Stanney v Police

[2012] NZHC 310

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409--000128 [2012] NZHC 310

RYAN STANNEY

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         29 February 2012

Appearances: A J Bailey for Appellant

N M  Robson for Respondent

Judgment:      29 February 2012

ORAL JUDGMENT OF CHISHOLM J

[1]      On 4 October 2011 the appellant was indefinitely disqualified under s 65(4)

of the Land Transport Act 1998. That subsection provides:

65Mandatory penalties for repeat offences involving use of alcohol or drugs

...

(4)       The court must make an order that requires a person to attend an Assessment Centre and that disqualifies that person from holding or obtaining a driver licence until the Agency removes that disqualification under section 100 if—

(a)      the  court  convicts  that  person  of  a  third  or  subsequent offence to which this section applies; and

STANNEY V NEW ZEALAND POLICE HC CHCH CRI-2011-409--000128 [29 February 2012]

(b)       the 2 or more previous offences were committed within 5 years of the date of the commission of the offence being dealt with by the court.

The District Court Judge proceeded on the basis that he had jurisdiction to disqualify indefinitely because this was the appellant’s third conviction and he had two earlier qualifying convictions within the previous five years.

[2]      Mr Bailey submitted that the Judge had no jurisdiction to impose indefinite disqualification.  This was because the appellant’s second and third convictions were entered simultaneously on 4 October 2011.   He relies on R v Wain[1]  in which the Court of Appeal held that simultaneous convictions did not bring the predecessor of s

65(4) into play.  He also relies on Gwizo v New Zealand Police[2] in which Panckhurst

J applied that reasoning to s 65(4).

[1] R v Wain [1984] 1 NZLR

[2] Gwizo v New Zealand Police (HC Christchurch, CRI 2005-409-000100, Panckhurst J, 23 June 2005)

[3]      Ms Robson responsibly conceded that the point taken by Mr Bailey has merit and there was no jurisdiction to impose an indefinite disqualifcation.  Given that the appeal is out of time I extend the time for appealing.  The appeal is allowed and the indefinite disqualification is quashed. The remaining penalty stands.

Solicitors:

Andrew Bailey.P O Box 26127, North Avon, Christchurch 8148,  [email protected]

Raymond Donnelly & Co,  [email protected]

Solicitors: