Hallmond v R
[2021] NZHC 2369
•10 September 2021
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2021-419-000046
[2021] NZHC 2369
TIMOTHY CARL HALLMOND v
THE QUEEN
Hearing: On the papers Appearances:
J Carter for the Appellant
B Harris for the Respondent
Judgment:
10 September 2021
JUDGMENT OF WALKER J
This judgment was delivered by me on 10 September 2021 at 12 pm Registrar/Deputy Registrar
HALLMOND v R [2021] NZHC 2369 [10 September 2021]
Introduction
[1] This is an appeal against sentence advanced on a narrow ground relating to the meaning and effect of s 52A(5) of the Land Transport Act 1998 (the Act). Both parties have the same view as to how this Court should dispose of the appeal and agree that it may be determined on the written submissions filed without the need for a hearing.
[2] Timothy Hallmond was sentenced to 12 months’ imprisonment and disqualified from driving for two years in the Hamilton District Court on 22 June 2021 on a battery of charges:
(a)driving while disqualified, third or subsequent;1
(b)failing to stop, third or subsequent;2
(c)dangerous driving;3 and
(d)burglary.4
[3] The only part of the sentence appealed is the disqualification element in respect of the offence of failing to stop. The issue is whether the Judge was obliged, as she thought she was, to impose a minimum period of disqualification of two years. This turns on s 52A(5) of the Act. More particularly, on whether Mr Hallmond’s previous convictions for failing to stop, entered before s 52A was enacted, are qualifying offences to be taken into account.
[4] Mr Hallmond relies on the decision of Palmer J in Martin v New Zealand Police in which he held that convictions pre-dating the introduction of s 52A of the Act are not qualifying offences for the purpose of s 52A(5) because they are not offences “against subsection (1)” of s 52A.5 The respondent does not challenge the
1 Land Transport Act 1998, s 32(1)(A): carrying a maximum penalty of two years’ imprisonment.
2 Land Transport Act 1998, s 52A(1): carrying a maximum penalty of three months’ imprisonment.
3 Land Transport Act 1998, s 7(2): carrying a maximum penalty of three months’ imprisonment.
4 Crimes Act 1961, s 231(1)(a): carrying a maximum penalty of 10 years’ imprisonment.
5 Martin v New Zealand Police [2021] NZHC 1356.
correctness of this decision and agrees that the sentence proceeded on a wrong principle so that the appeal must be allowed.
[5] I pause to interpolate that, although the decision in Martin was delivered shortly before Mr Hallmond was sentenced, it was not referred to the sentencing Judge in the District Court.
Discussion
[6] Section 52A of the Act was inserted on 11 August 2017 by s 41 of the Land Transport Amendment Act 2017.6 It reads:
52A Contravention of section 114
(1)A person commits an offence if the person—
(a)is the driver of a vehicle that fails to stop—
(i)as soon as practicable when signalled or requested to stop under section 114(1); or
(ii)when required to stop under section 114(2); or
(b)is the driver of a vehicle that is stopped and fails to remain stopped in accordance with section 114(2A) or (3)(a); or
(c)fails or refuses to provide information or provides false or misleading information in response to a demand for
information made by an enforcement officer under section 114(3)(b).
(2)The maximum penalty on conviction for an offence against subsection
(1) is a fine not exceeding $10,000.
(3)If a person is convicted of a first offence against subsection (1)(a) or
(b) and committed the offence while exceeding the applicable speed limit or operating a motor vehicle in an otherwise dangerous manner, a court must order the person to be disqualified from holding or obtaining a driver licence for 6 months.
(4)If a person is convicted of a second offence against subsection (1), a court must order the person to be disqualified from holding or obtaining a driver licence for 1 year.
(5)If a person is convicted for a third or subsequent offence against subsection (1),—
6 Land Transport Amendment Act 2017.
(a)the maximum penalty is imprisonment for a term not exceeding 3 months; and
(b)the court must order the person to be disqualified from holding or obtaining a driver licence for 2 years.
(6)A disqualification ordered under subsection (3), (4), or (5) is cumulative on, and not concurrent with, any other disqualification that a court may order in respect of the facts that gave rise to the person’s conviction for an offence described in subsection (1).
(7)If an offence against subsection (1) is a concurrent offence in relation to a qualifying offence for an alcohol interlock sentence, then in relation to that alcohol interlock sentence—
(a)section 65AH(3) does not apply; and
(b)the mandatory disqualification in subsection (3), (4), or (5) is the period of disqualification for the purposes of section 65AE(d).
(8)Subsection (6) does not apply to offending that occurs after the facts that gave rise to the person’s conviction for an offence described in subsection (1).
[7] There are three categories of offence with different mandatory consequences in this provision: a first offence committed in certain circumstances, a second offence and a third or subsequent offence. The mandatory disqualification periods referred to are cumulative. In other words, additional to any other disqualification the court orders.
