SCADDEN v NEW ZEALAND POLICE [2020] NZHC 1619

SCADDEN v NEW ZEALAND POLICE [2020] NZHC 1619 [8 July 2020]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI 2020-463-000047[2020] NZHC 1619BETWEEN JEREMY SCADDENApplicantAND NEW ZEALAND POLICERespondentHearing: 8 July 2020Appearances: A D Hill for the ApplicantG Banuelos for the RespondentJudgment: 8 July 2020JUDGMENT OF VAN BOHEMEN JSolicitors/Counsel:A D Hill, Barrister (Lawyers on Pukaki, Rotorua)Crown Solicitor (Gordon Pilditch, Rotorua)Introduction[1] Jeremy Scadden appeals the sentence imposed by the District Court on 9 June2020 of 60 hours of community work and 12 months' disqualification for one chargeof driving while disqualified.1 Because it was Mr Scadden's third or subsequentoffence, the maximum penalty for the offence was two years' imprisonment and amandatory disqualification period of at least 12 months.2[2] Mr Scadden says the sentencing Judge erred in declining to apply s 94 of theLand Transport Act 1998 (LTA), under which a judge may order a community-basedsentence if he or she considers that it would be inappropriate to order than an offender-be disqualified from holding or obtaining a driver's licence. The Judge consideredhe was barred by s 94(4)(aa) of the LTA from considering Mr Scadden for acommunity-based sentence because Mr Scadden was still subject to an alcoholinterlock sentence. Mr Scadden says that the sentencing Judge was wrong in hisinterpretation of the effect of s 94(4)(aa) and that the matter should be remitted backto the District Court so that it may consider the discretionary factors under s 94.[3] The sole issue on appeal is the interpretation of s 94(4)(aa) of the LTA.Factual background[4] Mr Scadden has had a number of traffic convictions starting in 2016 and hasbeen disqualified from driving on four occasions:(a) In January 2017, he was convicted of driving with an excess breathalcohol level, fined $500 and disqualified from driving for six months;(b) In October 2018, he was convicted of dangerous driving and drivingwith an excess breath alcohol level and was sentenced to 80 hours ofcommunity service, ordered to apply for an interlock licence anddisqualified from driving for six months;1 Police v Scadden [2020] NZDC 10501.2 Sections 32(1) and 32(4) of the Land Transport Act 1998.(c) In January 2019, he was convicted of driving while disqualified, fined$500 and disqualified from driving for six months;(d) In March 2019, he was convicted of driving while disqualified,sentenced to six months' supervision and disqualified from driving fora further six months.[5] The present offending occurred in the early hours of 18 January 2020 whenMr Scadden was stopped by Police when driving on Fairy Springs Road, Rotorua.Mr Scadden's explanation to the police for driving while disqualified was that he wastaking home a friend who had had too much to drink.[6] Mr Scadden pleaded guilty to the charge of driving while disqualified.[7] Under the alcohol interlock sentence imposed in 2018, Mr Scadden wasdisqualified from holding any licence other than an alcohol interlock licence. Such asentence imposes at least a 28-day disqualification and requires the defendant to obtainan alcohol interlock licence and have an alcohol interlock device fitted to his or hercar.3 If there are no breaches of that licence within a 12-month period, a defendantmay transition to a zero alcohol licence for the next three years.[8] Prior to the present offending Mr Scadden had failed to apply for an interlocklicence or to have an interlock device fitted to his car. As a consequence, he had failedto comply with the terms of the alcohol interlock sentence and was precluded fromobtaining any other form of licence until he had completed the requirements of thesentence by obtaining an alcohol interlock licence and having an alcohol interlockdevice fitted to his car. Subsequent to the offending but before sentencing,Mr Scadden applied for and obtained an alcohol interlock licence.3 Land Transport Act 1998, ss 65AC and 65AE.District Court decision[9] Mr Scadden appeared initially for sentence before Judge Cooper in the DistrictCourt in Rotorua. Judge Cooper remanded Mr Scadden on his guilty plea and askedfor submissions on whether s 94 of the LTA may apply to his circumstances.[10] On 9 June 2020, the matter came before Judge Snell of the District Court forsentencing. Judge Snell interpreted s 94(4)(aa) as follows:[11] my view is that s 94(4)(aa) indicates that while an alcohol interlockorder is currently applying to the defendant, then s 94 is statute barred andcannot apply. That is my interpretation of the legislation.[11] On that basis, the sentencing Judge imposed the following sentence:[13] When I look at this matter and look at overall sentencing issues, Iwould consider, taking into account all of the circumstances surrounding thedriving in this instance, that a start point on this of 80 hours community workwould be appropriate. I would discount that by 25 percent to 60 hourscommunity work. He has previously had supervision and fines for drivingwhile disqualified and he needs to face the consequences of continually doingso.