Lechner v Police - [2013] NZHC 1166

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-22 [2013] NZHC 1166

GARTH ERICH LECHNER
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 21 May 2013

Counsel: D Ewen for Appellant
S Carter for Respondent

Judgment: 23 May 2013

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 12.00pm on the 23rd May 2013.

JUDGMENT OF WILLLIAMS J

Introduction

[1] On 28 March 2013 having plead guilty, Mr Lechner was convicted of drink driving. He was fined $300 plus court costs and medical expenses and disqualified from driving for two months. Mr Lechner appeals against conviction and sentence. He says the learned Judge should have discharged him without conviction. He says
that the Judge erred in his assessment of the gravity of the offence and the indirect

LECHNER V NEW ZEALAND POLICE HC WN CRI-2013-485-22 [23 May 2013]

consequences of a conviction and that this led to an erroneous application of the s 107 balancing test.

Facts

[2] On 4 November 2012 at approximately 12.20am Mr Lechner was at a party. He became involved in a verbal altercation with his girlfriend. He decided to leave the party. He got into his car and reversed it into the driveway and then drove
20 metres along the road and parked. He says he did this because he feared that people at the party would damage it. Apparently some of the party goers took exception to some of Mr Lechner’s comments during the course of the argument with his girlfriend. The police did not challenge this explanation for why the car was moved. Having parked the vehicle, he then left it. There was then a brief altercation on the street, the police were called and a neighbour pointed Mr Lechner out. The police did not charge Mr Lechner with any offence arising from the altercation, but having discovered that he had recently driven the car, the police breath tested him. He failed the breath test and then elected to have a blood test. The result was
124 micrograms of alcohol per 100 millilitres of blood.

District Court decision

[3] The learned Judge was not satisfied that the direct and indirect consequences of a conviction were out of all proportion to the gravity of the offence. In assessing the seriousness of the offence, he noted that drink-driving is a serious driving offence but that Mr Lechner’s offending was at the less serious end. The learned Judge took into account that Mr Lechner had not offended similarly in the past and the car was driven only a short distance without any apparent danger to anyone else. He also noted Mr Lechner’s reasons for driving his car and the fact that he had taken bedding to the party and intended to stay the night there.

[4] In assessing the consequences of a conviction, the learned Judge considered Mr Lechner’s argument that a conviction would further limit his chances of employment when his personal circumstances and previous convictions…

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 Lechner v Police

Details

AGLC: Lechner v Police [2013] NZHC 1166
Case: [2013] NZHC 1166
Decision Date: 23 May 2013

CaseChat Overview and Summary

The case of Lechner v Police involved Mr Lechner, who had been convicted of drink driving in the District Court and subsequently appealed to the High Court. The appeal contested the conviction and sentence imposed by the District Court. Mr Lechner argued that the District Court should have discharged him without a conviction, claiming that the court erred in assessing the gravity of the offence and its consequences. He contended that this led to an improper application of the s 107 balancing test.

The legal issues before the court were whether the District Court correctly assessed the seriousness of Mr Lechner’s drink driving offence and whether the consequences of a conviction were out of all proportion to the gravity of the offence. The court needed to determine if the District Court's decision to convict Mr Lechner was justified under s 107 of the relevant statute, which allows for a discharge without conviction if the consequences are disproportionate. Additionally, the court considered the impact of the Criminal Records (Clean Slate) Act 2004 on Mr Lechner’s employment prospects and how this affected the proportionality assessment.

The High Court found that the District Court had erred in its assessment. The court held that the seriousness of Mr Lechner’s drink driving offence was extremely low given that he only drove 20 metres to park his car at a party and intended to stay the night. The court also found that the impact of a fresh conviction on Mr Lechner's employment prospects, in light of the Clean Slate Act, was significant. This additional conviction would prevent him from achieving a clean slate for another five years, making the conviction disproportionate to the low-level nature of the offending. The High Court concluded that the threshold for disproportionate consequences under s 107 was met and granted Mr Lechner a discharge without conviction, while maintaining the driving disqualification.

The final orders of the court were that the appeal was allowed, the conviction was quashed, and Mr Lechner was granted a discharge without conviction. The driving disqualification was upheld as per s 106(3)(c).

Orders