Case involves length of disqualification under s 81(1) of the Land Transport Act 1998
New Zealand’s Supreme Court has dismissed two applicants’ requests for leave to appeal a judgment regarding the length of their disqualifications from driving following multiple charges of driving with excess alcohol under s 56 of the Land Transport Act 1998.
In Keepa v Police, [2025] NZSC 139, the two applicants appeared separately before New Zealand’s District Court on 27 February 2024 for sentencing on their recent s 56 charges.
The court had to disqualify them from driving for over one year because both were facing their third or subsequent offences. Specifically, for that same offence, the first applicant had 12 convictions, while the second applicant had five convictions.
Given the period of over than a decade since the applicants’ last offences, Judge Wills treated them as first offenders and disqualified them for driving for six months, the minimum for first offenders, under s 81(1) of the Land Transport Act.
This provision required the court to disqualify an offender from driving for a period not less than a specified minimum if any of the legislation’s provisions required such a disqualification, “unless for special reasons relating to the offence it thinks fit to order otherwise.”
The New Zealand Police, as the respondent in this case, appealed.
At New Zealand’s High Court, Harland J accepted that a gap in offending could constitute special reasons relating to the offence. However, for both applicants, she substituted disqualifications of one year and one day from the sentencing date upon finding a 10-year gap insufficient.
The applicants requested leave to appeal. New Zealand’s Court of Appeal refused upon determining that a temporal gap in offending could not amount to a special reason relating to the offence.
Both applicants applied for leave to appeal. The following were their proposed appeal grounds:
The Supreme Court of New Zealand dismissed the applications for leave to appeal.
Regarding the first proposed ground, the Supreme Court noted that the appeal court determined that a disqualification was a sentence, which the law did not fix, given that s 56 merely imposed a minimum disqualification period and ss 81 and 94 provided the sentencer with discretions.
On the second proposed ground, the Supreme Court pointed out that the appeal court found that Parliament deliberately distinguished between reasons relating to the offending and reasons relating to the offender.
The Supreme Court acknowledged a significant body of authority supporting that prior convictions related to the offender’s circumstances unless such convictions were an element of the offence, which was not the case at present. The Supreme Court noted that the Land Transport Act adopted that distinction.
Next, the Supreme Court found that the applicants framed their third proposed ground too broadly.
The Supreme Court said the question – whether decreasing the effective disqualification period by backdating its commencement would misuse the s 85 power in a situation where s 56(4) applied but a temporal gap in offending existed – had insufficient prospects of success to warrant leave.
The Supreme Court added that the District Court did not backdate the disqualification in the second applicant’s case.
Regarding the fourth proposed ground, the Supreme Court saw no apparent miscarriage of justice in circumstances where the appeal court simply increased the sentence to the minimum that the legislation required.
