Leaupepe v R - [2016] NZCA 228

IN THE COURT OF APPEAL OF NEW ZEALAND

CA83/2016
[2016] NZCA 228

BETWEEN	TO'OTO'OLEMANINO LEAUPEPE Applicant
AND	THE QUEEN Respondent

Court:

Kós, Courtney and Gilbert JJ

Counsel:

M B Ryan for Applicant
S L Graham for Respondent

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.

____________________________________________________________________

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…

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 Leaupepe v R

Details

AGLC: Leaupepe v R [2016] NZCA 228
Case: [2016] NZCA 228
Decision Date: 26 May 2016 at 2.30 pm

CaseChat Overview and Summary

To'oto'olemanino Leaupepe applied for leave to bring a second appeal against his conviction for driving with excess blood alcohol causing death, and the period of disqualification from driving imposed by the District Court. The Court of Appeal granted an extension of time for the application, but declined leave to appeal. Mr Leaupepe was driving with a blood alcohol level of 126 milligrams per 100 millilitres of blood when he lost control and killed his passenger. He had two previous convictions for driving with excess blood alcohol. The District Court sentenced him to two years' imprisonment and disqualified him from driving for five years. The High Court rejected his appeal against the disqualification period. Mr Leaupepe now seeks leave to bring a second appeal, arguing the disqualification period is manifestly excessive. The Court of Appeal noted that the disqualification period for previous offenders is not subject to a maximum, and the sentencing Judge's discretion is broad. The Court found that five years' disqualification was not manifestly excessive because it was necessary to protect the public, given the level of alcohol, the speed of the vehicle, and the number of previous convictions.

The Court of Appeal held that leave to bring a second appeal will only be granted if the appeal involves a matter of general or public importance, or there may have been a miscarriage of justice. Mr Leaupepe did not argue the appeal involves a matter of general importance. The Court found that the disqualification period was not manifestly excessive. It noted that the disqualification period in other cases relied on by Mr Leaupepe was shorter because the offenders did not have previous EBA convictions. The Court held that a longer disqualification period is required for offenders with previous EBA convictions to protect the public, and that five years' disqualification was not unprecedented. The Court declined leave to appeal.

Orders