Prasad v Police - [2014] NZHC 219

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-000116 [2014] NZHC 219

ROMEET PRASAD

v

NEW ZEALAND POLICE

Hearing: 13 February 2014

Appearances: D Matthews for Mr Prasad
K South for the Respondent

Judgment: 19 February 2014

JUDGMENT OF DUNNINGHAM J

[1] This is an appeal against a decision by Judge Hunt in the District Court declining Mr Prasad’s application to substitute a community-based sentence instead of a period of disqualification from driving, pursuant to s 94 of the Land Transport Act 1998.

Background

[2] The appellant was sentenced to 50 hours community work and a six month period of disqualification from holding or obtaining a drivers licence, for driving while suspended contrary to s 32 of the Land Transport Act 1998.

[3] The conviction arose when, on 2 August 2013, the appellant had his driver’s
licence suspended for a period of three months, until 17 October 2013, on the basis of an excess of accumulated demerit points.

PRASAD v NEW ZEALAND POLICE [2014] NZHC 219 [19 February 2014]

[4] Shortly after he lost his licence, Mr Prasad was offered employment as a driver by Mr Anit Sharma, a courier franchisee. Their agreement was that Mr Prasad would commence employment once his driver’s licence was no longer suspended.

[5] However, on 28 August 2013, Mr Prasad was apprehended driving a short distance in his vehicle and was charged with driving while suspended. Mr Prasad pleaded guilty to the charge and appeared for sentencing before Judge Hunt in the Christchurch District Court on 31 October 2013.

The District Court decision

[6] In his sentencing decision the District Court Judge declined to apply s 94 on the basis that when the appellant drove on 28 August he knew that there was then a prospect of employment. The Judge accordingly described the situation by saying that the Court was faced with a choice about a set of circumstances which were of the appellant’s own making, both in terms of the fact that he decided to drive while disqualified and secondly, because he chose to start and make the investment of time in training in a job while the disqualification charge was pending.

[7] Of particular significance to the Judge was that the appellant was not a person attempting to “maintain” employment as opposed to “securing” employment. Nor was he a person trapped in a cycle of recidivism in the sense that the appellant was not a person who had little prospect of ever getting his driver’s licence back because of repeated offending.

[8] Finally, the Judge expressed the view that granting an application in these circumstances would create a much broader category of people to come before the Court with similar explanations, and that would “undermine the consequences of the driving behaviour of the driver on this occasion and off (sic) the breach of the Court order”.

Submissions

[9] Mr Matthews for the appellant submitted that the Judge’s decision was wrong

in principle for three key reasons. First, the Judge wrongly considered…

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

AGLC: Prasad v Police [2014] NZHC 219
Case: [2014] NZHC 219
Decision Date: 19 February 2014

CaseChat Overview and Summary

In the case of Prasad v Police, the appellant, Mr Prasad, sought to appeal a decision by Judge Hunt in the Christchurch District Court. The District Court had declined Mr Prasad's application to substitute a community-based sentence in lieu of a six-month disqualification from driving, pursuant to s 94 of the Land Transport Act 1998. Mr Prasad had been convicted for driving while suspended, and sentenced to 50 hours community work and a six-month period of disqualification from holding or obtaining a driver's licence. The central legal issue in this appeal was whether the District Court Judge had erred in his application of s 94 when deciding to decline Mr Prasad's application for a substitution of sentence.

The High Court found that the District Court Judge had indeed erred in his application of s 94. The Judge had erred in relying on the distinction between "maintaining" and "securing" employment, as this consideration was not relevant to the decision. Additionally, the Judge had taken into account an irrelevant consideration by contemplating the precedent that this decision would set. The language of s 94 should not be confined by reading in restrictions on the number of applicants who should qualify based on their personal circumstances. The Court also found that the Judge had erred in principle by suggesting that granting the application would undermine the consequences of Mr Prasad's driving behaviour.

In light of these errors, the appeal was allowed, and the sentence imposed by the District Court was quashed. In its place, the High Court imposed a total sentence of 110 hours of community work, with 50 hours for the offence and 60 hours in lieu of the disqualification that would otherwise be mandatory, under s 94.

Orders