SMITH v NEW ZEALAND POLICE [2022] NZHC 1496

SMITH v NEW ZEALAND POLICE [2022] NZHC 1496 [27 June 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-59[2022] NZHC 1496BETWEEN JACOB ALLAN SMITHAppellantAND NEW ZEALAND POLICERespondentHearing: 15 June 2022Appearances: A L Hollingworth and K E Bucher for AppellantG E R Alloway for RespondentJudgment: 27 June 2022Reissued: 1 August 2022JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 27 June 2022 at 2.15 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] Jacob Smith was sentenced in the District Court by Judge Couch1 onone charge of driving while disqualified.2 At sentencing Mr Smith applied under s 94of the Land Transport Act 1998 (the Act) for the Court to substitute the mandatorysix month disqualification period with a community-based sentence. The Judge foundMr Smith's traffic conviction history prohibited the application and fined Mr Smith$300, ordered him to pay court costs of $130, and disqualified him from driving forthe minimum period of six months.[2] Mr Smith appeals. He says the Judge erred in concluding his traffic historyprohibited the s 94 application from being considered on its merits.The facts[3] The offending for which Mr Smith was sentenced was unremarkable. He hadbeen disqualified from driving on 24 January 2022 for a period of six months.However, at approximately 8:20 pm on 14 February 2022, he was seen driving intothe Christchurch Hospital public carpark before parking and walking into Hagley Park.[4] Mr Smith's prior convictions are also relevant to the current appeal as theywere held to preclude him from applying under s 94 for a community-based sentenceinstead of a further disqualification.[5] On 30 September 2020, Mr Smith committed the offence of carelesslyoperating a motor vehicle causing injury. On 24 February 2021, he was sentenced topay reparation of $900 and was disqualified from driving for seven months. On11 November 2021, Mr Smith drove with excess breath alcohol. He was sentenced on24 January 2022 to a fine of $350 plus court costs and was disqualified from drivingfor six months.1 Police v Smith [2022] NZDC 5464.2 Land Transport Act 1998, ss 32(1)(a) and 32(2).The legislation[6] Section 94 of the Act permits a sentencing judge to impose a community-basedsentence instead of a mandatory period of disqualification. Such a decision is madehaving regard to:3(i) the circumstances of the case and of the offender; and(ii) the effectiveness or otherwise of a previous order ofdisqualification made in respect of the offender; and(iii) the likely effect on the offender of a further order ofdisqualification; and(iv) the interests of the public [7] An offender will only be eligible for such a sentence if he or she has previouslybeen the subject of an order for disqualification.4 However, s 94(4) also provides:(4) This section does not apply if–(a) section 63 or section 65 applies; or(aa) an alcohol interlock sentence has been ordered under section65AC(1); or(b) the offender is prohibited from applying for a limited licenceunder section 103(2)(a), (b) or (d).[8] Section 103(2)(d) (which is the relevant subsection in this case) provides asfollows:(2) The following persons may not apply under this section for an orderunder section 105 authorising the grant of a limited licence:(d) a person who is disqualified by an order made on his or herconviction—(i) for an offence against any of sections 35, 36, 38, and39 (which relate to reckless or dangerous driving,careless or inconsiderate driving causing injury ordeath, and failing to stop after an accident); or3 Land Transport Act, s 94(1)(b)(i)–(iv).4 Section 94(1)(a).(ii) for an offence against any of sections 56, 57A, 58, 50,61, and 62 (which relate to offences involving alcoholor drugs); or(iii) for an offence against section 33(1) (which relates toapplying for or obtaining a driver licence whiledisqualified from doing so); or(iv) for an offence against a provision of the Transport Act1962 that corresponds to an offence specified in anyof subparagraphs (i) to (iii)—committed within 5 years after the commission of any otheroffence specified in this paragraph and arising from a differentincident (whether or not both offences are of the same kind,regardless of when convictions were entered for thoseoffences):[9] At issue on this appeal is whether, as the appellant submits, s 94(4)(b) shouldbe interpreted pre-emptively, applying s 103(2)(d) to the proposed disqualificationperiod which would result from the active charge or whether, as the respondentsubmits, the reference to s 103(2)(d) in s 94(4)(b) applies to the circumstances whichexist at the time of sentencing.The District Court decision[10] Judge Couch noted Mr Smith had two convictions within the last five yearsthat fell within the scope of s 103(2)(d).5 The Judge found the plain wording of thatsection appeared to be that if any of the offences specified in that section (a specifiedoffence) were committed within five years of any other specified offences, the offenderwould not be permitted to apply for a limited licence.6[11] The Judge considered the decisions