Sandle v Police [2014] NZHC 2720 (3 November 2014)

Last Updated: 17 November 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-404-000069 [2014] NZHC 2720

BETWEEN	SIDNEY SANDLE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	21 October 2014
Appearances:	P Winkler and M J Mellin for Appellant J V Barry for Respondent
Judgment:	3 November 2014

_{JUDGMENT OF GILBERT J}

This judgment is delivered by me on 3 November 2014 at 2pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

SANDLE v NEW ZEALAND POLICE [2014] NZHC 2720 [3 November 2014]

Introduction

[1] The question raised on this appeal is whether a person whose licence has been suspended under s 90 of the Land Transport Act 1998 following the accumulation of 100 or more demerit points within a two year period, and who is subsequently convicted of driving contrary to the terms of a limited licence, is eligible to apply under s 94 of the Act for a community-based sentence in lieu of disqualification.

Background

[2] On 24 July 2011, Mr Sandle’s licence was automatically suspended for three months under s 90 of the Act because he had accumulated 100 or more demerit points. Mr Sandle was granted a limited licence in the Manukau District Court on

1 August 2011. Two months later, Mr Sandle drove in breach of the terms of his limited licence. On 14 March 2013, he pleaded guilty to this offence, which carries a mandatory minimum term of six months’ disqualification.¹ Because Mr Sandle is not eligible to apply for a further limited licence,² he applied under s 94 of the Act for a community-based sentence in lieu of disqualification.

[3] Section 94(1)(a) of the Act provides:

94 Substitution of community-based sentences

(1) This section applies if –

(a) the offender has previously been ordered on conviction for

an offence to be disqualified from holding or obtaining a driver licence;

[4] Judge D G Mather declined Mr Sandle’s application in a judgment given in the Waitakere District Court on 23 May 2013.³ The Judge found that s 94 did not apply in the circumstances of Mr Sandle’s case because he had not “previously been

_{ordered on conviction for an offence to be disqualified from holding or obtaining a}

¹ _{Land Transport Act 1998, s 32(3).}

² _{Section 103(2)(c).}

³ Police v Sandle DC Waitakere CRI-2011-070-6638, 23 May 2013.

driver licence”. Rather, Mr Sandle’s licence had been suspended by operation of law

as a result of the accumulation of demerit points.

[5] The sole question on this appeal is whether the Judge was correct in finding that Mr Sandle does not meet the criteria in s 94(1)(a).

Appellant’s submissions

[6] Mr Mellin contends that s 94(1)(a) applies in this case because Mr Sandle was convicted of a number of offences which resulted in his licence being suspended by order due to the accumulation of demerit points. Mr Mellin submits that licence suspension is the same as being disqualified from holding or obtaining a driver licence for the purposes of s 94.

[7] Mr Mellin endeavoured to support this submission by referring to Asher J’s decision in Smith v Police which held that a person whose licence has been suspended, and who is subsequently convicted and disqualified from holding a driver licence, is not permitted to obtain a limited licence under s 103.⁴ Mr Mellin relies particularly on the following statement made by Asher J in the course of his judgment:⁵

However, the penalties for both driving while disqualified and driving while suspended are the same. There is no obvious reason why the difference in the process leading up to disqualification from that leading up to suspension should lead to a difference in the ability to get a limited licence. There is nothing in the long title or elsewhere in the Act to indicate that a distinction should be made. There is no obvious reason why the legislature would have sought to distinguish between disqualification and suspension for limited licence purposes, and it did not do so prior to 2005. If it had been intended to make the distinction, it could have been expected that this could have been done so explicitly.

[8] This decision was solely concerned with the proper interpretation of s 103(2)(c) of the Act which prohibits certain persons from applying for a limited licence:

(c) A person who is disqualified from holding or obtaining a driver licence by an order made on his or her conviction for an offence

⁴ _{Smith v New Zealand Police HC AK CRI-2010-404-398, 11 March 2011.}

⁵ At [23].

against s 32(1) (which relates to driving while disqualified or contrary to a limited licence).

[9] Asher J concluded that this subsection extends to persons driving: while disqualified (s 32(1)(a)); contrary to a limited licence (s 32(1)(b)); or while his or her driver licence is suspended or revoked (32(1)(c)). This conclusion was inevitable because all three of these offences are expressly referred to in s 32(1). The fact that the words in parentheses at the end of s 103(2)(c) do not refer to driving while a driver licence is suspended (in terms of 32(1)(c)) cannot have been intended to restrict the plain meaning of the preceding words in the subsection.

[10] Mr Mellin recognises that this decision concerns the interpretation of s 103, not s 94. However, he submits that Asher J’s reasoning that there is “no obvious reason why the difference in the process leading up to disqualification from that leading up to suspension should lead to a difference in the ability to get a limited licence” applies with equal force to applications for a community-based sentence in lieu of disqualification under s 94. He argues that there is no reason why the different processes leading to disqualification and suspension should affect a person’s eligibility to seek the only available alternative remedy of a community- based sentence.

