NEHO v NEW ZEALAND POLICE [2016] NZHC 1290

NEHO v NEW ZEALAND POLICE [2016] NZHC 1290 [16 June 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2016-409-36[2016] NZHC 1290BETWEEN SAM NEHOAppellantAND NEW ZEALAND POLICERespondentHearing: 8 June 2016Appearances: J Lucas for AppellantN Pointer for RespondentJudgment: 16 June 2016JUDGMENT OF MANDER J[1] The appellant, Mr Sam Neho, was the subject of an effective sentence of six months home detention and 150 hours community work.1 The sentence was imposed on the following charges:(a) two charges of driving with excess breath/blood alcohol (in its aggravated form);(b) dangerous driving;(c) driving while suspended;(d) unlawfully being in a building; and(e) possession of an offensive weapon.1 Police v Neho [2016] NZDC 5732.He was disqualified from driving for a finite period of one year as well as being disqualified indefinitely.[2] Mr Neho appeals his sentence on the basis the District Court erred in imposing community work and that the commencement of the disqualification should have been backdated.BackgroundFactual background[3] On 12 April 2014, Mr Neho drove with excess breath alcohol in Nelson. His licence was suspended for 28 days. Eight days later he was apprehended driving his motor vehicle in Lewis Pass in breach of that suspension.[4] On 19 December 2014, Mr Neho was arrested and charged with possession of a pistol, presenting a pistol, unlawfully being in a building, driving with excess blood alcohol, driving dangerously, and possession of an offensive weapon. Those charges arose out of an incident in Christchurch when Mr Neho, in an intoxicated state, confronted his neighbours over a perceived grievance. It was alleged he had brought a pistol, pointed it at his neighbours, and entered their house. He had driven away dangerously, running a stop sign. Mr Neho maintained he had possession of a bar not a pistol.Procedural background[5] Mr Neho was bailed to Timaru. He was subject to restrictive bail conditions, including, at least initially, a 24 hour curfew and prohibited from driving and consuming alcohol.[6] The Nelson matters were transferred to Christchurch, and Mr Neho entered pleas of guilty. He had earlier intimated a guilty plea to the December driving with excess blood alcohol charge at a case review hearing. A pre-sentence report was prepared, however, his sentencing scheduled for June 2015 was postponed pending the outcome of the charges arising out of the December 2014 incident.[7] In February 2016, Mr Neho's trial proceeded in the Christchurch DistrictCourt. Part way through the hearing matters were resolved largely in Mr Neho'sfavour. Charges of burglary, possession of a pistol and presenting a pistol were dismissed. The possession of an offensive weapon was amended to that of a steel bar, and he pleaded guilty to unlawfully being in a building and dangerous driving. An electronically monitored sentence was indicated.Mr Neho's health problems[8] At that time a letter from Mr Neho's doctor was presented to the Court. This advised that Mr Neho had significant heart problems; he suffers from severe cardiomyopathy. His doctor estimated Mr Neho had a life expectancy of less than five years, possibly less if he resumed drinking or stopped his medication. Mr Neho had given evidence during his trial that he had ceased consuming alcohol since theincident on 19 December. The doctor's letter also attested to Mr Neho having very poor tolerance of exercise, shortness of breath, and fluid retention. I have viewed a copy of that letter.[9] Mr Neho's medical condition raised concerns regarding his ability to undertake community work. Some discussions took place after the hearing about alternative forms of community work to be investigated by the Department of Corrections, such as Mr Neho using his talents as a singer to entertain at rest homes.[10] An addendum to the original pre-sentence report of June 2015 was prepared. The pre-sentence report writer concluded that a suitable address for home detention was available, however, because of Mr Neho's medical condition a sentence of community work would present "very real difficulties". It was noted that undertaking potential work in retirement homes was not considered feasible due to security issues.The sentencing decision[11] After reviewing the circumstances of Mr Neho's offending and the manner bywhich the Christchurch charges were resolved during the course of the defended hearing, the sentencing Judge considered the drink-driving charges. It was noted thatbecause of Mr Neho's previous drink-driving offending, s 65 of the Land Transport Act 1998 (the Act) applied. This rendered him subject to indefinite disqualification. Mr Neho will have to prove to the satisfaction of the New Zealand Transport Agency (the Agency) that he no longer presents a risk to road users before he can drive again.