PERRY v POLICE [2018] NZHC 3246

PERRY v POLICE [2018] NZHC 3246 [10 December 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-325[2018] NZHC 3246BETWEEN CLAIRE YVONNE PERRYAppellantAND NEW ZEALAND POLICERespondentHearing: 10 December 2018Appearances: J Olsen on behalf of J Munro for the AppellantM Mortimer for the RespondentJudgment: 10 December 2018ORAL JUDGMENT OF GORDON JSolicitors: Crown Solicitor, AucklandCounsel: J Munro, AucklandIntroduction[1] The appellant, Claire Perry, pleaded guilty to the following four charges underthe Land Transport Act 1998 (the Act):(a) Two charges of driving with excess breath alcohol (third orsubsequent);1 and(b) Two charges of driving contrary to a zero alcohol licence.2[2] On 25 September 2018, Judge Dawson, in the District Court at Auckland,sentenced Ms Perry to seven months' home detention.3 He also disqualified Ms Perryfrom driving for a total of three years and imposed an alcohol interlock sentence.[3] Ms Perry only appeals the sentence insofar as it relates to the imposition of thecumulative disqualifications from driving together with the alcohol interlock sentence.She does not appeal the sentence of home detention.Factual background[4] On 25 November 2016, Ms Perry was issued with a zero alcohol licence.[5] At about 2:30 pm on 8 November 2017, Ms Perry was driving a motor vehicleat Red Beach. The Police stopped her vehicle. Breath test procedures were carriedout. They produced a result of 1,199 micrograms of alcohol per litre of breath.[6] At about 7:15 pm on 23 December 2017, Ms Perry was driving a Suzuki motorvehicle on East Coast Road, Pinehill. The Police stopped Ms Perry's vehicle. Afterspeaking to Ms Perry, they carried out breath test procedures. They produced a resultof 1,037 micrograms of alcohol per litre of breath.1 Land Transport Act 1998, s 56(1).2 Section 32(1)(b).3 New Zealand Police v Perry [2018] NZDC 24668.District Court decision[7] After summarising the factual background, Judge Dawson identified thatMs Perry has six previous convictions for drink-driving and four others on her record.4[8] The Judge then summarised the aggravating features of the offending asfollows:[8] The gravity of your offending in my view is high. The aggravatingfactors are the number of your previous convictions but, in addition, the lastthree occasions now when you have been drink-driving you have levels over1000 micrograms per millilitre of breath. All three of those levels areextremely high. The concern I have from that is that it gives the appearancethat your offending is escalating.[9] After summarising the pre-sentence report, the Judge adopted a starting pointof 20 months' imprisonment.5 He uplifted that by four months to reflect the concurrentoffending, before reducing it by six months in total to reflect Ms Perry's guilty pleasand rehabilitative efforts.6 He then reduced it by a further four months becauseMs Perry had spent a month in custody and had spent eight months on electronicallymonitored bail.7 That resulted in an end sentence of 14 months' imprisonment.[10] The Judge then concluded that a sentence of home detention was appropriate.8He sentenced Ms Perry to seven months' home detention on all four charges.9[11] Significantly, for the purposes of this appeal, the Judge then stated:[14] On the two driving with excess breath alcohol third or subsequent,you are disqualified for one year each and for the two charges of drivingcontrary to a zero alcohol licence, a further six months each. Disqualificationwill be applied. Each of those is the minimum. So you have lost your licencefor three years. The alcohol interlock conditions will also apply.Approach on appeal[12] Section 250(2) of the Criminal Procedure Act 2011 provides:4 New Zealand Police v Perry, above n 3, at [5].5 At [11].6 At [11].7 At [11].8 At [12].9 At [13].(2) The first appeal court must allow the appeal if satisfied that—(a) for any reason, there is an error in the sentence imposed onconviction; and(b) a different sentence should be imposed.[13] In any other case, the court must dismiss the appeal.10[14] A sentence may be set aside where it is manifestly excessive.11 Whether asentence is manifestly excessive depends on the end sentence, not the process bywhich the sentence was reached.12 The court will not intervene where the sentence iswithin range. But, if the court determines the sentence is manifestly excessive, it willform its own view of the appropriate sentence.13Submissions[15] Mr Olsen, for Ms Perry, submits that a mandatory disqualification for thedriving with excess breath alcohol charges cannot be imposed together with an alcoholinterlock sentence. He submits that Judge Dawson erred in law when he imposed themandatory disqualification together with the alcohol interlock sentence on the twocharges of driving with excess breath alcohol.