Leef v Police - [2024] NZHC 772

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CR-2024-488-000020

[2024] NZHC 772

RICHARD LEEF APPELLANT

v

NEW ZEALAND POLICE RESPONDENT

Hearing: 11 April 2024

Appearances:

T Shepherd for the Appellant A Goodwin for the Respondent

Judgment:

12 April 2024

JUDGMENT OF WHATA J

Appeal

Solicitors / Counsel:
Mr T Shepherd, Barrister, Kaikohe
Marsden Woods Inskip Smith, (Office of the Crown Solicitor) Whangarei

LEEF v POLICE [2024] NZHC 772 [12 April 2024]

[1] Richard Leef was charged with drink driving, being his fourth offence of this type.1 His breath alcohol was analysed at 856 micrograms, more than double the limit of 400 micrograms. Mr Leef pleaded guilty and was sentenced by Judge D J Orchard to six months’ imprisonment, without leave to apply for home detention.2

[2] Mr Leef now appeals that sentence saying it is manifestly excessive because the Judge did not consider relevant factors to the imposition of home detention, which would have been the least restrictive outcome in the circumstances and should have been imposed.

[3] At the conclusion of the hearing, I resolved to allow the appeal on the basis that a sentence of six months’ home detention be substituted, and on the basis that Mr Leef be subject to a condition that he participate in rehabilitation. I invited counsel to file a joint memorandum addressing the issue of conditions. They have done so, and they have been incorporated into my decision.

[4]These are my reasons.

Threshold for appeal

[5] I may allow the appeal against sentence if I find a material error, including that the end sentence was manifestly excessive.3

Decision of the District Court

[6] In sentencing Mr Leef, the Judge noted the aggravating features were that this was Mr Leef’s fourth conviction and the level of alcohol in the present case, and with his prior convictions, was very high. Also of concern to the Judge was Mr Leef’s “apparent lack of any interest in doing anything about [his] drinking”.4 The Judge was sceptical about Mr Leef’s remorse offered, saying that he must have known he was

1      Land Transport Act 1998, s 56(1) and (4). Maximum penalty: two years’ imprisonment or $6,000 fine; and disqualification from holding or obtaining a driver licence for more than one year.
2      New Zealand Police v Leef [2024] NZDC 5131.
3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].
4      New Zealand Police v Leef, above n 2, at [4].

very drunk before driving and that it could be inferred from the timing there was no real gap between the drinking and the driving.

[7] Mr Leef said that since the conviction he did not go out as regularly as he once did, but continues to have a few drinks at home with friends. The Judge noted this was his way of mitigating any risk of being caught again. The Provision of Advice to…

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 Leef v Police

Details

AGLC: Leef v Police [2024] NZHC 772
Case: [2024] NZHC 772
Decision Date: 12 April 2024

CaseChat Overview and Summary

Richard Leef was sentenced to six months' imprisonment for his fourth drink-driving offence, with a breath alcohol level of 856 micrograms, more than double the legal limit. Leef appealed the sentence, arguing it was manifestly excessive as the District Court Judge did not consider relevant factors that could have led to a sentence of home detention, which would have been the least restrictive outcome. The appeal was heard on 11 April 2024, with T Shepherd appearing for the Appellant and A Goodwin for the Respondent. Whata J delivered the judgment on 12 April 2024.

The central legal issue was whether the sentence of imprisonment was manifestly excessive. The Court considered whether the District Court Judge erred materially by not considering relevant factors that could have led to a sentence of home detention. The appeal was allowed if it was found that the sentence was manifestly excessive.

The District Court Judge noted several aggravating factors, including Leef's fourth conviction for drink driving, the high level of alcohol present, and his apparent lack of interest in addressing his drinking habits. The Judge was sceptical about Leef's remorse, believing he knew he was very drunk before driving. The Judge discounted the starting point of eight months' imprisonment by 25 per cent for the guilty plea, resulting in a notional end sentence of six months' imprisonment. The Judge considered home detention but concluded that imprisonment was the least restrictive sentence in these circumstances, as home detention would not fulfil the purposes of accountability, deterrence, and denunciation.

Leef's counsel argued that the Judge gave complete priority to the purpose of deterrence without regard to other countervailing purposes of sentencing. Counsel submitted that the Judge did not consider or give sufficient weight to factors such as Leef's lack of a previous sentence of imprisonment, the considerable periods of time between his convictions, and his ability to undertake and comply with an electronically monitored sentence. The Police submitted that a sentence of imprisonment was appropriate, highlighting the aggravating features of the offending.

The Court determined that while the starting point of imprisonment was not faulted, a sentence of home detention was justified. The Court identified key factors including Leef's lack of a previous sentence of imprisonment and the lengthy gaps between his current and prior offending. The Court considered that Leef's physical condition, where he cannot walk unaided, meant a sentence of imprisonment would be particularly severe for him. The Court concluded that a sentence of home detention best served the principles of sentencing, including deterrence and denunciation, and imposed a sentence of six months' home detention with special and post-detention conditions.

The appeal was allowed, the sentence of imprisonment was quashed, and a sentence of home detention of six months was imposed, with special conditions for the duration of the sentence and post-detention conditions for 12 months from the end date. The sentence was deferred by two working days to allow Corrections to enable the electronic monitoring to be put in place.

Orders