Nair v Police [2014] NZHC 2859 (17 November 2014)

Last Updated: 1 December 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-219 [2014] NZHC 2859

BETWEEN	RAGHWAN NAIR Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	17 November 2014
Appearances:	D Nairn for Appellant G E Hughes for Respondent
Judgment:	17 November 2014

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

RAGHWAN NAIR v NEW ZEALAND POLICE [2014] NZHC 2859 [17 November 2014]

[1] Mr Nair pleaded guilty in the District Court to a charge of driving whilst disqualified. On 2 July 2014, Judge Andrée Wiltens sentenced him to 80 hours of community work, and disqualified him from holding or obtaining a driver’s licence for six months from that date.¹ Mr Nair now appeals to this Court against the order for disqualification.

Background

[2] Mr Nair was disqualified from driving for a period of six months from

29 January 2013 after he pleaded guilty to a charge of driving with excess blood alcohol. The period of disqualification was therefore due to expire on 29 July 2013. At 10.30 am on 9 July 2013, a police patrol stopped Mr Nair whilst he was driving a vehicle in Papatoetoe. He immediately acknowledged that he was a disqualified driver, and the charge of driving whilst disqualified was laid as a result.

[3] At sentencing, counsel for Mr Nair applied for an order under s 81 of the Land Transport Act 1998 (the Act) that no order for disqualification be imposed. Section 81 permits the Court to make such an order when special reasons relating to the offence exist that render such an order appropriate.

[4] Counsel for Mr Nair advised the Judge that the offending occurred whilst Mr Nair was undertaking urgent work for his business. This involved Mr Nair taking cash to a printing firm so as to enable his newspaper to be printed on due date. The Judge hearing the application evidently sought supporting evidence for this submission, and the sentencing was adjourned so that Mr Nair’s counsel could obtain that evidence.

[5] When the matter came back before Judge Andrée Wiltens on 2 July 2014, Mr Nair’s counsel tendered a letter dated 27 March 2014 from Auckland Community Print. This confirmed that Mr Nair had been driving to that firm’s premises on

9 July 2013 in order to pay his monthly printing bill. The letter explained that the company does not accept bank transfers from Mr Nair, because they have had

_{problems with cheques not being honoured in the past. It also confirmed that if Mr}

¹ New Zealand Police v Nair DC Manukau CRI-2013-092-007820, 2 July 2014.

Nair had not brought the cash in on that date, his newspaper would not have been printed. The Judge did not consider this explanation to be sufficient to warrant the exercise of the discretion under s 81. For that reason he made the order disqualifying Mr Nair from driving for a period of six months.

Grounds of appeal

[6] Counsel for Mr Nair does not argue that the Judge erred in dismissing the application for an order under s 81 of the Act. Rather, he contends that he did not have an opportunity to advance an alternative application under s 94 of the Act. This permits the Court, in certain circumstances, to impose a community-based sentence rather than a period of disqualification.

[7] Counsel for Mr Nair acknowledges that he ought to have advised the Judge during the course of the hearing that Mr Nair wished to advance an alternative application under s 94. He also readily accepts that he failed to do so. He says that when the Judge delivered in his decision in relation to the application under s 81, he immediately made the order for disqualification. Counsel did not consider it was open to him to raise that issue once the order for disqualification had been made.

[8] I disagree with that assessment. If counsel for Mr Nair had wished to advance an application under s 94, he ought to have raised it at that point notwithstanding the fact that the Judge had already made an order. It would then have been open to the Judge to recall the order, and to hear submissions in support of the application for orders under s 94.

Decision

[9] Ordinarily, I would have dealt with the appeal by considering the likelihood of Mr Nair being able to obtain an order under s 94 based on the evidence that he provided to the District Court. This took the form of a statutory declaration in which Mr Nair explained the consequences that an order for disqualification would have for both himself and his employees. Unfortunately, however, a copy of the statutory declaration is not on the Court file and neither counsel was able to provide me with a copy. Mr Nair’s counsel advised me from the bar, however, that Mr Nair confirmed

in the statutory declaration that he would lose his livelihood if an order was not made, and that at least two other employees were also likely to lose their jobs if he was disqualified from driving.

[10] In the absence of the declaration, I am obviously not able to say what weight these assertions should carry. I am aware, however, that the risk of loss of employment is a consideration that may be taken into account when an application is advanced under s 94. For that reason, I consider that the mistakes made by his counsel in the District Court should not prevent Mr Nair from having an opportunity to advance an application under s 94 in the District Court.

Result

[11] The appeal is allowed. The order for disqualification is quashed. I make a direction under s 251(1)(2)(c) of the Criminal Procedure Act 2011 remitting the proceeding to the District Court so that it can consider whether to impose a community-based sentence under s 94 of the Act. I direct that counsel for Mr Nair is to file a formal application in the District Court seeking such a sentence within seven

_{days of today’s date.}

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:

D Nairn, Manukau City