MULLIGAN v NEW ZEALAND POLICE [2019] NZHC 145

MULLIGAN v NEW ZEALAND POLICE [2019] NZHC 145 [13 February 2019]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYI TE KŌTI MATUA O AOTEAROATE TIHI-O-MARU ROHECRI-2018-476-000009[2019] NZHC 145BETWEEN JORDAN FRANCIS MULLIGANAppellantAND NEW ZEALAND POLICERespondentHearing: 7 February 2019 (By way of AVL)Appearances: K M Henry for AppellantH Bennett for RespondentJudgment: 13 February 2019JUDGMENT OF DUNNINGHAM JIntroduction[1] On 7 February 2019, I allowed Mr Mulligan's appeal against part of hissentence following a drink driving conviction. Specifically, the sentence of indefinitedisqualification imposed under s 65 of the Land Transport Act 1998 (LTA 1998) wasquashed and in its place, I imposed an alcohol interlock sentence under s 65AC of theLTA 1998.[2] Given time constraints, I did not give reasons for allowing the appeal nor did Iaddress the issue of when the period of disqualification under s 65AE was tocommence. This judgment explains why I have allowed the appeal and on what termsit is allowed.Background[3] The appeal initially seemed straightforward. Mr Mulligan pleaded guilty todrink driving and was sentenced to nine months supervision on special conditions,six months community detention and was disqualified indefinitely under s 65LTA 1998.[4] The notice of appeal focused solely on the sentence of indefinitedisqualification asking that it be replaced with an alcohol interlock sentence. Thegrounds were that:(a) "counsel never advised of the possibility of an alcohol interlocksentence"; and(b) pursuant to s 65AB and s 65AC LTA 1998, an alcohol interlocksentence should have been imposed unless specific exceptions appliedand none of the exceptions applied.[5] The Crown did not oppose allowing the appeal and the appellant sought to havethe appeal determined on the papers.[6] However, the appeal was lodged out of time, and needed an extension of timeto be granted to file the appeal.1 I sought further information on the reasons for thedelay in filing the appeal in order to determine whether an extension of time to file theappeal should be granted. That was complicated by the fact that I had located on thefile a declaration signed by the appellant in relation to the imposition of an alcoholinterlock sentence which he had completed prior to sentencing. This cast doubt on theassertion in the notice of appeal that he was unaware of this sentencing option at thetime of sentencing which was the ostensible reason for the delay in filing the appeal.1 Criminal Procedure Act 2011, s 248(4).[7] Counsel for the appellant filed a memorandum in response to explain the delay.In summary, it asserted that the appellant's lawyer at sentencing advised him againstgetting an alcohol interlock licence and when he signed the declaration he simply"trusted what his lawyer said at the time in regard to it". He later found out moreinformation about interlock licences and how they work and it took some time goingthrough different lawyers before finding his present lawyer who filed this appeal.[8] That memorandum was supported by an affidavit from the appellant sworn on5 February 2019 which said that his lawyer at the time of sentencing was "dismissiveof (an alcohol interlock licence) as an option". It also said that he did not read thedeclaration but simply signed it, as he has limited reading skills. He says he nowrealises he was wrongly advised. He has also since learnt that there is an interlocklicence service centre in Oamaru where he lives and he would not have to travel toTimaru to have the alcohol interlock device fitted and serviced, which was hisunderstanding at the time.[9] On the day of the hearing, the appellant's lawyer, Ms Henry, provided furtherevidence to verify that a service centre for alcohol interlock devices was set up inOamaru shortly before the appellant was sentenced. It began installing alcoholinterlock devices on 30 August 2018, the day after he was sentenced. In hisdeclaration regarding an alcohol interlock licence signed on 28 August 2018, he statedthat he lived more than 70 kilometres from an alcohol interlock service centre, andsaid that he was not prepared to travel that distance to have the device installed andmonitored. His understanding as to the availability of a local service centre has nowbeen shown to be incorrect.Leave to file appeal out of time[10] The appeal was filed on 7 December 2018, more than 10 weeks after the20 working day timeframe for filing an appeal,2 and the appellant seeks an extensionof time for filing his notice of appeal. Such applications are regularly determined2 Criminal Procedure Act 2011, s 248(2).having regard to the reasons for the delay and the merits of the proposed appeal.3 Inthis case I am satisfied that Mr Mulligan was unaware of the factual error as to thelocation of the nearest service centre. It was not until he approached his present lawyerthat he (eventually) became aware of this ground of appeal. There is no obviousprejudice to any party in granting the extension and the appeal clearly has merit.Indeed, the respondent accepts that the appeal should be allowed, as in thecircumstances as they are now understood to be, there was a mandatory obligation toimpose an alcohol interlock sentence.