SADLER v NEW ZEALAND POLICE [2021] NZHC 1126

SADLER v NEW ZEALAND POLICE [2021] NZHC 1126 [19 May 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000043[2021] NZHC 1126BETWEEN TE KIRIPUTE (CHRIS) SADLERAppellantAND NEW ZEALAND POLICERespondentHearing: 17 May 2021Appearances: Appellant in personB N Kirkpatrick for RespondentJudgment: 19 May 2021Reissued: 8 June 2021JUDGMENT OF WYLIE JThis judgment was delivered by Justice WylieOn 19 May 2021 at 3.00 pmRegistrar/Deputy RegistrarDate:Solicitors/counsel:Crown solicitor, AucklandCopy to: The appellant, Mr Sadler.Introduction[1] On 25 March 2018, the appellant Te Kiripute (Chris) Sadler, was charged withdriving with excess blood alcohol – a third or subsequent offence – pursuant to ss56(2) and (4) of the Land Transport Act 1998. On 7 June 2019, Mr Sadler pleadedguilty to the charge in the Auckland District Court. He was sentenced by JudgeCollins, also in the Auckland District Court, on 11 October 2019.1 The Judgesentenced Mr Sadler to six months' community detention, including an electronicallymonitored curfew from 7.00 pm to 6.00 am. He disqualified Mr Sadler from drivingfor one month, but recorded that thereafter he could apply for a zero alcohol licenceand have an alcohol interlock device installed in his vehicle. He also orderedMr Sadler to pay an analyst's fee of $93 and medical expenses of $80.[2] Mr Sadler appealed his conviction and sentence to this Court. He argued thatthere was trial counsel incompetence or misconduct in relation to the taking of hisguilty plea, that there was misconduct by the police, that the police and the probationservice failed to follow proper procedures and that there was an intrusion into hisprivacy by the probation service that was prejudicial to his case. The appeal was heardon 5 October 2020. Campbell J issued his judgment dismissing the appeal on 13October 2020.2[3] Mr Sadler then sought leave to appeal to the Court of Appeal. He also appliedto this Court to defer the disqualification ordered by Judge Collins under s 107(4) ofthe Land Transport Act pending the final resolution of his appeal to the Court ofAppeal.[4] Mr Sadler advised that the application for leave and the appeal were heard on13 May 2021.Factual background[5] At about 9.00 pm on 25 March 2018, Mr Sadler was driving on a street inFreemans Bay, Auckland. He was signalled to stop by the police due to his manner of1 Police v Sadler [2020] NZDC 26646 (citation should read 2019).2 Sadler v Police [2020] NZHC 2681.driving and his speed. Police officers then spoke to him. His behaviour suggestedthat he had recently consumed alcohol. An evidential breath test was performed andsubsequently a blood sample was taken from Mr Sadler. His blood was found tocontain 180 milligrams of alcohol per 100 millilitres of blood. Mr Sadler could giveno explanation for why he had been driving under the influence of alcohol, nor couldhe recall the type and amount of alcohol he had consumed.[6] Mr Sadler has four previous convictions for driving with excess blood alcohol– in 1978, 1999, 2007 and 2009.Additional factual material[7] During the course of the hearing, Mr Sadler advised me that he sought andobtained an alcohol interlock licence and that he had an alcohol interlock device fittedto his vehicle on 22 November 2019. However, he had a crash in his vehicle in April2021. The vehicle was written off by his insurer. He does not currently have a motorvehicle, but an application has nevertheless been made on his behalf for fullreinstatement of his driver's licence.Analysis[8] Section 107(4) of the Land Transport Act provides as follows:107 Appeals against court orders relating to disqualification or grantof limited licence, and deferral of disqualification(4) If an application is made to the Court of Appeal for leave to appeal tothat court against a sentence of the District Court or the High Courtthat is or includes an order of disqualification, the High Court may, ifit thinks fit, defer the operation of the order pending the applicationfor leave to appeal and, if leave is granted, pending the determinationof the appeal.[9] Mr Sadler submitted that he has good grounds supporting his application forleave to appeal to the Court of Appeal and any resulting appeal in the event that leaveis granted. He told me that he needs to be able to drive so that he can get to medicalappointments, go shopping and the like. He also told me that he has enrolled in a full-time course at a tertiary education institution and that he needs to be able to drive toget to that institution. He has limited mobility and has to walk with a walking stick.Irregular surfaces pose difficulties for him.[10] Mr Kirkpatrick argued that Mr Sadler's appeal has little prospect of success inthe Court of Appeal and that it in any event is inappropriate to defer disqualificationpending the outcome of the appeal. He also argued that Mr Sadler's application isnugatory, noting that he was disqualified from driving for driving for one month fromthe date of sentencing – 11 October 2019. He observed that on 22 November 2019,Mr Sadler applied for and received an alcohol interlock licence and had an alcoholinterlock device installed in his vehicle. He asserted that Mr Sadler was only adisqualified driver until he received his alcohol interlock licence and that, in terms ofs 107(4), there is no "operation of the order" for disqualification to be deferred.[11] In my judgment, Mr Kirkpatrick's interpretation of s 107(4) is correct. Here,Judge Collins disqualified Mr Sadler from driving for a period of one month from 11October 2019. Mr Sadler was disqualified for that period. Thereafter, he was able toand did apply for an alcohol interlock licence. His application was successful and hehad an alcohol interlock device installed in his vehicle. He was no longer adisqualified driver after the expiry of the one month period. The order fordisqualification has run its course and there is nothing to defer pending the outcomeof the application for leave to appeal to the Court of Appeal and any resulting judgmentgiven on the appeal if leave is granted.[12] That is enough to dispose of this matter, but even if I am wrong in relation tothis issue, I would not have deferred disqualification pending the outcome of the Courtof Appeal hearing. While there is a presumption in favour of granting applications fordeferral,3 it is clear that the Court is given a discretion and that that discretion falls tobe exercised judicially. Here, deferment is not necessary because it would not renderMr Sadler's appeal to the Court of Appeal nugatory. The application for leave and anyresulting appeal have already been heard by the Court of Appeal and it is likely thatthe Court of Appeal will issue its decision sooner rather than later. Further, there is a3 Aualiitia v Ministry of Transport [1983] NZLR 727 (CA).public interest in road safety. Mr Sadler's history of drink driving offending, albeitthat the most recent offence was over 10 years ago, is, in my view, relevant. It suggeststhat any extant disqualification should remain in place pending final determination ofMr Sadler's appeal.[13] Accordingly, for the reasons I have set out, I decline Mr Sadler's applicationto defer the period of disqualification ordered by Judge Collins.______________________________Wylie J