[14] Given my view that s 94 does not apply to him, he will be disqualifiedthe minimum amount given under the section which is one year.[15] He is presently subject to the alcohol interlock order and has nowobtained a driver's licence under the alcohol interlock. However, given that Ihave found that s 94 does not apply to him, he will be disqualified from todayfor one year, the statutory minimum that can be applied to him today.[12] As an addendum, the Judge stated:[16] I should add that in terms of s 94, I have not addressed the issues ofwhether you would even fit within s 94 as warranting consideration of thatsection to have your disqualified dealt with under that section by way of anadditional community-based sentence as an alternative to disqualification. Ihave not addressed that in any way because at the preliminary point as towhether I had jurisdiction in your particular case, where you were subject toan interlock sentence at the time of the offending, and had not obtained theinterlock device, I do not believe that I have jurisdiction because it is statutebarred. So I leave that entirely to be dealt with at a separate occasion if it getsto that. But I add that as an addendum here in open Court.Approach to appeals against sentence[13] Under s 250(2) of the Criminal Procedure Act 2011, the Court must allow theappeal if it is satisfied that there is an error in the sentence imposed on conviction andthat a different sentence should be imposed.[14] In determining whether to impose a different sentence, the Court does notsimply substitute its own view for that of the original sentencing Judge.4 Rather, itmust be shown that the sentence is manifestly excessive or wrong in principle.5 Thefocus is on the end result rather than the process by which the sentence was reached.6Section 94(4)[15] The issue on appeal is a narrow one, namely the correct interpretation ofs 94(4)(aa) of the LTA. Neither Mr Hill, counsel for Mr Scadden, or Ms Banuelos,counsel for the Crown, was able to find any previous decision in which this aspect ofs 94 has been considered.[16] Section 94 provides:94 Substitution of community-based sentences(1) This section applies if—(a) the offender has previously been ordered on conviction for anoffence to be disqualified from holding or obtaining a driverlicence; and(b) the court, having regard to—(i) the circumstances of the case and of the offender; and(ii) the effectiveness or otherwise of a previous order fordisqualification 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,—4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].5 Tutakangahau v R, above n 4, at [30]-[35]; and Te Aho v R [2013] NZCA 47 at [30].6 Tutakangahau v R, above n 4, at [36].considers that it would be inappropriate to order that theoffender be disqualified from holding or obtaining a driverlicence; and(c) the court considers that it would be appropriate to sentencethe offender to a community-based sentence in accordancewith Part 2 of the Sentencing Act 2002.(4) This section does not apply if—(a) section 63 or section 65 applies; or(aa) an alcohol interlock sentence has been ordered undersection 65AC(1); or(b) the offender is prohibited from applying for a limited licenceunder section 103(2)(a), (b), or (d).Submissions for Mr Scadden[17] Mr Hill submits that the Court should adopt a purposive interpretation ofs 94(4)(aa). He accepts that, on a strict reading of the provision, it would appear thatMr Scadden is barred from the application of s 94 because he has previously receivedand is even now currently subject to an alcohol interlock sentence. However, Mr Hillsubmits that such a strict interpretation runs contrary to the overall purpose of s 94 andcould not have been Parliament's intention. He says the consequence of such a strictinterpretation would be to preclude any driver who had, at any stage in his or her life,been subject to an alcohol interlock sentence from making a s 94 application. Hesubmits that such an interpretation would be inconsistent with the legislative historyof s 94 and out of balance with other aspects of s 94.[18] Mr Hill notes that the amendments made to the LTA in 2018 greatly increasedthe number of drivers who are now subject to an alcohol interlock licence and that itwould be inconsistent with that development to interpret s 94(4)(aa) to exclude thatincreasing number of drivers from the possibility of applying for community work insubstitution for yet another period of disqualification from driving. Mr Hill notes that,to the contrary, Parliament's intention was to make s 94 available to a wider range ofdrivers in appropriate circumstances in recognition of the fact that endlessdisqualifications are not an effective deterrent.[19] For these reasons, Mr Hill submits that s 94(4)(aa) should be interpreted toexclude only drivers who are being sentenced to an alcohol interlock licence at thetime of any application for consideration of s 94, and that s 94 should be available fordrivers who have been sentenced to an interlock licence in the past. In Mr Scadden'scase, that would mean Mr Scadden could get back on the road under his currentinterlock licence and progress to a zero alcohol and then a full licence. The alternativeis that Mr Scadden would have to wait for another year for the period ofdisqualification ordered by Judge Snell to run before that process could begin. Mr Hillsubmits that such an extended wait runs contrary to the purpose of the alcohol interlocklicence regime and s 94.