KEREHOMA v POLICE [2022] NZHC 2212

KEREHOMA v POLICE [2022] NZHC 2212 [31 August 2022]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI 2022-443-39[2022] NZHC 2212BETWEEN EKAU-O-TE-RANGI KEREHOMAAppellantAND NEW ZEALAND POLICERespondentHearing: 18 August 2022Counsel: P J Mooney for AppellantL A Blencowe for RespondentJudgment: 31 August 2022JUDGMENT OF MALLON JIntroduction[1] The appellant pleaded guilty to and was convicted of six driving relatedcharges in the District Court. He was sentenced in the District Court on 15 June 2022to 18 months' intensive supervision, and disqualified for indefinite periods on four ofthe charges and for a period of one year and a day on one charge.1[2] He appeals his sentence on the basis that the Judge erred in failing to imposean interlock sentence and in imposing the disqualification periods. The respondentagrees. The error is in failing to apply ss 32(4A), 65(3A) and 65(4A) of the LandTransport Act 1998 pursuant to which indefinite periods of disqualification arereplaced with an alcohol interlock sentence and a discretion as to disqualificationperiods for concurrent offending.1 New Zealand Police v Kerehoma [2022] NZDC 11204 (Judge A S Greig).The District CourtCharges and sentences[3] The charges on which the appellant was convicted and the sentences imposedin the District Court were as follows:(a) 25 February 2021: driving with excess breath alcohol (third orsubsequent):2 The appellant was driving in the carpark of a fast foodoutlet, with a passenger, in a manner that resulted in police being called.He was breath tested and found to have an excess breath alcohol levelof 1067 micrograms per litre of breath. He was sentenced to 18 months'supervision, to attend an assessment centre and was disqualifiedindefinitely.(b) 25 February 2021: driving contrary to a zero alcohol licence:3 Theincident in the carpark was also contrary to the appellant's zero alcohollicence. He was sentenced to the same sentence as for the driving withexcess breath alcohol.(c) 26 June 2021: driving contrary to a zero alcohol licence:4 The appellantwas observed pulling out of a carpark without indicating and twicestopping in the middle of road. He refused to blow sufficient volumefor a breath test and refused a blood test. He was initially charged withrefusing to supply a blood specimen but that charge was withdrawn.He was given an indefinite disqualification.(d) 19 July 2021: careless driving:5 The appellant lost control of a vehiclehe was driving on loose gravel and crashed into a small gully. The fireservice attended and the police were called. He was convicted anddischarged on this offence.2 Land Transport Act 1998, s 56(1) and (4).3 Section 32(1)(b) and (3).4 Section 32(1)(b) and (3).5 Section 37(1).(e) 19 July 2021: driving while suspended (third or subsequent):6 Thisrelates to the same events as in (d). He was disqualified from drivingfor one year and one day.(f) 19 July 2021: driving with excess blood alcohol (third or subsequent):7This relates to the same events as in (d). A blood test returned a resulttwo and a half times the legal limit. He was sentenced to 18 months'intensive supervision and was ordered to attend an assessment centreand disqualified indefinitely.Conviction history and personal circumstances[4] The appellant is 34 years old.[5] He has an extensive history of driving offending. Relevantly, he has sevenconvictions for driving with excess breath or blood alcohol and two convictions forrefusing to provide a blood specimen. He also has four convictions for driving whiledisqualified, one charge for driving a vehicle carelessly and one charge for driving amotor vehicle at a dangerous speed. He has received fines and community worksentences for his offending and, as his offending continued, sentences ofimprisonment.[6] The pre-sentence report advised the Court that the appellant reported havingsecured employment, attending virtual AA meetings since he last appeared before thecourts, engaging with a support group and counselling and was taking medication toalleviate his intense cravings. The report writer considered that he seemed motivatedto address his addiction. A s 27 cultural report described the appellant's exposure toalcohol and domestic violence at a young age.Sentencing remarks[7] The Judge said that he had initially intended to send the appellant to prisonbecause he was a real risk to road users. He accepted, however, that the appellant was6 Section 32(1)(c) and (4).7 Section s 56(2) and (4).at an age and stage where he was wanting to try to address his alcoholism, and theprobation officer was convinced of this. The Judge also discussed that he had receivedsubmissions about the appropriate disqualification orders but these were complex andhe had insufficient time to consider them. He decided to accept the prosecutor'ssubmissions over those of the appellant's counsel about them. He did so because "Ithink that keeps the community safest and it just seems to me to make sense and I havenot got a chance to give better reasons that that, but all this is to keep the communitysafe".8Analysis of appeal[8] Section 56(4) of the Land Transport Act prescribes what must be done wherea person has committed their third or subsequent excess breath or blood alcoholoffence:56 Contravention of specified breath or blood-alcohol limit(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).8 New Zealand Police v Kerehoma, above n 1, at [10].