Neho v Police - [2016] NZCA 596

IN THE COURT OF APPEAL OF NEW ZEALAND

CA330/2016
[2016] NZCA 596

BETWEEN	SAM NEHO Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	16 November 2016
Court:	Kós P, French and Venning JJ
Counsel:	B Ayrey and J Lucas for Applicant M J Lillico for Respondent
Judgment:	13 December 2016 at 10 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

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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…

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.

Continue reading Neho v Police

Details

AGLC: Neho v Police [2016] NZCA 596
Case: [2016] NZCA 596
Decision Date: 13 December 2016 at 10 am

CaseChat Overview and Summary

The case of Neho v Police involves the applicant, Sam Neho, appealing the start date of his indefinite disqualification from driving. The case was heard by the Court of Appeal of New Zealand, with Kós P, French, and Venning JJ presiding over the case. The applicant was represented by counsel B Ayrey and J Lucas, while the respondent was represented by counsel M J Lillico. The court's decision was handed down on 13 December 2016.

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