| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA330/2016 [2016] NZCA 596 |
| BETWEEN | SAM NEHO |
| AND | NEW ZEALAND POLICE |
| Hearing: | 16 November 2016 |
Court: | Kós P, French and Venning JJ |
Counsel: | B Ayrey and J Lucas for Applicant |
Judgment: | 13 December 2016 at 10 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
On 5 April 2016 Mr Neho was disqualified indefinitely from driving.[1] He seeks leave to appeal the start date of the disqualification.
Factual background
[1]Police v Neho [2016] NZDC 5732.
Mr Neho was caught driving with excess breath alcohol in Nelson on 12 April 2014. His licence was suspended for 28 days. Eight days later he was caught driving in breach of that suspension.
On 19 December 2014 Mr Neho was arrested and charged with possession of a pistol, presenting a pistol, unlawfully being in a building, driving dangerously, driving with excess blood alcohol, and possession of an offensive weapon (a metal brace with a handle attached). The charges arose out of an incident in Christchurch when, in an intoxicated state, Mr Neho confronted his neighbours over a perceived grievance. He allegedly pointed a pistol at his neighbours and entered their house. He then drove away, running a stop sign. When stopped he returned a positive blood alcohol result.
Procedural background
After the Christchurch incident, Mr Neho was bailed to Timaru subject to restrictive bail conditions including, initially at least, a 24 hour curfew. He was also prohibited from driving and consuming alcohol. The Nelson matters were transferred to Christchurch and Mr Neho entered pleas of guilty to them. He also intimated he would enter a guilty plea to the December 2014 blood alcohol charge. A pre-sentence report was prepared but his sentence hearing scheduled for June 2015 was postponed pending the outcome of the remaining charges arising from the December 2014 incident which Mr Neho defended.
In February 2016 Mr Neho’s trial proceeded in the Christchurch District Court. Part way through the hearing matters were resolved largely in Mr Neho’s favour. The charges of burglary, possession of a pistol and presenting a pistol were dismissed. The charge of possession of an offensive weapon was amended to refer to possession of a metal bar. Mr Neho pleaded guilty to that charge and to being unlawfully in a building and dangerous driving.
An addendum to the original pre-sentence report of June 2015 confirmed Mr Neho suffered from severe cardiomyopathy and had a life expectation of less than five years. On 5 April 2016 Judge Saunders sentenced Mr Neho to six months’ home detention and 150 hours community work.[2] The Judge also disqualified Mr Neho holding or obtaining a driver licence indefinitely as he was required to do under s 65 of the Land Transport Act 1998 (“the Act”) on the driving with excess blood alcohol and driving with excess breath alcohol charges.[3] Mr Neho…
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- AGLC
- Neho v Police [2016] NZCA 596
- Case
- [2016] NZCA 596
- Decision Date
CaseChat Overview and Summary
The legal issue in this case is whether the court can backdate the start date of an indefinite disqualification from driving. The applicant argued that the High Court's decision was incorrect as it did not consider the effect and purpose of s 85, which allows flexibility to enable the disqualification period to run from a date preceding the date of the order as well as from a later date. The applicant also submitted that it would be a miscarriage if the High Court decision stood as no-one sentenced to indefinite disqualification would be able to have the disqualification backdated to a particular point in time even if, like the appellant, they had already effectively been unable to drive for almost two years due to a condition of bail not to drive a motor vehicle.
The Court of Appeal found that the statutory scheme does not require further clarification and, therefore, no question of general or public importance is raised by the appeal. The Court also found that there was no miscarriage affecting Mr Neho in this case. The restrictive bail conditions were taken into account on sentencing by Judge Saunders. Further, if he had been sentenced on the driving offences from April 2014 in June 2015 as originally anticipated, s 85(3) would have applied. The later indefinite disqualification imposed by Judge Saunders in April 2016 would not have started until the disqualification imposed on the earlier offences had ceased to have effect.
The application for leave to bring a second appeal is declined.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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