Sandhu v Police
[2023] NZHC 305
•28 February 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-000496
[2023] NZHC 305
BETWEEN RUPINDER SINGH SANDHU
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 13 February 2023 Counsel:
G U Qaisrani for Appellant
M A Taumoepeau for Respondent (Via VMR)
Judgment:
28 February 2023
JUDGMENT OF HINTON J
This judgment was delivered by me on 28 February 2023 at 4.00 pm.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Kayes Fletcher Walker, Manukau
SANDHU v NEW ZEALAND POLICE [2023] NZHC 305 [28 February 2023]
[1] Mr Sandhu applied to the District Court for an order that his driving and family violence-related convictions be concealed from his criminal record, pursuant to the provisions of the Criminal Records (Clean Slate) Act 2004 (the Act). His motivation for doing so was that he understands his ability to sponsor his wife on a partnership- based visa application could be jeopardised by his convictions. As a result, Mr Sandhu either withdrew the visa application to first pursue this application or no application was made.
[2] On 27 September 2022, Judge Lovell-Smith declined Mr Sandhu’s application on the basis that he was not eligible under the clean slate scheme as he did not meet the s 7 criteria and the exception under s 9 of the Act did not apply in his case.1
[3] Mr Sandhu now appeals the District Court decision. The argument on appeal goes beyond s 9, extending to s 10 of the Act.
[4] I have concluded that Judge Lovell-Smith was correct to decline Mr Sandhu’s application. He is not eligible under the clean slate scheme. He does not satisfy the criteria in s 7(1)(g) of the Act because an order has been made about him under s 65 of the Land Transport Act 1998 (LTA). Further, the exceptions found in ss 9 and 10 of the Act do not apply to Mr Sandhu. As such, his appeal cannot succeed. I set out my reasons below.
Factual background
Male assaults female
[5] Mr Sandhu was convicted of male assaults female in 2009.2 He was 20 years old at the time and received a sentence of supervision. The summary of facts for that offending is no longer available.
1 Sandhu v New Zealand Police [2022] NZDC 18715.
2 Crimes Act 1961, s 194, maximum 2 years’ imprisonment.
First driving conviction
[6] On 3 August 2010, Mr Sandhu was convicted of one charge of driving with excess breath alcohol.3 The circumstances of that offending are that on 16 July 2010 he drove a vehicle (registration XT919) travelling north east on Seddon Street, Pukekohe, swerving within his lane, and when stopped by police he exhibited signs of alcohol intake. An evidential breath test procedure was carried out which returned a positive result of 978 micrograms of alcohol per litre of breath.
[7]Mr Sandhu was fined and disqualified from driving.
Second driving conviction
[8] On 11 November 2011 Mr Sandhu was convicted for the second time on a charge of driving with excess breath alcohol.4 The circumstances of that offending are that on 26 October 2011 he was observed by an off-duty police officer sitting in the driver’s seat of a vehicle with two passengers. Mr Sandhu had the keys in the ignition and it was turned on.
[9] Prior to this, Mr Sandhu and the passengers were consuming alcohol, and he was seen kicking and throwing beer bottles into the sand. The off-duty officer approached Mr Sandhu and asked him to remove the keys from the ignition, and to pick up the bottles of beer that had been thrown.
[10] After picking up the bottles, Mr Sandhu drove off a short way before stopping and dumping the beer bottles again. The off-duty officer informed police and Mr Sandhu was later located.
[11] An evidential breath test procedure was carried out which returned a positive result of 1082 micrograms of alcohol per litre of breath.
[12]Mr Sandhu was again fined and disqualified from driving.
3 Land Transport Act 1998, s 56(1), maximum penalty 3 months’ imprisonment or a fine not exceeding $4,500.00, and a disqualification period of 6 months or more.
4 Land Transport Act 1998, ss 11(a) and 56(1) and (3), maximum penalty 3 months’ imprisonment or a fine not exceeding $4,500.00, and a disqualification period of 6 months or more.
Third driving conviction
[13] On 26 June 2013, Mr Sandhu was convicted on a charge of refusing an officer’s request for a blood specimen 3rd or subsequent.5 The circumstances of that offending are that on 1 June 2013 he was refused entry to a bar due to his level of intoxication. Mr Sandhu was then seen getting into a vehicle and driving away. Police later found him stopped in a car park exhibiting signs of alcohol intake.
