Tracey v Police

[2021] NZHC 2265

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2021-419-45

[2021] NZHC 2265

BETWEEN

NIGEL MICHAEL TRACEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

31 August 2021

Appearances:

M Jepson for the Appellant

J Williams for the Respondent

Judgment:

31 August 2021

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 31 August 2021 at 4:00pm

Registrar/Deputy Registrar

TRACEY v NEW ZEALAND POLICE [2021] NZHC 2265 [31 August 2021]

[1]                 Mr Tracey pleaded guilty to a charge of driving under the influence of alcohol. This was his fourth such offence.1 Judge S R Clark sentenced him, on 12 October 2020, to six months’ community detention, nine months’ intensive supervision and ordered disqualification for 14 months commencing 1 December 2020.

[2]                 In June 2021, Mr Tracey obtained from the District Court an order under s 105 of the Land Transport Act 1998 (the LTA) authorising the grant of a limited licence. Mr Tracey then applied to the New Zealand Transport Agency (NZTA) for a limited licence. NZTA declined his application, as Mr Tracey had not held a licence immediately before his disqualification (his licence having expired in April 2020). Under s 104(2) of the LTA he was therefore not entitled to be granted a limited licence.2

[3]                 As a result of the NZTA’s decision Mr Tracey appeals against the sentence of disqualification. He does not raise any issue with the term of disqualification imposed by Judge Clark. He asks that the disqualification be cancelled and the balance of the term re-imposed but suspended for a period to enable him to renew his expired licence before the disqualification commences. He would then be able to obtain a limited licence to drive for the balance of the term of disqualification.

[4]                 Mr Tracey’s appeal is out of time. Leave is required under s 248(4)(a) of the Criminal Procedure Act 2011 (the CPA) for an extension of time.

Grounds of appeal

[5]                 Mr Jepson, for Mr Tracey, does not submit there was any error in the term of disqualification imposed by Judge Clark. Mr Tracey is asking to be sentenced for the same effective term but with a suspension. Mr Jepson merely submits that the commencement date of the disqualification forms part of the sentence, and there was an error in the commencement date.

[6]                 Mr Williams, for the Police, submits no error in the sentence has been identified and therefore under s 250 of the CPA the appeal would have to be dismissed.

1      Land Transport Act 1998, s 56(4). Maximum penalty: two years’ imprisonment or a fine of $6,000 and disqualification for more than one year.

2      Land Transport Act 1998, s 105(6A).

He adds that Mr Tracey seeks a sentence of about four months disqualification for the balance of the period yet to be served and that is less than the minimum sentence under s 54 of the LTA. Other than observing that the grounds of appeal are not strong, he adopts a neutral stance on Mr Tracey’s application for leave to appeal out of time.

Decision

[7]                 An appeal against sentence is governed by s 250 of the CPA. Under s 250(2), the court must allow the appeal if satisfied there is an error in the sentence imposed and a different sentence should be imposed. Section 250(3) provides that in any other case the court must dismiss the appeal.

[8]                 The only error in the sentence suggested by Mr Jepson is the commencement date of the disqualification. Mr Jepson submits that, if Mr Tracey or his then counsel had turned their minds in October 2020 to the effect of Mr Tracey’s licence already having expired, Mr Tracey could have sought an opportunity to renew his licence prior to the disqualification commencing.

[9]                 I accept that the commencement date of a sentence forms part of the sentence. The difficulty for Mr Tracey is that Judge Clark’s sentence did provide an opportunity for him to renew his licence prior to disqualification. The sentencing occurred on 12 October 2020, but disqualification did not commence until 1 December 2020.

[10]            Mr Tracey not having identified an error in the sentence imposed, under s 250(3) his proposed appeal would have to be dismissed. Given his proposed appeal is without merit, it is not in the interests of justice to extend time for him to appeal.3

[11]The application for leave to appeal out of time is dismissed.

Campbell J

3      R v Knight [1998] 1 NZLR 583 (CA) at 589; Mikus v R [2011] NZCA 298 at [26].