[12] The Judge at that point made reference to "certain medical information" towhich the Court was now privy.2 He observed that as a result of that fact and the decision Mr Neho had made to not drink again meant he may be in a position in ayear's time to make a successful application at the end of his disqualification.[13] Mr Neho has a long history of drink-driving convictions. Between 1993 and 2011 he collected 12 drink-driving convictions. He has also breached Court orders and driven while his licence was revoked or suspended, or when he was subject to disqualification. Terms of imprisonment have been imposed in the past for this offending.[14] Having concluded that imprisonment was the appropriate sentence, the Judge considered whether a term of home detention was a viable sentencing option. The Judge had requested this option to be investigated at the conclusion of the defended hearing. A reference was made to Mr Neho's living and family arrangements in Timaru before a six month term of home detention was imposed.[15] In calculating the length of the home detention sentence, the sentencingJudge referred to the opportunity for Mr Neho "to get out of the house" on a regularbasis by performing community work.3 The Judge noted the imposition of community work mitigated the length of home detention that would otherwise have been imposed.[16] Taking into account the 150 hours community work, a shorter term of six months home detention was imposed for the two drink-driving charges. The Judge made observations about the ability of Mr Neho converting some of the community work hours to training, and in particular to a driver change programme. Concurrent2 Police v Neho, above n 1, at [6].3 At [9].terms of community work were imposed in respect of the remaining charges. Disqualification for a finite term of one year commencing from the date of sentencing was also imposed. It was noted however that s 65 was triggered rendering Mr Neho subject to an indefinite period of disqualification which was stated to be for a minimum of one year.[17] A submission was made before the sentencing Court as to whether Mr Neho's disqualification could be "backdated" to commence at the time of the allegedoffending. The ground for that application was the long period Mr Neho had been prohibited from driving, since December 2014, and his health prognosis. At the hearing of the appeal counsel advised that the District Court Judge had declined to backdate the disqualification because the Court did not consider it had the power to do so.The sentence of community work[18] Mr Neho submitted that because of his health problems the sentence of community work was inappropriate. The addendum to the pre-sentence report confirmed the difficulties in finding suitable community work for Mr Neho to undertake, and that inquiries undertaken in that regard had not resulted in any solution.[19] It was submitted the addendum did not make its way to the sentencing Judge. Counsel for Mr Neho advised the document did not appear to be on the Court file, and was only made available to him upon filing the notice of appeal. There is noreference in the Judge's sentencing notes to the addendum, although it is apparent the Judge was aware of Mr Neho's health difficulties which were alluded to in hissentencing remarks.[20] The Crown does not take issue with the difficulties Mr Neho's health condition presents in terms of identifying suitable community work for him to undertake. It submits that because of that limitation a more suitable sentence was one of home detention, as was acknowledged in the written submissions filed on behalf of Mr Neho.[21] In the absence of Mr Neho being able to undertake community work, I accept those sentences will need to be quashed. It is apparent the sentencing Judge wasaware of Mr Neho's medical difficulties at the time the defended hearing concluded, however, as I understand the position, inquiries were to be made to establish whether suitable community work could be obtained for him to perform. It is not clear whether the 11 March 2016 addendum to the pre-sentence report was provided to the sentencing Judge. As mentioned, the addendum referred to inquiries regarding possible work at several rest homes in Timaru having been made with a negative result.[22] The length of the sentence of home detention was moderated because of the combination of that sentence with that of community work. Providing Mr Neho with the regular opportunity to get out of his house and do some community work was viewed as a positive step, unfortunately, it has not proved to be possible. While it was submitted that it was not necessary to substitute the community work with a further period of home detention, in my view that is an inevitable consequence given the basis upon which I have accepted this ground of Mr Neho's appeal.