[9] The effect of s 56 is that, for the offending referred to at [3(a) and (f)] above,an order disqualifying the appellant for more than one year was mandatory unless anorder was made under s 65 or an interlock sentence was ordered under s 65AC(1).[10] Section 65 sets out the requirements for imposing mandatory indefinitedisqualification and assessment for repeat excess breath or blood alcohol offences:65 Mandatory disqualification and assessment for repeat offences(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 Director removes that disqualification under section100 if—(a) the court convicts that person of a second or subsequentoffence against any of the 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 per100 millilitres 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 administration ofbreath 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 Director 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 within5 years of the date of the commission of the offence beingdealt with by the court.(4A) The mandatory disqualification in subsection (4) 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 (4)).[11] The effect of this provision is that a mandatory indefinite disqualificationperiod and requirement to attend an assessment centre under s 65(2) or (4) wouldreplace the period of disqualification imposed under s 56 for the offending referred toat [3(a) and (f)] above, unless an interlock sentence is imposed under s 65AC(1).9 Asdiscussed in Police v Cox, if an interlock sentence is imposed, it replaces themandatory indefinite disqualification period that would otherwise have been imposedunder s 65(2) or (4), but it does not replace the mandatory order requiring a person toattend an assessment centre.10[12] Whether an interlock sentence is imposed under s 65AC(1) depends ons 65AB. This section provides: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—(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); or9 The appellant submits that the Judge failed to consider s 65(3A) which required that an interlocksentence be imposed. The respondent submits that both s 65(3A) and (4A) applied to the appellant.That appears to be correct but whether it was one or both of these subsections does not matter forpresent purposes because they lead to the same outcome.10 Police v Cox [2022] NZHC 1695 at [21]. As discussed at [27] of that judgment, the keycomponents of the attending an assessment centre process are a comprehensive alcohol and drugassessment, supporting medical examinations, engagement by the offender with alcohol and drugtreatment, and other potential interventions as considered appropriate.(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:(i) 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 per100 millilitres of blood.[13] It is not in dispute that the appellant qualifies for an interlock sentence unders 65AB in relation to the offending referred to at [3(a) and (f)] above. This means thatan interlock sentence was required to be imposed under s 65AC. That sectionprovides: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.[14] In other words, after attending the assessment centre (as required by s 65(2) or(4)) and serving the period of disqualification that applies under s 65AE, the appellantwould be able to apply for an interlock licence, would be disqualified from holdingany licence expect the alcohol interlock licence, and after complying with therequirements of an alcohol interlock licence could apply to have that licence replacedwith a zero-alcohol licence. 11 If, however, the appellant does not apply for an alcoholinterlock licence, he would be disqualified from holding or obtaining a driver licencepursuant to s 65AF.[15] The period of disqualification that applies to an alcohol interlock sentence isset out in s 65AE. It provides:65AE Period of disqualificationThe period of disqualification for an alcohol interlock sentence is the greatestof the following periods:(a) 28 days; and(b) any period when the person's licence is expired or suspended undersection 90, 95 or 95A; and(c) any period when the person is in prison (because of the qualifyingoffence or otherwise); and(d) any period when the person is disqualified from holding or obtaininga driver licence, including—(i) under section 65AD; or(ii) under section 65AH(3); or(iii) because of an existing disqualification (except adisqualification under section 65(2) or (4): see section 65(3A)and (4A)).