Lowther v Police
[2025] NZHC 682
•27 March 2025
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 the bushes immediately in front of the vehicle, but then reversed, colliding with the parked police car. Mr Lowther collided with the police car again and a neighbouring camper van before driving off at speed, narrowly avoiding colliding with another vehicle. The police constable followed Mr Lowther with activated flashing lights, but stopped when it became clear Mr Lowther was not going to stop. For the Castle Hill offending, Mr Lowther was charged with intentionally damaging the police vehicle, disqualified driving (incorrectly charged as third of subsequent) and failing to stop while driving dangerously.
[6] At around 5 pm the same day, a police sergeant in West Melton, observed Mr Lowther drifting across the road and driving on the wrong side of the road. The sergeant activated his flashing lights, but Mr Lowther accelerated and drove through a red light and the pursuit was abandoned. The stolen vehicle was later discovered abandoned and was written off by the victim’s insurance company. This offending gave rise to an aggravated charge of failing to stop while driving dangerously, and reckless driving.
July offending
[7] At 1 am on the morning of 5 July 2024, Mr Lowther was again out driving a car. He was observed by police travelling at about 110 kilometres per hour in a 50 kilometre per hour zone. Police followed the car with flashing lights and sirens but abandoned the chase when Mr Lowther failed to stop. The vehicle was found parked a short time later, Mr Lowther then refused a request for a blood sample. He was charged with failing to stop (third or subsequent), dangerous driving, disqualified driving (third or subsequent), refusing a request to provide a blood specimen (incorrectly not charged as third or subsequent), and possession of methamphetamine.
District Court Decision
[8] The Judge applied a 15-month starting point for the unlawful taking of a motor vehicle and the theft of the petrol, observing that the vehicle (worth $6,000) was found damaged beyond repair. A discrete starting point of two years’ imprisonment was applied in relation to the balance of the 5 May offending, the Judge referring to the “very real and present danger to the driving public”. The Judge applied a further discrete starting point of nine months’ imprisonment for the 5 July offending. This resulted in a combined starting point of 48 months’ imprisonment, which was reduced to 42 months to reflect totality. An uplift that the Judge described as modest was applied for Mr Lowther’s “appalling history of similar driving”. Deductions of 25 per cent for a prompt guilty plea and five per cent discount for mental health challenges were allowed giving rise to an end sentence of two years and seven months’ imprisonment.
Principles on appeal
[9] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.12 As the Court of Appeal observed in Tutakangahau v R, with reference to the lower court’s decision, a “court will not intervene where the sentence is within the range that
12 Criminal Procedure Act 2011, ss 250(2) and 250(3).
can properly be justified by accepted sentencing principles”.13 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.14
Charging errors
[10] On 6 March 2025 I issued a minute to counsel recording my concern that Mr Lowther had, in relation to the 5 May offending, been wrongly charged with, and convicted of disqualified driving (third or subsequent). By memoranda, counsel confirmed that to be the case. A conviction for disqualified driving for which Mr Lowther was sentenced on 2 July 2024 had erroneously been treated as a conviction pre-dating the 5 May offending. Mr Lowther was sentenced to nine months’ imprisonment for one of the 5 May third or subsequent disqualified driving offences.15 The maximum penalty he should have faced was one of three months’ imprisonment.
[11] Ms Brus, for Mr Lowther promptly filed an appeal against the convictions entered for the two 5 May disqualified driving charges.
[12] At the outset of the appeal hearing both Ms Brus and Mr Brand for the Police invited the Court to allow the conviction appeal, quash Mr Lowther’s convictions for disqualified driving (third or subsequent) on 5 May and to amend both charges to offences under s 32(1) of the Land Transport Act. I agreed to that path. Ms Brus confirmed she had instructions to enter guilty pleas to the amended charges. I entered guilty pleas accordingly.
[13] A further charging error I identified was that the 5 July refusing to provide a blood specimen offence had, erroneously, not been charged as a third or subsequent offence. Counsel agreed that error was no longer remediable.
13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
14 Ripia v R [2011] NZCA 101 at [15].
15 No sentence other than disqualification was imposed for the second third or subsequent disqualified driving offence.
[14] In light of the charging errors, it was agreed that I should sentence Mr Lowther de novo. I will do so but record the Court’s concern that errors of this nature have occurred and been overlooked until this appeal.
Submissions
Appellant’s submissions
[15] With reference to the approach taken by the District Court Judge, Ms Brus, submits the sentence of two years’ seven months’ imprisonment was manifestly excessive. She submits the starting point adopted by the Judge was too high and insufficient reductions were made for Mr Lowther’s personal circumstances.
[16] Ms Brus contends for a starting point of 12 months for the unlawful taking, with uplifts of six months for the intentional damage, eight months for all driving offences and a ten per cent uplift for previous convictions and offending on bail. With deductions of around 30 per cent, Ms Brus submits the appropriate end sentence is one of less than two years’ imprisonment and that leave should be granted to Mr Lowther to apply for home detention to a rehabilitation facility.