[23] The sentencing Judge explicitly noted that but for the imposition of community work a sentence of nine months home detention would have been imposed. In my view, the integrity of the original sentence can be maintained bylengthening Mr Neho's present sentence of six months home detention by twomonths.Disqualification[24] It is now well established that a period of disqualification can be backdated. Section 85 of the Act provides that a disqualification period starts on the day the order is made unless the Court otherwise directs or an Act otherwise provides. That has been interpreted by this Court as providing a sentencing Court with the power to backdate the commencement of any period of disqualification.4 The Crown accepts this to be the position.4 Edwards v Police [2012] NZHC 1350; Oldfield v Police [2013] NZHC 3206.[25] In sentencing Mr Neho the District Court was required to apply s 65 of the Act. That provides as follows:65 Mandatory penalties for repeat offences involving use of alcohol or drugs(1) This section applies to offences against any of sections 56 to 62.(2) A court must make an order requiring a person to attend an assessment centre and disqualifying the person from holding or obtaining a driver licence until the Agency removes that disqualification under section 100 if—(a) the court convicts that person of a second or subsequent offence against any of sections 56 to 62; and(b) the previous offence was committed within 5 years of the date of the commission of the offence being dealt with by the court.(3) Despite subsection (2), the court may not make an order referred to in subsection (2) unless at least 1 of the offences was—(a) an offence to which this section applies where either—(i) the proportion of alcohol in the person's breath, asascertained by an evidential breath test, exceeded 1 000 micrograms of alcohol per litre of breath; or(ii) the proportion of alcohol in the person's blood, asascertained from an analysis of a blood specimen, exceeded 200 milligrams of alcohol per 100 millilitres of blood; or(b) an offence against section 59 or section 60 (which relate to failing to remain or to accompany or to permit a blood specimen to be taken for the purposes of the administration of breath tests and blood tests).(4) The court must make an order that requires a person to attend an assessment centre and that disqualifies that person from holding or obtaining a driver licence until the Agency removes that disqualification under section 100 if—(a) the court convicts that person of a third or subsequent offence to which this section applies; and(b) the 2 or more previous offences were committed within 5 years of the date of the commission of the offence being dealt with by the court.(5) For the purposes of this section, a conviction for an offence against a provision of the Transport Act 1962 corresponding to an offence towhich this section applies is to be treated as a conviction for an offence specified in subsection (1).[26] The Court must make an order for indefinite disqualification where a person is convicted of a third or subsequent offence and the person has two or more previous convictions that were committed within five years of the date of the commission of the offence being dealt with by the Court. There is no dispute s 65 applied to Mr Neho.[27] Section 100 of the Act provides as follows:100 Agency to remove certain disqualifications(1) If an order has been made under section 65 in respect of a person (the applicant), the Agency must make an order removing the disqualification of the applicant from holding or obtaining a driver licence, if satisfied that—(a) the applicant is a fit person to hold a driver licence, having regard to—(i) a report which is from a medical practitioner attached to an assessment centre and which is made available to the Agency by the applicant or the assessment centre; and(ii) any other evidence submitted by the applicant or otherwise available to the Agency relating to the medical condition of the applicant.(b) [Repealed](2) If the Agency makes an order under subsection (1), every order made under section 65 that applies to the applicant concerned must be treated as having expired.(3) No order may be made under subsection (1) if the applicant concerned is subject to an order made under section 65 that has been in force less than 1 year and 1 day.[28] Under s 100(3), the Agency is prevented from removing a disqualification made under s 65 within one year and one day from the making of the order.