[16] Mr Olsen further submits that although the additional one-year disqualificationon the two zero alcohol licence charges (six months on each one) was available at thediscretion of Judge Dawson, it should not have been imposed in the circumstances.[17] Therefore, Mr Olsen submits that the Court should quash the two cumulativeone-year disqualifications on each of the two driving with excess breath alcoholcharges, as there was no statutory basis to impose them. He also submits that the Courtshould quash the order for disqualification for one year made in respect of the twozero alcohol licence charges.10 Criminal Procedure Act 2011, s 250(3).11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].12 Kumar v R [2015] NZCA 460 at [81].13 Tutakangahau v R, above n 11, at [30].[18] Mr Mortimer, for the Crown, accepts that the two cumulative one-yeardisqualifications on each of the driving with excess breath alcohol charges could nothave been imposed. But he submits the Judge did not err in imposing a period ofdisqualification on the zero alcohol licence charges.Issues[19] The two issues on appeal are:(a) Issue one: could the Court impose the two-year component of the three-year disqualification period, on the two charges of driving with excessbreath alcohol?(b) Issue two: was the District Court Judge correct (to exercise hisdiscretion)14 to impose the one-year disqualification on the two chargesof driving contrary to a zero alcohol licence?DiscussionIssue one[20] Prior to 1 July 2018, although it was a mandatory consideration, it was notmandatory to impose an alcohol interlock order when a defendant was convicted ofcertain offences.15 From 1 July 2018, ss 65AB and 65AC replaced s 65A of the Act.16The new provisions have the effect of making alcohol interlock sentences mandatoryin cases where defendants are convicted of certain offences. Those two sectionsrelevantly provide as follows:65AB Qualifying offences(1) Section 65AC applies if a court convicts a person of an offence inrelation to alcohol against any of sections 56(1), 56(2), 57(1), 57(2),57AA, 58(1)(a), 60(1)(a) to (c), 61(1), 61(2)(a), and 62(1)(a) andeither—14 See discussion at [38] below. It appears that the Judge did not appreciate that he had a discretionwhether or not to impose the period of disqualification.15 Land Transport Act, ss 65A and 65B. See also Anglem v Police [2018] NZHC 329 at [14]-[16].16 See Land Transport Amendment Act 2017, s 2(1)(a).(a) the person convicted has previously been convicted of suchan offence committed within 5 years of the date of thecommission of the offence being dealt with by the court(whether or not section 65(2) or (4) also applies); or(b) the offence for which the person is convicted involves eitheror both of the following:(i) the proportion of alcohol in the person's breath, asascertained by an evidential breath test subsequentlyundergone by the person under section 69, is orexceeds 800 micrograms of alcohol per litre of breath:(ii) the proportion of alcohol in the person's blood, asascertained from an analysis of a blood specimensubsequently taken from the person under section 72or 73, is or exceeds 160 milligrams of alcohol per 100millilitres of blood.65AC Alcohol interlock sentence(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.(3) Subsection (1) applies unless for special reasons relating to thequalifying offence the court thinks fit to order otherwise and, if so,—(a) section 94 may apply (and a reference to disqualification insection 94 must be treated as if it referred to an alcoholinterlock sentence); but(b) an alcohol interlock sentence may not otherwise besubstituted by a community-based sentence.[21] The Land Transport Amendment Act 2017 was responsible for these changes.It introduced the concept of mandatory alcohol interlock sentences.17 Theamendments had the effect of changing the mandatory penalties for certain offences.[22] In this case, Ms Perry was convicted under ss 32 and 56 of the Act. As at thetime of her convictions on the driving with excess breath alcohol charges, she wassubject to the following penalties in s 56(4) of the Act:(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.[23] Ms Perry was also subject to a mandatory confiscation of motor vehicle orderunder s 129(3) of the Sentencing Act 2002. Section 129(4) prevented the Court frommaking the order if it would result in extreme hardship to the offender or unduehardship to any other person.[24] However, s 56(4A) of the Act was introduced as part of the amendments. Itprovides:(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).