Lay v Police [2018] NZHC 3033 (22 November 2018)

Last Updated: 29 November 2018

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2018-441-30 [2018] NZHC 3033

BETWEEN	MONIQUE LAY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	20 November 2018
Counsel:	P J Jensen for Appellant C C Gullidge for Respondent
Judgment:	22 November 2018

JUDGMENT OF THOMAS J

[1] Following convictions on various charges, the appellant, Ms Lay, was sentenced in the Hastings District Court to a short period of imprisonment and disqualified from driving for a period of two years.¹ Ms Lay takes no issue with the sentence of imprisonment but appeals the period of disqualification on the basis it exceeded the maximum statutory penalty.

[2] The appeal is brought out of time. Although no application for an extension of time has formally been sought, Mr Gullidge for the respondent does not oppose such an extension being granted. Accordingly, an extension of time is granted.

¹ Police v Lay [2018] NZDC 29860.

LAY v NEW ZEALAND POLICE [2018] NZHC 3033 [22 November 2018]

Factual background and District Court decision

[3] Ms Lay is now 19 years old. On 16 June 2017, she was sentenced to imprisonment for a range of offences committed between December 2016 and February 2017. These comprised burglary of her grandmother’s home, unlawfully getting into a motor vehicle, being in a yard, intentional damage, theft of petrol, and failing to stop for police. At the time she failed to stop, she was driving in excess of the speed limit.

[4] Ms Lay’s criminal history and the presentence report indicated a troubled life from an early age. Reflecting on that, the District Court Judge sentenced Ms Lay to 18 months’ imprisonment, seeing the need for Ms Lay to access treatment programmes in a safe and structured environment.

[5] In setting the period of disqualification from driving, the Judge said:

For failing to stop for the traffic officer, an offence clearly related to road safety, she is disqualified from driving for a period of two years. In fixing that term, I have regard to her express attitude to driving and driver obligations to public safety and, indeed, to her own safety. All of those require a lengthy period of disqualification from driving.

[6] On 29 June 2018, shortly after her release from prison, Ms Lay appeared in the District Court for sentencing on charges of driving while disqualified, unlawful use of a motor vehicle, reckless driving, failing to stop and breach of release conditions.² It appears the sentencing Judge raised concern regarding the period of the previously imposed disqualification.

Analysis

[7] Mr Jensen, for Ms Lay, submits the Judge did not have authority to impose a two-year period of disqualification. Mr Gullidge concedes the Judge erred in imposing that period of disqualification.

[8] The legislative provision applicable was s 52(3) of the Land Transport Act 1998, which at the time relevantly provided:

² Police v Lay [2018] 13224.

52 Contravening notices, requirements, etc, given or imposed by enforcement officers

...

(3) If a person is convicted of an offence against section 114 and has previously been convicted of an offence against section 114 or, while failing to comply with section 114, exceeded the applicable speed limit or operated a motor vehicle in an otherwise dangerous manner, a court must order the person to be disqualified from holding or obtaining a driver licence for 3 months.

[9] The statutory language – that a court must order three months’ disqualification
– is mandatory. Imposing a shorter or longer period was therefore not open to the Judge.

[10] Mr Jensen submits the disqualification should commence on 16 June 2017, to coincide with the original commencement date. Ms Lay was, however, sentenced to imprisonment on that date. The appropriate course is to commence the disqualification period on the release date from the sentence of imprisonment imposed on 16 June 2017.

Result

[11] The appeal is allowed. The disqualification from driving for two years is quashed and substituted with a three-month disqualification, commencing on the day Ms Lay was released from prison, 16 January 2018.

Thomas J

Solicitors:

Lance Lawson, Rotorua for Appellant

Crown Solicitor’s Office, Napier for Respondent