Han v New Zealand Police

[2014] NZHC 701

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-378

CRI-2013-404-379 [2014] NZHC 701

BETWEEN

ERIC HAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	7 April 2014
Counsel:	K J Bendall for Appellant R N Thompson for Respondent
Judgment:	8 April 2014

JUDGMENT OF FOGARTY J

This judgment was delivered by me on 8 April 2014 at 4.30 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Richard S Wood, Auckland

Meredith Connell, Auckland

HAN v POLICE [2014] NZHC 701 [8 April 2014]

[1]      The appellant was sentenced by Judge Collins in the Auckland District Court on one charge of theft, three charges of driving with excess breath or blood alcohol and one charge of driving while forbidden.    He was sentenced  two  12 months imprisonment, together with an indefinite disqualification from driving, and a finite disqualification of driving for two years.

[2]      The  respondent  accepts  that  the  appeal  should  be  allowed  as  several provisions not cited to the Judge at the sentencing were not applied.  Taken together, ss 56(4A), 65(4) and 100 of the Land Transport Act 1998 (the Act) prevent both finite and infinite periods of disqualification applying at the same time.

[3]      Section 56(4) of the Act provides:

(4)      If a person is convicted of a third or subsequent offence against subsection (1) or subsection (2), or any of sections 57A(1), 58(1),

60(1), or 61(1) or (2) (whether or not that offence is of the same kind as the person's first or second offence against any of those provisions),—

(a)       the  maximum  penalty  is  imprisonment  for  a  term  not exceeding 2 years or a fine not exceeding $6,000; and

(b)       the  court  must  order  the  person  to  be  disqualified  from holding or obtaining a driver licence for more than 1 year.

[4]      Section 56(4A) of the Act provides:

Subsection (4)(b) does not apply if an order is made under s 65.

[5]      Section 65(4) of the Act provides:

The Court must make an order that requires a person to attend an assessment centre and that disqualifies that person from holding or obtaining a driver licence until the Agency removes that disqualification under section 100 if—

(a)       the  Court  convicts  that  person  of  a  third  or  subsequent offence to which this section applies; and

(b)       the 2 or more previous offences were committed within 5 years of the date of the commission of the offence being dealt with by the Court.

[6]      Section 100 of the Act provides:

100 Agency to remove certain disqualifications

(1)       If an order has been made under section 65 in respect of a person (the applicant), the Agency must make an order removing the disqualification of the applicant from holding or obtaining a driver licence, if satisfied that—

(a)      the applicant is a fit person to hold a driver licence, having regard to—

(i)        a  report  which  is  from  a  …  medical  practitioner attached to an Assessment Centre and which is made available  to  the Agencey  by  the  applicant  or  the assessment centre; and

(ii)      any other  evidence  submitted  by the  applicant  or otherwise  available  to  the Agency  relating  to  the medical condition of the applicant; and

(b)      Repealed.

(2)       If the Agency makes an order under subsection (1), every order made under section 65 that applies to the applicant concerned must be treated as having expired.

(3)       No  order  may  be  made  under  subsection  (1)  if  the  applicant concerned is subject to an order made under section 65 that has been in force less than 1 year and 1 day.

[7]      Sections 65 and 100 create a scheme under which certain types of repeat offenders under the Act’s breath and blood alcohol provisions are disqualified from driving until such time as the New Zealand transport agency considers that the offender is fit to hold a driver licence.  The agency cannot make an order removing disqualification until the given person has been disqualified for at least a year.

[8]      For  these  reasons,  the  Judge  acted  without  jurisdiction  when  ordering concurrent periods of finite and infinite disqualification from driving.  The appeal is allowed by quashing the two-year disqualification ordered under s 56(4)(b).

[9]      Second, and again by reason of the offences being committed within five years, counsel are agreed that the Judge needed to make an order under s 65B of the Act.  Section 65B provides:

65BMandatory   zero   alcohol   requirements   for   repeat   offences involving use of alcohol

(1)      This section applies if—

(a)       a  court  convicts  a  person  of  an  offence  against  any  of sections 56(1), 56(2), 57(1), 57(2), 57AA, 58(1)(a), 60(1)(a) to (c), 61(1), 61(2), and 62(1)(a); and

(b)       the person convicted has previously been convicted of such an offence committed within 5 years of the date of the commission of the offence being dealt with by the court.

(2)       If this section applies, the court must make an order authorising the person to apply for a zero alcohol licence that has effect for a period of 3 years from the issue of the licence.

(3)       A person  authorised  under  subsection  (2)  may  apply  for  a  zero alcohol licence,—

(a)       in the case of a person who is subject to 1 or more orders of disqualification, no earlier than the day after the end of the last period of disqualification to which the person is subject; or

(b)       in the case of a person who is subject to an order made under section 65A(2)(b), when the Agency makes an order under section 100A(1).

(4)       A person who is subject to an order under subsection (2) and does not apply for a zero alcohol licence is to be treated as a person with a licence of no effect under section 29(1).

[10]     Accordingly, pursuant to s 65B(2), there is an order authorising the appellant to apply for a zero alcohol licence that has effect for a period of three years from the issue of the licence.