[11] In the circumstances, I extend time for filing the notice of appeal and go on tooutline my reasons for granting it.Principles on appeal[12] 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 only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.Discussion[13] The appeal is in part advanced on the ground that counsel gave erroneousadvice about the merits of alcohol interlock licence. However, no steps had been takenin accordance with r 8.7 Criminal Procedure Rules 2012 to provide the appellant'slawyer at the time of sentencing a copy of the notice of appeal and the opportunity toexchange affidavit evidence on the allegations made regarding incorrect advice. Forthese reasons, I was not prepared to grant the appeal on grounds of counsel error, andI make no findings on the veracity of the appellant's assertions about the legal advicehe was given.3 Mikus v R [2011] NZCA 298.[14] However, I am satisfied that sentencing proceeded on the basis of a mistakenunderstanding which was shared by the appellant and his lawyer, and that mistakeninformation was then provided to the Judge. That mistake is plain from the face of thedeclaration and does not require to be tested with further affidavit evidence. It is anunderstandable mistake as the Oamaru service centre had only just been set up andonly commenced installing alcohol interlock devices on the day following sentencing.[15] Under s 65AB and s 65AC of the LTA 1998 there are exceptions to thepresumptive mandatory alcohol interlock sentence. Section 65AB(2)(b) provides thatan alcohol interlock sentence need not be imposed where the person "usually lives ina non-serviced area and is not prepared to drive to a serviced area for an initialinstallation and any necessary service".[16] Mr Mulligan completed his declaration of information required as to whetheralcohol interlock licence is imposed, on the understanding that he lived in anon-serviced area. As a consequence, he said he was not prepared to drive to such acentre for an initial installation and any necessary service. Given this information, theJudge was not required to impose an alcohol interlock sentence.[17] However, as I have said, all parties were labouring under a misunderstandingas to where the nearest alcohol interlock centre was. One was available within70 kilometres and Mr Mulligan's evidence is that he does wish to have an alcoholinterlock sentence imposed. In those circumstances, and where no other exceptionsunder s 65AB or s 65AC LTA 1998 apply, it was mandatory to impose an alcoholinterlock sentence.[18] Given the factual error which sentencing proceeded on and Mr Mulligan'sdesire to have the mandatory alcohol interlock sentence imposed, I am satisfied thatthere was an error in sentencing and a different sentence should be imposed.When should the 28 day period of disqualification commence?[19] Mr Mulligan sought to have the sentence imposed retrospectively, so that theperiod of disqualification mandated by s 65AE was served during the period of hisdisqualification (which has now run for more than five months since sentencing).[20] While the jurisdictional basis for this request was not advanced at the hearing,I consider that s 85(1) LTA provides flexibility to address this request. That sectionprovides:If an order is made by a Court under any Act disqualifying a person fromholding or obtaining a driver's licence, the period of disqualification starts onthe day the order is made unless the Court otherwise direct or that Actotherwise provides.[21] This provision has been held to afford the Court an "unfettered discretion as tothe date the disqualification is to run from".4 In that case, Venning J held "the Courtmay 'otherwise direct' the period of disqualification be backdated or commence on afuture date".5[22] As Mr Mulligan has already effectively served a great deal more than the28 day disqualification period which applies on an alcohol interlock sentence, I amsatisfied that it is appropriate to direct that the disqualification period is to commence28 days prior to the date of this judgment. The practical effect of this is thatMr Mulligan will have served that period of disqualification as at the date of thisjudgment. He may immediately take steps to have an alcohol interlock deviceinstalled.Outcome[23] As ordered on 7 February 2019, the appeal is allowed. The sentence ofindefinite disqualification imposed under s 65 of the LTA 1998 is quashed and in itsplace, I impose an alcohol interlock sentence under s 65AC of the LTA 1998.[24] Pursuant to s 85 LTA 1998, I direct that the period of disqualification requiredto be served under s 65AE is to commence 28 days before the date of this judgment.Solicitors:Katherine Henry, Barrister, OamaruGresson Dorman & Co., Timaru4 Edwards v Police [2012] NZHC 1350 at [26].5 Edwards v Police, above n 2, at [26].