NICHOLLS v NEW ZEALAND POLICE [2017] NZHC 2209

NICHOLLS v NEW ZEALAND POLICE [2017] NZHC 2209 [12 September 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2017-404-0271[2017] NZHC 2209BETWEEN WILLIAM RON NICHOLLSAppellantAND NEW ZEALAND POLICERespondentHearing: 11 September 2017Counsel: G Haydn and D B Dow for AppellantE J Smith for RespondentJudgment: 12 September 2017JUDGMENT OF HEATH JThis judgment was delivered on 12 September 2017 at 4.00pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors:Public Defence Service, WaitakereMeredith Connell, AucklandThe appeal[1] As a result of an incident that occurred on 9 March 2017, Mr Nicholls pleaded guilty to one charge of refusing to permit a blood sample to be taken after having been required to do so lawfully by an enforcement officer. The charge was brought on the basis that Mr Nicholls had, at least twice previously, been convicted of a specified offence involving alcohol impaired driving.1[2] Mr Nicholls was sentenced in the District Court at Waitakere on 17 July 2017. Judge Glubb imposed a sentence of five months' community detention, 100 hours' community work and disqualified Mr Nicholls indefinitely from holding or obtaining a driver licence.2[3] Mr Nicholls appeals against the sentencing Judge's decision to impose an indefinite disqualification, as opposed to one disqualifying him from holding a driver licence for a period of three months, and authorising him to apply for an alcohol interlock licence at the end of that period.3 There is no challenge to the sentences of community detention and community work.Facts[4] At about 9.40pm on 9 March 2017, Mr Nicholls was driving a motor vehicle along Great North Road, Pt Chevalier. The vehicle was seen crashing into a traffic light. A member of the public alerted police to that event.[5] Police officers arrived at the scene. Mr Nicholls was observed to exhibit signs of recent alcohol consumption. Despite being lawfully requested to do so, he refused to complete an evidential breath test. On being requested to give a blood sample, that too was refused. Nevertheless, Mr Nicholls acknowledged that he had been drinking alcohol, and had been driving the car.[6] This was Mr Nicholls' fourth conviction for alcohol impaired driving related offending. On the previous three occasions:1 Land Transport Act 1998, ss 60(1)(a) and (3), set out at para [10] below.2 New Zealand Police v Nicholls [2017] NZDC 17873, at paras [11] and [12].3 The different natures of those sentences is explained at paras [11]–[13] below.(a) On 27 August 2011, Mr Nicholls had been driving with an excess breath alcohol concentration of 664 micrograms of alcohol per litre of breath.(b) On 18 September 2015, Mr Nicholls refused to provide a blood specimen when lawfully requested to do so.(c) On 29 November 2015, Mr Nicholls was driving with an excess breath alcohol concentration of 543 micrograms of alcohol per litre of breath.[7] On the first of those occasions, Mr Nicholls was fined $500 and was disqualified from holding or obtaining a driver licence for six months. He was sentenced on the second and third offences at the same time. The effect of sentence imposed was one year's supervision (with special conditions), 80 hours' community work, an indefinite disqualification from driving and an alcohol interlock order.4Appellate review[8] An appeal against sentence is one to which s 250 of the Criminal Procedure Act 2011 applies. That section provides:250 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.(2) The first appeal court must allow the appeal if satisfied that—(a) for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.(3) The first appeal court must dismiss the appeal in any other case.4 At the time that Mr Nicholls was sentenced, in January 2016, it appears that the District Court Judge was following a previous practice of making an indefinite disqualification order in conjunction with the alcohol interlock order: see Nanai v Police [2013] NZHC 155; cf the later decisions in Singh v Police [2013] NZHC 3065 at para [18] and Wilson v Police [2014] NZHC 2474 at paras [53] and [54].[9] In Tutakangahau v R,5 the Court of Appeal held that s 250 did not signal a departure from the approach taken to sentence appeals under the now repealed Summary Proceedings Act 1957. An appellant must point to a material error in sentence; in this case, the question is whether the Judge erred in exercising his discretion not to make an alcohol interlock order.Indefinite disqualification/alcohol interlock orders[10] Mr Nicholls was charged under s 60(1)(a) and (3) of the Land Transport Act 1998 (the Act). It provides:60 Failure or refusal to permit blood specimen to be taken or to undergo compulsory impairment test(1) A person commits an offence if the person—(a) fails or refuses to permit a blood specimen to be taken after having been required to do so under section 72 by an enforcement officer; or(3) If a person is convicted of a third or subsequent offence against subsection (1) or any of sections 56(1), 56(2), 57A(1), 58(1), and 61(1) and(2) (whether or not that offence is of the same kind as the person's first orsecond offence against any of those provisions),—(a) the maximum penalty is imprisonment for a term not exceeding 2 years or a fine not exceeding $6,000; and(b) the court must order the person to be disqualified from holding or obtaining a driver licence for more than 1 year..