Brady v Police

[2015] NZHC 2283

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000220 [2015] NZHC 2283

BETWEEN

PARIS JOHN BRADY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	21 September 2015
Appearances:	Mark Mellin on instructions from Patrick Winkler for the Appellant Sam McMullan for the Respondent
Judgment:	21 September 2015

[ORAL] JUDGMENT OF MOORE J [Appeal against sentence]

BRADY v NEW ZEALAND POLICE [2015] NZHC 2283 [21 September 2015]

[1]      Paris John Brady pleaded guilty on 23 July 2015 to one charge of driving with excess blood alcohol.   He was convicted and fined $800 and ordered to pay Court costs of $130 and medical fees of $349.85.   He was also disqualified from holding or obtaining a driver’s licence for a period of six months.  Mr Brady filed an appeal against this sentence but has since formally abandoned his appeal.  His period of disqualification was suspended pending the outcome of the appeal.   He now accepts he must serve the sentence imposed.

[2]      However, he seeks a deferment of the start date of his disqualification.  He says he intends to apply for a limited licence but is required to observe the 28 day statutory stand down period before such an application can be made.

[3]      He says the stand down period will likely cause him difficulties with his employer.    He  asks  that  the  start  date  of  the  disqualification  be  deferred  until

20 December 2015 so he can use his annual leave for the 28 day period.  He says that his employer will not allow him to take annual leave before that date.

[4]      On  the  basis  that  Mr  Brady  can  provide  the  legal  authority  justifying deferment the Police, through Mr McMullan, take a neutral position.

[5]      Mr Mellin, for Mr Brady, has referred me to s 85 of the Land Transport Act

1998  which  sets  out  when  a  period  of  disqualification  beings.    That  section relevantly provides:

“85     When disqualification starts

(1)       If an order is made by a court under any Act disqualifying a person from holding or obtaining a driver licence, the period of disqualification starts on the day the order is made unless the court otherwise directs or that Act otherwise provides.

[…]”

(Emphasis added)

[6]      In Edwards v Police, Venning J considered this section as compared with the former  language  of  s  36(2)  of  the  Land  Transport Act  1962  which  previously applied.    His  Honour  observed  the  former  section  was  “more  restrictive”  and

described the discretion in s 85(1) as unfettered.1   These comments were made in the context of a decision as to whether or not the period of disqualification could be backdated.

[7]      I agree with the comments of Venning J that s 85(1) confers on the Court a discretion to defer the start date of a period of disqualification.  I am satisfied this Court has the jurisdiction to make the deferment sought.   I also accept that the reasons provided by Mr Brady justify the deferment of that sentence to ensure his employment is not jeopardised by the disqualification.

[8]      Given the appeal is abandoned, I now formally dismiss it.   I order that the sentence of disqualification be reinstated effective and operative from 20 December

2015.

Moore J

Solicitors:

Mr Winkler, Auckland

Crown Solicitor, Auckland

1      Edwards v Police [2012] NZHC 1350 at [26].