POLICE v COX [2022] NZHC 1695

POLICE v COX [2022] NZHC 1695 [15 July 2022]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYI TE KŌTI MATUA O AOTEAROATE TIHI-O-MARU ROHECRI-2022-476-04CRI-2022-476-05[2022] NZHC 1695BETWEEN NEW ZEALAND POLICEAppellantAND MICHAEL WILLIAM COX ANDDANIEL JOSEPH ELLIOTRespondentHearing: 2 June 2022Appearances: A R McRae for AppellantJ A M Black for Respondent CoxJ B Lovely and H A Abdullahi for Respondent ElliotJudgment: 15 July 2022JUDGMENT OF MANDER JThis judgment was delivered by me on 15 July 2022 at 4 pmpursuant to Rule 11.5 of the High Court Rules 2016Registrar/Deputy RegistrarDate: .[1] Mitchell Cox and Daniel Elliot were both convicted on breath alcohol drivingcharges in the Timaru District Court. Because of their histories of drink-driving andthe circumstances of their offending, an alcohol interlock sentence was imposed uponthem pursuant to s 65AC of the Land Transport Act 1998 (the Act). When doing so,Judge Maze declined to make an additional order, under s 65 of the Act, requiringMessrs Cox and Elliot to attend an assessment centre.1 The Police appeal the Judge'sdecision not to make that further order.2BackgroundMr Cox[2] Mr Cox underwent a positive breath screening test after he was located at aservice station in his vehicle. A subsequent evidential breath test returned a result of504 mcg per litre of breath. He was convicted of driving whilst disqualified3 anddriving with excess breath alcohol (being a third or subsequent offence),4 andsentenced to nine months' disqualification.5 He was informed that at the end of thatdisqualification period he could apply for an alcohol interlock licence.Mr Elliot[3] Mr Elliot was stopped by police in his vehicle. He admitted having consumedalcohol and an evidential breath test returned a result of 1371 mcg of alcohol per litreof breath. Mr Elliot has previous convictions for driving with excess breath alcohol.On a previous occasion, some three years before, he returned a breath alcohol readingof 1144 mcg of alcohol per litre of breach which resulted in him being required toapply for a zero-alcohol licence.1 Police v Cox [2022] NZDC 3543; Police v Elliot [2022] NZDC 3399.2 Criminal Procedure Act 2011, ss 212 and 246.3 Land Transport Act 1998, s 32(1)(a) and 32(3) — maximum penalty three months' imprisonmentor a fine not exceeding $4,500 and a six-month or more disqualification from obtaining a driverlicence.4 Section 56(1) and 56(4) — maximum penalty two years' imprisonment or a fine not exceeding$6,000 and a more than one-year disqualification from obtaining a driver licence.5 Police v Cox, above n 1.[4] Mr Elliot pleaded guilty to breaching his zero-alcohol licence6 and driving withexcess breath alcohol, being his third or subsequent offence.7 He was sentenced byJudge Maze to three months' community detention, nine months' supervision anddisqualified from holding a driver licence for six months. The Judge informed himthat after the six-month disqualification he could apply for an alcohol interlock licenceand, in due course, a zero-alcohol licence in substitution.District Court decision[5] In neither case did the sentencing Judge make an order requiring eitherrespondent to attend an assessment centre under s 65 of the Act. The Police's positionis that, notwithstanding the imposition of an alcohol interlock sentence under s 65ACof the Act, the Judge was obliged to make that further order. Before turning to theJudge's reasoning for not doing so, it is convenient to set out both provisions:65 Mandatory disqualification and assessment for repeat offences(1) This section applies to offences against any of sections 56 to 62.(2) A court must make an order requiring a person to attend an assessmentcentre and disqualifying the person from holding or obtaining a driverlicence until the Director removes that disqualification under section100 if—(a) the court convicts that person of a second or subsequentoffence against any of sections 56 to 62; and(b) the previous offence was committed within 5 years of the dateof the commission of the offence being dealt with by the court.(3) Despite subsection (2), the court may not make an order referred to insubsection (2) unless at least 1 of the offences was—(a) an offence to which this section applies where either—(i) the proportion of alcohol in the person's breath, asascertained by an evidential breath test, exceeded1 000 micrograms of alcohol per litre of breath; or(ii) the proportion of alcohol in the person's blood, asascertained from an analysis of a blood specimen,6 Section 32(1)(b) and 32(3) — maximum penalty three months' imprisonment or a fine notexceeding $4,500, and a six-month or more disqualification from obtaining a driver licence.7 Section 56(1) and (4) — maximum penalty two years' imprisonment or a fine not exceeding$6,000, and a more than one-year disqualification from obtaining a driver licence.exceeded 200 milligrams of alcohol per 100millilitres of blood; or(b) an offence against section 59 or section 60 (which relate tofailing to remain or to accompany or to permit a bloodspecimen to be taken for the purposes of the administration ofbreath tests and blood tests).