[20] Mr Scadden has also filed a personal statement in accordance with s 82 of theCriminal Procedure Act. In his statement, Mr Scadden explains the circumstances ofhis most recent offending, acknowledges that he made a lot of mistakes in the past anddid not take his driving responsibilities seriously, but says he has grown since and thatit would make a huge difference to his life if he could be kept on the road.[21] I put to one side the fact that such statements are only for use in jury trials.7 Irecognise the genuineness of the sentiments expressed but also observe thatMr Scadden should not have been on the road for at least the last 18 months withoutan alcohol interlock licence.Submissions for the Crown[22] Ms Banuelos submits that Judge Snell interpreted s 94(4)(aa) correctly. Shenotes, by reference to ss 32(3A) and 65AH(3)(b) of the LTA, that the Act does notcreate a presumption that disqualifications should be avoided where interlock licencesare ordered. She also refers to observations made in decisions of the High Court andthe Court of Appeal where the courts have recognised that alcohol interlock licenceshave not completely replaced or obviated the need for periods of disqualification.87 Section 81-82 of the Criminal Procedure Act 2011.8 Perry v Police [2018] NZHC 3246 at [46]; Lally v NZ Police [2019] NZCA 286 at [13].[23] Further, Ms Banuelos submits that the period of exclusion from the applicationof s 94 continues to apply until the defendant replaces the alcohol interlock licencewith a zero alcohol licence in accordance with the requirements of s 65AC.[24] Ms Banuelos also says Mr Hill has misinterpreted Judge Snell who, she says,did not say that s 94 cannot apply to any person who has been subject to an interlocklicence sentence. Rather Judge Snell held that Mr Scadden was precluded from theapplication of s 94 because he had not completed his interlock licence sentence so thatsentence was still active. Ms Banuelos also says that the reason the sentence was stillactive is because Mr Scadden did not comply with its terms. It is Mr Scadden's failureto complete his interlock sentence that has resulted in his being excluded from theoperation of s 94 and subject to the mandatory period of further disqualificationordered by Judge Snell.Discussion[25] I am grateful to both counsel for their submissions and their helpful analysesof the history behind and language of s 94(4) as it relates to interlock licences and theavailability of community detention. I agree with Mr Hill that the provision should beinterpreted consistently with Parliament's intention and that the recent history ofamendments to the LTA shows that Parliament has seen greater scope both for theapplication of alcohol interlock licences and for community detention as a means ofbreaking the cycle of continued disqualification of recidivist drivers.[26] Having considered the language of section 94(4)(aa) and related sections,however, I am not persuaded that it is possible to import a particular Parliamentaryintention regarding the interplay of the imposition of interlock licence sentences andgreater use of community detention in place of periods of disqualification other thanthat which can be deduced from the language of the relevant sections. As noted in thecases to which Ms Banuelos refers, both the High Court and the Court of Appeal haveobserved that interlock licences have not completely replaced or obviated the need forperiods of disqualification.[27] As far as the language of s 94(4)(aa) itself is concerned, I agree withMs Banuelos that Judge Snell did not interpret the provision as meaning that anyonewho has been subject to an interlock licence sentence is precluded from the applicationof s 94. As noted above, Judge Snell interpreted the section as meaning "while analcohol interlock order is currently applying to the defendant, then s 94 is statutebarred and cannot apply".9[28] On the face of the language used in the section, such an interpretation appearscorrect. The language is s 94(4)(aa) is in the present tense: "has been ordered". Thisconnotes that there an active order in existence. It excludes orders that have beenspent and are no longer active.[29] Nonetheless, I have considered carefully whether I should adopt the morerefined interpretation advanced by Mr Hill under which s 94(4)(aa) would beinterpreted to mean, in effect "is ordered" at the time of considering whether s 94should apply.[30] An argument against such an interpretation is that if had been intended thats 94 should be limited to that situation, Parliament could have used the words "isordered" as it did in ss 56(3A) and 56(4A). Those provisions, which together withs 94(4)(aa), were part of the package of amendments made to the LTA in 2017, andwhich came into force on 1 July 2018, and which made the interlock regime mandatoryin the circumstances set out ss 65AB and 65AC.