[25] Section 129(4) of the Sentencing Act was also amended to read as follows:18(4) Despite subsection (3), the court must not make an order under thatsubsection if—17 See Land Transport Amendment Act, ss 5-36.18 See Land Transport Amendment Act, s 110(1).(a) it will result in extreme hardship to the offender or unduehardship to any other person; or(b) an interlock is or is to be fitted to the motor vehicle.[26] It is not in dispute in this case that the conditions in s 65AB(1) are satisfied andthat s 65AC applies. Therefore, if the offences under s 56 (driving with excess breathalcohol) of the Act had occurred after 1 July 2018, then Judge Dawson would clearlyhave had no jurisdiction to order a period of disqualification in respect of those twocharges due to the effect of s 56(4A)(b).[27] What is the position where the offences took place prior to 1 July 2018, namelyon 8 November 2017 and 23 December 2017?[28] Mr Olsen relies on s 6 of the Sentencing Act, which provides:6 Penal enactments not to have retrospective effect to disadvantageof offender(1) An offender has the right, if convicted of an offence in respect ofwhich the penalty has been varied between the commission of theoffence and sentencing, to the benefit of the lesser penalty.(2) Subsection (1) applies despite any other enactment or rule of law.[29] The question that arises in the context of this case is whether a lesser penaltyis now in place.[30] In McConnell v Police, Davidson J considered the new amendments in thecontext of confiscation orders under s 129 of the Sentencing Act.19 The Judge said:[13] before the amendments, interlock orders were discretionary, andregardless of whether such an order was imposed, the vehicle would beconfiscated. Now, an interlock order in the prescribed circumstances ismandatory, and if such an order is made, there can be no confiscation order.[31] The Judge stated that the question for the Court was whether the legislativeamendments were a "variation of penalty" and whether the new regime in that respectconstituted a "lower penalty".2019 McConnell v Police [2018] NZHC 1927.20 At [15].[32] The Judge concluded:[16] The learned authors of Burrows and Carter Statute Law in NewZealand state that both the term "penalty" and the term "variation" have beengiven a broad construction. Minimum periods of imprisonment and drivingdisqualifications have been held to fall within s 6. Here, interlock orders andconfiscations are sentences available to the Court, and both are punitive innature in different degrees. I am in no doubt s 6 covers the legislative changesmade. Additionally, making the interlock order mandatory, may seem toincrease the penalty rather than lowering it, but must be taken in the contextof the amendment to the Sentencing Act which came in at the same time.Overall, there can be little doubt that being subject to an interlock order butnot confiscation is less punitive than potentially being subject to such an orderon top of mandatory confiscation.(Citations omitted)[33] I am similarly of the view that s 6 of the Sentencing Act covers the legislativechanges relevant in this case. I am satisfied that being subject to an alcohol interlockorder but not confiscation and disqualification is less punitive than potentially beingsubject to such an order on top of mandatory confiscation and disqualification.[34] It follows that Ms Perry was entitled to be sentenced under the amendedlegislation. Therefore, it was an error of law for Judge Dawson to impose a mandatoryperiod of disqualification in respect of the two charges of driving with excess breathalcohol under s 56.Issue two[35] I turn now to the two charges under s 32 of the Act. These were Ms Perry'sfirst and second such charges. At the time of her convictions on the zero alcohollicence charges, she was subject to the following penalties in s 32(3) of the Act:(3) If a person is convicted of a first or second offence against subsection(1),—(a) the maximum penalty is imprisonment for a term notexceeding 3 months or a fine not exceeding $4,500; and(b) the court must order the person to be disqualified fromholding or obtaining a driver licence for 6 months or more.[36] Section 32(3A) was introduced as part of the amendments. It provides:(3A) If an offence against subsection (1) is a concurrent offence in relationto a qualifying offence for an alcohol interlock sentence, then themandatory disqualification in subsection (4)(b) does not apply andsection 65AH(3)(b) applies.[37] Section 65AH(3)(b) provides:Disqualifications(3) For a concurrent offence,—No injury or death(b) that did not result in injury or death, the court may, taking intoaccount the alcohol interlock sentence that must be orderedfor the qualifying offence under section 65AC, choose not toorder any disqualification that might otherwise apply to theconcurrent offence.