in Trainor v Police and Governor v Police.7He did not consider they arose out of circumstances directly comparable to Mr Smith'ssituation. The Judge first distinguished Trainor. In that case, Nation J rejected thesubmission that because s 103(2)(d) referred to "is disqualified" in the present tense,5 I note the Judge referred to the dates Mr Smith was convicted for these offences despite the Actstating it is the date of the offending that is relevant. However, regardless of which date is taken,both offences were within the five-year period.6 At [4].7 Trainor v Police [2019] NZHC 209; and Governor v Police [2021] NZCA 403.it did not include offences for which the period of disqualification had ended. In anyevent, Nation J decided the appeal very much on the merits. Similarly, the Judgeconsidered Governor related to a distinctly different fact situation, where the primaryissue was whether the offender could apply under s 94 when she was subject to analcohol interlock licence.[12] Instead, the Judge relied on Lang J's decision in Admore v Police, a case notreferred to by counsel.8 The Judge referred to the following excerpt from that case:[43] These factors lead me to conclude that the sentencing Judges in thepresent case correctly interpreted the manner in which s 94(4) is to beapplied. I consider that Parliament intended that the benefit of s 94should not be available to offenders who have been convicted of theoffences specified in s 103(2)(a) , (b) and (d) within the previous fiveyears, regardless of whether or not they were still disqualified fromdriving when sentenced for later offending. The fact that Parliamenthas seen fit to include recidivist offenders who drive whilstdisqualified within the category of persons who are eligible to receivethe benefit of s 94 means only that it views such offenders in adifferent light and deserving of a different approach to sentencing.[44] I therefore consider that s 94(4)(b) must be interpreted as meaning thatan offender will not be eligible to receive a community-based sentenceunder s 94 if he or she would not, if an order for disqualification wasimposed in relation to current offending, be eligible to apply for alimited licence by virtue of s 103(2)(a), (b) or (d) of the Act.The Judge concluded, applying Admore, if Mr Smith were disqualified on the currentcharge he would not be able to apply for a limited licence because of his two specifiedoffence convictions in the last five years. For that reason, the Judge held it was notopen to him to consider an application under s 94.Principles on appeal[13] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may be allowed by this Court only if it is satisfied there hasbeen an error in the imposition of the sentence and that a different sentence should beimposed.98 Admore v Police HC Auckland CRI-2008-404-245, 3 December 2009.9 Criminal Procedure Act 2011, ss 250(2) and 250(3).[14] In this case the question is whether the Judge erred in finding he had nojurisdiction to apply s 94. Although the material supporting the substantive applicationunder s 94 was before me, I explained that if I found the Judge erred on thejurisdictional issue, I would remit the substantive application back to the District Courtfor consideration.Submissions on the jurisdictional issueAppellant's submissions[15] Ms Hollingworth submitted the issue on appeal was whether s 94(4)(b) appliesto Mr Smith, making him an offender who is prevented from applying for a limitedlicence by the operation of s 103(2)(d) of the Act. She accepted Mr Smith had relevantconvictions for offending on 11 November 2021 and 30 September 2020. However,she emphasised that his s 94 application (and therefore the appeal) was directed at theperiod of disqualification which was to be imposed by the Judge on the active charge,rather than the existing disqualification running from 24 January 2022 to 23 July 2022.[16] She submitted it was important that s 103(2)(c), which prevented defendantswho are disqualified on conviction for driving while disqualified from applying for alimited licence, was specifically excluded from s 94(4). She argued such exclusionillustrated Parliament's intention that defendants who breached a court-ordereddisqualification could utilise s 94, but those repeatedly committing offences whichposed risks to public safety, could not. She submitted this was logical becausedisqualifications are normally about road safety,10 with the exception ofdisqualifications following conviction for driving while disqualified, which areusually punitive.11[17] Ms Hollingworth's key contention was that s 103(2)(d) only applies if one ofthe offender's active charges is a specified offence committed within five years ofanother specified offence. She submitted s 94(4) requires pre-emptive application, aswas accepted in Admore v Police, with a focus on whether, if a disqualification were10 Leaupepe v Police [2015] NZHC 1766 at [8].11 Lambert v Police HC Rotorua AP62/90, 11 October 1990 at [7].imposed in relation to the current offending, the offender would be prevented fromapplying for a limited licence by s 103(2)(a), (b) or (d).