Nair v Police - [2014] NZHC 2859

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-219 [2014] NZHC 2859

BETWEEN
RAGHWAN NAIR

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 17 November 2014

Appearances:

D Nairn for Appellant
G E Hughes for Respondent

Judgment:

17 November 2014

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

RAGHWAN NAIR v NEW ZEALAND POLICE [2014] NZHC 2859 [17 November 2014]

[1] Mr Nair pleaded guilty in the District Court to a charge of driving whilst disqualified. On 2 July 2014, Judge Andrée Wiltens sentenced him to 80 hours of community work, and disqualified him from holding or obtaining a driver’s licence for six months from that date.1 Mr Nair now appeals to this Court against the order for disqualification.

Background

[2] Mr Nair was disqualified from driving for a period of six months from

29 January 2013 after he pleaded guilty to a charge of driving with excess blood alcohol. The period of disqualification was therefore due to expire on 29 July 2013. At 10.30 am on 9 July 2013, a police patrol stopped Mr Nair whilst he was driving a vehicle in Papatoetoe. He immediately acknowledged that he was a disqualified driver, and the charge of driving whilst disqualified was laid as a result.

[3] At sentencing, counsel for Mr Nair applied for an order under s 81 of the Land Transport Act 1998 (the Act) that no order for disqualification be imposed. Section 81 permits the Court to make such an order when special reasons relating to the offence exist that render such an order appropriate.

[4] Counsel for Mr Nair advised the Judge that the offending occurred whilst Mr Nair was undertaking urgent work for his business. This involved Mr Nair taking cash to a printing firm so as to enable his newspaper to be printed on due date. The Judge hearing the application evidently sought supporting evidence for this submission, and the sentencing was adjourned so that Mr Nair’s counsel could obtain that evidence.

[5] When the matter came back before Judge Andrée Wiltens on 2 July 2014, Mr Nair’s counsel tendered a letter dated 27 March 2014 from Auckland Community Print. This confirmed that Mr Nair had been driving to that firm’s premises on
9 July 2013 in order to pay his monthly printing bill. The letter explained that the company does not accept bank transfers from Mr Nair, because they have had
problems with cheques not being honoured in the past. It also confirmed that if Mr

1 New Zealand Police v Nair DC Manukau CRI-2013-092-007820, 2 July 2014.

Nair had not brought the cash in on that date, his newspaper would not have been printed. The Judge did not consider this explanation to be sufficient to warrant the exercise of the discretion under s 81. For that reason he made the order disqualifying Mr Nair from driving for a period of six months.

Grounds of appeal

[6] Counsel for Mr Nair does not argue that the Judge erred in dismissing the application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 2859
Decision Date: 17 November 2014

CaseChat Overview and Summary

In the case of Nair v Police, the appellant, Raghwan Nair, appealed against a sentence imposed by the District Court. The appellant was found guilty of driving while disqualified, and the District Court had sentenced him to 80 hours of community work and disqualified him from holding or obtaining a driver’s licence for six months. The appellant contested the disqualification order, arguing that the District Court should have considered imposing a community-based sentence instead. The court accepted that the appellant’s counsel had failed to raise the alternative application under s 94 of the Land Transport Act 1998 but concluded that the appellant should be given an opportunity to apply for such a sentence in the District Court.

The primary legal issue in this case was whether the District Court should have considered imposing a community-based sentence instead of the disqualification order. The appellant's counsel argued that he had failed to raise the alternative application under s 94 of the Act during the sentencing hearing. However, the court held that the appellant’s counsel should have raised the application despite the court already having made the order. The court found that if the appellant’s counsel had raised the application, the District Court could have recalled the order and heard submissions in support of the application for a community-based sentence under s 94. The court also noted that the risk of loss of employment is a consideration that may be taken into account when an application is advanced under s 94.

The court allowed the appeal and quashed the order for disqualification. The court made a direction under s 251(1)(2)(c) of the Criminal Procedure Act 2011 to remit the proceeding to the District Court so that it could consider whether to impose a community-based sentence under s 94 of the Act. The court directed that the appellant’s counsel was to file a formal application in the District Court seeking such a sentence within seven days of the judgment date.

In conclusion, the court found that the appellant’s counsel should have raised the alternative application under s 94 of the Act during the sentencing hearing. The court allowed the appeal, quashed the order for disqualification, and directed that the proceeding be remitted to the District Court to consider whether to impose a community-based sentence under s 94 of the Act.

Orders