TRACEY v NEW ZEALAND POLICE [2021] NZHC 2265

TRACEY v NEW ZEALAND POLICE [2021] NZHC 2265 [31 August 2021]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI 2021-419-45[2021] NZHC 2265BETWEEN NIGEL MICHAEL TRACEYAppellantAND NEW ZEALAND POLICERespondentHearing: 31 August 2021Appearances: M Jepson for the AppellantJ Williams for the RespondentJudgment: 31 August 2021JUDGMENT OF CAMPBELL JThis judgment was delivered by me on 31 August 2021 at 4:00pmRegistrar/Deputy Registrar[1] Mr Tracey pleaded guilty to a charge of driving under the influence of alcohol.This was his fourth such offence.1 Judge S R Clark sentenced him, on 12 October2020, to six months' community detention, nine months' intensive supervision andordered disqualification for 14 months commencing 1 December 2020.[2] In June 2021, Mr Tracey obtained from the District Court an order under s 105of the Land Transport Act 1998 (the LTA) authorising the grant of a limited licence.Mr Tracey then applied to the New Zealand Transport Agency (NZTA) for a limitedlicence. NZTA declined his application, as Mr Tracey had not held a licenceimmediately before his disqualification (his licence having expired in April 2020).Under s 104(2) of the LTA he was therefore not entitled to be granted a limited licence.2[3] As a result of the NZTA's decision Mr Tracey appeals against the sentence ofdisqualification. He does not raise any issue with the term of disqualification imposedby Judge Clark. He asks that the disqualification be cancelled and the balance of theterm re-imposed but suspended for a period to enable him to renew his expired licencebefore the disqualification commences. He would then be able to obtain a limitedlicence to drive for the balance of the term of disqualification.[4] Mr Tracey's appeal is out of time. Leave is required under s 248(4)(a) of theCriminal Procedure Act 2011 (the CPA) for an extension of time.Grounds of appeal[5] Mr Jepson, for Mr Tracey, does not submit there was any error in the term ofdisqualification imposed by Judge Clark. Mr Tracey is asking to be sentenced for thesame effective term but with a suspension. Mr Jepson merely submits that thecommencement date of the disqualification forms part of the sentence, and there wasan error in the commencement date.[6] Mr Williams, for the Police, submits no error in the sentence has beenidentified and therefore under s 250 of the CPA the appeal would have to be dismissed.1 Land Transport Act 1998, s 56(4). Maximum penalty: two years' imprisonment or a fine of $6,000and disqualification for more than one year.2 Land Transport Act 1998, s 105(6A).He adds that Mr Tracey seeks a sentence of about four months disqualification for thebalance of the period yet to be served and that is less than the minimum sentence unders 54 of the LTA. Other than observing that the grounds of appeal are not strong, headopts a neutral stance on Mr Tracey's application for leave to appeal out of time.Decision[7] An appeal against sentence is governed by s 250 of the CPA. Under s 250(2),the court must allow the appeal if satisfied there is an error in the sentence imposedand a different sentence should be imposed. Section 250(3) provides that in any othercase the court must dismiss the appeal.[8] The only error in the sentence suggested by Mr Jepson is the commencementdate of the disqualification. Mr Jepson submits that, if Mr Tracey or his then counselhad turned their minds in October 2020 to the effect of Mr Tracey's licence alreadyhaving expired, Mr Tracey could have sought an opportunity to renew his licence priorto the disqualification commencing.[9] I accept that the commencement date of a sentence forms part of the sentence.The difficulty for Mr Tracey is that Judge Clark's sentence did provide an opportunityfor him to renew his licence prior to disqualification. The sentencing occurred on 12October 2020, but disqualification did not commence until 1 December 2020.[10] Mr Tracey not having identified an error in the sentence imposed, under s250(3) his proposed appeal would have to be dismissed. Given his proposed appeal iswithout merit, it is not in the interests of justice to extend time for him to appeal.3[11] The application for leave to appeal out of time is dismissed.___________________Campbell J3 R v Knight [1998] 1 NZLR 583 (CA) at 589; Mikus v R [2011] NZCA 298 at [26].