Lowther v Police - [2025] NZHC 682

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-000321

[2025] NZHC 682

BETWEEN
TROY WIREMU ROBERT LOWTHER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:
13 March 2025

Further submissions were filed 18 March 2025

Appearances:

M L Brus and B P A Shamy for Appellant P J Brand for Respondent

Judgment:

27 March 2025

JUDGMENT OF EATON J

(appeal against sentence)

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

LOWTHER v POLICE [2025] NZHC 682 [27 March 2025]

Introduction

[1] Troy Wiremu Robert Lowther (31 years old) pleaded guilty to 13 charges for which he was sentenced to two years and seven months’ imprisonment by Judge Orchard on 19 November 2019.1 The charges are:

(a)failing to stop for blue and red flashing lights (third or subsequent);2

(b)failing to stop for red and blue flashing lights while driving in a dangerous manner (x 2);3

(c)dangerous driving;4

(d)driving while disqualified (third or subsequent) (x 3);5

(e)refusing a request to provide a blood specimen to be taken;6

(f)driving recklessly;7

(g)dishonestly taking a motor vehicle;8

(h)intentionally damages property;9

(i)theft under $500;10 and

(j)possession of class A drug, namely methamphetamine.11

1      Police v Lowther [2024] NZDC 28001.
2      Land Transport Act 1998, ss 52A(1)(a)(ii), subss (5) and (6) and s 114(2); maximum penalty three months’ imprisonment or $10,000 fine.
3      Sections 52A(1)(a)(ii), subss (3) and (6) and s 114(2); maximum penalty $10,000.
4      Section 35(1)(b); maximum penalty three months’ imprisonment or $4,500 fine.
5      Sections 32(1)(a) and 32(4); maximum penalty two years’ imprisonment or $6,000 fine. As will be discussed, two of these convictions are an error.
6      Sections 60(1)(a), 60(2) and 72(1)(e); maximum penalty three months’ imprisonment or $4,500 fine.
7      Section 35(1)(a); maximum penalty three months’ imprisonment or $4,500 fine.
8      Crimes Act 1961, s 226(1); maximum penalty seven years’ imprisonment.
9      Section 269(2)(a); maximum penalty seven years’ imprisonment.
10     Sections 219 and 223(d); maximum penalty three months’ imprisonment.
11     Misuse of Drugs Act 1975, s 7(1)(a) and subs (2); maximum penalty six months’ imprisonment or
$1,000 fine.

Facts

[2] The charges arose from offending arising from two distinct periods. At the time of these incidents, Mr Lowther was a disqualified driver.

May offending

[3] On the evening of 4 May 2024, Mr Lowther unlawfully took a car from Prebbleton.

[4] On the morning of 5 May 2024 Mr Lowther drove this car, filled it with $60 worth of petrol at a Christchurch petrol station on Curletts Road and left without paying for the fuel, giving rise to theft and disqualified driving (incorrectly charged as third or subsequent).

[5] At around 3 pm that afternoon, Mr Lowther was with a female associate in the same vehicle at a Castle Hill reserve. A police constable responded to the stolen vehicle alert and parked directly behind the car activating red and blue flashing lights. Mr Lowther attempted to drive the car through…

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 Lowther v Police

Details

AGLC: Lowther v Police [2025] NZHC 682
Case: [2025] NZHC 682
Decision Date: 27 March 2025

CaseChat Overview and Summary

The High Court of New Zealand dealt with an appeal by Troy Wiremu Robert Lowther against both his convictions and sentence. Lowther had pleaded guilty to multiple charges arising from two distinct periods in May and July 2024. These charges included unlawful taking of a motor vehicle, theft, disqualified driving, dangerous driving, and possession of a class A drug. The District Court had sentenced Lowther to two years and seven months' imprisonment. Lowther appealed both the convictions and the sentence, arguing that the sentence was manifestly excessive and that there were errors in the charging of certain offences.

The court identified two key legal issues: first, whether there had been an error in the imposition of the sentence that warranted intervention, and second, whether the convictions for disqualified driving on 5 May 2024 were correctly charged and imposed. The court noted that appeals against sentence are permissible if the sentence is manifestly excessive or if there has been an error in the imposition of the sentence. Regarding the convictions, the court recognised that there had been charging errors in the disqualification offences and the offence of refusing to provide a blood specimen. The court accepted that these errors warranted the quashing of the convictions and the amendment of the charges.

In its reasoning, the court found that the District Court had indeed erred in several respects. The starting points for the May and July offending were too high, and insufficient reductions were made for Lowther's personal circumstances. The court recalculated the sentence de novo, adopting a starting point of 18 months for the unlawful taking of the motor vehicle and applying appropriate uplifts for the other offences. The court also allowed a modest deduction for totality and applied uplifts and deductions for personal factors. The final sentence imposed by the court was two years and five months' imprisonment, which was slightly less than the original sentence but still deemed necessary to adequately protect the public and to meet the principles of denunciation and deterrence.

The court granted Lowther leave to appeal out of time against the convictions for disqualified driving on 5 May 2024. It allowed the appeals against the convictions and the sentence, quashed the original convictions and sentences, and imposed new sentences, with certain sentences to be served concurrently and others cumulatively. The disqualifications imposed by the District Court were confirmed.

Orders