L v Police HC Christchurch Cri-2009-409-176

[2009] NZHC 2447

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2009-409-000176

L

v

POLICE

Hearing:         19 November 2009

Appearances: B R Green for Appellant

S J Jamieson for Respondent

Judgment:      19 November 2009

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]      This is an appeal against a sentence that was imposed in September 2007.

[2]      Following a plea of guilty the appellant was convicted in the District Court of driving with excess breath alcohol aged under 20 years.  That is an offence under s 57 of the Land Transport Act 1998.  It was his third such conviction within five years.

[3]      In sentencing, the District Court Judge stated:

[1]       The way I propose to deal with this is that it is a youth reading and he gets caught because of the amendment to the section that counts previous youth readings.  I consider the punitive aspect of this can be brought home to him simply by imposing the mandatory indefinite disqualification and I do not intend to impose any penalty other than that.

L V POLICE HC CHCH CRI-2009-409-000176  19 November 2009

[4]      The appeal against this sentence was filed in October 2009 and appears to have been prompted by the appellant being prosecuted for driving while disqualified. Clearly it has been filed out of time.   However no objection has been taken and accordingly I am prepared to deal with the appeal on its merits.

[5]      Initially, one of the grounds of appeal was that the District Court Judge did not have jurisdiction to impose an order of indefinite disqualification.   However counsel,  Mr Green,  now  concedes  that  s  65(4)  of  the  Land  Transport  Act  was applicable and accordingly the Judge had no option but to impose indefinite disqualification.  The concerns that remain are:

a)       that in pronouncing the sentence the Judge did not articulate both limbs of s 65(4) – in particular that he failed to make an order to attend an assessment centre;

b)that  the  Judge  failed  to  impose  a  finite  disqualification  period  as required by s 57(3)(b) of the Act.

[6]      There is no doubt that an order made under s 65(4) must contain two limbs: first, that the person is required to attend an assessment centre, and secondly that the person is disqualified from holding or obtaining a driver licence until the Director removes the disqualification.

[7]      The objection is a relatively technical one, because the information in this case records an order was being made in terms of the two limbs.   Further, as I understand it, it is standard practice for a person subject to such an order to receive detailed  information  from  the  Court.    However,  I  accept  that  the  reference  to attending an assessment centre was obviously not pronounced in open Court.

[8]      As regards the second ground of appeal, as I have mentioned, the offence for which the appellant was being sentenced was an offence against s 57.  Section 57(3) provides:

If a person commits an offence against subsection (1) or subsection (2),—

(a)       The maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding $2,250; and

(b)The court must order the person to be disqualified from holding or obtaining a driver licence for 3 months or more.

[9]      No doubt the District Court Judge thought that to impose a finite period as well as indefinite disqualification would only cause confusion.  However, it seems clear that he was required to impose a finite period under s 57.  I therefore accept that, while the sentence is entirely appropriate, it does not strictly speaking comply with the relevant provisions of the Act.

[10]     It is agreed that the most appropriate course of action for me to adopt in these circumstances is to regularise the situation by varying the sentence.  It is accordingly varied as follows:

i)The appellant is disqualified under s 57(3(b) from holding or obtaining a driver licence for one year and one day commencing 26 September 2007.

ii)Pursuant to s 65 of the Land Transport Act 1998, he is ordered to attend an assessment centre and is disqualified from holding or obtaining a driver licence until the Director of Land Transport Safety removes that disqualification.

Solicitors:

Cameron & Co, Christchurch

Crown Solicitor, Christchurch