SANDHU v NEW ZEALAND POLICE [2023] NZHC 305

SANDHU v NEW ZEALAND POLICE [2023] NZHC 305 [28 February 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-000496[2023] NZHC 305BETWEEN RUPINDER SINGH SANDHUAppellantAND NEW ZEALAND POLICERespondentHearing: 13 February 2023Counsel: G U Qaisrani for AppellantM A Taumoepeau for Respondent(Via VMR)Judgment: 28 February 2023JUDGMENT OF HINTON JThis judgment was delivered by me on 28 February 2023 at 4.00 pm.Registrar/Deputy RegistrarDate: .Solicitors: Kayes Fletcher Walker, Manukau[1] Mr Sandhu applied to the District Court for an order that his driving and familyviolence-related convictions be concealed from his criminal record, pursuant to theprovisions of the Criminal Records (Clean Slate) Act 2004 (the Act). His motivationfor doing so was that he understands his ability to sponsor his wife on a partnership-based visa application could be jeopardised by his convictions. As a result, Mr Sandhueither withdrew the visa application to first pursue this application or no applicationwas made.[2] On 27 September 2022, Judge Lovell-Smith declined Mr Sandhu's applicationon the basis that he was not eligible under the clean slate scheme as he did not meetthe s 7 criteria and the exception under s 9 of the Act did not apply in his case.1[3] Mr Sandhu now appeals the District Court decision. The argument on appealgoes beyond s 9, extending to s 10 of the Act.[4] I have concluded that Judge Lovell-Smith was correct to decline Mr Sandhu'sapplication. He is not eligible under the clean slate scheme. He does not satisfy thecriteria in s 7(1)(g) of the Act because an order has been made about him under s 65of the Land Transport Act 1998 (LTA). Further, the exceptions found in ss 9 and 10of the Act do not apply to Mr Sandhu. As such, his appeal cannot succeed. I set outmy reasons below.Factual backgroundMale assaults female[5] Mr Sandhu was convicted of male assaults female in 2009.2 He was 20 yearsold at the time and received a sentence of supervision. The summary of facts for thatoffending is no longer available.1 Sandhu v New Zealand Police [2022] NZDC 18715.2 Crimes Act 1961, s 194, maximum 2 years' imprisonment.First driving conviction[6] On 3 August 2010, Mr Sandhu was convicted of one charge of driving withexcess breath alcohol.3 The circumstances of that offending are that on 16 July 2010he drove a vehicle (registration XT919) travelling north east on Seddon Street,Pukekohe, swerving within his lane, and when stopped by police he exhibited signs ofalcohol intake. An evidential breath test procedure was carried out which returned apositive result of 978 micrograms of alcohol per litre of breath.[7] Mr Sandhu was fined and disqualified from driving.Second driving conviction[8] On 11 November 2011 Mr Sandhu was convicted for the second time on acharge of driving with excess breath alcohol.4 The circumstances of that offending arethat on 26 October 2011 he was observed by an off-duty police officer sitting in thedriver's seat of a vehicle with two passengers. Mr Sandhu had the keys in the ignitionand it was turned on.[9] Prior to this, Mr Sandhu and the passengers were consuming alcohol, and hewas seen kicking and throwing beer bottles into the sand. The off-duty officerapproached Mr Sandhu and asked him to remove the keys from the ignition, and topick up the bottles of beer that had been thrown.[10] After picking up the bottles, Mr Sandhu drove off a short way before stoppingand dumping the beer bottles again. The off-duty officer informed police andMr Sandhu was later located.[11] An evidential breath test procedure was carried out which returned a positiveresult of 1082 micrograms of alcohol per litre of breath.[12] Mr Sandhu was again fined and disqualified from driving.3 Land Transport Act 1998, s 56(1), maximum penalty 3 months' imprisonment or a fine notexceeding $4,500.00, and a disqualification period of 6 months or more.4 Land Transport Act 1998, ss 11(a) and 56(1) and (3), maximum penalty 3 months' imprisonmentor a fine not exceeding $4,500.00, and a disqualification period of 6 months or more.Third driving conviction[13] On 26 June 2013, Mr Sandhu was convicted on a charge of refusing an officer'srequest for a blood specimen 3rd or subsequent.5 The circumstances of that offendingare that on 1 June 2013 he was refused entry to a bar due to his level of intoxication.Mr Sandhu was then seen getting into a vehicle and driving away. Police later foundhim stopped in a car park exhibiting signs of alcohol intake.[14] Mr Sandhu undertook a breath screening test which returned a result of "over400". The summary of facts records that he became "irrational" and was then requiredto be transported to Pukekohe Police Station for an evidential breath test.