[18] Ms Hollingworth accepted a literal reading of s 94(4) and s 103(2)(d) maysuggest a defendant is ineligible to make a s 94 application until the disqualificationperiod imposed on earlier specified offending had expired and this was theinterpretation adopted in Trainor. However, Ms Hollingworth argued the Court ofAppeal's approach to the interpretation of s 94(4)(aa) in Governor should be appliedto s 94(4)(b). While acknowledging the Court of Appeal had not expressly consideredTrainor, she submitted the Court had effectively rejected Nation J's reasoning in thatdecision and preferred an enabling approach to s 94.[19] Ms Hollingworth also submitted the Judge erred in finding Admore was adirectly comparable case. She distinguished it on the basis the offenders there werecharged with specified offences under s 103(2)(d) and so their circumstances weredifferent from Mr Smith's. Ms Hollingworth also referred to and analysed the veryrecent authority in Cadle v Department of Corrections, saying it supported theinterpretation of s 94 she was advancing.12[20] Ms Hollingworth also observed that, if the availability of a s 94 applicationrests on whether or not a previous disqualification period had been served, defendantscould tactically delay their guilty plea on a non-specified charge until the previousdisqualification order had been served, then plead guilty and mount a s 94 application.They would then be eligible despite no change in the actual offending that broughtthem before the Court.Respondent's submissions[21] Mr Alloway, for the Crown, submitted the issue was whether Mr Smith fallswithin s 103(2)(d) because he is still subject to a disqualification order resulting fromthe commission of a second specified offence.13 Mr Alloway submitted that issue12 Cadle v Department of Corrections [2022] NZHC 1222.13 This was not the District Court Judge's reasoning.turns on the meaning of "a person who is disqualified" in s 103(2)(d). He observedthree interpretations were available, essentially representing past, present and future:(a) a person who has been disqualified for a second specified offence;(b) a person who is currently disqualified for a second specified offence;or(c) a person who is liable to be disqualified for a second specified offence.[22] Mr Alloway submitted Mr Smith would be prohibited under either (a) or (b)but not (c) because Mr Smith was not liable to be disqualified for a specified offence.Mr Alloway submitted the correct interpretation was s 103(2)(d) prohibits defendantsfalling into both categories (b) and (c) above.[23] Mr Alloway submitted this appeal involved the same issue that was determinedby Nation J in Trainor. He submitted the interpretation advanced on Mr Smith's behalfdeparted from the plain meaning of the words "is disqualified" in s 103(2)(d). Hemaintained this is temporal language, ordinarily meaning "is presently/currentlydisqualified", and Cadle only rejected the proposition that "is disqualified" means "hasbeen disqualified".[24] Mr Alloway accepted, in accordance with Governor, that limited weight canbe placed on the plain meaning of the Act due to drafting deficiencies, with moreweight instead placed on policy. However, he submitted the intention and policybehind s 94, as articulated in Admore, is to rehabilitate recidivist disqualified driverswho do not have recent serious road safety offences.14[25] Mr Alloway submitted the different interpretations can be analysed under thequestion: how recent do the serious road safety offences need to be for the prohibitionto apply? He submitted if the prohibition extended to persons who have beendisqualified for a second specified offence within five years of a first specified offence,then those offences might not be recent at all. If the prohibition extended to persons14 Admore v Police, above n 6, at [40] and [41].who are currently disqualified for a specified offence or are to be disqualified for aspecified offence having just been convicted, then the offence is likely to be recent.On that basis Mr Alloway submitted policy justifies the prohibition extending tooffenders who are, at the time of sentencing, subject to disqualification for a secondspecified offence. He argued Parliament's intention is clearly that drivers who areconvicted of a second specified offence should not be on the road, even for a limitedpurpose, that being the justification for the disqualification and for them beingprohibited from applying for a limited licence. He also distinguished the decision inGovernor, submitting it engages different policy considerations as it involved anoffender who was subject to an alcohol interlock sentence.[26] Mr Alloway submitted there is a good reason to prevent Mr Smith from drivingas he has recently committed two serious road safety offences and the plain wordingof s 103(2)(d) indicates Parliament has deemed people who have committed two recentspecified offences under s 103(2)(d) are too unsafe to be on the road.