[8] Mr Hallmond was thought to be subject to subs (5) because he has multiple previous convictions for failing to stop. Materially, those convictions were in 2014 and 2012, well before s 52A was introduced by Parliament. While the nature of the offending was indistinguishable, the offences were technically committed under the predecessor provision to s 52A.7
[9] In Martin the plain literal meaning of s 52A(5) prevailed. That is that a person has to be convicted of a third or subsequent offence “against subsection (1)” of s 52A before the mandatory two-year period of disqualification applies. Any conviction for
7 The predecessor provision was s 52(4) of the same Act, which was drafted in substantially the same terms albeit with a slightly shorter mandatory disqualification period of one year.
the same generic offence of failing to stop before subs (1) was introduced is not an offence against subs (1) and there is no “carry-over” provision.
[10] Palmer J rejected the argument that s 22 of the Interpretation Act 1999 was engaged. Section 22 states:
22 References to repealed enactment
(1)The repeal of an enactment does not affect an enactment in which the repealed enactment is applied, incorporated, or referred to.
(2)A reference in an enactment to a repealed enactment is a reference to an enactment that, with or without modification, replaces, or that corresponds to, the enactment repealed.
(3)Subsection (1) is subject to subsection (2).
[11]He said:8
[12] Section 52A(5) does not “apply” or “refer” to its repealed predecessor, s 52(4). Section 52A may “incorporate” s 52 in the sense that the wording of the offence is unchanged. But that just means that, under s 22(1), the repeal of s 52(4) does not affect s 52A. And s 52A is clear on its face and does not include a carry-over provision.
[12] He distinguished the Court of Appeal decision of De Montalk v R because there is no reference in s 52A to a repealed or replaced enactment or to a category of enactments which include that replaced.9 In De Montalk the Court considered it should apply s 22 of the Interpretation Act to an offence provision that referred to offences under regulations because one section replaced another, notwithstanding small changes to the form of the legislation, and despite semantic awkwardness.10
[13] He concluded that, unlike the circumstances in De Montalk, an intention on the part of Parliament to prospectively increase penalties on those who repeatedly offend against s 52A is a credible result.11
8 At [12].
9 De Montalk v R CA157/03, 7 March 2005.
10 At [17].
11 Martin, above n 5, at [14].
[14] The case of Kesseler v New Zealand Police was referred to Palmer J.12 I agree that it is on point. Mr Kesseler was convicted and sentenced for driving offences. In addition to disqualification for driving with excess breath alcohol, he was disqualified cumulatively for a further 12 months for refusing to give his full name and address, having twice before been convicted of such an offence. Like the subsection at issue in this appeal, offending under the relevant provision divided offences into three categories, with different consequences depending on whether it was a first, second or third and subsequent offence against s 114 of the Act. But, the earlier offences were not literally offences against s 114 of the Act, having been entered in 1994 and 1996 before the enactment of the Act. They were instead offences under the predecessor legislation—the Transport Act 1962. Thus, Mr Kesseler’s earlier convictions were held not to qualify as “third or subsequent” offences in the absence of an express deeming provision.13
[15] On a plain reading of s 52A, there is no mention of convictions for offences predating the amendment. There is no explicit carry-over or deeming provision such as that found in ss 32(5) (driving while disqualified) and 56(5) (driving with excess breath or blood-alcohol) of the Act where corresponding convictions under earlier or different provisions are expressly to be treated as a conviction of the offence specified.
[16] This omission may seem surprising at first blush given the policy objective of s 52A, the danger to the public of recidivist offending of this type and the increasing number of drivers failing to stop. But, it cannot be said to be unarguably a drafting error. It does not fit the narrow type of error identified in Air New Zealand Ltd v McAlister to empower a court to effectively read in a carry-over provision. In any event, no argument to that effect has been presented.14
12 Kesseler v New Zealand Police HC Auckland CRI-2010-4040-430, 8 February 2011.
13 It could be argued that a deeming or carryover provision is more essential where the relevant offending occurred under a separate, since repealed piece of legislation as opposed to offending against another provision in the same act.
14 Air New Zealand Ltd v McAlister [2009] NZSC 78, [2010] 1 NZLR 153 at [96]. I also note that such an interpretation would not offend against the principle of retrospectivity since it would only make relevant the fact that Mr Hallmond offended earlier rather than changing the legal character of Mr Hallmond’s conduct. See Do v Police [2016] NZCA 420, [2016] NZAR 1354; and Do v Police [2017] NZSC 7, [2017] NZAR 284 (leave decision).
Result
[17] I allow the appeal against the sentence of disqualification for two years. Mr Carter submits there are two options. The first is to remit that part of the sentence. Alternatively, to substitute disqualification in accordance with s 52A(3) for a period of six months in view of the offence of dangerous driving of which he was also convicted. The respondent concurs with the option to substitute. Although Mr Carter submits that the six months’ disqualification should be concurrent with the sentence of one years’ disqualification, I read s 52A(6) as requiring disqualification to be cumulative.
[18] Accordingly, I quash the cumulative sentence of disqualification for two years and substitute a cumulative sentence of disqualification for six months. All other elements of the sentence remain unchanged.
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Walker J
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