RAUMATI v NEW ZEALAND POLICE [2021] NZHC 1641

RAUMATI v NEW ZEALAND POLICE [2021] NZHC 1641 [5 July 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-000054CRI-2021-409-000055[2021] NZHC 1641BETWEEN KEREHAMA WEST RAUMATIAppellantAND NEW ZEALAND POLICERespondentHearing: 29 June 2021Appearances: R J T George for AppellantJ E Lancaster for RespondentJudgment: 5 July 2021JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 5 July 2021 at 11 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] Kerehama Raumati seeks leave to appeal:(a) part of a sentence imposed on him on 26 February 2013; and(b) a conviction for an offence which was entered on 7 June 2017.[2] The sentence appeal relates to a sentence imposed for an offence of drivingwith excess blood alcohol (third or subsequent) which occurred on 3 August 2012 (the2012 offending). As part of the sentence the District Court imposed a zero alcohollicence.1 The appellant submits the District Court had no jurisdiction to impose sucha sentence.[3] The conviction appeal is connected to the sentence appeal. On 7 June 2017 theappellant pleaded guilty to a charge of driving with excess breath alcohol (third orsubsequent) and a charge of driving contrary to a zero alcohol licence granted to him.He was sentenced on 11 August 2017 to six months' home detention, 180 hours'community work, 18 months' disqualification and an alcohol interlock order.[4] Mr Raumati does not challenge the conviction for excess breath alcohol.However, he does challenge the conviction for driving in breach of the zero alcohollicence when, he submits, there was no jurisdiction to impose that form of licence onhim in the first place.Application for leave to appeal out of time[5] The appeals are brought significantly out of time and Mr Raumati applies,pursuant to ss 231 and 248 of the Criminal Procedure Act 2011, for an extension oftime to file his appeal against conviction and sentence. His application explains thathe was never informed by his previous lawyers that the Judge had no jurisdiction toimpose a zero alcohol licence in respect of the 2012 offending, and that, as aconsequence, he had a ground to resist conviction on the offence of driving contraryto a zero alcohol licence.[6] The criteria to be applied in determining applications to extend time forappealing a conviction were set out in R v Knight.2 In that case, the Court held thatthe "touchstone" for granting an application for an extension of time was the interestsof justice in the particular case. This involved balancing the wider interests of society1 Police v Raumati [2017] NZDC 29938.2 R v Knight [1998] 1 NZLR 583, (1997) 15 CRNZ 332 (CA).in the finality of decisions against the interest of the individual applicant. Relevantfactors in determining such applications are: the strength of the proposed appeal and the practical utility of the remedysought, the length of delay and the reasons for delay, the extent of the impacton others similarly affected and on the administration of justice, that isfloodgates considerations, and the absence of prejudice to the Crown.[7] While all those factors are routinely discussed, the Court has observed that themerits of the appeal are usually determinative of the interests of justice.3[8] Much the same considerations apply when deciding whether to grant anextension of time to file a sentence appeal under s 248 CPA, although the focus isusually on the reasons for the delay and the merits of the proposed appeal.4The respondent's position[9] Leave to appeal is not opposed by the respondent, nor is the substantive appeal.[10] The respondent acknowledges that Mr Raumati committed the 2012 offendingprior to the enactment of s 65B Land Transport Act 1998 which allows zero alcohollicences to be imposed. In Do v Police, the Supreme Court held that s 65B, LandTransport Act 1998 which deals with zero alcohol licences, "only applie[s] tooffending committed after it came into force and so was prospective in effect".5[11] It is common ground therefore that Mr Raumati should not have received azero alcohol licence order as part of his sentence in 2013.[12] The respondent also accepts that Mr Raumati should not have been subject toa zero alcohol licence in 2017, and he would have had a full licence if the zero alcohollicence had not been imposed. It follows that his appeal against conviction on thatcharge should also be allowed.3 Smith v R [2020] NZCA 221 at [3]-[4].4 Mikus v R [2011] NZCA 298 at [26].5 Do v Police [2017] NZSC 7, [2017] NZAR 284 at [7].Applying the principles to this appeal[13] In the present case, the explanation for the delay on both counts is credible onits face. Mr Raumati was simply not advised that there was no jurisdiction to imposethe zero alcohol licence limitation, either when it was imposed as a sentence, or whenhe was subsequently charged with a breach of that licence.[14] Given the merits of the sentence appeal are undisputed, leave to file thesentence appeal out of time is granted.[15] Although a plea of guilty following receipt of legal advice is usually a barrierto setting aside a conviction, the Court has recognised that where the appellant couldnot in law have been convicted of the offence charged, or where trial counsel errs inadvising a client to plead guilty on the mistaken belief that no tenable defence existed,then a miscarriage of justice could be established enabling a conviction to be set aside.6[16] Had Mr Raumati not been required to apply for a zero alcohol licence then, atthe point he applied for that licence, he would have been able to apply for a full licencepursuant to s 100 Land Transport Act 1998. If he had held a full licence, then the onlyoffence he would have committed in 2017 would have been the charge of driving withexcess breath alcohol (third or subsequent). That being the case, there is also merit inthe conviction appeal.[17] I accept there was no jurisdiction to impose a zero alcohol licence forMr Raumati's 2012 offending and that gave rise to a charge in 2017 which Mr Raumatiotherwise would not face. While, in the overall scheme of his criminal record, thisfurther charge may not appear significant, I accept it is material to Mr Raumati andthere would be a serious injustice for him to retain a conviction for breaching asentence where there was no jurisdiction to impose it and where the substance of hisoffending is still on his record by virtue of the conviction for driving with excess breathalcohol.6 R v Le Page [2005] 2 NZLR 845 (CA).[18] I note Mr Raumati does not appeal the sentence on the remaining charge forthe 2017 offending, it having been imposed as a single sentence on both charges. Ithas been completed and cannot practically be altered now.Result[19] Accordingly, leave to appeal is granted and the appeal is allowed. The sentenceimposed in 2013 for driving with excess breath alcohol (third or subsequent) isamended to remove the requirement that Mr Raumati apply for a zero alcohol licence.The 2017 conviction for driving contrary to a zero alcohol licence is quashed. For theavoidance of doubt, the sentence imposed at the time remains in place but applies tothe driving with excess breath alcohol charge alone.Solicitors:Raymond Donnelly & Co., ChristchurchCopy To:A J Bailey, Barrister, Christchurch