[27] Mr Alloway accepted some defendants may be motivated to adjournsentencing or seek to delay conviction until their disqualification period is over so theymay apply under s 94. He accepted there will be examples of defendants who areprecluded from applying because they are, at the time of sentencing, completing thelast week of their disqualification. However, he submitted that was true of anytemporal limit imposed by the law. In this case Mr Alloway submitted the underlyingpolicy is about the recency of serious driving offences and it is inevitable that a linewill be drawn in the sand.AnalysisDoes the commission of two specified offences within the last five years preclude anapplication under s 94?[28] The Judge determined Mr Smith could not apply for substitution of acommunity-based sentence for a sentence of disqualification because he hadcommitted two specified offences within the last five years (and within five years ofeach other). He did not address the argument for Mr Smith, which was that s 94(4)(b)should be interpreted in a forward-looking way and thus s 103(2)(d) should be read asapplying to the sentence of disqualification which would be imposed on the currentcharge (unless the application under s 94 was successful).[29] I first consider whether the commission of two specified offences within thepreceding five years would preclude an application under s 94. This issue wasaddressed by Gwyn J in Cadle v Department of Corrections.15 She considered whetheran offender would be ineligible to apply under s 94 if they had twice been disqualifiedfor a specified offence in the preceding five years.16 Gwyn J accepted the deficienciesin the drafting of the Act meant limited weight could be placed on the precise wordingof its provisions. She followed the approach of the Court of Appeal in Governor,which emphasised the construction of the legislation must be consistent with itspurpose. She found that that approach shifts the focus of the mandatorydisqualification scheme to the purpose of s 94 rather than its precise wording.17[30] Considering the purpose of s 94, which was to enable repeat offenders to getoff a never-ending cycle of disqualification and the fact Mr Cadle would be anappropriate candidate for the exercise of the s 94 discretion, Gwyn J did not considerdenying Mr Cadle the benefit of an application under s 94 was consistent withParliament's intention in enacting the provision. The fact Mr Cadle hadtwo disqualifications for specified offences in the previous five years did not precludean application under s 94 on a charge of driving while disqualified.[31] Gwyn J was, however, careful to restrict that finding to offenders in Mr Cadle'sposition. She referred to Trainor, where the offender was being sentenced for drivingwhile disqualified while still subject to disqualification for dangerous driving.18 It wasrelevant to her decision that Mr Cadle was not subject to a disqualification for aspecified offence at the time of sentencing.19[32] Accordingly, I consider Cadle confirms that the commission of two specifiedoffences in the previous five years is not, of itself, an impediment to an application15 Cadle v Department of Corrections, above n 10.16 At [25].17 At [26] citing Governor v Police, above n 5, at [47].18 Trainor v Police, above n 5.19 At [32].under s 94, as the Judge assumed. The real issue is that addressed in submissions,which is whether an applicant serving a current disqualification for a second specifiedoffence, should be excluded from applying under s 94 to avoid a furtherdisqualification on a non-specified offence.When should s 103(2)(d) be applied when considering whether there is jurisdiction togrant a s 94 application?[33] The first significant case on the issue of how s 94(4) and s 103(2)(d) should beinterpreted was Trainor v Police. In that case, Nation J noted Mr Trainor was subjectto a disqualification for a charge of dangerous driving committed within five years ofanother charge of dangerous driving. Mr Trainor was before the Court on a charge ofdriving while disqualified. The District Court Judge had imposed a further period ofdisqualification on the driving while disqualified offence that was to begin after theexisting disqualification had ended, and Mr Trainor appealed that decision.[34] Nation J applied what he considered was the plain meaning of the legislation.He determined the appropriate time for considering whether s 94 applied is atsentencing, when the Court is considering whether there should or had to be a furtherperiod of disqualification. He found it was clear from ss 94(1)(c) and 94(3) that s 94is about what the Court might do when sentencing an offender. Nation J determinedthe fact the further period of disqualification was not to begin until after the existingperiod had ended did not change the fact that, at the time the Judge had to considerwhether s 94 was available, Mr Trainor was subject to the existing period ofdisqualification.[35] Nation J found the appellant's submission required him to interpret the words"a person who is disqualified" in s 103(2)(d) as "a person who is liable to bedisqualified".20 He did not consider such an interpretation was available.