[11] Sections 65(2) and (3) and 100 of the Act are relevant to the imposition of an indefinite disqualification order. They provide:65 Mandatory penalties for repeat offences involving use of alcohol or drugs(2) A court must make an order requiring a person to attend an assessment centre and disqualifying the person from holding or obtaining a driver licence until the Agency removes that disqualification under section 100 if—5 Tutakangahau v R [2014] 3 NZLR 482 (CA).(a) the court convicts that person of a second or subsequent offence against any of sections 56 to 62; and(b) the previous offence was committed within 5 years of the date of the commission of the offence being dealt with by the court.(3) Despite subsection (2), the court may not make an order referred to in subsection (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, exceeded 1 000 micrograms of alcohol per litre of breath; or(ii) the proportion of alcohol in the person's blood, as ascertained from an analysis of a blood specimen, exceeded 200 milligrams of alcohol per 100 millilitres of blood; or(b) an offence against section 59 or section 60 (which relate to failing to remain or to accompany or to permit a blood specimen to be taken for the purposes of the administration of breath tests and blood tests)..100 Agency to remove certain disqualifications(1) If an order has been made under section 65 in respect of a person (the applicant), the Agency must make an order removing the disqualification of the applicant from holding or obtaining a driver licence, if satisfied that—(a) the applicant is a fit person to hold a driver licence, having regard to—(i) a report which is from a medical practitioner attached to an assessment centre and which is made available to the Agency by the applicant or the assessment centre; and(ii) any other evidence submitted by the applicant or otherwise available to the Agency relating to the medical condition of the applicant.(b) [Repealed](2) If the Agency makes an order under subsection (1), every order made under section 65 that applies to the applicant concerned must be treated as having expired.(3) No order may be made under subsection (1) if the applicant concerned is subject to an order made under section 65 that has been in force less than 1 year and 1 day.[12] Section 65 of the Act provides that a sentencing Judge must disqualify a repeat offender such as Mr Nicholls indefinitely.6 However, that "indefinite"disqualification may be lifted in certain circumstances". After a minimum period ofone year and one day has expired, application may be made to the Land Transport Agency for the disqualification to be removed. The Agency may only remove the disqualification after considering a medical report from a person associated with an"Assessment Centre" and any other evidence concerning his or her condition.[13] Notwithstanding s 60 of the Act, a sentencing Court may (if prescribed pre- conditions exist) make an alcohol interlock order. Section 65A of the Act deals with such orders. It provides:65A Alcohol interlock requirements for repeat offences or certain first time offences involving use of alcohol(1) This section applies if—(a) a court convicts a person of an offence involving the use of alcohol against any of sections 56(1), 56(2), 57(1), 57(2), 58(1)(a), 60(1)(a) to (c), 61(1), 61(2), and 62(1)(a); and(b) either—(i) the person convicted has previously been convicted of such an offence committed within 5 years of the date of the commission of the offence being dealt with by the court; or(ii) the offence for which the person is convicted under paragraph (a) involves either or both of the following:(A) the proportion of alcohol in the person'sbreath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, is 800 micrograms of alcohol per litre of breath or higher:(B) the proportion of alcohol in the person'sblood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or 73, is 1606 Land Transport Act 1998, s 65(4).milligrams of alcohol per 100 millilitres of blood or higher.(2) If this section applies, the court must, if the court imposes a sentence for an alcohol interlock licence disqualification,—(a) disqualify the person from holding any driver licence for a period of 3 months; and(b) make an order that—(i) authorises the person to apply for an alcohol interlock licence at the end of the 3-month disqualification period; and(ii) requires the person, while holding an alcohol interlock licence, to—(A) drive only a vehicle or vehicles to which an alcohol interlock device is fitted; and(B) apply for a zero alcohol licence, which the Agency may issue only on successful completion of the criteria specified in subparagraph (iv); and(iii) provides that the person may apply for any other driver licence (including, but not limited to, a limited licence) only if the person has obtained, and has satisfied the requirements of, the alcohol interlock licence; and(iv) provides that the alcohol interlock device in theperson's vehicle may be removed only if theperson—(A) has held the alcohol interlock licence for at least 12 months; and(B) has not violated any of the requirements of the alcohol interlock licence during the 6- month period preceding the date on which the alcohol interlock device is removed, or has completed an assessment and has not violated any of the requirements of the alcohol interlock licence during the 3-month period preceding the date on which the alcohol interlock device is removed; and(v) ends the person's disqualification under section 65,if the person was disqualified under section 65.