(emphasis added)[38] Judge Dawson, therefore, had a discretion to choose not to order a period ofdisqualification in respect of the two charges under s 32 (driving contrary to a zeroalcohol licence). Given the Judge did not appreciate the effect of the amendments inrespect of the above charges, I infer that he did not appreciate that he had a discretionin respect of those two charges.[39] As a result, I propose to undertake the exercise afresh. I must now considerwhether it was appropriate to order periods of disqualification on these two charges.[40] Mr Olsen notes that these are Ms Perry's first and second offences in respectof her zero alcohol licence. He says that she has, for the first time, properly addressedher alcohol abuse. She has attended all stages of the Salvation Army Bridgerehabilitation programme and has also addressed her alcohol abuse throughpsychological treatment. Both of these offences occurred before Ms Perry began hertreatment.[41] Mr Olsen further notes that Ms Perry will be on an alcohol interlock licencefor at least a year.21 After that time, and after having completed the necessary21 Land Transport Act, s 65AG(3).requirements, she can ask the New Zealand Transport Agency to convert the interlocklicence into a zero alcohol licence. She will then be subject to that licence for threeyears.22[42] Mr Olsen submits that the presence of these sentences provides for thenecessary oversight and public protection. The additional disqualification does notprovide any further benefit.[43] Mr Mortimer, on the other hand, submits that periods of disqualification areimportant mechanisms for both the protection of the public against recidivist drinkdrivers and as a punitive mechanism to remove the privilege of driving from thosewho cannot drive responsibly. Alcohol interlock orders do not completely replaceperiods of disqualification.[44] Mr Mortimer recognises the positive rehabilitative steps that Ms Perry hastaken and the fact that these were her first breaches of zero alcohol licence conditions.But, he submits that the breath alcohol readings in this case and Ms Perry's previousconvictions colour the seriousness of her breach of the zero alcohol licence conditions.[45] I accept that alcohol interlock licences and periods of disqualification can co-exist. The Act explicitly contemplates that. Sections 32(3A) and 65AH(3)(b) do notcreate a presumption that disqualifications will be avoided where alcohol interlockorders have been made.[46] Periods of disqualification still have an important function under the newregime, operating as both a harm reduction measure and having a punitive element.Alcohol interlock orders are but one tool in the goal of reducing drink driving. Theydo not completely replace periods of disqualification.[47] I accept Mr Mortimer's submission that it is therefore still appropriate to haveregard to the importance of disqualification which Parliament has retained (as adiscretionary measure) for this type of offending.22 Section 65B(2).[48] In exercising my discretion, I note, on the one hand, that Ms Perry's breathalcohol readings were very high and they were far from her first offences. Thosefactors colour the seriousness of her breaches of the zero alcohol licence condition.Further, the zero alcohol licence condition was an opportunity given to Ms Perry toregain the use of her car on strict conditions. She breached those conditions.[49] On the other hand, and weighing against those factors are the positive stepsMs Perry has taken to address her issues with alcohol. Her letter to the District CourtJudge is supported by both a letter from the Salvation Army Bridge rehabilitationprogramme and two reports from a psychologist. I am satisfied that Ms Perry hastaken real steps to address her problems with alcohol. This is not simply a case ofpromises to a Court.[50] On balance, given Ms Perry's rehabilitative efforts, and the fact that these areher first and second offences in respect of her zero alcohol licence, I consider that aperiod of disqualification is unnecessary.[51] In giving this decision, I do not suggest that the way in which I have exercisedmy discretion under s 65AH(3)(b) should be read more widely than its application tothe particular facts of this case.Conclusion[52] The appeal is allowed. The periods of disqualification of one year each inrespect of the two charges of driving with excess breath alcohol are quashed.[53] For the avoidance of doubt, the alcohol interlock sentence remains.[54] The periods of disqualification of six months each (one year in total) in respectof the two charges of driving contrary to a zero alcohol licence are also quashed.___________________________________Gordon J