[36] Mr Smith was disqualified for a second specified offence at the time ofsentencing so, applying Trainor, s 94 would be unavailable. While Trainor is plainlynot favourable to Mr Smith, it is the closest case to his circumstances. The question20 At [24].is whether the approach to the interpretation of the Act emerging in more recent caselaw affects Nation J's analysis and ought to change the position.[37] At the outset I reject the respondent's submission that the focus should be onthe interpretation of the words "is disqualified" in s 103(2)(d). Ms Hollingworth madeit clear that she was focusing on the interpretation of s 94(4)(b) not on s 103(2)(d).Section 103 is drafted for a specific purpose, which is the grant of a limited licence.It assumes a disqualification is already in place. What is at issue is whether, whenapplying s 94(4)(b), the disqualification referred to in s 103(2)(d) should be read asreferring to the proposed disqualification on the active charge, or to an existingdisqualification.[38] The Judge in Admore did not place weight on the wording used in s 103(2)(d)because he considered it was plainly not drafted with s 94(4)(b) in mind.21 Heconcluded s 94(4)(b) needed to be interpreted (and s 103(2)(d) read) in the hypotheticalsituation of an order being made for disqualification on the current offending. Thefact s 103(2)(d) has been subsequently amended to include driving with excess breathalcohol offending (thereby forming an arguably less serious class of specified offencesthan existed previously) further supports this proposition. In my view, the languageof s 103(2)(d) would not justify s 94 being read down if that would be inconsistentwith s 94's purpose.[39] In Governor, the Court of Appeal made the following general comments aboutthe purpose of s 94:22[40] Section 94 is an enabling provision. It was enacted to permit the Courtto impose a community-based sentence, which might be advantageous and inthe public interest for any number of reasons. However, the Court is notrequired to impose such a sentence. It must be satisfied that a further periodof disqualification is inappropriate having regard to the matters in s 94(1)(b),and that a community-based sentence would be appropriate. The nature of theoffending for which the offender is before the Court, and his or her drivingrecord, will be relevant to whether a community-based sentence is anappropriate substitute for disqualification. Section 94(1)(b)(i) expresslyrequires the Court to have regard to the circumstances of the case and of the21 At [26].22 Governor v Police, above n 5.offender and, as this Court said in Lally v Police, disqualification periods stillhave an important function under the new regime.23[41] That an offender is subject to an interlock sentence does not in itselfseem to provide good reason to preclude a community-based sentence unders 94 if it would otherwise be appropriate. By way of example, on the broadconstruction, a driver subject to an interlock sentence subsequently convictedof, say, careless driving (whether the offence was committed before or afterthe qualifying offence) could not be ordered to serve a community-basedsentence in lieu of disqualification. We do not consider that result consistentwith Parliament's intention in enacting s 94.[40] The Court of Appeal also considered submissions to the effect the broadconstruction (being that anyone who had already been required to serve an alcoholinterlock sentence would be precluded from applying under s 94), cannot have beenintended because of apparent inconsistencies in the legislation. While acknowledgingthose inconsistencies, the Court instead relied on the fact the broad construction wasinconsistent with the purpose of s 94.24 Although the lower Courts had found the broadinterpretation was the "most natural meaning" of the words "has been ordered" ins 94(4)(aa), the Court considered the purpose of s 94 supported a narrow constructionof the exceptions under s 94(4). Consequently, s 94(4)(aa) did not preclude acommunity-based sentence being imposed in lieu of a period of disqualificationarising under another provision of the Act.[41] The purpose of ss 94(4)(b) and 103(2)(d) was also considered in Admore. AsLang J noted, when enacted, s 94 did not contain a reference to s 103(2)(d).25 It wasamended to include the reference to s 103(2)(d) in 2005 by the Land TransportAmendment Act 2005. Importantly the 2005 Amendment Act also relaxed arequirement that applicants have at least one year of an existing disqualification left toserve. Lang J referred to the Select Committee report on the 2005 amendments, wherethe Select Committee said it was appropriate to extend the scope of the provision toinclude disqualified drivers who are caught in a cycle of disqualified driving but haveno other recent convictions for serious road safety offences (although without limitingits application to a wider group).23 Lally v Police [2019] NZCA 286 at [13].24 Governor v Police, above n 5.25 At [35].