COOKE v POLICE [2021] NZHC 1364

COOKE v POLICE [2021] NZHC 1364 [10 June 2021]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2021-419-22[2021] NZHC 1364BETWEEN CRANE CHARLES COOKEAppellantAND NEW ZEALAND POLICERespondentHearing: 2 June 2021Counsel: G D Prentice for AppellantB B Harris for RespondentJudgment: 10 June 2021JUDGMENT OF BREWER JThis judgment was delivered by me on 10 June 2021 at 11:30 amRegistrar/Deputy RegistrarSolicitors/Counsel:G D Prentice (Hamilton) for AppellantHamilton Legal (Hamilton) for RespondentIntroduction[1] On 23 July 2020, Judge ND Cocurullo sentenced Mr Cooke1 on admittedcharges of:(a) Driving contrary to an alcohol interlock licence (second or subsequentoffence).2 This offence occurred on 22 January 2020. Mr Cooke wasin a traffic accident and the car he was driving did not have an alcoholinterlock device fitted. His explanation was that he had recentlyacquired the car and had not had time to get the device fitted. There isno allegation that he had been drinking.(b) Careless driving.3 The date of the offence was 18 January 2020.(c) Driving with excess blood alcohol (196 milligrams of alcohol per100 millilitres of blood) (second or subsequent offence).4 This offencealso occurred on 18 January 2020.[2] The Judge sentenced Mr Cooke to 10 months' home detention. In respect ofthe careless driving, he also imposed a driver licence disqualification period of sixmonths commencing from the date of sentence. In respect of the charges of driving inbreach of his alcohol interlock licence and driving with excess blood alcohol, theJudge disqualified Mr Cooke from holding or obtaining a driver licence for three yearsfrom the date of sentencing.[3] Mr Cooke seeks leave to appeal against the disqualification period of threeyears. He says that in respect of the charge of driving with excess blood alcohol, theJudge had no jurisdiction to impose a finite period of disqualification. In respect ofthe charge of driving in breach of his alcohol interlock licence, he contends the threeyears disqualification period is manifestly excessive.1 Police v Cooke [2020] NZDC 14420.2 Land Transport Act 1998, ss 32(1)(b) and 32(4).3 Land Transport Act 1998, s 37(1).4 Land Transport Act 1998, s 56(2) and 56(4). The adult legal limit is 80 milligrams of alcohol per100 millilitres of blood.[4] I grant Mr Cooke leave to appeal out of time. The Crown concedes thejurisdiction point and so the interests of justice require Mr Cooke's appeal to be heard.[5] My task is to consider whether, in relation to imposing the three yearsdisqualification period on the two charges concerned, the Judge made an error suchthat a different sentence should be imposed.The first ground of appeal[6] I consider first the disqualification period in relation to the charge of drivingwith excess blood alcohol. This requires me to navigate a statutory maze.[7] Section 65AB of the Land Transport Act 1998 (the Act) provides for relevantpurposes that if a Court convicts a person of driving with excess blood alcohol wherethe proportion of alcohol in the person's blood is 160 milligrams of alcohol per100 millilitres of blood or more, then s 65AC of the Act applies. Mr Cooke's bloodalcohol reading was 196 milligrams of alcohol per 100 millilitres of blood.[8] Section 65AC requires a Court to impose an alcohol interlock sentence.[9] Section 65AC outlines the alcohol interlock regime. A person who is subjectto it is disqualified for a period of at most 28 days. They can then get an alcoholinterlock licence, pursuant to which an alcohol interlock device is attached to their car,and they may then drive it. After some time, the person can apply to replace thealcohol interlock licence with a zero alcohol licence. Pursuant to s 65AE, an alcoholinterlock sentence lasts for the greater of:(a) 28 days;(b) The period under which a person's licence is expired or suspendedunder ss 80, 95, or 95A;(c) The period for which a person is in prison;(d) The period for which a person is disqualified from holding or obtaininga driver licence.[10] There are exceptions to the imposition of an alcohol interlock sentence. Oneis submitted to be relevant to Mr Cooke. It is found in s 65AB(2)(e)(i). It means thatMr Cooke will be subject to s 65AI of the Act instead of s 65AC if he is not likely,during the term of any alcohol interlock sentence that would otherwise apply, to havelawful possession of a motor vehicle to the extent of being able to use it and fit it withan alcohol interlock device.[11] Mr Cooke has filed an amended affidavit in support of his appeal, sworn on11 May 2021. In it, he deposes that he no longer possesses a motor vehicle, that hehas no employment (although he is actively seeking employment), and he is not goingto be able to purchase a vehicle in the foreseeable future. The Crown accepts that theexception applies to Mr Cooke, and so do I.[12] Therefore, s 65AI applies to Mr Cooke instead of s 65AC. Section 65AIprovides that the Court must disqualify Mr Cooke from holding or obtaining a driverlicence "for the period that is appropriate under the provision relating to the qualifyingoffence".