[11] Mr Mellin further submits that any other interpretation would lead to anomalous outcomes that cannot have been intended by Parliament. He referred to the decision of Judge J M Doogue in the District Court in Police v Paine as directly supporting this submission:⁶

The question is whether I am entitled to interpret s 94(1) purposively to enable the section to apply not only where there has been an actual court order, ordering the defendant to be disqualified, but also where there has been an effective disqualification arising automatically as a result of accumulation of demerit points. I consider that I am entitled to interpret it in this way. It does not make sense, and could not have been Parliament’s intention, that a person who has been effectively disqualified by accumulation of demerit points cannot avail himself of s 94 because it can only be invoked where there has previously been an actual conviction and ordered disqualification. In this latter case there will have been specific driving demeanours which have caused the offender to be before the court and to have been sentenced to disqualification. In other words, the offender’s actions will have been worse.

⁶ Police v Paine DC Auckland, CRN09004012810, 22 October 2009, at [7] and [8].

I consider that if an offender has suffered effective disqualification by virtue of suspension following demerit points accumulation he is suspended, he is to be regarded as having been disqualified for the purposes of s 94(1).

[12] Although the decision given in Paine was successfully appealed, Mr Mellin observes that there was no challenge to the Judge’s conclusion on the jurisdictional issue.⁷ Mr Mellin also referred to two other decisions in this Court which accepted that s 94 applies in circumstances where licences have been suspended.⁸ However, the jurisdictional issue was not challenged and was not specifically addressed in

these cases.

Discussion

[13] Section 30AC of the Transport Act 1962 is the predecessor of s 94. When it was introduced with the Transport Law Reform Bill in 1988, its purpose was recorded in the explanatory note as follows:

The new section 30AC implements recommendation 22 of the Road Safety Committee to the effect that where the Act presently requires a mandatory period of disqualification, and the convicted person has previously undergone a period of disqualification, it should be open to the Courts in any particular case where the usefulness of a further period of disqualification is doubtful to impose an alternative but more effective community-based sentence.

[14] Hardie Boys J observed in Mitchell v Police that the purpose of s 30AC was to remove drivers from an unending cycle of offending where further disqualification was likely to lead to further driving while disqualified.⁹

[15] Baragwanath J addressed the jurisdictional question at issue in the present case in Police v Raynes in the context of s 30AC.¹⁰ Baragwanath J held that a person whose licence had been suspended did not come within the terms of s 30AC(1)(a) because he or she had not “previously been ordered on conviction for

_{an offence to be so disqualified”:}¹¹

⁷ _{Paine v Police HC AK CRI-2009-404-000386, 22 February 2010.}

⁸ Pannu v Police HC Auckland, 2 June 2009, CRI 209 404 084; Reddy v Police HC Auckland,

_{17 September 2010, CRI 2010 404 000217.}

⁹ _{Mitchell v Police [1989] NZHC 592; (1989) 5 CRNZ 190 (HC).}

¹⁰ _{Police v Raynes HC AK AP 86/98, 10 November 1998.}

¹¹ At p 11.

While it may seem remarkable that a defendant committing a driving offence who has had the good fortune to have had his licence suspended by the Court may apply to serve a community based sentence (which may be preferred) and avoid disqualification, when another defendant committing an identical offence whose licence has been suspended by executive act lacks that privilege, so too does the innocent who has committed no prior offence whatever.

[16] Baragwanath J’s decision in Raynes was not referred to in the subsequent decisions of this Court in Pannu, Reddy and Paine. As noted, jurisdiction was assumed in each of these cases on the basis that suspension could be treated as the equivalent of disqualification.

[17] Baragwanath J drew attention to a potential anomaly in Raynes. Nevertheless, Parliament did not amend the provision to include suspended drivers when it enacted s 94 of the Land Transport Act 1998, or subsequently. Section 94 was amended in 2005 but there is no indication that Parliament intended to extend its scope to persons whose licences had been suspended.

[18] The authorities were carefully reviewed by Asher J in the recent case of Police v Smith.¹² His Honour concluded that persons whose licences have been suspended do not come within the terms of s 94:¹³

On the plain words of s 94, and when read in the wider context of Part 7 of the Act, the process of an order on conviction for disqualification is very different from the mandatory consequence of suspension. One happens by way of Court order, the other automatically as a matter of law. Therefore, under s 94(1)(a), disqualification does not include suspension. It follows that s 94 does not apply to a suspension.

[19] I agree with Asher J’s conclusion in Police v Smith that Parliament intended to restrict the scope of s 94 to persons who have previously been ordered on conviction to be disqualified from holding or obtaining a driver licence:¹⁴

Given the difference in the nature of the two penalties, it is possible that the wording of s 94 was not anomalous, and that the discretion was intentionally limited to orders of disqualification on conviction and not extended to the penalty of suspension. The penalty of suspension may well have been seen as a short sharp remedy to be invariably imposed in certain circumstances.

¹² _{Police v Smith [2012] NZHC 2346.}

¹³ _{At [19].}

¹⁴ At [26].

[20] It would not be appropriate for the Court to depart from the plain meaning of the words used in s 94. Mr Sandle was not “ordered on conviction for an offence to be disqualified”. His licence was automatically suspended by operation of law. Notice of this was given by an administrative act. These differences were summarised by Miller J in Keleher v Police:¹⁵

The Transport Act distinguishes between disqualification and suspension. Suspension is a penalty, but its imposition involves no exercise of judicial power. There is no proceeding. The necessary steps are administrative in nature.

[21] For these reasons, Mr Sandle does not come within the scope of s 94 and the

Judge was correct to dismiss his application.

Result

_{[22] The appeal is dismissed.}

_{M A Gilbert J}

¹⁵ Keleher v Police HC Rotorua CRI 2004-470-13 at [18].