[42] Lang J considered the Select Committee did not intend a community-basedsentence to be available under s 94 to persons who had recent convictions for seriousroad safety offences, taking "recent" to refer to persons who have committed thoseoffences in the previous five years.26 That said, he also recognised Parliament saw fitto include recidivist offenders who drive while disqualified within the category ofpersons who are eligible to apply under s 94, indicating Parliament viewed suchoffenders in a different light and deserving of a different approach to sentencing.27However, I note that in Admore, the Judge was considering the issue of whether s 94was available to offenders liable to be disqualified on a second specified offence,which is not the case here.[43] In Cadle, Gwyn J explained the purpose of s 94 was to enable repeat offendersto exit a never-ending cycle of disqualification where a disqualification leads to furtheroffending and further periods of disqualification.28 She considered the Court ofAppeal had implicitly rejected the "strict analysis" adopted in Admore.29 In her view,the broad purposive approach in Governor made the case "a readily transferabledecision when applying s 94 to contexts other than the alcohol interlock context".30[44] It is apparent that an increasingly liberal approach has been taken to s 94'sapplication. For example, in Beeston v Police, the High Court determined its scopewas not limited to drivers on an endless cycle of offending but was available to anyperson with at least one previous disqualification unless s 94(4) applied.31 In Timbrellv Police, the Court confirmed s 94 was not to be directed only at recidivist offenders.32These cases go beyond the express purpose stated by the Select Committee whichemphasised the function of s 94 was to assist repeat drink-drivers and disqualifieddrivers who were caught in a cycle of disqualified driving. However, even theSelect Committee noted the section was to "facilitate rehabilitation" and could haveapplication "to a wider group."3326 At [41].27 At [43].28 At [27].29 At [30].30 At [30].31 Beeston v Police [2012] NZHC 1064.32 Timbrell v Police [2018] NZHC 2397.33 Land Transport Amendment Bill 2004 (explanatory note) at 10.[45] Given the more liberal approach to the interpretation of s 94 taken in the recentauthorities, it is appropriate to look more closely at when s 94(4)(b) was intended toexclude an application under that section. Both the Select Committee report and thesedecisions make it tolerably clear s 94's interrelationship with s 103(2)(d) was intendedto protect public safety by limiting the availability of s 94 to those offenders whosecontinued disqualification reduced a risk of serious road safety offences. As Nation Jobserved at the outset of his decision in Trainor, the imposition of disqualification andthe length of disqualification is generally to do with road safety.34 However, thepurpose of imposing a further period of disqualification where an offender has drivenwhile disqualified is generally punitive, rather than about road safety.35[46] In my view, s 94 is intended to be available to someone who is liable to apunitive mandatory disqualification notwithstanding they are subject to an existingdisqualification for a specified offence. I acknowledge that is inconsistent with thedecision of Nation J in Trainor, which focused on the plain wording of s 103(2)(d).However, an alternate interpretation of s 94(4)(b) is that s 94 is not available wherethe offender would be prohibited from applying for a limited licence under s 103(2)(a),(b) or (d) during the period of disqualification which would arise on the active charge.This can be contrasted to the approach in Trainor where Nation J examined whetherthe offender would be permitted to apply for a limited licence at the time of sentencing.In both cases the new mandatory disqualification was set to begin after the previousdisqualification had been served (at a date nearly two months after sentencing here,and over a year after the appeal was heard in Trainor).[47] This approach sits naturally alongside the finding in Admore that s 94(4)operates pre-emptively:36 s 94(4)(b) must be interpreted as meaning that an offender will not beeligible to receive a community-based sentence under s 94 if he or she wouldnot, if an order for disqualification was imposed in relation to currentoffending, be eligible to apply for a limited licence by virtue of s 103(2)(a),(b) or (d) of the Act.34 Trainor v Police, above n 5, at [1], citing Leaupepe v Police, above n 8, at [8].35 At [1] citing Lambert v Police, above n 9, at 7.36 Admore v Police, above n 6, at [44].