(3) The imposition of a mandatory disqualification under this section is subject to section 81.(4) A person who is subject to an order under subsection (2) and does not apply for an interlock licence is to be treated as a person with a licence of no effect.[14] The terms "alcohol interlock device" and "alcohol interlock licence" aredefined by s 2(1) of the Act:2 Interpretationalcohol interlock device means a device that—(a) is a part of the starting system of a motor vehicle; and(b) uses breathalyser technology to determine whether the starting system should start the motor vehicle; and(c) is, for the purposes of section 65A, approved by the Minister of Transport (after consulting the Science Minister) by notice in the Gazettealcohol interlock licence means a driver licence issued to a person who has been authorised to obtain an alcohol interlock licence by an order of a court made under section 65A(2)Analysis[15] When Mr Nicholls was sentenced in the District Court, Mr Haydn, on his behalf, submitted that the Judge ought to make an alcohol interlock order under s 65A(2) of the Act. He did so in the face of an apparent failure on the part of Mr Nicholls to apply for a licence of that type after having had the benefit of such an order when sentenced in January 2016.7 In explaining why he was not prepared to accede to that submission, Judge Glubb said:[12] Additionally, I am going to sentence you to 100 hours of community work. Finally, in terms of disqualification, your counsel made application for you to be granted the opportunity for an alcohol interlock device. I gave consideration to that. I am satisfied that you have previously had that opportunity, whether or not you took that up on that occasion is a moot point. You had that opportunity previously, you are back before the court yet again. I do not propose to give you that opportunity yet again.[13] I am satisfied that it is in the interests of the community to have you off the road for a period and as part of the sentence imposed. Accordingly, I disqualify you pursuant to s 65 Land Transport Act 1998, that is indefinitely. What that means is it is the minimum of 12 months and one day and at that time you have to satisfy the director of Land Transport that you are a fit and proper person to get your licence back. That involves medical tests, liver tests, ensuring that you are clean of alcohol.7 See para [7] above.[16] Mr Haydn submits that Judge Glubb erred in declining to make an alcohol interlock order. Two substantive points are raised. The first is that the Judge erred in treating Mr Nicholls as someone who was not entitled to obtain the benefit of such an order because he had not previously taken advantage of it. The second was that the Judge had not taken into account sufficiently either the reasons why Mr Nicholls had failed to seek a licence in terms of the earlier alcohol interlock order or the rehabilitative steps he had taken before sentencing.[17] Ms Smith, for the New Zealand Police, submits that there is no basis onwhich the Court should interfere with the Judge's discretionary decision to imposean indefinite disqualification order. She points to the fact that, whatever delay may have occurred from the time that the alcohol interlock device order was made on 28 January 2016, Mr Nicholls had ample time to have the device fitted before the current offending, which occurred on 9 March 2017. That, Ms Smith contended, was a relevant factor for the Judge to consider in determining whether to make an alcohol interlock order on the present occasion.[18] In addition, Ms Smith submitted that the fact that Mr Nicholls was prepared to drive under the influence of alcohol suggests that an alcohol interlock order might not have been appropriate in any event. On that point, Judge Glubb found Mr Nicholls' suggestion that he was not over the limit when driving on this occasion was implausible; if that was his view at the time, he would have taken the opportunity to undertake a breath test or give a blood sample.8[19] In Vorster v New Zealand Police,9 Wylie J considered the circumstances in which s 65A might be applied. With reference to an earlier judgment given by Moore J in Wilson v Police,10 the Judge said:[17] There has been some divergence of opinion in relation to the application of this section. The position was comprehensively considered by Moore J in Wilson v Police. I agree with the analysis there undertaken. It is now clear that:8 New Zealand Police v Nicholls [2017] NZDC 17873, at para [5].9 Vorster v New Zealand Police [2015] NZHC 2930.10 Wilson v Police [2014] NZHC 2474.