K v Police HC Christchurch Cri-2006-409-161

[2006] NZHC 1266

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2006-409-000161

K

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         19 October 2006

Counsel:         P F Johnson for Appellant

Z R Johnston for Respondent

Judgment:      20 October 2006

JUDGMENT OF PANCKHURST J

Error in the record

[1]      This  is  an  appeal  against  two  convictions  for  driving  while  disqualified entered in 2004 and against a further conviction for breach of a community work order also entered in 2004.  The appeals are out of time.  The sole ground relied upon to quash the convictions, is that they are founded upon an erroneous entry of an indefinite disqualification on the appellant’s record, when such sentence was not in fact passed and could not have been passed under the Land Transport Act 1998.

[2]      The appellant appeared in the District Court at Christchurch on 8 January

2001 for sentence upon two charges of driving with an excess breath alcohol concentration.   The sentencing remarks of the Judge, Judge Erber, record that he

K V NEW ZEALAND POLICE HC CHCH CRI-2006-409-000161  20 October 2006

disqualified the appellant for driving “for 2 years under s64 of the Land Transport Act”.  It is common ground that the reference to s64 was in error, either because the Judge mistakenly referred to that section or on account of a typographical mistake. Section 64 defines defences which are available in relation to the prosecution of drink driving offences.  The relevant penalty section was s56(4).   In terms of that section a person convicted of a third or subsequent offence (as the appellant was) must be disqualified from holding or obtaining a driver’s licence for more than one year.

[3]      Despite the Judge ordering a two year disqualification, the appellant’s record was endorsed that she was subject to an “Indefinite Disqualification”.  In terms of s65(2) of the Act an offender convicted of an offence involving the use of alcohol or drugs, committed within five years of the date of a previous like offence, may be indefinitely disqualified.  However subs (3) provides that indefinite disqualification may only be imposed if at least one of the relevant offences involved a reading of

1000 micrograms of alcohol per litre of breath, or 200 milligrams of alcohol per 100 millilitres of blood, or was an offence of failing to remain, accompany or permit such tests to be taken.

[4]     It is common ground that the appellant’s offending did not satisfy the requirements of s65(3) and that, therefore, there was no jurisdiction to impose an indefinite disqualification in her case.

The subsequent offences

[5]      On  11  February 2004  the  appellant  was  stopped  while  driving  a  motor- vehicle and subsequently charged with driving while disqualified.  In fact, she was not disqualified at this date, since her two year term of disqualification expired in January 2003.   Nonetheless she was charged, pleaded guilty, and was fined and further disqualified for six months from 21 April 2004.

[6]      Then, on 27 August 2004 the appellant was again apprehended while driving and subsequently charged with driving while disqualified.  On 22 September 2004

she was sentenced to 100 hours community work, disqualified for one year and given a final warning.

[7]      Both   these   “offences”   purported   to   be   based   upon   the   indefinite disqualification recorded in the appellant’s record in January 2001.   However, the second offence was also within the six month disqualification period imposed in April 2004 in relation to the first “offence” of that nature.

[8]      Finally, in September 2004 the appellant was charged with breaching the community work order imposed just days earlier in relation to the second “offence” of driving while disqualified.   On 17 November 2004 she was convicted and discharged with reference to this “offence” and given a final warning.

Resolution of the appeal

[9]      The appellant seeks leave to appeal against the three convictions out of time. Pursuant to s123 of the Summary Proceedings Act 1957 I have a discretion to extend time.  It is appropriate to do so where the applicant demonstrates that an extension is necessary to avoid a miscarriage of justice: Cleggs Limited v Department of Internal Affairs HC Auckland M1032/84 5 September 1984.  That test is met in this instance.

[10]     Ms Johnston accepts that a miscarriage of justice has arisen with reference to the three subject convictions.   The appellant was not disqualified from driving on

11 February 2004, hence that conviction must be quashed.  On 27 August 2004 she was not disqualified either.  The actual period of disqualification imposed in January
2001 (two years) had long since expired.  While the appellant was disqualified by virtue of the six month period imposed in relation to the first “offence” of driving while disqualified, that disqualification order necessarily falls by the wayside once it is recognised that the conviction itself was entered without jurisdiction.  Hence, the second conviction for driving while disqualified is also quashed.

[11]     The same reasoning applies with reference to the final offence of breaching a community work order.  Necessarily, once the conviction for the second offence of

driving while disqualified is quashed, there remained no community work sentence which could give rise to a breach of its terms.  This conviction must also be quashed.

[12]     For completeness I note that all three convictions which have been quashed followed the entry of pleas of guilty.  Ordinarily the entry of a plea of guilty is fatal in relation to any subsequent attempt to challenge the resulting conviction.  However an exception to that principle is where, on the admitted facts, the accused could not in law have been convicted of the offence charged: R v Le Page [2005] 2 NZLR 845 (CA). That is this case.

Result

[13]     For these reasons:

[a]   the appeal is allowed and the convictions for driving while disqualified on 11 February 2004 and 27 August 2004 are quashed, as is the conviction for breaching a community work order on 25 September 2004,  and

[b]I  direct  that  the  appellant’s  criminal  and  traffic  history  be corrected with reference to her appearance in the Christchurch District Court on 8 January 2001, by substitution of a two year disqualification order in lieu of the erroneous entry of an indefinite disqualification.

[14]     Costs  are  reserved.     If  sought,  and  if  agreement  cannot  be  reached, memoranda may be filed.

Solicitors:

P F Johnson Barrister, Christchurch for Appellant
Raymond Donnelly & Co, Christchurch for Respondent