[16] In other words, if s 65AE(b), (c) and (d)(i) do not apply, as they do not here,the disqualification period for the offending for which an interlock sentence is imposed(here [3(a) and (f)]) is 28 days unless there is an existing disqualification or if a periodlonger than 28 days is imposed under s 65AH(3).[17] This means that here the disqualification period for the interlock sentence willbe the longest of 28 days, or a disqualification period that may be imposed forconcurrent offending ([3(b), (d) and (e)]) or any disqualification period imposed forthe non-concurrent offending ([3(c)]).11 A person may apply for a zero alcohol licence under s 100A if they have complied with therequirements of s 65AG.[18] For concurrent offending that did not result in injury or death ([3(b), (d) and(e)]), s 65AH(3) provides that, taking into account the interlock sentence that must beordered for a qualifying offence under s 65AC, the court may "choose not to order anydisqualification period that might otherwise apply to the concurrent offence".[19] For the careless driving offence ([3(d)]), s 37 provides that a Court "may orderthe person to be disqualified from holding or obtaining a driver licence for such periodas the court thinks fit". As this is a concurrent offence to the driving with excess bloodalcohol offence, pursuant to s 65AH(3) the Court may choose not to impose adisqualification period for this offending.[20] For the driving contrary to a zero alcohol licence ([3(b) and (c)]) and thedriving while suspended offences ([3(e)]), s 32 provides:32 Contravention of section 5(1)(c)(1) A person commits an offence if the person drives a motor vehicle ona road—(a) while disqualified from holding or obtaining a driver licence;or(b) contrary to an alcohol interlock licence, a zero alcohollicence, or a limited licence; or(c) while his or her driver licence is suspended or revoked.(3) If a person is convicted for 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.(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 (3)(b) does not apply andsection 65AH(3)(b) applies.(4) If a person is convicted of a third or subsequent offence againstsubsection (1) ,—(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 1 year or more.(4A) 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.[21] This means that, but for the interlock sentence, the disqualification periodswould have been at least six months for the zero alcohol licence offending ([3(b)]) andone year or more for the driving while suspended (third or subsequent) ([3(e)]).However, as they are offending concurrent on offending that qualifies for an interlocksentence, the Court may choose not to impose a disqualification period. 12[22] The offending at [3(c)] is not, however, concurrent offending. Counsel for theappellant sought to argue that it was. This was because, as the District Court Judgecommented, "[a]lthough the charge that was laid at the time of refusing to provide aspecimen of blood for analysis was withdrawn, it is clear that [the appellant] had beendrinking on that occasion". 13 However, while the appellant may have offended onthat day in a way that would have resulted in an interlock sentence if he had beencharged and convicted of that offending, he was not in fact convicted of the offending.[23] That the [3(c)] offending is not concurrent offending is apparent from the termsof s 65AH(3). This provides:For a concurrent offence that did not result in injury or death, the courtmay, taking into account the alcohol interlock sentence that must be orderedfor the qualifying offence under section 65AC, choose not to order anydisqualification that might otherwise apply to the concurrent offence.[24] There is no qualifying offence on 26 June 2021 in respect of which the Courtmust order an alcohol interlock sentence (because the charge was withdrawn) inrespect of which the driving contrary to a zero alcohol licence is concurrent. Thismeans that the appellant must be ordered to be disqualified from driving for at least12 Section 65AH(3).13 New Zealand Police v Kerehoma, above n 1, at [3].six months on this offence.14 After this period of disqualification the appellant canapply for an alcohol interlock licence.15 I consider that disqualification for the [3(c)]offending of nine months is appropriate. The offending came relatively soon after thesimilar [3(b)] offending, indicating the public safety risk that the appellant poses if hedoes not rehabilitate.