Wineera v Police
[2023] NZHC 1149
•12 May 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-000074 CRI-2023-404-000075
CRI-2023-404-000076 [2023] NZHC 1149
BETWEEN JORDON WINEERA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 24 April 2023 Appearances:
S J Galler for Appellant
C L Wilkinson for Respondent
Judgment:
12 May 2023
JUDGMENT OF VAN BOHEMEN J
[Appeal against sentence]
This judgment was delivered by me on 12 May 2023 at 4:00 pm
Registrar/Deputy Registrar Date……………………………..
Counsel/Solicitors:
Crown Solicitor, Auckland S J Galler, Auckland
WINEERA v NEW ZEALAND POLICE [2023] NZHC 1149 [12 May 2023]
[1] Jordan Wineera appeals, out of time, a decision given on 4 April 2019 in the District Court at Auckland under s 52A of the Land Transport Act 1998 disqualifying him from holding or obtaining a driver’s licence for two and a half years.
[2]Mr Wineera’s period of disqualification comprised:
(a)a period of six months commencing 4 April 2019 upon conviction of two charges of reckless driving and one charge of dangerous driving;
(b)a period of two years commencing 4 October 2019 upon conviction of three charges of failing to stop for red and blue lights.
[3] The three failing to stop charges relate to three different sets of circumstances occurring on 27 December 2018, 30 December 2018 and 27 January 2019. The two charges of reckless driving and the charge of dangerous driving each relate to one of those sets of circumstances.
[4]Mr Wineera was convicted and sentenced on all charges on 4 April 2019.
[5] Section 52A was inserted into the Land Transport Act 1998 by the Land Transport Amendment Act 2017.1 The section came into force on 11 August 2017.2
[6]The section provides:
52A Contravention of section 114
(1)A person commits an offence if the person –
(a)is the driver of a vehicle that fails to stop –
(i)as soon as practicable when signalled or requested to stop under section 114(1); or
(ii)when required to stop under section 114(2); or
(b)is the driver of a vehicle that is stopped and fails to remain stopped in accordance with section 114(2A) or (3)(a); or
1 Land Transport Amendment Act 2017, s 41.
2 Section 2(3). The date of assent was 10 August 2017.
(c)fails or refuses to provide information or provides false or misleading information in response to a demand for information made by an enforcement officer under section 114(3)(b).
…
(3)If a person is convicted of a first offence against subsection (1)(a) or
(b) and committed the offence while exceeding the applicable speed limit or operating a motor vehicle in an otherwise dangerous manner, a court must order the person to be disqualified from holding or obtaining a driver license for 6 months.
(4)If a person is convicted of a second offence against subsection (1), a court must order the person to be disqualified from holding or obtaining a driver license for 1 year.
(5)If a person is convicted for a third or subsequent offence against subsection (1), –
(a)the maximum penalty is imprisonment for a term not exceeding 3 months; and
(b)the court must order the person to be disqualified from holding or obtaining a driver licence for 2 years.
(6)A disqualification ordered under subsection (3), (4), or (5) is cumulative on, and not concurrent with, any other disqualification that a court may order in respect of the facts that gave rise to the person’s conviction for an offence described in subsection (1).
…
[7] Mr Wineera appeals on the basis that his convictions should have resulted in an 18-month disqualification rather than the two-year disqualification given for that particular offending. He says the escalating penalties of disqualification for second and third offences mandated in s 52A should not have been applied because he had not been convicted of a first offence under the section when the penalties were imposed. For these reasons, he says each of the convictions should have been treated as a first offence for which three cumulative periods of six months’ disqualification should have been imposed, resulting in a cumulative period of disqualification of 18 months.
[8] Mr Wineera seeks to have the two-year period of disqualification commencing 4 October 2019 quashed and substituted with an 18-month period of disqualification commencing the same date. He also seeks the amendment of his criminal and traffic history so that the commencement dates of his subsequent licence disqualification periods are adjusted in light of the above change.
[9] Initially, the Crown position was that the period of disqualification of two years was imposed for three separate sets of offences and that it was irrelevant that Mr Wineera was convicted and sentenced for those offences at the same time.
[10] At the hearing of Mr Wineera’s appeal on 24 April 2023, I observed to counsel that the question of how escalating penalties for second or subsequent offences applied when the offences occurred before conviction had been entered for the first offence had some history. In R v South Shields Licencing Justices, it was held that a second or subsequent offence in the context of the licensing legislation being considered meant an offence committed after conviction for a first offence under the relevant section.3 The Court of Appeal had applied the same interpretation in R v Wain, where the issue arose in relation to s 35(2)(b) of the Transport Act 1962.4 I understood the issue had also arisen in relation to breath and blood alcohol offending under s 30A of the Transport Act 1962,5 and that similar issues would have arisen under s 56 of the Land Transport Act.
[11] I invited counsel to file further submissions on whether a different result should apply under s 52A.
[12] In a supplementary memorandum dated 10 May 2023, counsel for the Crown advises that there is no record of Mr Wineera being convicted of his 27 December 2018 offending or of his 30 December 2018 offending when he was charged with the 27 January 2019 offending. Accordingly, the Crown accepts that the 27 January 2019 offending could not be treated as “third or subsequent” offending.
[13] In a memorandum dated 11 May 2023, counsel for Mr Wineera concurs with the Crown’s analysis and submits that the appeal should be granted because of established authority that a defendant cannot be convicted of a third or subsequent offence before being convicted of a first offence.
[14] I infer from Crown counsel’s memorandum that the Crown accepts that s 52A of the Land Transport Act 1998 should be interpreted in the same way as other
3 R v South Shields Licencing Justices [1911] 2 KB 1 at 8.
4 R v Wain [1984] 1 NZLR 363 (CA) at 364.
5 McMann v Ministry of Transport (1987) 2 CRNZ 641 (HC) at 643.
statutory provisions that provide for escalating penalties for subsequent offending; that is, that a defendant must have been convicted of the prior offence when committing the subsequent offence before the escalating penalties can apply.
[15] I consider that is the correct approach and is consistent with authorities dating back to R v South Shields Licencing Justices.6
[16] It follows that the sentence of disqualification from holding or obtaining a driver’s licence for two years commencing 4 October 2019 was wrong and should be quashed and replaced by a sentence of disqualification from holding or obtaining a driver’s licence for 18 months commencing 4 October 2019. The 18 months’ disqualification is because Mr Wineera’s three offences are all first offences under s 52A(3), which each require a mandatory 6 month disqualification.
[17] It also follows that Mr Wineera’s criminal and traffic history should be adjusted to take account of the replacement sentence, and the commencement dates of his subsequent licence disqualification periods should be adjusted in light of this change.
Result
[18] Mr Wineera’s appeal is granted. I quash the sentence of disqualification from holding or obtaining a driver’s licence for two years commencing 4 October 2019 that was imposed on Mr Wineera in the District Court at Auckland on 4 April 2019.
[19] In substitution of the quashed sentence, I impose a sentence of disqualification from holding or obtaining a driver’s licence for 18 months, commencing 4 October 2019. I order that Mr Wineera’s criminal and traffic history is adjusted to take account of the substituted sentence and the commencement dates of Mr Wineera’s subsequent licence disqualification periods are adjusted in light of this change.
G J van Bohemen J
6 R v South Shields Licencing Justices, above n 3.
0
0
0