[13] The provision relating to the qualifying offence (driving with excess bloodalcohol) is s 56 of the Act. That in turn means that the provisions of s 65 of the Actapply.[14] Section 65(2) requires that Mr Cooke must be subject to an order requiring himto attend an assessment centre and disqualifying him from holding or obtaining adriver licence until the Director5 removes that disqualification under s 100 of the Act.The reason this provision applies to Mr Cooke is that his conviction for driving withexcess blood alcohol is his second offence under s 56 and his previous offence wascommitted within five years of the date of the commission of his latest offence.6Further, Mr Cooke fulfils the final criterion for the making of an order for indefinite5 Pursuant to s 2 of the Land Transport Act 1998, the Director of Land Transport appointed unders 104A of the Land Transport Management Act 2003.6 Mr Cooke's previous offence was committed on 8 June 2018.disqualification because his previous relevant conviction was for an offence where theproportion of alcohol in his breath, as ascertained by an evidential breath test,exceeded 1000 micrograms of alcohol per litre of breath. In Mr Cooke's case theamount was 1278 micrograms of alcohol per litre of breath.[15] Section 100 of the Act provides:(1) If an order has been made under section 65 in respect of a person ("theapplicant"), the Director must make an order removing thedisqualification of the applicant from holding or obtaining a driverlicence, if satisfied that—(a) the applicant is a fit person to hold a driver licence, havingregard to—(i) a report which is from a [health practitioner]attached to an Assessment Centre and which is madeavailable to the Director by the applicant or theAssessment Centre; and(ii) any other evidence submitted by the applicant orotherwise available to the Director relating to themedical condition of the applicant; and(2) If the Director makes an order under subsection (1), every order madeunder section 65 that applies to the applicant concerned must betreated as having expired.(3) No order may be made under subsection (1) if the applicant concernedis subject to an order made under section 65 that has been in force lessthan 1 year and 1 day.(4) If the Director decides not to remove the disqualification undersubsection (1), the Director must refer the applicant to the right ofappeal under section 108.[16] Therefore, the combination of s 65 and s 100 means that a person subject tothem is disqualified from driving indefinitely. After one year and one day from themaking of an order under s 65, a person may have their driver licence restored, butonly if the Director is satisfied that the criteria set out in s 100(1)(a) apply. This isrelevant to the issues that arise when considering the period of disqualification orderedin relation to the charge of driving in breach of the alcohol interlock licence andcareless driving.Decision on first ground of appeal[17] It follows that I concur with Mr Prentice for Mr Cooke and Mr Harris for theCrown that the Judge made an error in imposing a finite period of disqualificationfrom driving in relation to the charge of driving with excess blood alcohol. There wasno jurisdiction to do that. The Judge was required to sentence Mr Cooke on that chargeunder s 65(2) of the Act.[18] I note that Mr Prentice was not counsel at sentencing and it appears that no-one drew s 65 to the Judge's attention.The second ground of appeal[19] The next issue is whether the period of three years' disqualification shouldstand with respect to the charge of driving in breach of the alcohol interlock licenceand the careless driving charge.[20] Mr Prentice's submission is that this is a question which must be consideredsolely in relation to those charges. Judge Cocurullo was focused on the charge ofdriving with excess blood alcohol, but the sentence that should have addressed thatcharge is an indeterminate sentence. Therefore, Mr Prentice submits, that charge isnot a sentencing factor when the charges of driving in breach of the alcohol interlocklicence and careless driving are considered.[21] Mr Prentice submits further that having regard to the fact that Mr Cooke hasthree relevant convictions for similar offences under s 32 of the Act, a disqualificationperiod of no more than 18 months is warranted.[22] Mr Harris submits that totality is still an operative principle. He submits, andMr Prentice accepts, that any period of disqualification ordered to attach to theconvictions for driving in breach of the alcohol interlock licence and careless drivingwill lie alongside the one year and one day period which, under s 100 of the Act,constrains the Director from granting Mr Cooke a driver licence. So, if the three yearsdisqualification period stands then all that means is that the Director will not be ableto grant Mr Cooke a driver licence until the three years have expired. Of course,Mr Cooke would still have to fulfil the s 100(1)(a) criteria.Decision on second ground of appeal[23] I accept Mr Prentice's submission that the period of disqualification fromdriving to be attached to the convictions for driving in breach of the alcohol interlocklicence and careless driving must be calculated without regard to the drink drivingcharge in this case.