Lord v Police - [2015] NZHC 1756

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-73 [2015] NZHC 1756

BETWEEN
DANIEL RAYMOND LORD

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 28 July 2015

Appearances:

A McKenzie for Appellant
D L Elsmore for Respondent

Judgment:

29 July 2015

JUDGMENT OF MANDER J

[1] Daniel Lord was sentenced to six months imprisonment on two charges of driving whilst disqualified, each being his third or subsequent offence. He appeals that sentence on the basis that it is manifestly excessive.

Background

[2] Mr Lord, as a result of the accumulation of demerit points had his licence suspended. On 22 August 2014, he drove notwithstanding that suspension. He was subsequently convicted of that offence and disqualified from driving for six months.

[3] On 26 February 2015, Mr Lord drove whilst disqualified. In explanation, he stated he was test driving a car that he was thinking of buying for his son. The following month, on 12 March, Mr Lord was again apprehended driving whilst disqualified. His explanation on that occasion was no less convincing, stating that he
needed to pick up groceries.

LORD v NEW ZEALAND POLICE [2015] NZHC 1756 [29 July 2015]

The District Court sentence

[4] In sentencing Mr Lord, Judge Couch referred to a “history” of previous convictions, namely a driving whilst disqualified conviction in 2003, and Mr Lord having driven whilst suspended the previous year. The learned District Court Judge emphasised the seriousness of disobeying Court orders, which undermines the scheme of the Land Transport Act 1998, and the need for such offending to be denounced and deterred.

[5] Judge Couch considered that because these were Mr Lord’s third and fourth offences of this type a sentence of imprisonment must be imposed, and a starting point of eight months was taken. Mr Lord’s prompt guilty pleas were recognised by his sentence being reduced by two months.

[6] A sentence of home detention would have been imposed, however, in the absence of Mr Lord consenting to that sentence, it was not an alternative available to the sentencing Court. Leave to apply was granted.

The appeal

[7] Mr Lord submitted that Judge Couch erred in concluding that he “must” impose a sentence of imprisonment because they were his third and fourth offences of this nature. It was emphasised there was no reason for the Judge to have limited the exercise of his sentencing discretion in the way that he did, and particularly so given the fact that for Mr Lord’s second offence of this type, committed in the previous year, he received a modest fine.

[8] Mr Lord submitted that, based on the hierarchy of sentences, to jump from a fine to a sentence of six months imprisonment was not consistent with principle. It was stressed that Mr Lord’s unwillingness to consent to home detention were for personal reasons, relating to his wife’s health and her anxiety about other people, such as probation officers and equipment installers being in the house. He submitted the absence of consent to such a…

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 Lord v Police

Details

AGLC: Lord v Police [2015] NZHC 1756
Case: [2015] NZHC 1756
Decision Date: 29 July 2015

CaseChat Overview and Summary

In Lord v Police, Daniel Lord appealed against his six-month imprisonment sentence for driving while disqualified, arguing it was manifestly excessive. The case involved two charges of driving while disqualified, with each being Lord's third or subsequent offence. The District Court, in sentencing Lord, noted his history of previous convictions and emphasized the seriousness of disobeying court orders. The court considered that because these were Lord's third and fourth offences of this type, a sentence of imprisonment was necessary, starting with an eight-month sentence, reduced by two months due to his prompt guilty pleas. Although home detention could have been imposed, it was not an option as Lord did not consent to it.

The appeal raised the issue of whether the District Court judge erred in concluding that a sentence of imprisonment was mandatory because of Lord's prior offences. Lord argued that the jump from a fine to a six-month imprisonment sentence was inconsistent with sentencing principles, given his limited previous offending. He also highlighted his personal reasons for not consenting to home detention. The Crown, however, argued that the District Court judge's approach was correct and that imprisonment was within the range of available sentences. The High Court assessed whether the purposes and principles of sentencing, particularly accountability and deterrence, could have been achieved by a less restrictive sentence. The Court concluded that the judge had erred in limiting his discretion and that a community-based sentence would be more appropriate. The appeal was allowed, and the sentence was reduced to 230 hours of community work, with certain aspects of the District Court's sentencing being retained.

Orders