[48] Such an interpretation of s 94(4) is supported by Governor where the Court ofAppeal found, despite s 94(4)(aa) stating "an alcohol interlock sentence has beenordered", the fact Ms Governor was currently subject to an existing interlock order ona previous charge did not prevent her application under s 94. On this approach thecross-reference to s 103(2)(d) would achieve its purpose by preventing offenders liableto disqualification on second or subsequent specified offences from applying unders 94. However, it would allow drivers who are being sentenced for driving whiledisqualified to demonstrate they are no longer a risk to public safety, despite their pastrecord.Application to the present case[49] Applying this approach to Mr Smith's circumstances, it is accepted he wasineligible to apply under s 94 when he appeared for sentencing on the driving withexcess blood alcohol charge in January 2022. That disqualification plainly achieveda road safety purpose and Mr Smith would be required to serve the balance of it evenif he made a successful s 94 application on his further disqualification. It is moredifficult to argue the further mandatory disqualification, occasioned bynon-compliance rather than by further offending involving danger to the public,achieves a road safety purpose. It is more appropriately described as punitive.[50] The fact s 94(4)(b) was drafted to enable offenders who were prohibited fromapplying for a limited licence under section 103(2)(c) (disqualification arising from aconviction for driving while disqualified or breaching a limited licence) to make anapplication under s 94, is supportive of a more liberal interpretation. Parliamentrecognised s 94 could be a mechanism by which offenders could escape punitivedisqualification in certain circumstances.[51] There are further practical advantages. As the Court of Appeal found inGovernor, s 94 is an enabling provision that allows the courts to consider substitutionof a community-based sentence on a case-by-case basis. Where a further mandatorydisqualification would serve a road safety protection purpose, the application unders 94 could be declined and disqualification imposed. Allowing the application to beconsidered would recognise there may be instances where a further punitivedisqualification is unnecessary or where, for other reasons, the offender is a goodcandidate for substitution of a community-based sentence.[52] In addition, it avoids the problem raised by Ms Hollingworth that offendersmay be motivated to delay their guilty pleas on a charge of driving while disqualifieduntil after they have served an existing period of disqualification so that, when theyeventually plead guilty and are convicted and sentenced, they would not be barredfrom making a s 94 application on the new disqualification. Offenders may also bemotivated to secure sentencing adjournments for the same purpose. In Mr Smith'scase, if he had delayed sentencing until after 23 July 2022, there would have been noimpediment to him applying under s 94.[53] Mr Alloway accepted that on his approach there may be instances where asentencing judge has no option but to sentence an offender to a further mandatoryperiod of disqualification because they have one week left to serve of their previousdisqualification. This creates perverse inequity—one offender sentenced one day aftertheir previous disqualification expires could make an application under s 94 but thesame offender sentenced a day earlier would be subject to a further six-monthdisqualification with no recourse.Conclusion[54] In summary, I consider the focus when applying ss 94(4)(b) and 103(2)(d)should be on the charge which the offender is currently facing. Section 94 should beread as applying to the circumstances which will arise if the person is disqualified onthat charge, including if they were applying for a limited licence under s 103 at thatfuture point. Taking that approach, s 94 is not available if the offender would beprohibited from applying for a limited licence under s 103(2)(a), (b) or (d) during theperiod of disqualification the prospective s 94 application relates to.[55] Section 94 is intended to be a circuit breaker. It is clearly not available whenthe current offence is a specified offence and there is a previous specified offence inthe last five years. However, it is available when the current offence is not a specifiedoffence, even if the offender has had two or more specified offences in the lastfive years and where, as here, they may be completing a period of disqualification onthe last specified offence at the time of the s 94 application. Of course, where there issuch a history of recent offending, that may mean there is a sufficient ongoing publicsafety concern to decline the s 94 application.Result[56] I am satisfied that the Judge was wrong to conclude he had no jurisdiction togrant the application under s 94 and the appeal is allowed on that ground. However,that does not mean the application should be granted. While Ms Hollingworth hadsubmitted Mr Smith's s 94 application to this Court with a view that this Court shoulddetermine it, I did not consider that course was appropriate. The proper course is forthe District Court to consider the application on its merits which it has not yet done.[57] Accordingly, the sentence of disqualification is quashed, and Mr Smith's caseis remitted back to the District Court to reconsider his application under s 94. It willbe entirely for the District Court whether a further period of disqualification isconsidered inappropriate and a community sentence is substituted, having regard tothe matters identified in s 94(1).Solicitors:Crown Solicitor, ChristchurchCopy To:A L Hollingworth, Barrister, Christchurch