[15] Mr Sandhu refused to take the breath test and returned three incomplete results.He was then required by police to provide a blood specimen. He refused and reactedaggressively.[16] Following this conviction, Mr Sandhu was indefinitely disqualified pursuantto s 65 of the LTA.Criminal Records (Clean Slate) Act 2004[17] The relevant provisions of the Act are set out in full below:7 Who is eligible under clean slate scheme(1) An individual is eligible under the clean slate scheme if—(a) he or she has completed a rehabilitation period since the date on whicha sentence was last imposed, or a specified order was last made, as aresult of a conviction for an offence, or he or she is an individual inrelation to whom an order has been made under section 9 or section10(2); and(b) no custodial sentence has ever been imposed on him or her; and(c) no order has ever been made in relation to him or her under section34(1)(b) of the Criminal Procedure (Mentally Impaired Persons) Act2003, section 118 of the Criminal Justice Act 1985, or section 39J ofthe Criminal Justice Act 1954 (being an order imposed, instead ofpassing sentence, that the offender be treated or cared for in a manner5 Land Transport Act 1998, s 60(1)(a) and 60(3), maximum penalty 2 years' imprisonment or a finenot exceeding $6,000.00 and a disqualification period of more than 1 year.that the offender's mental impairment requires, either in the offender'sinterest, or for the safety of the public, or for the safety of a person orclass of person); and(d) he or she has not been convicted of a specified offence; and(e) in the case of a court having imposed a sentence of a fine or reparationon the individual, the amount owing has been paid in full or has beendeemed to have been remitted; and(f) in the case of a court having ordered the individual to pay costs orcompensation under section 106, section 108, or section 110 of theSentencing Act 2002 (or a corresponding provision of an earlierenactment), the amount owing has been paid in full or has beendeemed to have been remitted; and(g) no order has ever been made about him or her under section 65 of theLand Transport Act 1998 or under section 30A of the Transport Act1962.(2) An individual in relation to whom a disqualification order has beenmade under either of the sections referred to in subsection (1)(g) doesnot become eligible to have the clean slate scheme apply to him or heras a consequence of the Director removing, or having removed, thedisqualification under section 100 of the Land Transport Act 1998 orsection 30C of the Transport Act 1962.9 Individual may apply to District Court for order thatrehabilitation period need not be completed(1) An individual who is otherwise eligible under section 7(1) may makean application to the District Court for an order under subsection (2)if—(a) the last sentence imposed on the individual was a non-custodial sentence as a result of a conviction for an offence;and(b) that offence has subsequently been abolished and the act thatconstituted the abolished offence no longer constitutes anoffence; and(c) he or she is no longer subject to the non-custodial sentence.(2) If an application is made to the District Court under subsection (1), aregistrar must make an order that an individual need not complete arehabilitation period for the purposes of section 7(1)(a) if the applicantprovides evidence of the matters in subsection (1)(a) to (c).10 Individual may apply to District Court for order thatrehabilitation period need not be completed or conviction bedisregarded(1) An individual who is otherwise eligible under section 7(1) may applyto the District Court for an order under subsection (2) if—(a) the last sentence imposed on the individual was a custodialsentence as a result of a conviction for an offence; and(b) that offence has subsequently been abolished and the act thatconstituted the abolished offence no longer constitutes anoffence; and(c) he or she is no longer subject to the custodial sentence.(2) The court may, if satisfied of the matters in subsection (1)(a) to (c),make an order—(a) that the individual need not complete a rehabilitation periodfor the purposes of section 7(1)(a); and(b) that the custodial sentence for the offence must be disregardedfor the purposes of section 7(1)(b).(3) An individual who is otherwise eligible under section 7(1) may makean application to the District Court for an order under subsection (4)if a court imposed a non-custodial sentence on the offender for aconviction for a specified offence.(4) The court may order that the conviction for the specified offence mustbe disregarded for the purposes of section 7(1)(d).