Lose v R [2014] NZCA 368 (5 August 2014)

Last Updated: 14 August 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA113/2014 [2014] NZCA 368
BETWEEN	RICHARD LES LOSE Appellant
AND	THE QUEEN Respondent

Hearing:	28 July 2014
Court:	Harrison, Goddard and Andrews JJ
Counsel:	P Stokes for Appellant J M Jelas for Respondent
Judgment:	5 August 2014 at 11.15 am

JUDGMENT OF THE COURT

1. The appeal against disqualification for one year and one day is allowed.
2. The proceeding is remitted back to the District Court for reconsideration of sentence.

____________________________________________________________________

REASONS OF THE COURT

(Given by Andrews J)

[1] The issue in this appeal is whether the District Court Judge was wrong to conclude that the appellant, Richard Lose, was not eligible for the imposition of an alcohol interlock licence disqualification following his third conviction on a charge of driving with excess breath alcohol.
[2] The appeal raises issues as to the interaction of the mandatory disqualification period under s 56(4) of the Land Transport Act 1998 (the Act) and the discretion given to a sentencing Judge to impose an alcohol interlock licence disqualification (incorporating a mandatory disqualification for three months) under s 65A of the Act.
[3] A further issue raised on the appeal is whether s 65A has retrospective effect, given that Mr Lose’s offending occurred in 2009, prior to s 65A coming into force on 10 September 2012.

Facts

[4] On 7 July 2009 Mr Lose was stopped by Police at a checkpoint. He appeared to have been drinking alcohol. His breath was found to contain 641 micrograms of alcohol per litre of breath. He was charged with an offence under s 56(1) of the Act. He had previously been convicted on charges of driving with excess breath alcohol in 1992, 2000, and 2007.
[5] Mr Lose pleaded guilty to the charge and was convicted. However, he successfully appealed his conviction. The matter was scheduled to be reheard. Following a sentence indication, Mr Lose pleaded guilty a second time.
[6] A pre-sentence report was prepared, assessing Mr Lose’s risk of reoffending and risk of harm to others as low. It was noted that Mr Lose was dealing with his alcoholism and psychological disorders with some success, and had not offended since his offending in 2009.
[7] Mr Lose was sentenced on 22 January 2014.^[1] Judge P Sinclair took a starting point of imprisonment but concluded that given the length of time that had elapsed since Mr Lose’s last conviction, other sentencing options were available. As Mr Lose had been addressing issues relating to his offending, the Judge considered a sentence of community work to be appropriate, coupled with supervision.
[8] It was submitted at sentencing that Mr Lose was eligible for an alcohol interlock licence disqualification under s 65A of the Act. The Judge concluded that s 65A did not apply to the appellant, saying:

[16] In my view, s 65A is applicable to a defendant who has been indefinitely disqualified. My reading of s 65A is that when a person has been indefinitely disqualified and s 65A is directed, that s 65A interlock requirements take effect after three months. If a person is not indefinitely disqualified and has received a finite disqualification period, that defendant must wait until the conclusion of that finite period, in your case one year and one day, before the interlock device can be invoked. Therefore, under that basis, I consider that s 65A is probably not of relevance or beneficial to your situation.

[9] The Judge sentenced Mr Lose to 90 hours’ community work, 12 months’ supervision, and disqualified him from driving for one year and one day.^[2] Pursuant to s 65B of the Act, the Judge made an order authorising him, at the end of his disqualification period, to apply for a zero alcohol licence.^[3]

Submissions on appeal

[10] Ms Stokes submitted for Mr Lose that the Judge erred in law by deciding that she was unable to impose orders under s 65A because he had not been sentenced to an indefinite disqualification, as indefinite disqualification is not a prerequisite for an alcohol interlock licence. She further submitted that the Judge was wrong to hold that Mr Lose was required to complete the disqualification of one year and one day before he could be considered for an alcohol interlock licence.
[11] For the Crown, Ms Jelas accepted that the Judge had wrongly concluded that a person could be considered for an alcohol interlock licence only if that person was subject to indefinite disqualification. However, she submitted that the Judge had rightly concluded that Mr Lose was required to complete the disqualification of one year and one day before being considered for an alcohol interlock licence.

The sentencing regime

Section 56

[12] Section 56(1) of the Act makes it an offence to drive a motor vehicle on a road while the proportion of alcohol in the person’s breath exceeds 400 micrograms of alcohol per litre of breath. Sections 56(3) and 56(4) set out the consequences of conviction. As Mr Lose had been convicted of his fourth offence of driving with excess breath alcohol, he was subject to s 56(4), pursuant to which the maximum penalty is imprisonment for up to two years and a fine not exceeding $6,000. Further, by s 56(4)(b), a disqualification from holding or obtaining a driver’s licence for more than one year is mandatory.

Section 65A

[13] Section 65A establishes the alcohol interlock licence disqualification. As relevant to Mr Lose, it provides that if a person is (a) convicted of an offence under s 56(1), and (b) has previously been convicted of such an offence within the previous five years, then if the Court imposes a sentence for an alcohol interlock licence disqualification, the Court must make two orders. It must disqualify the person from holding or obtaining a driver’s licence for three months, and make an order authorising the person to apply for an alcohol interlock licence at the end of the three-month period. Section 65A(3) provides that the imposition of a mandatory disqualification under s 65A is subject to s 81 of the Act, to which we will return. Section 65A(4) provides that if an application for an alcohol interlock licence is not made, then the person is treated as having a licence “of no effect”.

