READ v NEW ZEALAND POLICE [2020] NZCA 101

READ v NEW ZEALAND POLICE [2020] NZCA 101 [20 April 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA593/2019[2020] NZCA 101BETWEEN DAVID OMEGA READApplicantAND NEW ZEALAND POLICERespondentHearing: 27 February 2020Court: Clifford, Simon France and Lang JJCounsel: Applicant in personC A Brook for RespondentJudgment: 20 April 2020 at 12 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Simon France J)[1] Mr Read applies for leave to bring a second appeal in relation to a sentenceimposed on him on a charge of driving with excess breath alcohol.1[2] At the time of sentencing, Judge Ryan indicated a sentence of seven months'supervision, 150 hours' community work and seven months' disqualification. Counselfor Mr Read intervened, at his direction, and sought a variation of the last component.1 Police v Read [2019] NZDC 29900; Read v Police [2019] NZHC 2720; Criminal Procedure Act2011, s 253(1); and Land Transport Act 1998, s 56(1).Instead of seven months' disqualification, a sentence of three months' disqualificationand a direction to install an alcohol interlock device was sought.2 At that time,the imposition of an alcohol interlock licence was discretionary. The Judge reviewedthe requirements of those licences, agreed the statutory criteria were met, and imposedthe amended sentence.3[3] At the time of the sentencing, seemingly unknown to Mr Read and the Court,Mr Read had separately from this offence acquired more than 100 demerit points,an occurrence which triggers a three-month suspension. This occurred on20 May 2017, so about four months before sentencing. Mr Read had not at that stagebeen served with the suspension notice, but his liability to a three months' suspensionwas in place and awaiting activation.[4] Mr Read served the three months' disqualification imposed at sentencing andthen recommenced driving. He was not entitled to do so because, although he hadan interlock licence, he had not installed the device. He says his financialcircumstances had changed, and he could no longer afford to do so. However, untilhe did, or until he had the sentence varied, he was suspended from driving. As noted,Mr Read did drive and he was stopped. As well as being suspended from drivingbecause of the interlock device situation, the police became aware of the pendingdemerit point suspension. That three months' suspension was therefore activated atthat time.[5] Since then, Mr Read has again driven unlawfully and he faces further chargesfor driving while suspended. Although his demerit point suspension has ended, he hasstill not applied for an alcohol interlock licence, and is therefore still suspended fromdriving. He says he still cannot afford the interlock device. We are advised he hasunsuccessfully sought review of the sentence he presently appeals.[6] Mr Read accepts the current sentence imposed in the District Court wasimposed at his request and in the ordinary course of events is not excessive. However,he believes that if he and the Court had known about the demerit points, he would2 Land Transport Act, s 65A.3 Police v Read, above n 1, at [15]–[19].have sought and the Court would have imposed the original sentence of seven months'disqualification, with no interlock device requirement. This would have threeadvantages:(a) section 91(3) of the Land Transport Act 1998 would apply, meaning thedemerit points suspension would be overridden;(b) there would be no interlock device requirement; and(c) his liability for the charges accrued in the interim would disappear.[7] The first proposition is the key to the appeal. It was identified in theHigh Court by Powell J as being incorrect.4 We agree.[8] Section 91(3) of the Land Transport Act provides:The Agency must cancel all demerit points for the time being recorded againsta person if a court disqualifies the person from holding or obtaining a driverlicence for a period of 6 months or more.[9] It was established by Henderson v Director of Land Transport New Zealandthat the three-month demerit point suspension vests automatically on the accrual of100 points.5 The effect of the suspension automatically applying is that the pointsunderlying the demerit suspension are in effect removed by the fact of the suspension.Those points are linked to and for practical purposes cancelled by the suspension.[10] Section 91(3) does not therefore apply to them. It does not matter for thesepurposes that the driver has not yet received notice or commenced serving it.The obligation on the New Zealand Transport Agency to serve the notice of suspensionis in place, and a driver is required to comply with it.6 Whichever of the sentencingoptions was imposed in the District Court four months after the demerit suspensionwas triggered, Mr Read would need additionally to serve the three-month demeritpoint suspension.4 Read v Police, above n 1, at [11]–[12].5 Henderson v Director of Land Transport New Zealand [2006] NZAR 629 (CA) at [51].6 Land Transport Act, s 90.[11] The sentence imposed was favourable to Mr Read, as he wished. It was thebest option available at the time to get him back driving as quickly as possible. On theidentified options the non-driving period was going to be either six months plus aninterlock licence or 10 months without an interlock. The fact that the sentencing Judgewas unaware of the demerit point situation has not affected matters, nor occasioned amiscarriage.[12] The answer from the start has been, and remains, for Mr Read to install aninterlock device. Other charging complications along the way are a product of hisignoring his legal incapacity to drive. The consequence of that does not mean theoriginal sentence is in any way flawed.Conclusion[13] There is no error in the original sentence, nor will a miscarriage occur if leaveto bring a second appeal is not granted.[14] The application is declined.Solicitors:Crown Law Office, Wellington for Respondent