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…

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.

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Details

Case: [2015] NZHC 1766
Decision Date: 29 July 2015

CaseChat Overview and Summary

The case of Leaupepe v Police involves the appellant, To'oto'olemanino Leaupepe, who appealed against his sentencing in the District Court at Palmerston North. Leaupepe pleaded guilty to driving with excess blood alcohol causing death and was sentenced to two years imprisonment and disqualified from driving for five years. Additionally, he was ordered to pay $5,000 in reparation for emotional harm. Leaupepe specifically appealed the five-year period of disqualification, arguing it was manifestly excessive.

The legal issues before the court were whether the five-year disqualification period was appropriate and whether it constituted a manifestly excessive penalty. The court needed to determine the correct balance between the public safety considerations and the potential punitive impact on the appellant. The primary statute in question was the Land Transport Act 1998, which mandates disqualification periods for drink driving offences causing death.

The court considered the principles guiding disqualification periods, noting that while Parliament has set a minimum period of disqualification, it did not establish a maximum. This contrasts with the sentencing provisions for imprisonment, which provide a maximum but no minimum. The court highlighted the principle objective of disqualification, which is public safety, and observed that while many sentencing principles apply to disqualification, they must be balanced with the need to keep dangerous drivers off the road. The court also took into account the Court of Appeal's guidance in Hitchens v Police, which emphasized the need to balance the deterrent effect with the need for public safety.

In this particular case, the court found that the appellant's driving, which resulted in the death of his passenger, was extremely reckless, with an excessive blood alcohol level and speed. The appellant's prior convictions further underscored the necessity to keep him off the road. The court concluded that the five-year disqualification period was not manifestly excessive, considering the severity of the offence and the need to protect public safety.

The appeal was dismissed, and the five-year disqualification period was upheld as appropriate.

Orders