[14] Mr Lose has been convicted of an offence under s 56(1), and had previously been convicted of such an offence within the last five years. Accordingly, subject to any issue as to whether s 65A has retrospective effect, he could be considered for the imposition of an alcohol interlock licence. He would then be disqualified for three months and allowed to apply for an alcohol interlock licence at the end of that time. If he did not apply, he would be treated as an unlicensed driver.

Section 81

[15] Pursuant to s 81(1) of the Act, the Judge was required to impose a mandatory disqualification for at least one year under s 56(4) unless the Judge thought it fit, for “special reasons relating to the offence”, to order otherwise. It was not submitted that s 81(1) applied in the present case. However, s 81(2) provides that
nothing in s 81(1) restricts the power or duty of the Court to impose a disqualification, “or to impose any other penalty”.
[16] Ms Jelas submitted that the exceptions set out in s 81(2) cannot apply in this case; s 81(2) does not permit a Judge to choose between two equally mandatory periods. We do not accept that submission. Rather, we have concluded that Ellis J’s analysis in Singh v Police is correct.^[4] Ellis J noted that s 65A(3) provides that the imposition of a mandatory disqualification under that section is subject to s 81,^[5] and that s 81(2) allows the Court “to impose any other penalty”. Her Honour concluded in Singh v Police:^[6]

[16] In circumstances where there are two conflicting but equally mandatory applicable disqualification periods, therefore, s 81(2) permits the Court to choose between them. While, on that analysis, there would have been no need for s 65A(2)(b)(v) to have been included, equally, the inclusion of that provision suggests that Parliament intended to give the court a discretion not to apply the former mandatory disqualification periods in circumstances where interlock disqualification is more appropriate. Furthermore, s 65A(1) expressly states that the section applies if a person is convicted for an offence against (inter alia) s 56.

[17] All these factors, in my view, mean that, in appropriate cases, s 65A can be interpreted to enable the Court to impose a sentence of disqualification under s 65A rather than under s 56. There is probably no need to resort to other rules of statutory interpretation which might also assist.

[17] We agree that the plain words of s 65A(3) and s 81(2) dictate the interpretation adopted by Ellis J.
[18] Accordingly, we are satisfied that the Judge was wrong to find that Mr Lose could only invoke s 65A if he were subject to an indefinite disqualification, and was also wrong to find that the appellant was required to serve the mandatory disqualification under s 56(4) before he could be considered for an alcohol interlock licence under s 65A.

Does s 65A have retrospective effect?

[19] Mr Lose’s offending occurred in 2009. Section 65A came into force on 10 September 2012.^[7] Pursuant to s 7 of the Interpretation Act 1999, enactments do not have retrospective effect. However, s 6 of the Sentencing Act 2002 and s 25(g) of the New Zealand Bill of Rights Act 1990 provide that if the penalty for an offence has been varied between the commission of the offence and sentencing, the offender is entitled to the benefit of the lesser penalty.
[20] In Nanai v Police, Cooper J held that s 65A was appropriately described as the lesser penalty, when compared with an indefinite disqualification under s 65 of the Act.^[8] Although we heard only limited submissions on the issue, we have also concluded that s 65A provides a “lesser penalty”. Our reasons for that conclusion can be set out very briefly.
[21] We note, first, that disqualification is described as a “penalty” in s 80 of the Act. Further, a mandatory disqualification for three months is clearly less than a disqualification for at least one year. A person subject to an alcohol interlock licence is able to drive, as long as he or she pays for installation of the device into his or her car, does not consume alcohol, and takes the car for periodic checks of the device. While these conditions could be said to be onerous, the person is able to legally drive.
[22] We have considered whether the fact that an alcohol interlock licence is one that may be imposed at the discretion of the sentencing Judge and, if imposed, the fact that the person is authorised to apply for an alcohol interlock licence, should lead to a conclusion that s 65A does not impose a lesser penalty. We have concluded that it does not. If the Judge decides not to impose an alcohol interlock disqualification, or if a person does not apply for one, then the issue as to the application of s 65A is irrelevant.
[23] Section 6 of the Sentencing Act was considered by the Supreme Court in Morgan v Superintendent, Rimutaka Prison, in the context of the provisions as to a prisoner’s release on parole.^[9] The majority of the Supreme Court held that variation of the provisions as to when a prisoner was entitled to be released did not amount to a “lesser penalty”. Blanchard J (who was in the majority), observed that s 6 of the Sentencing Act:^[10]

... can only be read as referring to the maximum penalty which the law allowed to be imposed at the relevant time for the generic crime. ...

[24] As did Cooper J in Nanai v Police, we conclude that s 65A amounts to a lesser maximum penalty “which the law allowed to be imposed” than was the case before s 65A was enacted.

Decision

[25] We conclude that s 65A applied to Mr Lose’s sentencing, and that the Judge was wrong to conclude that he could not be considered for an alcohol interlock disqualification licence.
[26] Ms Stokes submitted that if we reached that conclusion, then we should make orders pursuant to s 65A. We do not consider that to be appropriate. The proper course is for the proceeding to be remitted back to the District Court for reconsideration of sentence.

Solicitors:
Public Defence Service, Auckland for Appellant
Crown Law Office, Wellington for Respondent

---

^[1] R v Lose DC Auckland CRI-2009-004-15827, 22 January 2014.

^[2] At [14]–[15].

^[3] At [17].

^[4] Singh v Police [2013] NZHC 3065.

^[5] At [14].

^[6] Footnotes omitted.

^[7] By the Land Transport (Road Safety and Other Matters) Amendment Act 2011, s 30.

^[8] Nanai v Police [2013] NZHC 155 at [23].

^[9] Morgan v Superintendent, Rimutaka Prison [2005] NZSC 26, [2005] 3 NZLR 1.

^[10] At [57].