

Solicitors:           B R Ryan, Barrister & Solicitor, Palmerston North, for Appellant

Crown Solicitor, Palmerston North, for Respondent

LEAUPEPE v NEW ZEALAND POLICE [2015] NZHC 1766 [29 July 2015]

[1]      The appellant pleaded guilty in the District Court at Palmerston North to one charge of driving with excess blood alcohol causing death.   He was sentenced by Judge Crosbie on 5 June 2015 to two years imprisonment and disqualified from driving for five years.1   He was also ordered to pay $5,000 reparation for emotional harm.  He appeals against the five year period of disqualification on the grounds that it is manifestly excessive.

[2]      The facts were that at approximately 5 pm on 5 December 2014, the appellant was driving with the deceased, who was in the front passenger seat.   They were travelling on Parewanui Road in Bulls, which has a speed limit of 100 km/h.  The appellant lost control of the vehicle as it exited a minor right hand bend.   It slid across a grass verge and struck a wooden fence.  The passenger passed away as a result of injuries sustained at the scene.   A blood sample obtained at Palmerston North hospital showed a blood alcohol level of 126 mgs of alcohol per 100 mls of blood.    The  Serious  Crash  Unit  estimated  that  the  vehicle  had  been  travelling between 136 km/h and 164 km/h.

[3]      In sentencing Judge Crosbie took a starting point of three years which he reduced  by one third for the guilty plea and  the appellant’s remorse to an end sentence of two years.   He refused home detention.   The Judge dealt very briefly with disqualification when he said “[y]our disqualification will be for a period of

five years”.2   He ordered $5,000 for emotional harm and to help to pay the victim’s

family’s costs.

[4]      Mr Ryan  for  the  appellant  submits  that  the  period  of  disqualification  is manifestly excessive. He bases that submission principally on a comparison with other cases.   He submits that the cases on which he relies show that a period of disqualification of between two and three years and in a bad case four years is usually imposed for driving with excess blood alcohol causing death.  He submits that periods of disqualification of five years or more are usually imposed in motor manslaughter cases.    He further submits  that  the cases  indicate  an  approximate

correlation between the length of the sentence of imprisonment and the length of the

1      R v Leaupepe [2015] NZDC 10296.

2 At [26].

period of disqualification.  On that measure, he submits the period of disqualification is manifestly excessive when compared with other similar cases.

[5]      Counsel for the respondent takes issue with the appellant’s comparison with other cases and the submission that the period of disqualification is manifestly excessive.  Counsel acknowledges that the Crown suggested a period of three years at sentencing, but submits that notwithstanding that suggestion the five year disqualification period is within the range available to the Judge.   Counsel also points out that the Judge did not, as in a number of the other cases, order that the commencement of the disqualification would be deferred to take effect on release from prison.  Counsel points out that a five year period of disqualification starting immediately, with release after one year of the two year sentence, will give an effective period of disqualification of four years.

[6]      Disqualification of a person in charge of a motor vehicle causing death is covered by s 61(3AA)(b) and (3A) of the Land Transport Act 1998.  For a first or second drink driving offence, the Court must order disqualification for one year or more.   For a third or subsequent drink driving offence, the Court must order disqualification  for  more  than  one  year.    In  all  cases,  whether  for  a  first  or subsequent offence, the maximum penalty is imprisonment for a term not exceeding

10 years or a fine not exceeding $20,000.

[7]      Mr Ryan’s approach, of comparing the sentence imposed in this case with that in other comparable cases, is entirely orthodox if what was in issue was the appropriateness of imprisonment, or the term of imprisonment.    However, considerable care is required in applying a similar approach to the period of disqualification.   Parliament has prescribed a minimum period of disqualification, but no maximum.  That contrasts with the provisions as to sentence which provide a maximum, but no minimum.  There is not a developed body of case law addressing the principles to be applied in fixing the period in excess of the minimum, as there is for fixing appropriate periods of imprisonment within the maximum.  There is less by way of guidance from the higher courts as to an appropriate length of disqualification than there is for appropriate lengths of sentences.

[8]      The principle objective of disqualification is public safety.   Many of the purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act 2002 can have little application when assessing the length of disqualification and others must receive limited weight because of public safety concerns.

[9]      The extent of the discretion available to the sentencing Judge is, for these reasons, less fettered than that in respect of a conventional sentencing decision.  A comparison with other cases is therefore a less reliable guide than is the case for a conventional sentencing.

[10]     The  Court  of Appeal  has  provided  some  guidance  to  when  a  period  of disqualification will be manifestly excessive.  In Hitchens v Police the Court noted two competing considerations.3

(a)       long  periods  of  disqualification  typically  leave  little  hope  for offenders;  and

(b)it is incumbent on the Courts to keep dangerous drivers off the road for as long as reasonably possible.

[11]     The task of the sentencing Judge, and an appellate Court on review, is to effect  an  appropriate  balance  between  those  considerations.    The  fixing  of  that balance depends upon the circumstances of the particular case.

[12]     In this case, the appellant’s driving led to the death of his passenger.   His blood alcohol level was one and a half times the maximum allowed.  His speed was clearly excessive.   This is the appellant’s third drink driving conviction.   Public safety, and the need to keep the appellant off the road for as long as reasonably possible, weighs heavily in the balance.   The period imposed is not so long as to

leave little hope for the appellant.

3      Hitchens v R CA380/03, 25 March 2004.

[13]     For these reasons I am satisfied that the period of disqualification imposed was not manifestly excessive. The appeal is accordingly dismissed.

“A D MacKenzie J”