Brady v Police [2015] NZHC 2283 (21 September 2015)

Last Updated: 30 November 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000220 [2015] NZHC 2283

BETWEEN	PARIS JOHN BRADY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	21 September 2015
Appearances:	Mark Mellin on instructions from Patrick Winkler for the Appellant Sam McMullan for the Respondent
Judgment:	21 September 2015

[ORAL] JUDGMENT OF MOORE J [Appeal against sentence]

BRADY v NEW ZEALAND POLICE [2015] NZHC 2283 [21 September 2015]

[1] Paris John Brady pleaded guilty on 23 July 2015 to one charge of driving with excess blood alcohol. He was convicted and fined $800 and ordered to pay Court costs of $130 and medical fees of $349.85. He was also disqualified from holding or obtaining a driver’s licence for a period of six months. Mr Brady filed an appeal against this sentence but has since formally abandoned his appeal. His period of disqualification was suspended pending the outcome of the appeal. He now accepts he must serve the sentence imposed.

[2] However, he seeks a deferment of the start date of his disqualification. He says he intends to apply for a limited licence but is required to observe the 28 day statutory stand down period before such an application can be made.

[3] He says the stand down period will likely cause him difficulties with his employer. He asks that the start date of the disqualification be deferred until

20 December 2015 so he can use his annual leave for the 28 day period. He says that his employer will not allow him to take annual leave before that date.

[4] On the basis that Mr Brady can provide the legal authority justifying deferment the Police, through Mr McMullan, take a neutral position.

[5] Mr Mellin, for Mr Brady, has referred me to s 85 of the Land Transport Act

1998 which sets out when a period of disqualification beings. That section relevantly provides:

“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.

[...]”

(Emphasis added)

[6] In Edwards v Police, Venning J considered this section as compared with the former language of s 36(2) of the Land Transport Act 1962 which previously applied. His Honour observed the former section was “more restrictive” and

described the discretion in s 85(1) as unfettered.¹ These comments were made in the context of a decision as to whether or not the period of disqualification could be backdated.

[7] I agree with the comments of Venning J that s 85(1) confers on the Court a discretion to defer the start date of a period of disqualification. I am satisfied this Court has the jurisdiction to make the deferment sought. I also accept that the reasons provided by Mr Brady justify the deferment of that sentence to ensure his employment is not jeopardised by the disqualification.

[8] Given the appeal is abandoned, I now formally dismiss it. I order that the sentence of disqualification be reinstated effective and operative from 20 December

_2015.

Moore J

Solicitors:

Mr Winkler, Auckland

_{Crown Solicitor, Auckland}

¹ Edwards v Police [2012] NZHC 1350 at [26].