[29] The Court's power under s 85 to direct a disqualification to start on a date before the order is made may well apply to an order disqualifying a person pursuant to s 65. However, the backdating of the disqualification will not assist Mr Nehobecause the Agency is barred by the Act from removing the indefinite disqualification before the elapse of a year from the date the order was made by the sentencing Court. The time period runs from the making of the order, not the date of the disqualification.5[30] Mr Neho sought to argue that s 65 gives a power to the Court to disquality an offender until the Agency removes that disqualification under s 100 of the Act, and that s 85 applies to all types of disqualification orders. In order to give effect to thepurpose of s 85 it was submitted the words "since the date of the commencement of the disqualification" should be read into the subsection as the concluding words of s 100(3). By this means the period that must elapse before the Agency may consider an application to remove the disqualification runs from the date the disqualification is ordered by the Court to take effect.[31] The difficulty with that submission is that s 65 applies to recidivist offenders. If, upon review of the defendant's driving record, the preconditions are established the Court "must" make an order disqualifying the person from holding or obtaining adriver licence until the Agency removes that disqualification. Pursuant to s 100 a quite different disqualification regime applies which places the responsibility on the effective length of the disqualification not on the Court but the Agency.[32] The approach urged on behalf of Mr Neho would require the Court to assume the legislative mantle against which there have been many judicial warnings.6 Even if I could be confident that there has been some type of drafting mistake, the fact remains that the statutory language does not admit the meaning contended for.7 In any event, I am not confident there has been an error.[33] Parliament has mandated that no applicant can apply to the Agency for relief from indefinite disqualification before the elapse of one year and one day from the making of the order. To graft the words contended for by Mr Neho onto s 100(3) isto risk undermining Parliament's expressed intention to restrict when the Agencymay first consider such applications. That risk is particularly acute when the5 Land Transport Act 1998, s 100(3).6 R v Armstrong [2004] 1 NZLR 442.7 Port Nicholson Fishery Ltd v Ministry of Agriculture and Fisheries (1990) 6 CRNZ 684,689.indefinite disqualification regime's focus is on recidivist drivers, and the policy considerations that likely sit behind the strict approach Parliament has taken to when such drivers should be first afforded the opportunity to regain their licence.[34] Mr Neho, in addition to being subject to s 65, was also disqualified for a finite term of one year commencing on the date of the sentencing hearing for driving in a dangerous manner and driving whilst suspended. That disqualification could be backdated, however, such a step is of no assistance to Mr Neho given the effect of ss 65 and 100. Section 100(3) still requires a year to elapse before he can make application for relief from his indefinite disqualification.[35] I therefore do not accept Mr Neho's submission that if the disqualificationperiod is backdated he can begin the process of showing the Agency that he is a fit person to hold a drivers licence before a year has passed. The discrete finite one year disqualification effectively runs concurrently with that period. I observe that the reason why the District Court Judge may have indicated that he did not have the power to backdate the disqualification may well have been a reference to the combined effect of ss 65 and 100 of the Act.[36] The appeal seeking the backdating of the commencement dates of the respective disqualifications is dismissed.Result[37] Mr Neho's sentence of six months home detention and 150 hours communitywork for the two aggravated drink-driving charges is quashed and an eight month concurrent term of home detention substituted on each charge. The post-detention conditions imposed by the District Court attach to that substituted sentence. The indefinite disqualifications imposed on each charge remain.[38] On the charge of driving in a dangerous manner the sentence of 100 hours community work is quashed and in its place a concurrent sentence of two months home detention is ordered. Disqualification for the finite term of one year commencing 5 April 2016 remains.[39] On the charges of being found without reasonable excuse in a building and possession of a steel bar the sentence of 100 hours community work is quashed and concurrent terms of two months home detention substituted for each.[40] On the driving whilst suspended charge the 120 hours community work sentence is quashed and in its place a concurrent sentence of two months home detention substituted. The one year disqualification commencing 5 April 2016 stands.Solicitors:Public Defence Service, ChristchurchRaymond Donnelly & Co, Christchurch