[31] On the other hand, an argument in support of Mr Hill's interpretation is that ifParliament had intended to exclude from the application of s 94 any person who iscurrently subject to an alcohol interlock sentence, it could have done so more clearlyby including in s 94(4)(b) a reference to s 103(2)(e), alongside the other references toother categories of persons who, under s 103(2), may apply for a limited licence but,by virtue of s 94(4)(b), are excluded from the application of s 94.[32] Further support for such an interpretation is gained by considering s 94 inconjunction with s 65AC, which sets out when a Court must impose an alcoholinterlock sentence and what that sentence must comprise.9 Police v Scadden, above n 1, at [11] (emphasis added).[33] Section 65AC provides:(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.(3) Subsection (1) applies unless for special reasons relating to thequalifying offence the court thinks fit to order otherwise and, if so,—(a) section 94 may apply (and a reference to disqualification insection 94 must be treated as if it referred to an alcoholinterlock sentence); but(b) an alcohol interlock sentence may not otherwise besubstituted by a community-based sentence.[34] Under s 65AC(3), the Court is granted a discretion not to impose what wouldotherwise be a mandatory alcohol interlock sentence if there are special reasonsrelating to the qualifying offence. Under paragraph (a), in a case where there are suchspecial reasons, s 94 may apply. Paragraph (b) then provides that in no other case mayan alcohol interlock sentence be substituted by a community-based sentence.[35] Paragraph (a) of s 65AC(3) only makes sense in a context when s 94 is beingconsidered at the time the alcohol interlock sentence is first applied or beingconsidered for application. It does not readily apply to a situation such as the presentwhere someone who has had an alcohol interlock sentence imposed, has failed tocomply with the terms of the sentence and is then being sentenced for further drivingoffences while the alcohol interlock sentence remains active. It is also important tobear in mind that the disqualification that Mr Scadden seeks to avoid by the applicationof s 94 is not disqualification arising from an alcohol interlock sentence but one fordriving while disqualified under s 32.[36] Perhaps it is not surprising that Parliament did not turn its mind to such asituation. Its expectation would have been that persons who are subject to an alcoholinterlock sentence will comply with its terms at least for the period of its application.As noted by Duffy J in Bull v Police:10 persons in the grip of an alcohol addiction have little real control over theiractions from time to time. This is where an alcohol interlock sentence is ideal.The insertion of these devices in an offender's vehicle effectively stops him orher from driving the vehicle after the consumption of alcohol[37] However, if a person with a predilection, if not an addiction, to driving whiledisqualified fails to have an interlock device installed when ordered to do so andcontinues driving regardless, the purpose of the interlock regime is undermined.[38] It is this last factor that persuades me that it would not be appropriate tointerpret s 94(4)(aa) in the narrow sense advanced by Mr Hill. It would be an oddresult if a person who has continued to drive without complying with the terms of analcohol interlock licence could avoid further disqualification for such driving becausehe or she has now decided belatedly to comply with the terms of the alcohol interlocksentence. As Gordon J said in Perry v Police, periods of disqualification still have animportant function under the new regime, operating as both a harm reduction measureand having a punitive element.11[39] As Ms Banuelos submits, Mr Scadden is in this predicament because of hisown actions. The reason he is precluded from avoiding a further period ofdisqualification is because he has not completed his alcohol interlock sentence. Theeffect of driving while failing to comply with that sentence has been to extend theperiod of disqualification that would otherwise apply by virtue of s 65AE. It is alsorelevant that under that section the period of disqualification is "the greatest of" theperiods described in that section and includes periods of disqualification ordered underthe new mandatory interlock regime that came into force on 1 July 2018. I note thatthat regime was in place when Mr Scadden offended in circumstances that requiredthe imposition of the alcohol interlock sentence.10 Bull v Police [2019] NZHC 899 at [21].11 Above n 8.[40] For all these reasons, I have concluded that Judge Snell interpreted s 94(4)(aa)correctly.Result[41] Mr Scadden's appeal is dismissed.Mr Scadden's sentence of disqualification from driving[42] After I had delivered my judgment, Mr Hill advised that Mr Scadden'ssentence of 12 months' disqualification had stayed by order of a District Court Judgepending the outcome of this appeal after Mr Scadden had served one week of thesentence.[43] That stay is now lifted as a consequence of my decision. Accordingly,Mr Scadden has 11 months and three weeks of disqualification to serve as from today'sdate.______________________G J van Bohemen J