Neho v Police [2016] NZCA 596 (13 December 2016)

Last Updated: 6 January 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA330/2016 [2016] NZCA 596
BETWEEN	SAM NEHO Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	16 November 2016
Court:	Kós P, French and Venning JJ
Counsel:	B Ayrey and J Lucas for Applicant M J Lillico for Respondent
Judgment:	13 December 2016 at 10 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

[1] On 5 April 2016 Mr Neho was disqualified indefinitely from driving.^[1] He seeks leave to appeal the start date of the disqualification.

Factual background

[2] Mr Neho was caught driving with excess breath alcohol in Nelson on 12 April 2014. His licence was suspended for 28 days. Eight days later he was caught driving in breach of that suspension.
[3] On 19 December 2014 Mr Neho was arrested and charged with possession of a pistol, presenting a pistol, unlawfully being in a building, driving dangerously, driving with excess blood alcohol, and possession of an offensive weapon (a metal brace with a handle attached). The charges arose out of an incident in Christchurch when, in an intoxicated state, Mr Neho confronted his neighbours over a perceived grievance. He allegedly pointed a pistol at his neighbours and entered their house. He then drove away, running a stop sign. When stopped he returned a positive blood alcohol result.

Procedural background

[4] After the Christchurch incident, Mr Neho was bailed to Timaru subject to restrictive bail conditions including, initially at least, a 24 hour curfew. He was also prohibited from driving and consuming alcohol. The Nelson matters were transferred to Christchurch and Mr Neho entered pleas of guilty to them. He also intimated he would enter a guilty plea to the December 2014 blood alcohol charge. A pre-sentence report was prepared but his sentence hearing scheduled for June 2015 was postponed pending the outcome of the remaining charges arising from the December 2014 incident which Mr Neho defended.
[5] In February 2016 Mr Neho’s trial proceeded in the Christchurch District Court. Part way through the hearing matters were resolved largely in Mr Neho’s favour. The charges of burglary, possession of a pistol and presenting a pistol were dismissed. The charge of possession of an offensive weapon was amended to refer to possession of a metal bar. Mr Neho pleaded guilty to that charge and to being unlawfully in a building and dangerous driving.
[6] An addendum to the original pre-sentence report of June 2015 confirmed Mr Neho suffered from severe cardiomyopathy and had a life expectation of less than five years. On 5 April 2016 Judge Saunders sentenced Mr Neho to six months’ home detention and 150 hours community work.^[2] The Judge also disqualified Mr Neho holding or obtaining a driver licence indefinitely as he was required to do under s 65 of the Land Transport Act 1998 (“the Act”) on the driving with excess blood alcohol and driving with excess breath alcohol charges.^[3] Mr Neho was also disqualified from driving for a period of one year on the other driving charges. The Judge declined to backdate the start date of the disqualifications.

The High Court decision

[7] Mr Neho appealed the sentence to the High Court. He was successful in having the sentence of community detention quashed and replaced with an increased sentence of home detention. However Mander J declined to backdate the start of Mr Neho’s disqualifications.^[4]
[8] Mander J accepted s 85 of the Act enabled the sentencing court to backdate the commencement of a period of disqualification and that the section might well apply to Mr Neho’s indefinite disqualification.^[5] However, the order made under s 65 of the Act disqualified him from holding or obtaining a driver licence until the New Zealand Transport Agency (the Agency) removed the disqualification under s 100.
[9] Mander J referred to s 100(3) which provides:

(3) No order may be made under subsection (1) if the applicant concerned is subject to an order made under section 65 that has been in force less than 1 year and 1 day.

[10] In the Judge’s view backdating the disqualification would not assist Mr Neho because the Agency was barred by the Act from removing the indefinite disqualification before the lapse of one year and one day from the date the order was made by the sentencing Court. That time ran from the making of the order. To give effect to the purpose of s 85 in Mr Neho’s case it would have been necessary to add the words “since the date of the commencement of the disqualification” to s 100(3). Mander J was not prepared to do that. In the Judge’s view, to graft the words contended for by Mr Neho onto s 100(3) would be to undermine Parliament’s express intention to restrict when the Agency might first consider such an application by a recidivist offender.

The application for leave

[11] To support the application for a second appeal Mr Lucas, who presented the argument for the applicant, submitted the proposed appeal raised a matter of general or public importance. It raised the interpretation of s 100 which has not yet been considered by the Court. A number of offenders are potentially affected.^[6] He argued the High Court’s reasoning was contrary to the effect and purpose of s 85 which was to allow flexibility to enable the disqualification period to run from a date preceding the date of the order as well as from a later date.
[12] Next, Mr Lucas argued that the High Court was wrong to take support from cases such as R v Armstrong and Port Nicholson Fisheries Ltd v Ministry of Agriculture and Fisheries as to the appropriate approach to interpretation.^[7] Those cases applied to quite separate regulations and to the situation where the Crown had sought to expand areas of criminal liability.
[13] Mr Lucas also submitted there were “logical issues” with the decision in holding that s 100(3) means that “the time period runs from the making of the order not the date of the disqualification”. If so, he argued, a person who was indefinitely disqualified from a date after the date of sentencing (for example sentenced on 1 July 2016 but the Court ordered the disqualification to begin on 1 August 2016) could apply to have his indefinite disqualification removed before he had served at least the year and a day of disqualification prescribed by s 100(3).
[14] Finally, Mr Lucas submitted that it would be a miscarriage if the High Court decision stood as no-one sentenced to indefinite disqualification would be able to have the disqualification backdated to a particular point in time even if, like the appellant, they had already effectively been unable to drive for almost two years due to a condition of bail not to drive a motor vehicle.
[15] For the above reasons he submitted leave ought to be granted to enable these points to be developed at a full appeal.

