DOUGLAS v POLICE [2021] NZHC 316

DOUGLAS v POLICE [2021] NZHC 316 [26 February 2021]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2020-463-149[2021] NZHC 316BETWEEN CHEARA ANNE DESRAY DOUGLASAppellantAND NEW ZEALAND POLICERespondentHearing: On the papersCounsel: L Owen for AppellantG Banuelos for RespondentJudgment: 26 February 2021JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 26 February 2021 at 4:30 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, Rotorua[1] Following her guilty plea Cheara Anne Desray Douglas (the appellant) wasconvicted on 19 November 2020 on a charge of driving with excess breath alcohol atRotorua on 8 September 2020. Her evidential breath test showed her to have 1253micrograms of alcohol per litre of breath. The appellant had been previously convictedof driving with excess breath alcohol on three previous occasions so that the convictionentered on 19 November 2020 was her fourth for that offence.[2] The appellant appeals against the sentence imposed on her byJudge J J Brandts-Giesen in the District Court at Rotorua on 19 November 2020 onthe grounds that the Judge erred in law by not imposing an alcohol interlock sentencerather than a finite disqualification. The appellant does not take issue with the otherelements of the sentence imposed, namely six months' community detention and 12months' supervision with conditions regarding her attendance at an alcohol and drugprogramme and a direction that she not possess or consume alcohol.[3] The appellant notes that the Judge's sentencing notes do not mention theimposition of a sentence of disqualification from driving, although the District Courtrecord of hearing is noted "disqualification 1 year + 1 day from 20/11/20". Theappellant submits that the Court erred in imposing that disqualification sentence. Theappellant submits that the Court was required pursuant to ss 56(4A) and 65AC of theLand Transport Act 1998 (LTA) to impose an alcohol interlock sentence.[4] Sections 56(1), (4) and (4A) of the LTA 1998 provide:(1) A person commits an offence if the person drives or attempts to drivea motor vehicle on a road while the proportion of alcohol in theperson's breath, as ascertained by an evidential breath testsubsequently undergone by the person under section 69, exceeds 400micrograms of alcohol per litre of breath.(4) If a person is convicted of a third or subsequent offence againstsubsection (1) or subsection (2), or any of sections 57A(1), 58(1),60(1), or 61(1) or (2) (whether or not that offence is of the same kindas the person's first or second offence against any of thoseprovisions),—(a) the maximum penalty is imprisonment for a term notexceeding 2 years or a fine not exceeding $6,000; and(b) the court must order the person to be disqualified fromholding or obtaining a driver licence for more than 1 year.(4A) The mandatory disqualification in subsection (4)(b) does not applyif—(a) an order is made under section 65; or(b) an alcohol interlock sentence is ordered under section65AC(1).[5] Section 65 of the LTA relevantly provides:(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 assessmentcentre and disqualifying the person from holding or obtaining a driverlicence until the Agency removes that disqualification under section100 if—(a) the court convicts that person of a second or subsequentoffence against any of sections 56 to 62; and(b) the previous offence was committed within 5 years of the dateof the commission of the offence being dealt with by the court.(3) Despite subsection (2), the court may not make an order referred to insubsection (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, exceeded1000 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 100millilitres of blood; or(b) an offence against section 59 or section 60 (which relate tofailing to remain or to accompany or to permit a bloodspecimen to be taken for the purposes of the administrationof breath tests and blood tests).(3A) The mandatory disqualification in subsection (2) is replaced by anyalcohol interlock sentence ordered under section 65AC(1) (whether ornot the alcohol interlock sentence is ordered at the same time as, orafter, the order made under subsection (2)).(4) The court must make an order that requires a person to attend anassessment centre and that disqualifies that person from holding orobtaining a driver licence until the Agency removes thatdisqualification under section 100 if —(a) the court convicts that person of a third or subsequent offenceto which this section applies; and(b) the 2 or more previous offences were committed within 5years of the date of the commission of the offence being dealtwith by the court.[6] The appellant submits that her case does not fall within s 65 of the LTA byreason of s 65(3) and that s 65AC and the related provisions, 65A – 65AK apply whichgovern mandatory alcohol interlock sentences for repeat offending and certain firstoffences.[7] The relevant portion of s 65AC LTA provides:(1) If this section applies, the court must order an alcohol interlocksentence.(2) An alcohol interlock sentence—(a) disqualifies the person from holding or obtaining a driverlicence for the period required by section 65AE; and(b) authorises the person to apply for an alcohol interlock licenceat the end of that period; and(c) disqualifies the person from holding or obtaining any licenceexcept an alcohol interlock licence; and(d) authorises the person, after complying with the alcoholinterlock licence requirements, to apply to replace the alcoholinterlock licence with a zero alcohol licence.[8] The appellant accordingly submits that when she appeared before the DistrictCourt for sentence on 19 November 2020 for a qualifying offence for the purpose ofs 65AB(1)(b)(i) of the LTA, namely an offence against s 56(1) of the LTA, when herevidential breath test exceeded 800 micrograms of alcohol per litre of breath that anumber of exceptions specified in s 65AB(2) applied to her. The appellant accordinglysubmits that the Court was therefore required to impose a period of disqualificationwhich should have been for 28 days as the appellant was not at the time disqualifiedfrom driving and held a full driver's licence. The appellant submits that the Court wasfurther required to authorise the appellant to apply for an alcohol interlock licence tobe held for 12 months or more1 and also authorised the appellant to apply for a zeroalcohol licence to remain in place for three years.2[9] The appellant accordingly submits that the disqualification imposed by theDistrict Court should be quashed and replaced with the three step alcohol interlocklicence.Crown submissions[10] For the Crown Ms Banuelos accepts that the District Court Judge erred in notimposing an alcohol interlock sentence. Ms Banuelos submits that the Judge wasrequired to impose an alcohol interlock sentence because pursuant to s 65AB(1)(b)(i)of the LTA the proportion of alcohol in the appellant's breath exceeded 800micrograms of alcohol per litre of breath and that as this is a qualifying offence thereis no discretion to not impose an alcohol interlock sentence. The respondent acceptsthat the appeal should be allowed.[11] It appears from Judge Brandts-Giesen's sentencing notes that the learned Judgedid not address the issue of disqualification in the course of imposing a sentence andthere is accordingly an inconsistency between the Judge's sentencing notes and theCourt record on which the Judge has noted "disqualification 1 year + 1 day from20/11/20".[12] I am satisfied that the Judge erred by failing to impose an alcohol interlocksentence as required by s 65AB(1)(b)(i) and s 65AC(1) and s 65AE of the LTA.[13] I accordingly make an order quashing that part of the sentence imposing adisqualification of one year and one day from 20 November 2011, and I substitute analcohol interlock sentence as follows:(a) The appellant is disqualified from holding or obtaining a driver licencefor a period of 28 days commencing 20 November 2020.1 Land Transport Act 1998, s 65AC(2)(b) and s 65AG.2 Sections 65AC(2)(d) and 65B(2), (3); see also Lally v Police [2019] NZHC 352.(b) At the end of that period of disqualification the appellant is authorisedto apply for an alcohol interlock licence to be held for a term of 12months or more.(c) At the end of the period of the alcohol interlock licence, and subject tocomplying with the alcohol interlock licence requirements, theappellant is authorised to apply to replace it with a zero alcohol licenceto remain in place for a period of three years.[14] On the basis and for the reasons set out above, the appeal is allowed._____________Paul Davison J