Lester v Police - [2020] NZHC 1794

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2020-412-000015 CRI-2020-412-000016

CRI-2020-412-000017 [2020] NZHC 1794

BETWEEN
REGAN JAMES LESTER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 July 2020

Appearances:

S A Saunderson-Warner for the Appellant C J Bernhardt for the Respondent

Judgment:

24 July 2020

JUDGMENT OF NATION J

Introduction

[1] On 20 May 2020, Mr Lester was sentenced to 10 months’ imprisonment and 18 months’ disqualification from driving on a number of charges: receiving, being unlawfully in an enclosed yard, careless driving, dangerous driving, failing to stop, possession of methamphetamine utensils, possession of cannabis, possession of MDMA and common assault.1 He also appeared for re-sentence on a charge of breaching a protection order due to a failure to complete 361 of the 380 hours of community work he was sentenced to on that charge and for the remission of unpaid fines.

1 R v Lester [2020] NZDC 8895.

LESTER v POLICE [2020] NZHC 1794 [24 July 2020]

Facts

[2] On 19 March 2019, Mr Lester was sentenced to community detention for six months and 200 hours’ community work on a charge of breaching a protection order. At the time, Mr Lester had outstanding fines of $3,788.53. As a substituted sentence for those fines, Mr Lester was convicted and sentenced to 180 hours’ community work in addition to the 200 hours imposed for the breach of a protection order.

[3] That protection order was for the benefit of Mr Lester’s former partner (the victim) and their children. They had been in a relationship from about 2011 until early 2018 and had two children together. On 2 August 2018 the protection order was served on Mr Lester. At the time of the offending, Mr Lester was serving a sentence of home detention with a non-association condition in favour of the victim. On 3 January 2019, a birthday celebration was arranged for one of their children at Chipmunks in Dunedin. Due to a misunderstanding, both the victim and Mr Lester attended the birthday party at the same time. There was no incident at the party. The victim then went to leave and be picked up by her partner. Mr Lester was outside and became involved in an angry exchange with the victim’s partner. The victim told him to leave her partner alone, and they drove off. Later that afternoon, someone drove Mr Lester to the victim’s house. The victim came out of her house and there was an angry verbal exchange between her and Mr Lester. She told him to leave, which he did after a short time.

[4] On 4 September 2019, Corrections filed an application for review of the 19 March 2019 sentence and for a substituted sentence because Mr Lester had completed very little of the community work to which he was sentenced for the offending. His counsel accepts that Mr Lester would have had notice of that application soon after it was filed.

[5] On 21 September 2019, Mr…

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 Lester v Police

Details

AGLC: Lester v Police [2020] NZHC 1794
Case: [2020] NZHC 1794
Decision Date: 24 July 2020

CaseChat Overview and Summary

Regan James Lester appealed against his sentence which was imposed by the District Court at Dunedin. The appellant was sentenced to 10 months’ imprisonment and 18 months’ disqualification from driving following a number of charges: receiving, being unlawfully in an enclosed yard, careless driving, dangerous driving, failing to stop, possession of methamphetamine utensils, possession of cannabis, possession of MDMA and common assault. The appellant also appeared for re-sentence on a charge of breaching a protection order due to a failure to complete 361 of the 380 hours of community work he was sentenced to for that charge and for the remission of unpaid fines. The appeal was dismissed. The Court held that the sentence of imprisonment or the period of disqualification was not manifestly excessive. The appellant's argument that the uplift of two months for the unpaid fines was excessive was rejected. The Court noted that the appellant had accumulated a total of $3,788.53 in unpaid fines over a period of three years. This amount was considered to be considerable and the Court held that the uplift in this case was not out of range. The Court also considered the appellant’s argument that a period of 18 months’ disqualification was excessive for the dangerous driving and failing to stop charges. The Court held that a period of 18 months’ disqualification was not excessive in the circumstances of this case. The Court noted that the Judge correctly described the incident as a “very dangerous chase”. The Court held that the Judge had a sound basis for extending the term of disqualification to allow for the time the appellant would be in prison so as to ensure the disqualification would have effect for the period the Judge considered appropriate.

Orders