Sandle v Police

[2014] NZHC 3019

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000069 [2014] NZHC 3019

BETWEEN	SIDNEY SANDLE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	On the papers
Appearances:	P Winkler and M J Mellin for Appellant J V Barry for Respondent
Judgment:	28 November 2014

JUDGMENT (2) OF GILBERT J

This judgment is delivered by me on 28 November 2014 at 4.30 p.m.

Pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

SANDLE v NEW ZEALAND POLICE [2014] NZHC 3019 [28 November 2014]

[1]      In  a judgment delivered on  3  November  2014,  I dismissed  Mr  Sandle’s appeal against sentence.1     The question raised on the appeal was whether a person whose licence has been suspended under s 90 of the Land Transport Act 1998 following the accumulation of 100 or more demerit points, and who is subsequently convicted of driving contrary to the terms of a limited licence, is eligible to apply under s 94 of the Act for a community-based sentence in lieu of disqualification.

[2]      Section 94(1)(a) of the Act provides:

94       Substitution of community-based sentences

(1) This section applies if –

(a)       the offender has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence;

[3]      I concluded that a person in Mr Sandle’s position, whose licence has been suspended following the accumulation of demerit points, does not come within s 94 because he or she has not “been ordered on conviction for an offence to be disqualified  from  holding  or  obtaining  a  driver  licence”.    I therefore  dismissed Mr Sandle’s appeal.

[4]      In reaching this conclusion, I followed the decisions of Baragwanath J in Police v Raynes2 and Asher J in Police v Smith.3   However, I noted that there are at least two other decisions of this Court in which the contrary view was reached, Pannu v Police and Reddy v Police.4   The Chief District Judge also reached this contrary view in Police v Paine.5

[5]      The present position is therefore unsatisfactory.  There is no clear binding authority for District Court Judges, or indeed, High Court Judges, to follow.   I consider  that  this  issue,  which  has  general  or  public  importance,  should  be considered by the Court of Appeal so that the matter can be settled one way or the

other.

1      Sandle v Police [2014] NZHC 2720.

2      Police v Raynes HC AK AP 86/98, 10 November 1998.

3      Police v Smith [2012] NZHC 2346.

4      Pannu v Police HC Auckland, 2 June 2009, CRI 209 404 084; Reddy v Police HC Auckland,

17 September 2010, CRI 2010 404 000217.

5      Police v Paine DC Auckland, CRN09004012810, 22 October 2009, at [7] and [8].

[6]      I therefore grant leave to appeal to the Court of Appeal on the following question:

Is a person whose licence has been suspended following the accumulation of demerit points under s 90 of the Land Transport Act

1998 and who is subsequently convicted of driving contrary to the terms of a limited licence, eligible to apply under s 94 of the Act for a community-based sentence in lieu of disqualification?

M A Gilbert J