Respondent’s submissions
[17] Mr Brand, for the respondent, submits the end sentence was within range for what could be expected for the type of offending and was therefore not manifestly excessive. He accepts the starting point taken by the Judge for the 4 and 5 May offending of three years and three months’ imprisonment was too high. He submits the lead offence for that offending is the unlawful taking and that a starting point of around 18 months was appropriate. He submits an uplift of up to eight months should be applied for the intentional damage and other driving offences committed on 5 May.
[18] Mr Brand submits that the July offending is discrete and that a cumulative sentence is called for. He proposes a starting point of around 18 months. Mr Brand accepts that a modest totality adjustment, around ten per cent is available. He seeks an uplift for previous convictions and offending on bail.
[19] With the deductions applied by the Judge, the end sentence is in the vicinity of two years and six months’ imprisonment, almost matching the sentence imposed in the District Court.
Analysis
Approach
[20] I consider it appropriate to adopt discrete starting points for the May and July offending. I propose treating the unlawful taking of the motor vehicle as the lead offence for the May offending and applying uplifts for the driving and damage offences. The lead offence for the July offending is the disqualified driving (third or subsequent) and I will apply uplifts for the other driving offences. I will then consider whether a totality deduction is appropriate before applying necessary adjustments for personal aggravating and mitigating factors.
May offending
[21] Having unlawfully taken the vehicle on 4 May, Mr Lowther, a disqualified driver then stole petrol, and took determined, reckless and ultimately successful measures to evade the police. In the Castle Hill offending, the intentional ramming of the police car is an aggravating feature. In the West Melton offending, not only did Mr Lowther refuse to stop for the police; his driving put the public at risk.
[22] The Judge adopted a 15-month starting point for the unlawful taking and petrol theft. Ms Brus argues the starting point for unlawfully taking a motor vehicle could have been between 12—15 months’ imprisonment, directing me to a number of cases.16 I am assisted by the review undertaken by Downs J in Wood v Police.17 The Judge reviewed a number of cases involving the unlawful taking of motor vehicles and concluded that a starting point for that offence of at least 18 months’ imprisonment is available if the offence has significant aggravating features. The appropriate starting point would be between 18 and 20 months if a defendant not only unlawfully took a car but attempted to evade police in a chase.
16 Galloway v Police [2019] NZHC 3363; Peka-Hazel v Police [2016] NZHC 2696; and O’Rourke v Police [2016] NZHC 273.
17 Wood v Police [2018] NZHC 1629 at [11]—[24].
[23] The vehicle taken by Mr Lowther was written off, albeit it was not a high value vehicle. It was twice used to evade the police and to steal petrol. I adopt a starting point of 18 months’ imprisonment for that offending.
[24] The Judge adopted a starting point for the balance of the May offending of 24 months’ imprisonment. I agree with Ms Brus that was too high. The Judge placed particular emphasis on the damage to the police vehicle and imposed an end sentence of two years and seven months’ imprisonment or that offending. Counsel have referred to a number of authorities suggesting that sentence was excessive.18 I agree. While the damage to the police vehicle was intentional, I accept there was no intent to harm the officer. The intent to damage the police vehicle was not significant. I agree with both counsel that the intentional damage offending is best reflected by an uplift to the lead offence.
[25] I fix an uplift of eight months as appropriate to reflect the two acts of driving while disqualified, the intentional damage of the police vehicle, the reckless driving at West Melton and the theft of petrol. The starting point for the May offending is 26 months’ imprisonment.
July offending
[26] The July offending is in large part a replication of Mr Lowther’s May offending, albeit under the dark of night. He drove at high speeds, on the wrong side of the road in a residential area. The dangerous driving was prolonged and yet again, due to concerns for the safety of the public and Mr Lowther, led the police to abandon the pursuit.
[27] The sentencing Judge adopted a starting point of nine months for the 5 July offending. In my view that offending must attract a higher starting point because it involved Mr Lowther’s third or subsequence conviction for disqualified driving. That offence is significantly aggravated by the refusal to provide a blood specimen, thereby avoiding a forensic determination as to just how unfit he was to drive and by his prolonged dangerous driving. Given that he was found in possession of
18 R v Lloyd [2022] NZHC 1044; and Fugle v R [2022] NZCA 124.
methamphetamine and admits to a methamphetamine addiction, there could be little doubt that Mr Lowther was in no fit state to be behind the wheel of a motor vehicle. The July offending reflects Mr Lowther’s absolute disregard for public safety and the grave risk he poses to road users.
[28] I adopt a global starting point for the July offending of 15 months’ imprisonment.
Totality
[29] That gives rise to an overall starting point for all sets of offending of 41 months’ imprisonment. I consider the uplifts I have applied for the series of offences committed in both the May and July offending to be modest and reflecting the totality principle. I do however agree with Ms Brus that standing back and considering the overall gravity of the offending, a further modest deduction is appropriate. I allow a three-month deduction.