(3A) The mandatory disqualification in subsection (2) is replaced by anyalcohol interlock sentence ordered under section 65AC(1) (whether ornot the alcohol interlock sentence is ordered at the same time as, orafter, the order made under subsection (2)).(4) The court must make an order that requires a person to attend anassessment centre and that disqualifies that person from holding orobtaining a driver licence until the Director removes thatdisqualification under section 100 if—(a) the court convicts that person of a third or subsequent offenceto which this section applies; and(b) the 2 or more previous offences were committed within 5years of the date of the commission of the offence being dealtwith by the court.(4A) The mandatory disqualification in subsection (4) is replaced by anyalcohol interlock sentence ordered under section 65AC(1) (whetheror not the alcohol interlock sentence is ordered at the same time as, orafter, the order made under subsection (4)).(5) For the purposes of this section, a conviction for an offence against aprovision of the Transport Act 1962 corresponding to an offence towhich this section applies is to be treated as a conviction for an offencespecified in subsection (1)....65AC 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.(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.[6] The Judge's decision not to order Mr Cox to attend an assessment centre wasnot explored in Judge Maze's sentencing notes concerning Mr Cox. However, theJudge explained her reasoning for rejecting the Police's argument that it was amandatory step to not only impose an alcohol interlock sentence under s 65AC of theAct but, additionally, to order a qualifying offender to attend an assessment centreunder s 65(2), when the Judge sentenced Mr Elliot that same day.8[7] Judge Maze did not accept the effect of s 65(3A) and (4A) was limited to thereplacement of indefinite disqualification by an alcohol interlock sentence, but alsoextinguished the other requirement of subs (2) that a person attend an assessmentcentre. The Judge considered the correct approach to the interpretation of s 65 turnedon whether subs (2) created one or two orders. Judge Maze observed:[8] ... If one, then it is an order with two parts to it: referral to assessmentcentre and indefinite disqualification. But it is one order. If that is correct,then plainly it cannot be split into two and under s 65(3A) and s 65(4A), bothparts of the one order are replaced by an alcohol interlock order.[8] The Judge reasoned that the Police's submission was dependent uponaccepting s 65(2) involved the making of two orders. In rejecting that was the case,the Judge noted that subs (2) only referred to the making of "an order" and the Courtdid not have the jurisdiction to sever a single order into two parts. It is either made inits entirety or it is not made. The Judge noted the words "an order" were repeated insubss (3) and (4) and that if Parliament had intended there to be two orders the wordingwould have provided for the plural, and it did not. The Judge concluded the "logical8 Police v Elliot, above n 1.interpretation" of s 65 was that the "complete single order" described in s 65(2) wasto be replaced in its entirety by an order under s 65AC.9The appeals[9] On behalf of the Police, Mr McRae submitted that where both ss 65 and 65ACapplied to an offender, the Court was obliged, in accordance with the Act, to make twoorders pursuant to each of those sections. In addition to sentencing the person to analcohol interlock sentence under s 65AC, the Court was also required to make an orderthey attend an assessment centre under s 65 of the Act. These orders are mandatedunder the respective provisions when the requirements for their making are met, asthey are here.[10] The Police maintain that, while on its face an order disqualifying a person foran indefinite period under s 65 cannot be reconciled with the imposition of an alcoholinterlock sentence under s 65AC, the effect of s 65(3A) and (4A) is to remove thisdifficulty by replacing the mandatory disqualification in s 65(2) with an alcoholinterlock sentence ordered under s 65AC(1). Any conflict is resolved and the residualpart of the mandatory order under s 65(2) requiring a person to attend an assessmentcentre is unaffected.[11] Messrs Black and Abdullahi, on behalf of each of the respondents, opposed theappeals largely on the basis of the Judge's analysis that an order under s 65(2) cannotbe severed. They further submitted the requirement that an offender attend anassessment centre is for the sole purpose of an application under s 100 to have theirindefinite disqualification removed. Where that mandatory disqualification isreplaced by an alcohol interlock sentence, it was argued the requirement to attend anassessment centre is redundant. It follows, they submitted, the effect of subss (3A)and (4A) is the complete replacement of any order under s 65 with an alcohol interlocksentence.9 At [9]–[10].AnalysisApplication of sentencing provisions[12] In broad terms, a person must be sentenced to indefinite disqualification andattend an assessment centre under s 65 of the Act if they are convicted of two