Analysis

[16] This Court must not grant leave for a second appeal against sentence unless it is satisfied that:

• (a) the appeal involves a matter of general or public importance; or
• (b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.^[8]

[17] The first issue requires consideration of whether the proposed appeal raises an issue of general principle or general importance in the administration of the criminal law. In Robertson v Police this Court dismissed the application as none of the matters proposed to be raised were of general or public importance because the statutory scheme was clear.^[9]
[18] The proposed argument in this case also involves a question of statutory interpretation. Having considered counsel’s full submissions on the issue we are satisfied that the proposed argument cannot succeed for the reasons that follow.
[19] Section 85 of the Act applies to disqualifications generally. It enables the Court to order that the period of disqualification starts on a date other than the date the order is made. That is clear from the express terms of s 85(1):

85 When disqualification starts

(1) If an order is made by a court under any Act disqualifying a person from holding or obtaining a driver licence, the period of disqualification starts on the day the order is made unless the court otherwise directs or that Act otherwise provides.

[20] By contrast, s 65 addresses the specific situation of recidivist drink driving offenders and provides for indefinite disqualification.
[21] An indefinite disqualification imposed under s 65 might never be removed. While it may be possible to backdate the start of such a disqualification under s 85, as Mander J observed, that will be of no assistance to Mr Neho or someone in his situation because s 100(3) provides that the disqualification cannot be removed until the order has “been in force” for a year and a day.
[22] If the start date of a finite period of disqualification is back or post dated it will practically affect the length of the disqualification. But back or post dating the start of the indefinite disqualification cannot affect the requirement for the order to have been in force for at least a year and a day. The order cannot be “in force” before it is pronounced. The reason for the distinction lies in the need to address the problem of recidivist offenders.
[23] Unlike a disqualification for a finite period which expires at the end of the period, a disqualification imposed under s 65 can only be removed by the Agency if the applicant satisfies certain criteria. The applicant must satisfy the Agency he is a fit person to hold a driver’s licence having regard to:

• (a) an assessment report from a medical practitioner attached to an assessment centre; and
• (b) any other evidence relating to the applicant’s medical condition.^[10]

[24] The legislative history of ss 65 and 100 makes it clear that Parliament has struck a balance between imposing harsh penalties on recidivist drink drivers^[11] and enabling those offenders to apply to regain their licence if they have changed their ways.
[25] Through various amendments over time, Parliament has paid specific attention to how a driver disqualified indefinitely under s 65 or its equivalent may have the disqualification removed.^[12]
[26] The focus on rehabilitation and the requirement for the offender to attend an assessment centre in the current provisions support the natural interpretation of s 100(3) that the order must be in effect for at least a year and a day before any order removing the disqualification can be made. Parliament’s intent would be frustrated if the interpretation Mr Lucas argued for was adopted.
[27] Mander J was correct to find that the language of s 100(3) was not capable of admitting the meaning contended for by the applicant. The Judge referred to the cases of R v Armstrong and Port Nicholson Fisheries Ltd for the general and uncontroversial propositions that the ordinary meaning of the phrase in issue can be an effective meaning^[13] and of the need for Judges to avoid attempting to rectify omissions and thus assuming the legislative mantle.^[14]
[28] The answer to Mr Lucas’ third point is that even if the start point of the disqualification was directed to be a date some time after the sentencing, the order would not be operative or “in force” as required by s 100(3) until the disqualification began to apply, even if the order was made earlier.
[29] For these reasons, we consider that the statutory scheme does not require further clarification and, therefore, no question of general or public importance is raised by the appeal.
[30] Nor is there any miscarriage affecting Mr Neho in this case. His restrictive bail conditions were taken into account on sentencing by Judge Saunders. Further, if he had been sentenced on the driving offences from April 2014 in June 2015 as originally anticipated, s 85(3) would have applied. The later indefinite disqualification imposed by Judge Saunders in April 2016 would not have started until the disqualification imposed on the earlier offences had ceased to have effect.

Result

[31] The application for leave to bring a second appeal is declined.

Solicitors:
Public Defence Service, Christchurch for Applicant
Crown Law Office, Wellington for Respondent

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^[1] Police v Neho [2016] NZDC 5732.

^[2] Police v Neho, above n 1.

^[3] Mr Neho qualified for the order under both s 65(2) and s 65(4).

^[4] Neho v Police [2016] NZHC 1290.

^[5] At [24]–[29]; citing Edwards v Police [2012] NZHC 1350; and Oldfield v Police [2013] NZHC 3206.

^[6] Counsel advised that in 2014 1,519 offenders were disqualified indefinitely under s 65 of the Act.

^[7] R v Armstrong [2004] 1 NZLR 442 (CA); and Port Nicholson Fisheries Ltd v Ministry of Agriculture and Fisheries (1990) 6 CRNZ 684 (CA).

^[8] Criminal Procedure Act 2011, s 253.

^[9] Robertson v Police [2015] NZCA 7 at [38].

^[10] Section 100(1)(a).

^[11] (14 June 2005) 626 NZPD 21373 and 21381.

^[12] See Transport Act 1962, ss 30, 30A and 30C; and compare Land Transport Act 1998, s 100(3) as enacted and s 100(3) following Land Transport Amendment Act 2005.

^[13] R v Armstrong, above n 7, at [28].

^[14] Port Nicholson Fisheries Ltd v Ministry of Agriculture and Fisheries, above n 7, at 689.