[24] Parliament has made clear that an indeterminate sentence ordered pursuant tos 65 cannot have added to it a finite period of disqualification. Not only is the s 65sentence an indeterminate one to which the statutory powers to impose periods ofdisqualification do not apply, but s 56(4A) provides specifically that the mandatorydisqualification prescribed by s 56(4)(b) for third or subsequent drink driving offencesdoes not apply if a s 65 order has been made.[25] In my view, if the period of disqualification for Mr Cooke is calculated havingregard to the "totality" of his offending (i.e. including his drink driving charge) thatwould necessarily involve penalising him for the drink driving beyond the penaltyprescribed for the offence.[26] It follows that I must now assess the period of disqualification having regardonly to the breach of the alcohol interlock licence and careless driving charges.[27] Mr Harris referred me to a useful summary of sentencing in this area in adecision of Duffy J.7 I will bear it in mind.[28] Mr Cooke has a significant history of relevant driving offences:• 1 January 1994: driving with excess breath alcohol.• 17 February 2002: driving with excess blood alcohol.7 Tindle v Police [2016] NZHC 2093.• 9 April 2007: driving with excess breath alcohol (third or subsequent).• 11 March 2014: driving with excess blood alcohol (third or subsequent).• 11 March 2014: driving contrary to a limited licence.• 5 April 2014: driving with excess blood alcohol (third or subsequent).• 5 April 2014: driving while licence suspended or revoked.• 8 June 2018: driving in breach of zero alcohol licence.[29] Mr Prentice drew my attention to the case of Murdoch v Police.8 In Murdoch,the appellant was sentenced on three charges of driving while disqualified in theaggravated form, and sentenced to one year's suspension on each charge, to be servedconsecutively. There was no suggestion that alcohol was involved. I agree withMr Prentice that if the charge of breach of the alcohol interlock licence was consideredby itself then, given Mr Cooke's previous similar offending, a standalone period ofdisqualification of around 18 months would be within range.[30] The careless use charge was associated with the drink driving charge. Thesummary of facts has this description of the driving:On Tuesday the 18th of February 2020 the defendant was the driver of a MazdaUte on Cobham Drive, Hamilton at about 3 pm. There was no alcohol interlockdevice installed in this vehicle.He was driving north approaching the intersection with Normandy Avenue.The traffic turning left onto Normandy was stationary and back up from theintersection.The defendant failed to realise the traffic was stationary before it was too late,swerving into the lane on his right to miss the Hyundai vehicle stopped in frontof him.He swerved back into the turning bay, crashing into the front right of theHyundai vehicle, and the right rear of the Daihatsu vehicle in front of theHyundai.8 Murdoch v Police HC Invercargill 22/9/2009 CRI-2009-425-17.The impact forced the Daihatsu to crash into the rear of the stationary Subaruvehicle in front of it.The defendant's vehicle continued heading towards a pedestrian pushing herbaby in a pram on the footpath.He crashed through the wooden bollards on the side of the road.The chain attached to the bollards was able to stop the vehicle's momentum,less than a metre from the pedestrian and her baby.[31] Judge Cocurullo imposed a six months disqualification on this charge. I acceptthat was appropriate. It was a separate incident to the driving in breach of the alcoholinterlock licence. The disqualification periods could be consecutive but for ease ofadministration I will attach the two years combined disqualification period to thebreach of the alcohol interlock licence charge and the periods will be concurrent. Ona totality basis, I am satisfied that two years' disqualification is appropriate whenconsidering the culpability arising from both charges.Decision[32] The appeal is allowed.[33] The period of disqualification of three years in relation to the charge of drivingwith excess blood alcohol is quashed. Instead, I make an order requiring Mr Cooketo attend an assessment centre and I disqualify him from holding or obtaining a driverlicence until the Director removes that disqualification under s 100.[34] The appeal against the imposition of the three years disqualification period onthe charge of driving in breach of the alcohol interlock licence is allowed. Thedisqualification period is quashed and replaced with a disqualification period of twoyears.[35] The disqualification period of six months imposed on the careless drivingcharge stands and will run concurrently with the two years disqualification period.________________________________Brewer J