Personal factors
[30] I agree with the Judge that an uplift must be applied to reflect that, not only does Mr Lowther have a shocking history of very similar bad and unlawful driving, but that he had appeared in the District Court at Christchurch on 2 July 2024. He was sentenced to supervision and was disqualified from driving following guilty pleas to driving while disqualified, failing to stop, reckless driving and possession of drug utensils. That he then offended in an almost identical fashion just three days later, on 5 July speaks volumes. Further, he committed the May offending whilst on bail for the charges that were ultimately dealt with on 2 July. The Judge imposed an uplift of three months. In my view that was modest, but I will apply the same uplift.
[31] Mr Lowther is entitled to a full deduction of 25 per cent for his guilty pleas. I accept those pleas were entered at the first reasonable opportunity. The Judge allowed a further five per cent deduction to reflect Mr Lowther’s history of drug addiction and mental health struggles. In relation to mental health the Judge observed:19
19 Police v Lowther, above n 1, at [15].
…the reason that it is modest is because, in my view the real source of your driving is a combination of an incredibly self-involved attitude where you simply do not for a moment consider the possible outcome for others of your dangerous and quite mad driving and your addiction to methamphetamine. It is not to be laid at the door of mental health issues. So I will give you five per cent for that, and for the fact that you have done a He Waka Tapu course in prison.
[32] I agree. I too see little causal connection between Mr Lowther’s mental health and drug issues, his drug addiction and his driving offending. Ms Brus submits that deduction should have been greater because the methamphetamine addiction “fuelled” the offending. In my view this offending was fuelled by methamphetamine use not addiction. I see little causal connection between the offending and addiction. Addiction did not cause Mr Lowther to unlawfully take a car, get behind the wheel of it and put other road users at risk. As stated by Dunningham J regarding similar driving offending:20
There was no evidence of a causal nexus between the appellant’s methamphetamine addiction and the offending. Mr Wilson’s offending was not motivated by the need to further his dependence on methamphetamine or due to any external pressure to obtain property to sell for drugs. Any consumption of methamphetamine that led Mr Wilson to engage in the offending was a voluntary act that does not mitigate his moral culpability.
[33] A modest deduction is appropriate to reflect Mr Lowther’s poor mental health as detailed in the s 27 report. I agree with the Judge that a five per cent deduction is justified for Mr Lowther’s personal circumstances.
[34] The net deduction is one of 22 per cent or just over eight months. That leads to an end sentence, rounded down of two years and five months’ imprisonment.
Home detention
[35] Even if I had reached the view that a short-term sentence was appropriate, I would not have commuted that sentence to one of home detention. Mr Lowther presents as a grave danger to the public and, in particular, road users. A sentence short of imprisonment would not, in my view, adequately protect the public and would not meet the sentencing principles of denunciation and deterrence.
20 Wilson v Police [2021] NZHC 402 at [42].
Result
[36] I grant leave to Mr Lowther to appeal out of time against the two convictions for aggravated disqualified driving on 5 May 2024.
[37] I allow the appeals against convictions. The convictions entered on CRNs 24009011758 and 24009011761 are quashed. Each of those charges is amended to delete the words “you having been convicted at least twice previously of an offence against s 32(1) of the Land Transport Act 1998 or corresponding offences referred to in s 32(5) of that Act”. I record guilty pleas to both amended charges and enter convictions following those pleas.
[38] The appeal against sentence is allowed. The sentence of two years and seven months’ imprisonment imposed on the charge of intentional damage and all concurrent sentences of imprisonment imposed by the Judge are quashed. In substitution I impose sentences as follows:
(a)For the May offending:
(i)Unlawful taking of a motor vehicle — 15 months’ imprisonment.
(ii)Theft of petrol — one month’ imprisonment.
(iii)Driving while disqualified (5 May) — one month’ imprisonment.
(iv)Failing to stop (5 May) — convicted and disqualified.
(v)Failure to stop (5 May) — convicted and disqualified.
(vi)Disqualified driving (5 May) — one month’ imprisonment.
(vii)Dangerous driving (5 May) — one month’ imprisonment.
(viii)Intentional damage (5 May) — four months’ imprisonment.
[39] Each of the sentences imposed for the May offending are to be served concurrently.
(a)For the 5 July offending:
(i)Possession of Class A controlled drug — convicted and discharged.
(ii)Failing to stop (third or subsequent) — two months’ imprisonment.
(iii)Reckless driving — two months’ imprisonment.
(iv)Refusing to provide a blood specimen — three months’ imprisonment.
(v)Disqualified driving (third or subsequent) — 14 months’ imprisonment.
[40] Each of the sentences imposed for the July offending are to be served concurrently. The sentence of 14 months’ imprisonment imposed for driving while disqualified (third or subsequent) is to be served cumulatively on the sentence of 15 months’ imprisonment imposed on the unlawful taking of a motor vehicle. The total sentence of imprisonment is one of two years and five months.
[41] The disqualifications imposed in the District Court are confirmed including the indefinite disqualification imposed on the charge of refusing a blood specimen (CRN 24009009019).
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Eaton J
Solicitors:
Crown Solicitors, Christchurch LawHub Ltd, Christchurch
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