(a) Section 65A(1) sets out the criteria which determine whether the section can apply.(b) The qualifying criteria in s 65A(1)(a) and (b) are conjunctive.(c) Once the qualifying criteria are satisfied, s 65A(2) is engaged.(d) If the qualifying criteria are met, the sentencing Judge has a discretion whether or not to impose a sentence for an alcohol interlock licence disqualification.(e) If the court decides to impose such a sentence for an alcohol interlock licence disqualification, the provisions in s 65A(2) are mandatory. If the Court is not so inclined, the provisions contained in s 65A(2) are not engaged.(f) If the qualifying criteria in s 65A(1) are satisfied, a sentencing Judge must consider whether to impose an alcohol interlock licence disqualification. This flows from s 8(g) of the Sentencing Act 2002, which requires the imposition of the least restrictive sentence appropriate in the circumstances.(Emphasis added)[20] It is agreed that the appeal should be treated as one against the exercise of a discretion. That approach is consistent with earlier decisions of this Court, includingGarnham-Riley v New Zealand Police,11 in which Davidson J noted that in determining whether to make an order the Court must have regard to the general purposes and principles of the Sentencing Act 2002.12 That approach requires each case to be determined on its individual facts. I do not consider that any of the authorities to which I was referred deal with facts sufficiently close to those arisingout of Mr Nicholls' offending to control, to promote consistency in sentencing,13 the way in which the discretion ought to have been exercised by Judge Glubb.[21] For the appeal to be allowed, Mr Haydn must point to some error of the type that justifies interference with the District Court Judge's decision. He relies on the Judge's failure to take account of relevant factors; rehabilitation and the reasons whyMr Nicholls did not take advantage of the earlier alcohol interlock order. He also11 Garnham-Riley v New Zealand Police [2017] NZHC 819.12 Ibid, at para [19]. See also, Vorster v New Zealand Police [2015] NZHC 2930 at para [17](f), set out at para [19] above.13 Sentencing Act 2002, s 8(e).suggests that the District Court Judge erred in believing that it was not open to impose an alcohol interlock order on more than one occasion.[22] I do not accept that the Judge treated the possibility of imposing an alcohol interlock order as one of jurisdiction. Nor did he fetter his discretion by treating Mr Nicholls as a person in respect of whom an alcohol interlock order could be made. It is apparent from what Judge Glubb said that he exercised a judicial discretion not to make an order.14[23] Although the Judge's reasons were stated succinctly, it is clear that he lackedconfidence in Mr Nicholls' ability to comply with an alcohol interlock order. In my view, Mr Nicholls' failure to seek a licence at the end of the initial three monthsstand down period and the fact that he was driving, having consumed alcohol at a time when subject to a disqualification order justified that approach.15[24] Mr Haydn sought to explain Mr Nicholls' prior actions by reference to thetime at which he received notice of the order, some four months after the initial three months stand down period. But, that was in August 2016. The incident that gave rise to the charge on which he was sentenced by Judge Glubb occurred in March 2017. It was open to the Judge to regard that factor as one militating against a second opportunity to take advantage of the alcohol interlock regime.[25] I am satisfied that the Judge was mindful of efforts at rehabilitation, and took account of them. He did so in a different way. The Judge started from the proposition that imprisonment was an appropriate sentence. He went further than commuting that sentence to one of home detention. Having regard to rehabilitative efforts, the Judge exercised a degree of mercy and imposed a sentence of community detention, rather than home detention. That approach meant that Mr Nicholls could continue to work for the benefit of his family.1614 New Zealand Police v Nicholls [2017] NZDC 17873, at para [12], set out at para [15] above.15 As to the existence of the disqualification order in conjunction with the alcohol interlock disqualification order, see para [7] above.16 New Zealand Police v Nicholls [2017] NZDC 17873, at paras [10] and [11].[26] While Mr Nicholls has suffered some hardship as a result of the indefinite disqualification order and he and his family would undoubtedly benefit from an alcohol interlock order I do not consider that the Judge can be said to have erred in the way in which he approached sentencing. In my view, the Judge made no error of law, took account of all relevant considerations, did not take into account irrelevant considerations and made a decision that was open to him on the available information. In those circumstances, an appeal against the exercise of a discretion cannot succeed.Result[27] For those reasons, the appeal is dismissed.__________________________________P R Heath JDelivered on 12 September 2017 at 4.00pm