Leaupepe v R
[2016] NZCA 228
•26 May 2016 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA83/2016 [2016] NZCA 228 |
| BETWEEN | TO'OTO'OLEMANINO LEAUPEPE |
| AND | THE QUEEN |
| Court: | Kós, Courtney and Gilbert JJ |
Counsel: | M B Ryan for Applicant |
Judgment: (On the papers) | 26 May 2016 at 2.30 pm |
JUDGMENT OF THE COURT
A An extension of time to apply for leave to appeal is granted.
B The application for leave to appeal is declined.
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REASONS OF THE COURT
(Given by Kós J)
Mr Leaupepe pleaded guilty to driving with excess blood alcohol (EBA) causing the death of his passenger. The District Court sentenced him to two years’ imprisonment and disqualified him from driving for five years.[1] A sentence appeal to the High Court failed.[2]
[1]R v Leaupepe [2015] NZDC 10296.
[2]Leaupepe v R [2015] NZHC 1766.
The issue in this application for leave to bring a second appeal is whether the period of disqualification from driving is manifestly excessive. No issue is taken with the period of imprisonment.
Background
On 5 December 2014 Mr Leaupepe was driving near Bulls. He lost control as he rounded a corner. The car struck a fence. His passenger Mr Coleman‑Prestidge died at the scene. Mr Leaupepe produced a blood sample reading 126 milligrams of alcohol per 100 millilitres of blood; one and a half times the legal limit. The Serious Crash Unit estimated the vehicle had been travelling at between 136 and 164 kilometres per hour in a 100 kilometres per hour zone.
Mr Leaupepe pleaded guilty to driving with EBA causing death, the maximum sentence for which is 10 years’ imprisonment or a fine of $20,000. The court must order disqualification of one year or more.[3] But if the defendant has two or more previous convictions for driving with EBA then the court must order disqualification for more than one year.[4] Mr Leaupepe had two previous convictions for driving with EBA (neither of which resulted in death or injury).
District Court
[3]Land Transport Act 1998, s 61(3AA).
[4]Section 61(3A).
In the District Court, Judge Crosbie adopted a starting point of three years’ imprisonment because of Mr Leaupepe’s two previous EBA convictions dating from 2008, and the grossly excessive speed at which he was driving. The Judge reduced this to two years for an early guilty plea, remorse and participation in restorative justice. The Judge added disqualification for a period of five years, although without explaining exactly why.[5]
High Court
[5]Mr Leaupepe was also ordered to pay $5,000 reparations for emotional harm to the passenger’s family.
Mr Leaupepe appealed against the disqualification period to the High Court.[6] MacKenzie J observed that the principal objective of disqualification is public safety. The discretion available to the sentencing Judge is less fettered than for a conventional sentencing decision. What is necessary is a balancing of two competing concerns. First, that long periods of disqualification leave little hope for offenders. Secondly, the need to keep dangerous drivers off the road for as long as is reasonably possible.
[6]Leaupepe v R, above n 2.
MacKenzie J rejected a submission that it was appropriate to rely on a comparison of other cases to address the question of manifest excess. For periods of disqualification there is no maximum period. Nor is there a developed body of case law addressing the principles to be applied.[7]
[7]At [7].
His Honour concluded that the disqualification period was not manifestly excessive because the level of EBA was high, the speed was clearly excessive, and this was Mr Leaupepe’s third EBA conviction. The period was not so long to leave little hope for Mr Leaupepe.[8]
Application for leave to appeal and for an extension of time
[8]At [12].
Mr Leaupepe applies for leave to bring a second appeal. He has filed his notice of application out of time by five months, so also seeks an extension of time. That extension is adequately explained by an error of Mr Leaupepe’s counsel, so is granted.
Essentially he repeats his submission in the High Court. That is, that five years’ disqualification is manifestly excessive compared with other cases. He says a comparison-based approach was taken in King v Police, where a period of disqualification was reduced on appeal from 20 years to five years.[9]
[9]King v Police HC Whangarei CRI-2006-488-23, 2 October 2006.
The Crown resists the notion that disqualification periods should be assessed based on a comparison with other cases, and in any event seeks to distinguish those cases.
Discussion
Leave for a second appeal will only be granted if the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred.[10] Mr Leaupepe does not argue his appeal involves a matter of general importance. He solely relies on the miscarriage of justice ground.
[10]Criminal Procedure Act 2011, s 253
Assuming a comparison approach is appropriate, we do not think five years’ disqualification could be said to be manifestly excessive.
First, this case can be distinguished from all of the cases Mr Leaupepe relies on in which there was a shorter disqualification period because in those cases the offender did not have previous EBA convictions.[11]
[11]These cases include McMillan v Police [2014] NZHC 150; McCullough v Police DC Hawera CRI-2012-021-848, 21 November 2012; Bowlin v Police [2014] NZHC 2635; Williams v Police [2014] NZHC 2666 and Police v Crawford DC Manukau CRI-2011-055-2980, 18 July 2012.
Secondly, where there are previous EBA convictions, a longer disqualification period is required to protect the public. This is exemplified by Cashman v Police, a case cited by neither party.[12] In that case, the appellant was convicted of driving with EBA causing death. The EBA level was 154 mg, one person died, and the offender had three previous EBA convictions. John Hansen J said the offender was a “real and present danger” on the road, and upheld a 10 year disqualification period.[13]
[12]Cashman v Police HC Christchurch CRI-2006-409-121, 15 September 2006.
[13]At [46]. See also R v McGrath [2014] NZHC 1583, in which the defendant had two previous convictions for driving with EBA and was disqualified from driving for five years for manslaughter and driving with EBA.
Thirdly, even where there are no previous EBA convictions, disqualification for five years is far from unprecedented.[14]
Result
[14]R v Presland [2015] NZHC 1203 (disqualification for five years); R v McClutchie [2013] NZHC 1988 (the effective disqualification period was between four years, five months and eight years, three months, depending on when parole was granted).
An extension of time to apply for leave to appeal is granted.
The application for leave to appeal is declined.
Solicitors:
MB Ryan, Palmerston North for Applicant
Crown Law Office, Wellington for Respondent
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