drink-driving offences within five years and their blood or breath alcohol level is four timesthe legal limit,10 or they have committed three drink-driving offences within the lastfive years.11[13] Eligibility for an alcohol interlock sentence under s 65AC is very similar. Analcohol interlock sentence must be imposed where the person has either beenconvicted of two specified drink-driving offences within the last five years,12 or theyhave been convicted of one specified drink-driving offence where they have beentwice the blood alcohol limit or around three times the limit for breath alcohol.13 Thereare exceptions for persons who have a medical condition which prevent them fromusing the alcohol interlock device or who live in such a remote place the device cannotbe installed.14 Alternatively, the court may consider there are "special reasons relatingto the qualifying offence" that justify not making an order.15 As the present two casesillustrate, there will be a substantial number of offenders who are liable to bothmandatory sentences. Messrs Cox and Elliot fall into that category of offender.[14] Section 65 applies to Mr Cox because he has been convicted of a third offenceagainst s 56 of the Act, with two of his previous offences having been committedwithin five years of the date of the commission of the offence for which he was forsentence.16 Section 65 applies to Mr Elliot because he has been convicted of twooffences against s 56 of the Act, with one previous offence being within five years ofthe commission of the offence for which he was before the Court and was more thanfour times above the legal limit.1710 Land Transport Act, s 65(2) and (3).11 Section 65(4).12 Section 65AB(1)(a).13 Section 65AB(1)(b).14 Section 65AB(2).15 Section 65AC(3).16 Section 65(1) and (4).17 Section 65(1), (2) and (3).[15] Section 65AC applies to Messrs Cox and Elliot because they have beenconvicted of a qualifying offence (s 56(1) of the Act) and have previously beenconvicted of the same or similar qualifying offences within five years of theircommission of the present offence.18 Additionally, Mr Elliot's evidential breath testlevel exceeded 800 mcg of alcohol per litre of breath.19 None of the statutoryexceptions apply.20Inconsistency between s 65 and 65AC[16] Where either s 65 or 65AC apply the Court "must" make an order inaccordance with the terms set out in the respective provisions. However, the ordershave conflicting effects, at least insofar as s 65 requires the offender to be disqualifiedon an indefinite basis until such time as the New Zealand Transport Agency removesthe disqualification under s 100 of the Act.[17] In contrast to the indefinite period of disqualification that is imposed as a resultof an order made under s 65, an order made pursuant to s 65AC imposes a finite periodof disqualification before which a person can apply for an alcohol interlock licence.21However, until such time as a person applies for an alcohol interlock licence they willremain disqualified from holding or obtaining a driver licence.22 An alcohol interlocklicence replaces any licence held by a person and requires the holder to drive only amotor vehicle or vehicles to which an alcohol interlock device is fitted.23[18] The differences between the two orders that must be imposed on a person towhom both ss 65 and 65AC apply are reconciled by s 65(3A) and (4A). Thosesubsections were inserted into s 65 when the alcohol interlock sentence was introducedas part of the Act.24 They provide for the replacement of the mandatory indefinitedisqualification by any alcohol interlock sentence when that sentence is ordered to beimposed on the same offender, whether at the same time or after an indefinite periodof disqualification is ordered under s 65.18 Section 65AB(1)(a).19 Section 65AB(1)(b)(i).20 Sections 65AB(2) and 65AC(3).21 Section 65AE.22 Section 65AF.23 Section 65AG(1) and (2).24 Land Transport Amendment Act 2017, s 25(2) and (3).Statutory interpretation[19] It is trite that the meaning of an enactment must be ascertained from its textand in the light of its purpose and context.25 In enacting the new alcohol interlocksentences, Parliament did not repeal s 65. The courts' obligation to impose mandatoryindefinite disqualification on a recidivist offender who qualifies for such a sentence inaccordance with the terms of s 65(2) or (4) of the Act, on the face of that subsection,remained. However, the legislature was also aware that a significant group ofoffenders to whom s 65 applied would now also be caught by s 65AC. In enactingsubss (3A) and (4A), Parliament reconciled the effect of the two provisions by grantingprecedence to the alcohol interlock sentence over the imposition of an indeterminantperiod of disqualification.