Kesseler v Police HC Auckland CRI 2010-404-430

[2011] NZHC 40

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-430

MARK ANTHONY KESSELER

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         8 February 2011

Appearances: V Letele for Appellant

Z R Johnston & H W Y Yiu for Respondent

Judgment:      8 February 2011

JUDGMENT OF KEANE J

Solicitors:

Crown Solicitor, Auckland

Copy to:

V Letele; [email protected]

MARK ANTHONY KESSELER V NEW ZEALAND POLICE HC AK CRI 2010-404-430 8 February 2011

[1]      On  1  November  2010  Mark  Kesseler,  on  his  plea,  was  convicted  and sentenced in the District Court, Manukau, for two offences.

[2]      He was sentenced to  eight months imprisonment and disqualified for 12 months, one day, for driving with an excess breath alcohol on 4 August 2010, an offence aggravated by two or more previous such convictions. 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.

[3]      Two issues arise on this appeal. The primary issue is whether the Judge was obliged, as he considered that he was, to impose cumulatively that further term of disqualification for the failure or refusal. That turns firstly on what ss 52 and 114 of the Land Transport Act 1998 require. It turns also on a complication to which the Judge was not alerted. Mr Kesseler's two previous convictions were not under the

1998 Act. They were under the Transport Act 1962.

[4]      This appeal is capable of being disposed of on that issue alone, as the Crown concedes, but there is a further issue of real practical importance. It is whether an information alleging a third or later failure or refusal must refer to that aggravating feature and thus, if implicitly, the increased maximum penalties that result.

Primary issue

[5]      Section 114 enables an enforcement officer to stop a motorist and to obtain his or her full name and address, indeed his or her date of birth, occupation and telephone number. A motorist must also disclose whether he or she is the owner and if not the owner who is.

[6]      Section 114 does confer a power of arrest but it does not create any offence. The offence to which Mr Kesseler pleaded is created rather by s 52(1)(c) which says:

A person commits an offence if the person fails or refuses to comply with any lawful requirement, direction, notice, request or prohibition given to or imposed on him or her under this Act by an enforcement officer.

[7]      Section 52 describes the offences it creates as offences against s 114. That may seem inapt because s 114 does not expressly create any offence. But all that is intended, I consider, is that the motorist is alleged to have failed or refused to comply with a s 114 duty.

[8]      More materially, s 52 divides such offences into three categories. A first offence attracts a maximum fine of $10,000 without more.[1] A second offence attracts that maximum fine and a mandatory minimum term of disqualification of three months.[2] A third or subsequent offence attracts a maximum term of imprisonment of three months and a mandatory minimum period of disqualification of one year.[3]

[1] Land Transport Act 1998 s 52(2).

[2] Section 52(3).

[3] Section 52(4).

[9]      The Judge rightly concluded that if, as Mr Kesseler did, he committed the offence charged and if he had, as he admitted, committed two such generic offences before, his offence lay in the third category. It attracted a mandatory minimum term of disqualification of 12 months. He was right also to say that s 52(5) required that term to be cumulative on, and not concurrent with, the period of disqualification he imposed for the aggravated excess breath alcohol offence.

[10]     That assumed, however, and this is a point which counsel for the Crown has identified on this appeal, that the two previous convictions qualified in the literal sense that they were, as s 52(4) required, offences against s 114 of the 1998 Act. The fact is that they are not such offences. Those convictions were entered in 1994 and

1996 for the indistinguishable generic offence under the Transport Act 1962.

[11]     Those two earlier convictions could have qualified as aggravating for the purpose of s 52(4) if s 52 itself had said so; if it had, as s 56 has in respect of blood alcohol offences, an express deeming term like s 56(5):

For  the  purposes  of  this  section  a  conviction  for  an  offence  against  a provision of the Transport Act 1962 corresponding to an offence specified in subsection (4) is to be treated as a conviction for an offence specified in that section.

[12]     In the absence of such a specific deeming provision convictions under the

1962 Act could only qualify for the purposes  of s  52(4) if some more general deeming provision in the 1998 Act had that effect. There is no such provision. There would be no need for s 56(5) if there were.

[13]     The result is that, though the Judge interpreted ss 52 and 114 correctly in Mr Kesseler's case, the conclusion he reached is unsustainable, as the Crown concedes, and that must result in Mr Kesseler's appeal succeeding.

Secondary issue

[14]     There remains the fact that, while Mr Kesseler was charged explicitly with an aggravated excess breath alcohol offence attracting the commensurate penalty, the information charging a failure or refusal to supply information did not identify the aggravating feature, his earlier offences, carrying the increased maximum penalty. Indeed the statement of facts states as the sole penalty a $10,000 fine.

[15]     Section 17 of the Summary Proceedings Act requires that an information

'contain sufficient particulars as will fairly inform the defendant of the substance of the offence with which he is charged.' The issue is, therefore, whether the previous convictions  that  can  result  in an  enhanced  penalty  constitute  an  element  of the offence that must be specified or whether the offence is constituted by the failure or refusal and the previous convictions go only to penalty.

[16]     Section 17A could suggest the latter. It imposes a duty, as to those offences to which it applies, those lying within s 17A(2), to disclose in any information laid the penalties for that offence. Section 17A(2) says this:

This section applies to offences that carry—

(a)      maximum penalty on first conviction of more than 3 months' imprisonment; and

(b)       A higher maximum penalty on conviction for that offence if the defendant has a specified number of previous convictions for that or any other specified offence.

[17]     Section s 17A(2) creates a conjunctive test; the first offence must attract a maximum penalty in excess of three months imprisonment.[4] The offence created by s

52(4),  therefore,  does  not  come  within  s  17A.  Even  if  it  did,  moreover,  an information may not be dismissed solely on the ground that it does not disclose the penalties it ought to.[5] The Court has a discretion.[6]

[4] Cameron v Police HC Hamilton AP32/02, 7 June 2002.

[5] Section 17A(3).

[6] Section 17A(4).

[18]     That said, s 52(4) does impose a much more severe penalty than that applying to first or even second such offences, and s 52(5) requires that any disqualification be cumulative on any imposed for any more primary offence. It is highly desirable that informations and statements of facts make that clear.

Result

[19]     I  allow  the  appeal.  I  quash  the  order  for  disqualification  of  12  months imposed on Mr Kesseler for failing or refusing to give the officer his full name and

address. As to that offence Mr Kesseler will be convicted and discharged.

P.J. Keane J