Nanai v Police - [2013] NZHC 155

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000395 [2013] NZHC 155

BETWEEN MORGAN LAVE NANAI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 5 February 2013

Appearances: N Silich for Appellant
J M Pridgeon for Respondent

Judgment: 11 February 2013

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on
11 February 2013 at 12.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Nicholas Silich, PO Box 33379, Takapuna, North Shore City 0740
Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

NANAI V NEW ZEALAND POLICE HC AK CRI-2012-404-000395 [11 February 2013]

[1] The appellant, Mr Nanai, pleaded guilty to two charges in the Waitakere District Court, one of refusing to permit blood to be taken[1] and one of resisting a constable.[2] The offending occurred on 19 June 2012 and he was sentenced in the Waitakere District Court on 26 October 2012.

[1] Pursuant to s 60(1)(a) and (3) of the Land Transport Act 1998.

[2] Pursuant to s 23(a) of the Summary Offences Act 1981.

[2] On the first charge, Judge Cunningham sentenced him to 200 hours’ community work and 12 months’ intensive supervision. Due to Mr Nanai’s poor record of offending under the Land Transport Act 1998 (“the Act”), he was also permanently disqualified from holding or obtaining a driver’s licence. On the charge of resisting a constable, he was convicted and sentenced to 60 hours’ community work, to be served concurrently with the 200 hours imposed on the charge of refusing to permit blood to be taken.

[3] Mr Nanai now appeals against the permanent disqualification order, alleging that the learned District Court Judge erred in holding that a sentence could not be imposed under s 65A of the Act,[3] which provides for the sentence of an “alcohol interlock licence disqualification”.

[3] Inserted as from 10 September 2012, by s 30 of the Land Transport (Road Safety and Other

Matters) Amendment Act 2011.

[4] The Judge’s reasoning appears at [9]-[11] of her sentencing remarks:

[9] There has been an application today, essentially supported by your lawyer, for an interlock device to be fitted to your car to stop you driving. That legislation, s 65B, came into effect on 10 September 2012. This offence was committed approximately three months earlier in June 2012. The provision says that it can be applied on conviction. No conviction has yet been entered.

[10] Essentially it comes down to an argument about whether or not this legislation should be applied to an offence that was committed before the provision came into effect. I am of the view that it should not. The primary reason for that is that generally-speaking, legislation is not applied retrospectively; that means it should only relate to offences committed after
10 September 2012.

[11] If it is to apply retrospectively, in my view the legislature should have made that clear. It is punitive in nature and can be seen as an additional penalty on conviction for…

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: [2013] NZHC 155
Decision Date: 11 February 2013

CaseChat Overview and Summary

The appeal of Mr Morgan Lave Nanai against his sentence in the Waitakere District Court was heard by Justice Cooper in the High Court of New Zealand. Mr Nanai had been convicted of two charges: refusing to permit blood to be taken and resisting a constable. He was sentenced to 200 hours’ community work and 12 months’ intensive supervision for the first charge, and 60 hours’ community work for the second charge. He was also permanently disqualified from holding or obtaining a driver’s licence. Mr Nanai appealed against the permanent disqualification order, arguing that the District Court Judge had erred in not imposing a sentence for an alcohol interlock licence disqualification under s 65A of the Land Transport Act 1998. The issue before the court was whether the District Court Judge was obliged to consider imposing a sentence for an alcohol interlock licence disqualification under s 65A of the Act. The court found that s 65A was appropriately described as the “lesser sentence” and that the provisions of s 6 of the Sentencing Act and s 25(g) of the New Zealand Bill of Rights Act 1990 should be applied. The court concluded that the District Court Judge had erred in not considering imposing a sentence under s 65A and that it was appropriate to impose such a sentence in this case. The appeal was allowed, and a formal order was made to resolve it, following receipt of the memoranda from counsel.

Orders