[20] The District Court's approach to the interpretation exercise focussed onwhether s 65(2) and (4) provided for the making of a single order and concluded theintended effect of subs (3A) and (4A) could only have been the replacement of theentire order. However, that construction overlooks the actual words of thosesubsections which refer only to the replacement of the mandatory disqualification,which is the only part of an order made under s 65 that conflicts with an order madepursuant to s 65AC. The subsections do not alter the mandatory obligation undersubss (2) and (4) to make an order where s 65 applies, but replace the indefinitedisqualification part of the order with an alcohol interlock sentence where such asentence is imposed under s 65AC(1). By so doing, the conflict between the twodifferent mandatory sentences that would otherwise be imposed on a person for thesame offending is avoided.[21] Subsections (3A) and (4A) do not address, nor therefore do they affect, theremaining part of the mandatory order required to be imposed when subss (2) and (4)that require a person to attend an assessment centre. There is no reason to considerthe obligation on the court to make an order in those terms changes. Subsections (3A)and (4A) are not directed at removing the court's obligation to make orders under subss(2) and (4) but change their effect where an alcohol interlock sentence has beenordered. As a matter of law, a disqualification imposed by subs (2) or (4) is replaced25 Interpretation Act 2019, s 10.by an alcohol interlock sentence, but neither subs (3A) or (4A) change the mandatoryrequirement that a person attend an assessment centre where they are caught by thequalifying criteria of s 65. This part of the mandatory order does not conflict with analcohol interlock sentence ordered under s 65AC(1).[22] If it had been intended for subss (3A) and (4A) to extend to the replacement ofthe requirement to attend an assessment centre, there is no reason why Parliamentwould not simply have stated in those subsections that an order made under subs (2)or (4) is replaced by an alcohol interlock sentence ordered under s 65AC(1), ratherthan specifically identifying one part of the order made under subs (2) or (4) being"replaced" with the sentence with which it would otherwise conflict. If no order wasrequired to be made under s 65 as a result of the effect of subs (3A) and (4A), thoseprovisions would have expressed such an intention in explicit terms. That Parliamentdid not intend subss (3A) and (4A) to have such an effect as a consequence ofintroducing the alcohol interlock sentence is apparent from the way the provisiongoverning the requirements of that new sentence contemplate some offenders beingsubject to orders made under both ss 65 and 65AC.[23] Section 65AG(3) sets out the requirements to be fulfilled by a person seekingto replace an alcohol interlock licence with a zero alcohol licence:65AG Alcohol interlock licence requirements...(3) A person may apply under section 100A to replace an alcoholinterlock licence with a zero alcohol licence if—(a) every motor vehicle the person has driven for 12 months (ormore) had an alcohol interlock device fitted and operating;and(b) in relation to a person who is required to attend an assessmentcentre under section 65 (or any other section), the person hasattended and been assessed as being a fit person to hold adriver licence; and(c) during the previous 6 months, the person—(i) has not attempted to drive while the person's breathcontained a proportion of alcohol above the level towhich the device is set; and(ii) has not committed a qualifying offence or an offenceagainst section 55A; and(iii) has complied with any relevant regulations madeunder this Act.(4) The 6-month period referred to in subsection (3)(c) may be reducedto 3 months if the person has been assessed at an assessment centre(whether the attendance was voluntary or ordered by a court) as a fitperson to hold a driver licence.(emphasis added)[24] There is no reason to consider Parliament did not intend those offenders, whowould otherwise have been subject to an indefinite period of disqualification but forthe introduction of the alcohol interlock sentence, were not to remain subject to theadditional step of being required to attend an assessment centre in order to be assessedas being a fit person to hold a driver licence before being eligible to have their alcoholinterlock licence replaced with a zero alcohol licence. This was anticipated by theexplanatory note to the Bill that introduced s 65AC:26The Act contains a discretionary alcohol interlock sentence that the courts canimpose on first-time offenders with high alcohol levels and offenders withrepeat drink-drive convictions. However, the discretionary sentence is appliedsparingly. The Bill makes alcohol interlocks mandatory for these offenders,with limited grounds for exceptions. Alcohol interlocks will also becomemandatory for drink-drive offenders subject to alcohol assessment ordersunder section 65 of the Act.