Singh v Police - [2013] NZHC 3065

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000281 [2013] NZHC 3065

BETWEEN JAYRAJ SINGH Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 11 November 2013

Appearances: T M Saseve for Appellant
J B Hamlin for Respondent

Judgment: 19 November 2013

REASONS JUDGMENT OF ELLIS J

This judgment was delivered by Justice Ellis on 19 November 2013 at 4.30 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

SINGH v NZ POLICE [2013] NZHC 3065 [19 November 2013]

[1] On 12 November 2013 I allowed Mr Singh’s appeal against a sentence of indefinite disqualification imposed upon him by Judge Andree Wiltens for his second drink driving offence.1

[2] In effect, I substituted a sentence of alcohol interlock licence disqualification under s 65A of the Land Transport Act 1998 (the Act). I said my reasons would follow. These are my reasons.

Background

[3] By way of background it is relevant to note that:

(a) Mr Singh’s first drink driving conviction was less than 5 years ago;

(b)His breath alcohol level on the first occasion was 899 micrograms of alcohol per litre of breath;

(c) His blood alcohol level on the second occasion was 165 milligrams per 100 milligrams of blood.

[4] In his sentencing notes the learned District Court Judge said:2

Because you have these two convictions within a five year period, s 65(b) applies which means I need to disqualify you indefinitely as from today, which I do. Secondly, I need to invite you to apply for a zero alcohol licence once you have the right to apply again for a driver’s licence, if you manage to persuade the authorities within the next three years that you should be able to drive again on the roads, then you can ask for a licence and that would be a zero alcohol licence which would mean that you would be allowed to drive with no alcohol in the system. If there is any alcohol then you could not drive. That is the only licence you will be able to apply for.

Reasons for quashing sentence of indefinite disqualification

[5] Mr Saseve and Mr Hamlin were agreed that the learned District Court Judge erred in disqualifying Mr Singh indefinitely under s 65. That is because the prerequisites in s 65(3) were not met; the breath or blood alcohol levels were not
high enough on either of the occasions giving rise to Mr Singh’s

1 Singh v NZ Police [2013] NZHC 2969.
2 NZ Police v Singh DC Manukau CRI 2013-092-004976, 18 June 2013 at [2].

convictions to meet the thresholds stipulated there.3

Reasons for substituting sentence of alcohol interlock licence disqualification

[6] It was also agreed that, because s 65 did not apply to Mr Singh, the disqualification aspect of his sentence fell to be determined under either s 56 and/or s
65A of the Act.

[7] Section 56 relevantly states:

Contravention of specified breath or blood-alcohol limit

(1) A person commits an offence if the person…

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 Singh v Police

Details

AGLC: Singh v Police [2013] NZHC 3065
Case: [2013] NZHC 3065
Decision Date: 19 November 2013

CaseChat Overview and Summary

Singh v New Zealand Police [2013] NZHC 3065 involved an appeal by Jayraj Singh against a sentence of indefinite disqualification imposed upon him for a second drink driving offence. The court was tasked with determining whether the District Court Judge correctly applied the sentencing provisions of the Land Transport Act 1998 and whether the imposed sentence was appropriate.

The key legal issues were whether the District Court Judge correctly applied section 65 of the Act for indefinite disqualification and if an alcohol interlock licence disqualification under section 65A was a viable alternative. The court had to resolve the apparent conflict between the mandatory disqualification periods stipulated in sections 56(3) and 65A of the Act.

Justice Ellis held that the District Court Judge erred in imposing indefinite disqualification as the alcohol levels on both occasions did not meet the thresholds for section 65. The court found that an alcohol interlock licence disqualification under section 65A was appropriate, as it provided a lesser disqualification period of three months and aligned with the purposes of the Act. The court reasoned that section 81(2) of the Act allowed the court discretion to choose between conflicting mandatory disqualification periods, enabling the imposition of an alcohol interlock licence disqualification in appropriate cases.

The final orders were that the sentence of indefinite disqualification imposed by the District Court was quashed, and an alcohol interlock licence disqualification was substituted in its place. This decision ensured that Singh could apply for an alcohol interlock licence after three months, provided he met the necessary criteria, and eventually for a zero alcohol licence after holding the interlock licence for at least 12 months.

Orders