(5) In considering an application under this section, a court must balancethe interests of individuals in concealing their criminal records againstthe wider public interest in the safety of the community (recognisingthat an awareness of an individual's previous convictions isappropriate in certain cases).(6) Subject to any rules of court, a court may call for and receive asevidence any statement, document, information, matter, or thing that,in the court's opinion, may assist it to deal effectually with theapplication.(7) On an application under subsection (1) or subsection (3), the courtmust either make the relevant order under subsection (2) or subsection(4) or decline to do so.(8) The District Court may transfer an application under this section tothe High Court if it considers that it is appropriate to do so.Discussion[18] The Act deems an individual with a criminal record not to have one, and henceto have a clean slate, if he or she meets the Act's eligibility criteria in s 7.66 Criminal Records (Clean Slate) Act 2004, s 3.[19] Application is not required. The Act's effect is automatic. However, theindividual must meet the s 7 eligibility criteria set out above.[20] It is clear that a person is eligible for the clean slate scheme only if all of therequirements in s 7(1)(a) – (g) are met.[21] As the respondent acknowledges, Mr Sandhu meets the criteria set out in s7(1)(a) to (f).[22] However, it is equally clear, as Judge Lovell-Smith identified, that Mr Sandhudoes not meet the requirement set out in s 7(1)(g) because an order has been madeabout him under s 65 of the LTA.[23] Mr Sandhu relies on the subsequent amendment of s 65 in 2018, whichabolished the indefinite disqualification scheme. That scheme has been replaced withthe alcohol interlock provisions.[24] At first instance, Mr Sandhu submitted (and he repeats the argument here) thathe could be rendered eligible under the clean slate scheme by way of an order of theCourt under s 9 of the Act.[25] However, as the learned Judge found, s 9 does not apply. Section s 9 allows aCourt to make an order that an individual need not complete a rehabilitation period forthe purposes of s 7(1)(a). It has no application to ineligibility arising from s 7(1)(g).Even if that were wrong, "the last sentence imposed" on Mr Sandhu as referred to ins 9(1)(a) was for an offence under s 60 of the LTA, not for an "offence" under s 65,and s 60 of the LTA has not been abolished. Section 65 is part of the sentencingstructure for repeat offending. It is not "the offence" of which Mr Sandhu wasconvicted.[26] Similarly, in respect of the additional argument advanced on appeal, s 10 of theAct does not apply to Mr Sandhu.[27] An order under s 10(2) is an order that an individual need not complete arehabilitation period (for the purposes of s 7(1)(a)) and that the custodial sentence forthat offence be disregarded (for the purposes of s 7(1)(b)). Again, it does not apply toineligibility because of s 7(1)(g). I therefore do not need to consider the subsequentprovisions of s 10. However, I do note the argument that s 10(3) should have beenconsidered. That is wrong, inter alia, because the offences here are not "specifiedoffences" as defined under s 4 of the Act.[28] Further, the same issue arises under s 10 as with s 9 – the offence for whichMr Sandhu was last sentenced has not been abolished and continues to constitute anoffence.[29] Mr Qaisrani, whose submissions were carefully crafted, made an overarchingargument that in terms of the principles of the Act, the provisions I have referred toshould in any event be interpreted such that Mr Sandhu does have a clean slate. WhileI agree, as noted below, that in principle Mr Sandhu should have a clean slate, theprovisions of the Act are clear and unambiguous. It is not for the Court to rewritethem to achieve a desired outcome. That is for the legislature.Conclusion[30] For the reasons outlined above, Judge Lovell-Smith was correct to declineMr Sandhu's application under the Act.[31] The appeal is therefore dismissed.Subsequent remarks[32] It may assist Mr Sandhu's wife's immigration application for me to record thatwhile the clean slate provisions do not apply to Mr Sandhu, I consider that to be atechnicality in the present case. I note that counsel for the respondent agrees. Theoffending at issue was relatively minor, judging by the sentences imposed. The last ofit was 10 years ago. Further, Mr Sandhu was only in his early twenties at the time ofthe offending. At least for the last three years it seems he has had and continues tohold a responsible job and is much valued by his employer and colleagues. Theprocessing of the visa application is a matter for Immigration, but it would seem unfairif it were precluded by Mr Sandhu's historical criminal record.______________________Hinton J