Lally v Police [2019] NZCA 286 (5 July 2019)

Last Updated: 26 July 2019

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA161/2019 [2019] NZCA 286

	BETWEEN	GURMAIL LALLY Applicant
	AND	NEW ZEALAND POLICE Respondent

Hearing:	On the papers
Court:	Gilbert, Wylie and Thomas JJ
Counsel:	N M Dutch for Applicant A D H Colley for Respondent
Judgment:	5 July 2019 at 3 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal against sentence is declined.
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REASONS OF THE COURT

(Given by Wylie J)

Introduction

[1] Mr Lally seeks leave to bring a second appeal against sentence, pursuant to s 253 of the Criminal Procedure Act 2011. The application is opposed by the respondent.

Background

[2] On 16 September 2018, Mr Lally drove to a liquor store. He attempted to purchase alcohol, but he was refused service because he was intoxicated. Mr Lally then drove away.
[3] The police were notified and they caught up with Mr Lally as he was pulling into his driveway. The police performed a breath alcohol test. Mr Lally was found to have 1,524 micrograms of alcohol per litre of breath — six times the legal limit. Further, at the time of the offending, Mr Lally was both a disqualified driver and an unlicensed driver.
[4] Mr Lally has a history of driving whilst under the influence of alcohol and driving while disqualified. He has five previous convictions for driving with excess breath or blood alcohol and two previous convictions for driving while disqualified.
[5] Mr Lally, pleaded guilty to a charge of driving with excess breath alcohol (third or subsequent)^[1] and to a charge of driving while disqualified (third or subsequent).^[2]
[6] Mr Lally was sentenced on 13 November 2018 by Judge Harding at the District Court at Waihi.^[3] The Judge adopted a starting point of 12 months’ imprisonment. He observed that it was Mr Lally’s sixth charge of driving with excess breath alcohol, that he was not remorseful and that, despite interventions, he continued to drink and drive. The Judge concluded that Mr Lally presents a significant danger to other road users and to himself, and that imprisonment was appropriate. The Judge sentenced Mr Lally to nine months’ imprisonment and, on the driving while disqualified charge, disqualified him from driving for two years. He also imposed a zero alcohol licence requirement.
[7] Mr Lally appealed his sentence to the High Court on the basis that the Judge was required to impose an alcohol interlock licence under then recent amendments to the Land Transport Act 1998 (the Act).^[4] Toogood J allowed the appeal in part.^[5] He accepted that Judge Harding had been required by the amendments to impose an alcohol interlock sentence, because Mr Lally had been convicted of offending specified in s 65AB(1)(a). He quashed the zero alcohol licence requirement and imposed an alcohol interlock sentence. Toogood J saw no reason to adjust the twoyear disqualification period Judge Harding had imposed, and he recorded that Mr Lally did not take issue with the term of imprisonment imposed.
[8] Mr Lally now seeks leave to bring a second appeal against sentence.

Leave

[9] Leave for a second appeal against sentence is required under s 253(3) of the Criminal Procedure Act. It provides as follows:

(3) The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—

(a) the appeal involves a matter of general or public importance; or

(b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

[10] Mr Dutch, for Mr Lally, contended that the first limb of s 253(3) is satisfied. He argued that the application of the amendments to the Act providing for alcohol interlock sentences, is a matter of general and public importance, and that guidance from this Court would be useful because it potentially affects many people.
[11] Although the alcohol interlock regime is relatively new, the amendments are relatively straightforward. They came into force on 1 July 2018. Essentially, they provide that alcohol interlock sentences are mandatory for repeat offences and for certain first offences. Judge Harding’s error in not imposing an alcohol interlock sentence was remedied by Toogood J in the High Court. It is not suggested that Toogood J erred. The only question raised is whether the period of disqualification imposed on Mr Lally in combination with the alcohol interlock sentence was excessive. That question is specific to Mr Lally’s circumstances and it does not raise an issue of general or public importance.^[6]
[12] Mr Dutch also contended that there has been a miscarriage of justice, because Mr Lally was disqualified from driving for an excessive period.
[13] Section 65AH(3) of the Act deals with disqualification when an alcohol interlock sentence is imposed. Relevantly, it provides that, for a concurrent offence that does not result in injury or death, the court may, taking into account the alcohol interlock sentence, choose not to order any disqualification that might otherwise apply. Alcohol interlock sentences do not obviate the need for periods of disqualification in appropriate cases. Disqualification periods still have an important function under the new regime, “operating as both a harm reduction measure and having a punitive element”.^[7]
[14] In Mr Lally’s case the charge of driving while disqualified was a concurrent offence to the offence of driving with excess breach alcohol. The Court had a discretion whether to impose a disqualification period for the offence of driving while disqualified. Both Judge Harding and Toogood J considered that a two-year disqualification period was appropriate. Mr Lally has been disqualified on four previous occasions; he was disqualified indefinitely in August 2009. He has two previous convictions for driving while disqualified. On the night in question, Mr Lally was driving both while disqualified and unlicensed. He was dismissive of the consequences of his actions and he expressed no remorse. We cannot see that there can be any argument that there has been a miscarriage of justice.

Result

[15] The criteria in s 253(3) of the Criminal Procedure Act are not made out. Accordingly, leave to bring a second appeal against sentence is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Land Transport Act 1998, s 56(1) and (4) — punishable by a maximum penalty of two years’ imprisonment or a fine of $6,000. The Court must also order that the person be disqualified from holding a licence for one year or more

^[2] Section 32(1)(a) and (4) — punishable by a maximum penalty of two years’ imprisonment or a fine of $6,000. The Court must also order that the person be disqualified from holding a licence for one year or more.

^[3] Police v Lally [2018] NZDC 24194.

^[4] Land Transport Act 1998, ss 65AB – 65AK and ss 65B(1) and 65B(2). These provisions were inserted into the Act as from 1 July 2018 by the Land Transport Amendment Act 2017.

^[5] Lally v Police [2019] NZHC 352.

^[6] See McAlister v R [2014] NZCA 175, [2014] 2 NZLR 764, at [36].

^[7] Perry v Police [2018] NZHC 3246 at [46].