[14] Mr Sandhu undertook a breath screening test which returned a result of “over 400”. The summary of facts records that he became “irrational” and was then required to be transported to Pukekohe Police Station for an evidential breath test.
[15] Mr Sandhu refused to take the breath test and returned three incomplete results. He was then required by police to provide a blood specimen. He refused and reacted aggressively.
[16] Following this conviction, Mr Sandhu was indefinitely disqualified pursuant to s 65 of the LTA.
Criminal Records (Clean Slate) Act 2004
[17]The relevant provisions of the Act are set out in full below:
7 Who is eligible under clean slate scheme
(1)An individual is eligible under the clean slate scheme if—
(a)he or she has completed a rehabilitation period since the date on which a sentence was last imposed, or a specified order was last made, as a result of a conviction for an offence, or he or she is an individual in relation to whom an order has been made under section 9 or section 10(2); and
(b)no custodial sentence has ever been imposed on him or her; and
(c)no order has ever been made in relation to him or her under section 34(1)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003, section 118 of the Criminal Justice Act 1985, or section 39J of the Criminal Justice Act 1954 (being an order imposed, instead of passing sentence, that the offender be treated or cared for in a manner
5 Land Transport Act 1998, s 60(1)(a) and 60(3), maximum penalty 2 years’ imprisonment or a fine not exceeding $6,000.00 and a disqualification period of more than 1 year.
that the offender’s mental impairment requires, either in the offender’s interest, or for the safety of the public, or for the safety of a person or class of person); and
(d)he or she has not been convicted of a specified offence; and
(e)in the case of a court having imposed a sentence of a fine or reparation on the individual, the amount owing has been paid in full or has been deemed to have been remitted; and
(f)in the case of a court having ordered the individual to pay costs or compensation under section 106, section 108, or section 110 of the Sentencing Act 2002 (or a corresponding provision of an earlier enactment), the amount owing has been paid in full or has been deemed to have been remitted; and
(g)no order has ever been made about him or her under section 65 of the Land Transport Act 1998 or under section 30A of the Transport Act 1962.
(2)An individual in relation to whom a disqualification order has been made under either of the sections referred to in subsection (1)(g) does not become eligible to have the clean slate scheme apply to him or her as a consequence of the Director removing, or having removed, the disqualification under section 100 of the Land Transport Act 1998 or section 30C of the Transport Act 1962.
9Individual may apply to District Court for order that rehabilitation period need not be completed
(1)An individual who is otherwise eligible under section 7(1) may make an application to the District Court for an order under subsection (2) if—
(a)the last sentence imposed on the individual was a non- custodial sentence as a result of a conviction for an offence; and
(b)that offence has subsequently been abolished and the act that constituted the abolished offence no longer constitutes an offence; and
(c)he or she is no longer subject to the non-custodial sentence.
(2)If an application is made to the District Court under subsection (1), a registrar must make an order that an individual need not complete a rehabilitation period for the purposes of section 7(1)(a) if the applicant provides evidence of the matters in subsection (1)(a) to (c).
10Individual may apply to District Court for order that rehabilitation period need not be completed or conviction be disregarded
(1)An individual who is otherwise eligible under section 7(1) may apply to the District Court for an order under subsection (2) if—
(a)the last sentence imposed on the individual was a custodial sentence as a result of a conviction for an offence; and
(b)that offence has subsequently been abolished and the act that constituted the abolished offence no longer constitutes an offence; and
(c)he or she is no longer subject to the custodial sentence.
(2)The court may, if satisfied of the matters in subsection (1)(a) to (c), make an order—
(a)that the individual need not complete a rehabilitation period for the purposes of section 7(1)(a); and
(b)that the custodial sentence for the offence must be disregarded for the purposes of section 7(1)(b).
(3)An individual who is otherwise eligible under section 7(1) may make an application to the District Court for an order under subsection (4) if a court imposed a non-custodial sentence on the offender for a conviction for a specified offence.
(4)The court may order that the conviction for the specified offence must be disregarded for the purposes of section 7(1)(d).
