By Anna Longdill
Applications for leave to appeal High Court judgment allowing police appeal of length of disqualification orders for recidivist drink driving – Land Transport Act 1998, ss 56, 81, 85 – scope of power under s 85 to backdate the commencement of a mandatory disqualification period – is a temporal gap in offending capable of amounting to a special reason relating to the offence for the purpose of s 81?
Tahau v Police [2025] NZCA 278
On 27 February 2024, three recidivist drink drivers appeared for sentencing before Judge Wills in the Wellington District Court on charges of driving with excess breath or blood alcohol. On each occasion, the judge decided to treat them as a first offender because of a long time gap (more than 10 years) since their last drink driving conviction.
Peter Keepa (being sentenced for his 13th conviction) and Kiriwai Tahau (being sentenced for her sixth conviction) were both fined and disqualified from driving for a period of six months.
Kohu Piripi (being sentenced for his fourth conviction) was fined and disqualified from driving for a period of seven months. The judge backdated the commencement of the disqualification period 28 days to 30 January 2024 to enable Piripi to apply immediately for a limited licence.
The police appealed the sentences to the High Court, arguing that the Land Transport Act 1998 required the Judge to impose a disqualification period of more than one year.
Section 56(4)(b) of the Act provides that if a person is convicted of a third or subsequent offence of driving with excess breath or blood alcohol, the court must order the person to be disqualified from holding or obtaining a driver licence for more than a year.
The imposition of this mandatory disqualification period is subject to s 81, which allows the court not to order disqualification, or to reduce the length of the mandatory disqualification period if there are “special reasons relating to the offence”. On appeal, the police argued that a gap in offending was a reason relating to the offender, and not the offence, and hence the judge’s reliance on s 81 was misplaced.
In the High Court, Harland J accepted that as a matter of law, a gap in offending was capable of amounting to a special reason for the purposes of s 81. On the facts of each of the three cases however, she held that the gap was not sufficient to constitute a special reason warranting the exercise of the s 81 discretion. Accordingly, she set aside the disqualification orders imposed in the District Court and replaced them with a disqualification order for one year and one day, effective from the date of the District Court sentencing.
The High Court judgment was delivered on 10 September 2024. By this time, the disqualification periods imposed in the District Court had expired.
Keepa, Tahau, and Kiripi then filed applications for leave to appeal to the Court of Appeal. On 31 October 2024, Ellis J directed that the applications for leave were to be heard together with the substantive appeals.
Applicable principles: Land Transport Act 1998, ss 56, 81, 85 – What is the scope of the power under s 85 of the Act to backdate the commencement of a mandatory disqualification period? (There must be a rational connection between the circumstances relied on and the backdating, for example where, prior to sentencing, the defendant has been prevented from driving for a lengthy period, such as due to a bail condition prohibiting driving or remand in a mental health facility. Backdating to encompass periods of legal inability to drive avoids double punishment) – Can the s 85 power be appropriately used in other situations? (Do not categorically exclude the possibility, but it is difficult to see how that could be done on a principled basis when it would result in a person having driven while retrospectively disqualified. Backdating for reasons relating to an offender’s general personal circumstances is not a proper use of the s 85 power) – Is a temporal gap between qualifying offences capable of amounting to a special reason relating to the offence for the purposes of s 81(1) of the Act? (No, the phrase “special reasons relating to the offence” in s 81 of the Act, cannot include a gap in the defendant’s criminal history. To be an operative reason under s 81, the reason must relate to an element of the offence. A defendant’s previous convictions are not an element of the offence, they are personal circumstances that bear on the range of penalties on conviction) – Has the imposition on appeal of a second longer disqualification period for the same offence, after the first period has expired, caused a miscarriage of justice? (No, there is no element of double punishment. The six months already spent disqualified will count towards the one year and one day period).
Held: The applications for leave to bring second appeals are granted. The appeals are dismissed. The disqualification orders of the High Court are confirmed.
Note: The court also considered an argument that the High Court did not have jurisdiction to hear the police’s appeals, on the basis that the sentences were “fixed by law”, noting that this was supported by the commentary in Adams on Criminal Law on s 246 Criminal Procedure Act 2011.
The court rejected this argument, concluding that the phrase “sentenced fixed by law” was intended to capture cases where the prescribed sentence must automatically, and without exception, be imposed upon conviction. This wasn’t the case for disqualifications, given the discretions in ss 81 and 94.
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