[25] In order to replace their alcohol interlock licence with a zero alcohol licence itis a prerequisite that offenders to whom s 65 applies have attended and been assessedas being a fit person to hold a driver licence.27 Potentially by so doing, the complianceperiod before an application can be made for a zero alcohol licence can be reduced.28The retention of this process of assessment for offenders who would otherwise besubject to indefinite disqualification under s 65 was part of the reforms that introducedthe alcohol interlock sentence regime. The Transport and Industrial Relations SelectCommittee, when reporting on the Land Transport Amendment Bill 2016 that26 Land Transport Amendment Bill (No 2) 2016 (173-1) (explanatory note) at 1 (emphasis added).27 Land Transport Act, s 65AG(3)(b).28 Section 65AG(4).introduced the mandatory alcohol interlock sentence as part of the Act, commentedthat:29Clause 18 of the bill would amend section 65 to replace the mandatoryindefinite disqualification with an alcohol interlock sentence. A personreceiving an alcohol interlock sentence under section 65 would still need asatisfactory assessment report from an approved assessment centre tocomplete the requirements of the alcohol interlock sentence.(emphasis added)[26] While the issue was not specifically before the Court of Appeal, itsobservations in Governor v Police are consistent with s 65 continuing to haveapplication, notwithstanding the introduction of the alcohol interlock sentence regime,by requiring offenders to whom s 65 applies to attend an assessment centre:30[19] There is an overlap between s 65 (set out below) and the interlockregime. Section 65 applies to an offender who commits three specifiedoffences within five years, or two such offences within five years with one ofthose being an even more serious breach of the breath and blood alcoholprovisions than is required to engage s 65AB. ...[20] When the new interlock regime was enacted, the previous indefinitedisqualification that applied to breath and blood alcohol offending under s 65was replaced by a mandatory requirement to impose an interlock sentence.The only remaining point of difference for such an offender is that the Courtmust order him or her to attend an "assessment centre".[27] The importance of requiring a person to whom s 65 applies to attend anassessment centre under that section is apparent when regard is had to the nature ofthe assessments and their purpose. The "key components" of this process aredescribed in a Ministry of Health publication as including a comprehensive alcoholand other drug assessment, supporting medical examinations, and engagement by theoffender with alcohol and drug treatment and other potential interventions asconsidered appropriate.31 This reflects the objectives of the assessment centres tominimise road safety risks and promote community safety by assessing the fitness ofrepeat offenders to drive and to use s 65 of the Act to maximise the opportunity tochange the thinking and behaviour of repeat offenders convicted of offences involving29 Land Transport Amendment Bill (No 2) 2016 (173-2) (select committee report) at 4.30 Governor v Police [2021] NZCA 403 (emphasis added).31 Ministry of Health Assessing the Fitness to Drive of People Sentenced under Section 65 of theLand Transport Act 1998: Standard operating procedure (Ministry of Health, Wellington, 2017)at 1.alcohol and other drug use.32 Ensuring a consistent nationwide approach to the processthat allows people sentenced under s 65 of the Act to apply to have theirdisqualification removed is also identified as a further objective of these assessmentcentres.33[28] Section 65 provides for the identification of high-risk road users who haverepeatedly offended, often with high blood/breath alcohol levels. There is no reasonto suggest this process of assessment was not intended to continue to apply tooffenders as a mandatory sentencing requirement imposed by s 65 to attend anassessment centre. Nor is it apparent that Parliament intended drivers to whomindefinite disqualification under s 65 would otherwise have applied would now be ableto avoid that assessment process before being able to hold a driver licence as a resultof becoming subject to an alcohol interlock sentence. To the contrary, the alcoholinterlock licence regime specifically provides for persons who have been directed toattend an assessment centre under s 65.34Conclusion[29] I do not consider ss 65 and 65AC are mutually exclusive, as appears to havebeen the conclusion of the District Court. They provide separate but overlappingsentencing regimes for drink-driving. Notably, not everyone who qualifies for analcohol interlock sentence will qualify for assessment under s 65. However, there will,as the present two cases illustrate, be a substantial number of offenders who maysatisfy both requirements, in which case the sentencing court is required to makeorders in accordance with the terms of both sections.[30] By dint of subss (3A) and (4A), where that overlap arises, indefinitedisqualification will be replaced by an alcohol interlock sentence, but the requirementthat such offenders attend an assessment centre remains. A sentencing court is obligedin such situations to make an order to that effect. I consider the Judge erred by notdoing so in respect of Messrs Cox and Elliot.32 At 1.33 At 1.34 Land Transport Act, s 65AG(3)(b).Result[31] The appeal is allowed. Both Messrs Cox and Elliot's sentences are varied andeach is ordered, pursuant to s 65 of the Act, to attend an assessment centre. The orderimposed on each appellant is in addition to the sentences and orders imposed by theDistrict Court at the time they were sentenced.Solicitors:Crown Solicitor, Timaru