(5)In considering an application under this section, a court must balance the interests of individuals in concealing their criminal records against the wider public interest in the safety of the community (recognising that an awareness of an individual’s previous convictions is appropriate in certain cases).
(6)Subject to any rules of court, a court may call for and receive as evidence any statement, document, information, matter, or thing that, in the court’s opinion, may assist it to deal effectually with the application.
(7)On an application under subsection (1) or subsection (3), the court must either make the relevant order under subsection (2) or subsection
(4) or decline to do so.
(8)The District Court may transfer an application under this section to the High Court if it considers that it is appropriate to do so.
Discussion
[18] The Act deems an individual with a criminal record not to have one, and hence to have a clean slate, if he or she meets the Act’s eligibility criteria in s 7.6
6 Criminal Records (Clean Slate) Act 2004, s 3.
[19] Application is not required. The Act’s effect is automatic. However, the individual must meet the s 7 eligibility criteria set out above.
[20] It is clear that a person is eligible for the clean slate scheme only if all of the requirements in s 7(1)(a) – (g) are met.
[21] As the respondent acknowledges, Mr Sandhu meets the criteria set out in s 7(1)(a) to (f).
[22] However, it is equally clear, as Judge Lovell-Smith identified, that Mr Sandhu does not meet the requirement set out in s 7(1)(g) because an order has been made about him under s 65 of the LTA.
[23] Mr Sandhu relies on the subsequent amendment of s 65 in 2018, which abolished the indefinite disqualification scheme. That scheme has been replaced with the alcohol interlock provisions.
[24] At first instance, Mr Sandhu submitted (and he repeats the argument here) that he could be rendered eligible under the clean slate scheme by way of an order of the Court under s 9 of the Act.
[25] However, as the learned Judge found, s 9 does not apply. Section s 9 allows a Court to make an order that an individual need not complete a rehabilitation period for the purposes of s 7(1)(a). It has no application to ineligibility arising from s 7(1)(g). Even if that were wrong, “the last sentence imposed” on Mr Sandhu as referred to in s 9(1)(a) was for an offence under s 60 of the LTA, not for an “offence” under s 65, and s 60 of the LTA has not been abolished. Section 65 is part of the sentencing structure for repeat offending. It is not “the offence” of which Mr Sandhu was convicted.
[26] Similarly, in respect of the additional argument advanced on appeal, s 10 of the Act does not apply to Mr Sandhu.
[27] An order under s 10(2) is an order that an individual need not complete a rehabilitation period (for the purposes of s 7(1)(a)) and that the custodial sentence for
that offence be disregarded (for the purposes of s 7(1)(b)). Again, it does not apply to ineligibility because of s 7(1)(g). I therefore do not need to consider the subsequent provisions of s 10. However, I do note the argument that s 10(3) should have been considered. That is wrong, inter alia, because the offences here are not “specified offences” as defined under s 4 of the Act.
[28] Further, the same issue arises under s 10 as with s 9 – the offence for which Mr Sandhu was last sentenced has not been abolished and continues to constitute an offence.
[29] Mr Qaisrani, whose submissions were carefully crafted, made an overarching argument that in terms of the principles of the Act, the provisions I have referred to should in any event be interpreted such that Mr Sandhu does have a clean slate. While I agree, as noted below, that in principle Mr Sandhu should have a clean slate, the provisions of the Act are clear and unambiguous. It is not for the Court to rewrite them to achieve a desired outcome. That is for the legislature.
Conclusion
[30] For the reasons outlined above, Judge Lovell-Smith was correct to decline Mr Sandhu’s application under the Act.
[31]The appeal is therefore dismissed.
Subsequent remarks
[32] It may assist Mr Sandhu’s wife’s immigration application for me to record that while the clean slate provisions do not apply to Mr Sandhu, I consider that to be a technicality in the present case. I note that counsel for the respondent agrees. The offending at issue was relatively minor, judging by the sentences imposed. The last of it was 10 years ago. Further, Mr Sandhu was only in his early twenties at the time of the offending. At least for the last three years it seems he has had and continues to
hold a responsible job and is much valued by his employer and colleagues. The processing of the visa application is a matter for Immigration, but it would seem unfair if it were precluded by Mr Sandhu’s historical criminal record.
Hinton J
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