LALLY v POLICE [2019] NZCA 286

LALLY v POLICE [2019] NZCA 286 [5 July 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA161/2019[2019] NZCA 286BETWEEN GURMAIL LALLYApplicantAND NEW ZEALAND POLICERespondentHearing: On the papersCourt: Gilbert, Wylie and Thomas JJCounsel: N M Dutch for ApplicantA D H Colley for RespondentJudgment: 5 July 2019 at 3 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal against sentence is declined.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] Mr Lally seeks leave to bring a second appeal against sentence, pursuant tos 253 of the Criminal Procedure Act 2011. The application is opposed bythe respondent.Background[2] On 16 September 2018, Mr Lally drove to a liquor store. He attemptedto purchase alcohol, but he was refused service because he was intoxicated. Mr Lallythen drove away.[3] The police were notified and they caught up with Mr Lally as he was pullinginto his driveway. The police performed a breath alcohol test. Mr Lally was foundto have 1,524 micrograms of alcohol per litre of breath — six times the legal limit.Further, at the time of the offending, Mr Lally was both a disqualified driver and anunlicensed driver.[4] Mr Lally has a history of driving whilst under the influence of alcohol anddriving while disqualified. He has five previous convictions for driving with excessbreath or blood alcohol and two previous convictions for driving while disqualified.[5] Mr Lally, pleaded guilty to a charge of driving with excess breath alcohol (thirdor subsequent)1 and to a charge of driving while disqualified (third or subsequent).2[6] Mr Lally was sentenced on 13 November 2018 by Judge Harding atthe District Court at Waihi.3 The Judge adopted a starting point of 12 months'imprisonment. He observed that it was Mr Lally's sixth charge of driving with excessbreath alcohol, that he was not remorseful and that, despite interventions, he continuedto drink and drive. The Judge concluded that Mr Lally presents a significant dangerto other road users and to himself, and that imprisonment was appropriate. The Judgesentenced Mr Lally to nine months' imprisonment and, on the driving whiledisqualified charge, disqualified him from driving for two years. He also imposeda zero alcohol licence requirement.1 Land Transport Act 1998, s 56(1) and (4) — punishable by a maximum penalty of two years'imprisonment or a fine of $6,000. The Court must also order that the person be disqualified fromholding a licence for one year or more2 Section 32(1)(a) and (4) — punishable by a maximum penalty of two years' imprisonment ora fine of $6,000. The Court must also order that the person be disqualified from holding a licencefor one year or more.3 Police v Lally [2018] NZDC 24194.[7] Mr Lally appealed his sentence to the High Court on the basis that the Judgewas required to impose an alcohol interlock licence under then recent amendments tothe Land Transport Act 1998 (the Act).4 Toogood J allowed the appeal in part.5 Heaccepted that Judge Harding had been required by the amendments to impose analcohol interlock sentence, because Mr Lally had been convicted of offendingspecified in s 65AB(1)(a). He quashed the zero alcohol licence requirement andimposed an alcohol interlock sentence. Toogood J saw no reason to adjustthe two-year disqualification period Judge Harding had imposed, and he recorded thatMr Lally did not take issue with the term of imprisonment imposed.[8] Mr Lally now seeks leave to bring a second appeal against sentence.Leave[9] Leave for a second appeal against sentence is required under s 253(3) ofthe Criminal Procedure Act. It provides as follows:(3) The High Court or the Court of Appeal must not give leave fora second appeal under this subpart unless satisfied that—(a) the appeal involves a matter of general or public importance;or(b) a miscarriage of justice may have occurred, or may occurunless the appeal is heard.[10] Mr Dutch, for Mr Lally, contended that the first limb of s 253(3) is satisfied.He argued that the application of the amendments to the Act providing for alcoholinterlock sentences, is a matter of general and public importance, and that guidancefrom this Court would be useful because it potentially affects many people.[11] Although the alcohol interlock regime is relatively new, the amendments arerelatively straightforward. They came into force on 1 July 2018. Essentially, theyprovide that alcohol interlock sentences are mandatory for repeat offences and forcertain first offences. Judge Harding's error in not imposing an alcohol interlock4 Land Transport Act 1998, ss 65AB – 65AK and ss 65B(1) and 65B(2). These provisions wereinserted into the Act as from 1 July 2018 by the Land Transport Amendment Act 2017.5 Lally v Police [2019] NZHC 352.sentence was remedied by Toogood J in the High Court. It is not suggested thatToogood J erred. The only question raised is whether the period of disqualificationimposed on Mr Lally in combination with the alcohol interlock sentence wasexcessive. That question is specific to Mr Lally's circumstances and it does not raisean issue of general or public importance.6[12] Mr Dutch also contended that there has been a miscarriage of justice, becauseMr Lally was disqualified from driving for an excessive period.[13] Section 65AH(3) of the Act deals with disqualification when an alcoholinterlock sentence is imposed. Relevantly, it provides that, for a concurrent offencethat does not result in injury or death, the court may, taking into account the alcoholinterlock sentence, choose not to order any disqualification that might otherwise apply.Alcohol interlock sentences do not obviate the need for periods of disqualification inappropriate cases. Disqualification periods still have an important function underthe new regime, "operating as both a harm reduction measure and having a punitiveelement".7[14] In Mr Lally's case the charge of driving while disqualified was a concurrentoffence to the offence of driving with excess breach alcohol. The Court hada discretion whether to impose a disqualification period for the offence of drivingwhile disqualified. Both Judge Harding and Toogood J considered that a two-yeardisqualification period was appropriate. Mr Lally has been disqualified on fourprevious occasions; he was disqualified indefinitely in August 2009. He hastwo previous convictions for driving while disqualified. On the night in question,Mr Lally was driving both while disqualified and unlicensed. He was dismissive ofthe consequences of his actions and he expressed no remorse. We cannot see that therecan be any argument that there has been a miscarriage of justice.6 See McAlister v R [2014] NZCA 175, [2014] 2 NZLR 764, at [36].7 Perry v Police [2018] NZHC 3246 at [46].Result[15] The criteria in s 253(3) of the Criminal Procedure Act are not made out.Accordingly, leave to bring a second appeal against sentence is declined.Solicitors:Crown Law Office, Wellington for Respondent