[25] As to the concurrent offending ([3(b), (d) and (e)]), the appellant submits Ishould exercise my discretion not to impose disqualification periods. The respondentsubmits that I should impose disqualification periods for public safety reasons.[26] I consider a concurrent disqualification period for the [3(e)] offending of oneyear is appropriate. This reflects the fact that it is his fifth offence of this kind and itcame soon after the February and June offending. As the Judge said, there is a needto keep the community safe. A disqualification period of this length will allow timefor the sentence of intensive supervision with judicial monitoring to potentially assistthe appellant with sustained rehabilitative efforts before the interlock licence is sought.The appellant will then still have six months of supervision with judicial monitoringwhile he has the interlock licence where his progress can be overseen.[27] As it was said in Ashby v R:16[10] As will be clear from the wording used in the sub-section,s 65AH(3)(b) provides the court with a discretion not to impose a period ofdisqualification that is otherwise mandatory offending for concurrentoffending. This is obviously designed to ensure the objectives of the alcoholinterlock scheme are not routinely thwarted through the imposition of lengthyperiods of disqualification for concurrent offending. In appropriate cases,however, these will be appropriate. As the Court of Appeal observed in Lallyv Police, disqualification still has an important function under the new regimebecause it operates as a harm reduction measure and also has a punitiveelement. The fact an alcohol interlock sentence is to be imposed will thereforenot obviate the need for lengthy periods of disqualification in appropriatecases. ...14 Section 32(1)(b) and (3)(b).15 I note that, if an interlock sentence had been imposed for the 25 February 2021 offending ([3(b)]above), then s 65AK would apply. That would mean that the appellant could apply for an interlocksentence after serving the disqualification period ordered for the 26 June offending ([3(c)] above).That is, the same outcome follows whether the non-concurrent offending is sentenced at the sametime or not.16 Ashby v R [2020] NZHC 1330.[28] In Ashby v R, Mr Ashby was convicted of driving with excess breath alcohol,driving while disqualified and breaching a sentence of home detention. He had fiverecent convictions for driving with excess breath alcohol. He was sentenced to prisonfor 15 months and disqualified until the date of his release from prison (as is requiredby s 65AE(c)). At that time he would be able to apply for his alcohol interlock licenceunder s 65AC(2)(b).[29] In Lally v Police the Court of Appeal upheld a two-year disqualification periodon top of an alcohol interlock sentence for driving with excess blood alcohol anddriving while disqualified, where the offender had been disqualified on four previousoccasions, had two previous convictions for driving while disqualified and showed noremorse for his offending.17[30] Here, although the appellant's history is much worse than Lally, he is motivatedto address his addiction. The appellant is a risk to community safety but his motivationto address his addiction was the reason he avoided a prison sentence. In contrast, thedefendant in Ashby was in the "grip of a severe addiction" and was "incapable ofmaking responsible and proper decisions not to be driving after consuming alcohol"as reflected in the rapidity with which his third, fourth, fifth and sixth offencesoccurred and the need for an imprisonment sentence in his case.18 The disqualificationperiod was required by s 65AH to be set with reference to the period the person wasin prison.[31] I do not impose a disqualification period on the careless driving charge ([3(d)]).As reflected in the Judge's decision to convict and discharge him on this offence, Iconsider this offending is adequately covered by the interlock sentence and thedisqualification period imposed on the other offending on that occasion ([3(e) and(f)]). I also do not impose a disqualification period for the concurrent offending in[3(b)] reflecting that the appellant might be given one chance for his first breach of azero alcohol licence but that is it.17 Lally v Police [2019] NZCA 286.18 New Zealand Police v Ashby [2020] NZDC 6748 at [4] and [8].Result[32] The appeal is allowed. The disqualification orders imposed for the offendingat [3(a), (b), (c), (e) and (f)] are quashed. Concurrent interlock sentences are imposedfor the offending in [3(a) and (f)]. A disqualification period of one year is imposed forthe offending in [3(e)]. Concurrent on that period, a disqualification period of ninemonths is imposed for the offending in [3(c)]. The sentence of 18 months' intensivesupervision and judicial monitoring imposed for the [3(a) and (f)] offending remainsin place.Mallon J