Luteru v Police - [2023] NZHC 2508

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2023-443-19

[2023] NZHC 2508

BETWEEN
ALFRED LUTERU LUTERU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 30 August 2023

Appearances:

N R Harding for the Appellant H Bullock for the Respondent

Judgment:

7 September 2023

JUDGMENT OF HARLAND J

Introduction

[1] Alfred Luteru pleaded guilty to a charge of driving with excess blood alcohol.1 He applied for a discharge without conviction, but his application was declined by Judge Hikaka on 24 May 2023.2 Mr Luteru appeals this decision. The respondent opposes the appeal.

[2] The appeal was filed out of time by two working days. The respondent does not oppose an extension of time being granted. The delays were occasioned through no fault of the appellant, including a delay in his application for legal aid being

1 Land Transport Act 1998, s 56(2): maximum penalty three months’ imprisonment or a fine not exceeding $4,500 and a mandatory disqualification from holding or obtaining a driver licence for six months or more.
2 New Zealand Police v Luteru [2023] NZDC 10340.

LUTERU v POLICE [2023] NZHC 2508 [7 September 2023]

processed. In the circumstances, I am satisfied it is in the interests of justice to hear the appeal and grant leave for it to be heard out of time.

Principles on appeal

[3] The Court may grant a discharge without conviction under s 106 of the Sentencing Act 2002 only if it is satisfied, under s 107, that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.3

[4] The decision under s 107 involves a matter of fact requiring judicial assessment. Appeals against the proportionality test under s 107 are by way of rehearing, with the appellate Court making its own assessment of whether the criteria are established.4 If a discharge without conviction should have been granted, then there will have been a material error by the sentencing Judge, or a miscarriage of justice will have occurred for any other reason, and so the appeal against conviction must be allowed.5

The offending

[5] On 24 December 2022, Police were called to a hotel in Hāwera due to a large number of patrons celebrating Christmas Eve. At about 12.20 am, Mr Luteru was spoken to by Police and asked who was driving the vehicle he was standing next to. He was drinking alcohol at the time. He said that he was waiting for a friend to pick him up.

[6] Some 10 minutes later, the Police observed Mr Luteru get into the driver’s seat of the vehicle and drive away. The Police stopped the vehicle. Mr Luteru elected to have a blood sample taken. His blood alcohol level was revealed to be 136 mg of alcohol per 100 ml of blood, when the legal limit is 80 mg.

3      Sentencing Act 2002, s 137.
4      H v R [2012] NZCA 198 at [35]–[36].
5      Criminal…

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.

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Details

Case: [2023] NZHC 2508
Decision Date: 7 September 2023

CaseChat Overview and Summary

Alfred Luteru, the appellant, appealed the decision of Judge Hikaka, who had declined his application for a discharge without conviction for a charge of driving with excess blood alcohol. The appeal was filed out of time by two working days, but the respondent did not oppose an extension of time being granted. The High Court was required to decide whether the appeal should be heard out of time and whether the decision to decline the application for a discharge without conviction was correct. The court found that the delays were occasioned through no fault of the appellant and that it was in the interests of justice to hear the appeal. The court also found that the appeal was correctly dismissed.

The offending occurred on 24 December 2022, when Police were called to a hotel in Hāwera due to a large number of patrons celebrating Christmas Eve. The appellant was spoken to by Police and asked who was driving the vehicle he was standing next to. He said that he was waiting for a friend to pick him up. Some 10 minutes later, the Police observed the appellant get into the driver’s seat of the vehicle and drive away. The Police stopped the vehicle, and the appellant elected to have a blood sample taken. His blood alcohol level was revealed to be 136 mg of alcohol per 100 ml of blood, when the legal limit is 80 mg. The appellant was charged with driving with excess blood alcohol and pleaded guilty. He applied for a discharge without conviction, but his application was declined by Judge Hikaka on 24 May 2023.

The court found that the direct and indirect consequences of a conviction would be moderately serious, likely at the higher end of the available scale. However, the test is whether the consequences of conviction are out of all proportion to the gravity of the offending. The court found that the gravity of the offending was at the lower end of moderately serious, and the consequences of a conviction were moderately serious. It could not be said that the proportionality test had been met. The court concluded that the appeal was correctly dismissed.

Orders