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…

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 Tracey v Police

Details

AGLC: Tracey v Police [2021] NZHC 2265
Case: [2021] NZHC 2265
Decision Date: 31 August 2021

CaseChat Overview and Summary

Nigel Michael Tracey appealed against a sentence of disqualification from driving imposed on him after pleading guilty to driving under the influence of alcohol. The appeal was heard by the High Court of New Zealand. The appeal was out of time, requiring leave under section 248(4)(a) of the Criminal Procedure Act 2011. The appeal related to the sentence of disqualification imposed by Judge S R Clark on 12 October 2020, which included six months of community detention, nine months of intensive supervision, and disqualification for 14 months commencing 1 December 2020. The appeal was based on the argument that the sentence should be suspended to allow Tracey to renew his expired licence before the disqualification commences.

The legal issue before the court was whether there was an error in the sentence imposed that warranted the appeal. The court examined whether the sentence's commencement date formed part of the sentence and if there was any error in the date. Tracey argued that the sentence's commencement date was incorrect because it did not consider his expired licence. The Police argued that no error in the sentence had been identified and that the appeal should be dismissed. The court found that the sentence did provide an opportunity for Tracey to renew his licence prior to disqualification and that there was no error in the sentence imposed. The court dismissed the application for leave to appeal out of time.

The court's reasoning was that the commencement date of a sentence forms part of the sentence, but in this case, there was no error in the sentence imposed. The court found that the sentence provided an opportunity for Tracey to renew his licence before the disqualification commenced, and it was not in the interests of justice to extend time for him to appeal. The appeal was dismissed, and the sentence remained as imposed by Judge Clark.

Orders