LALLY v NEW ZEALAND POLICE [2019] NZHC 352

LALLY v NEW ZEALAND POLICE [2019] NZHC 352 [6 March 2019]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2018-463-127[2019] NZHC 352BETWEEN GURMAIL LALLYAppellantAND NEW ZEALAND POLICERespondentHearing: 6 March 2019Appearances: R Webby for AppellantA Pollett for RespondentJudgment: 6 March 2019ORAL JUDGMENT OF TOOGOOD JIntroduction[1] Gurmail Lally pleaded guilty to one charge of driving while disqualified (thirdor subsequent)1 and one charge of driving with excess alcohol (third or subsequent).2[2] On 13 November 2018, Judge C J Harding sentenced him to nine months'imprisonment and disqualified him from driving for two years.3 The Judge alsoimposed a zero-alcohol licence requirement; with Mr Lally being able to apply forsuch a licence after the expiry of the two-year disqualification period.[3] Mr Lally now appeals his sentence. For reasons which I will explain,Ms Pollett, on behalf of the Police, do not oppose the appeal.Factual background[4] On 16 September 2018, Mr Lally drove to a liquor store in Waihi. Heattempted to purchase a bottle of whisky but was refused service, presumably becausehe was intoxicated. Mr Lally then drove away from the premises.[5] The Police were notified. They caught up with Mr Lally as he was pulling intohis driveway. Breath alcohol procedures were undertaken, and Mr Lally was found tohave 1524 micrograms of alcohol per litre of breath, a result Judge Harding describedappropriately as a "stupendously high level and roughly six times the legal limit."History of driving offences[6] Mr Lally's disgraceful history of driving while disqualified and under theinfluence of alcohol has a bearing on the course of the appeal:(a) In February 1996, Mr Lally was convicted of driving with excess bloodalcohol, and disqualified from driving for six months.1 Land Transport Act 1998, s 32(1)(a) and (4); the maximum penalty is two years' imprisonment ora fine of $6,000. The Court must also order the person to be disqualified from holding a licencefor one year or more.2 Section 56(1) and (4); the maximum penalty is two years' imprisonment or a fine of $6,000. TheCourt must also order the person to be disqualified from holding a licence for one year or more.3 Police v Lally [2018] NZDC 24194.(b) In July 2004, he was convicted of driving with excess breath alcoholand was again disqualified from driving for six months.(c) In December 2004, Mr Lally was convicted of driving with excessbreath alcohol (third or subsequent) and driving while disqualified. Hewas disqualified from driving for one year and six months and receivedsentences of community work and supervision.(d) In August 2009, Mr Lally was convicted of driving with excess breathalcohol (third or subsequent). This time he was disqualified fromdriving indefinitely and sentenced to two and half months' homedetention with post-release conditions.(e) In January 2015, Mr Lally was convicted of driving with excess breathalcohol (third or subsequent) and driving while disqualified. He wasdisqualified from driving for one year and six months and a zero-alcohol licence applied for two years. For that offending, he was alsosentenced to 250 hours' community work, three months' communitydetention and two years' intensive supervision.[7] At the time of the current offending, Mr Lally was a disqualified driver. Thatis because he never reapplied for a licence after being disqualified indefinitely inAugust 2009. In addition, Mr Lally's licence expired in April 2016, and no newlicence has been issued. Mr Lally, therefore, is an unlicensed driver as well as adisqualified driver.The appeal[8] Ms Webby, appearing for Mr Lally, does not take issue with the term ofimprisonment imposed by Judge Harding. That is a realistic and proper concession bycounsel: successive judges have done their best to provide Mr Lally with opportunitiesto address his obvious alcohol addiction while remaining in the community. Now, herepresents a major threat to the safety of road users and the need to make himaccountable for his continued offending is a prime sentencing factor.[9] The sole point of appeal relates to the imposition of an alcohol interlocklicence. Ms Webby submits that Judge Harding was required to impose such a licenceunder a recent amendment to the Land Transport Act 1998 (the LTA).[10] That amendment came into force on 1 July 2018 but Judge Harding did notmention it in delivering his sentence, which I understand was in the course of the usualbusy list in the District Court.[11] The relevant provisions read as follows:Mandatory alcohol interlock sentence for repeat offences and certain firstoffences65AB Qualifying offences(1) Section 65AC applies if a court convicts a person of an offence inrelation to alcohol against any of sections 56(1)... and either-(a) the person convicted has previously been convicted of suchan offence within 5 years of the date of the commission of the offencebeing dealt with by the court65AC 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.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-(iii) because of an existing disqualification[12] The Police agree with Ms Webby's submission that the effect of the lawchange is that Judge Harding was required to impose an alcohol interlock licencesentence.Decision[13] I must allow Mr Lally's appeal if I am satisfied that there is an error in thesentence appealed from such that a different sentence should be imposed.4[14] I agree with counsel that the ground is made out. Mr Lally has been convictedof driving with excess breath alcohol within five years of the index offending, namelyin January 2015. This satisfies s 65AB(1)(a). Under s 65AC, therefore, the Courtmust order an alcohol interlock sentence.[15] Mr Lally is disqualified from holding or obtaining a licence until his existingdisqualification period expires,5 but I have already noted that he was disqualifiedindefinitely in August 2009. On top of that, Judge Harding disqualified him for twoyears on 13 November 2018 on account of the driving while disqualified charge. I seeno reason why that should be adjusted. After that period of two years has lapsed,Mr Lally may apply for an alcohol interlock licence. He may not apply for any otherlicence;6 but after complying with the alcohol interlock requirements, he may applyto replace an alcohol interlock licence with a zero-alcohol licence requirement.74 Criminal Procedure Act 2011, s 250(2).5 Section 65AC(2)(a) and 65AE(d)(iii).6 Section 65AC(2)(c).7 Section 65AC(2)(d).Result[16] I allow the appeal in part accordingly.[17] Judge Harding's imposition of a zero-alcohol licence requirement is quashed.I replace that part of the sentence with an alcohol interlock sentence under s 65AC(2)of the Land Transport Act 1998. The rest of Judge Harding's sentence stands.............................................Toogood J