Police v Cox [2020] NZDC 25788 (26 November 2020)

Last Updated: 9 July 2021

IN THE DISTRICT COURT AT PALMERSTON NORTH I TE KŌTI-Ā-ROHE KI TE PAPAIOEA

CRI-2019-031-000787 [2020] NZDC 25788

NEW ZEALAND POLICE Prosecutor

v

JOSHUA LYALL COX Defendant

Hearing:	26 November 2020
Appearances:	Sergeant M Yates for the Prosecutor R Bedford for the Defendant
Judgment:	26 November 2020

ORAL DECISION OF JUDGE S B EDWARDS

[On application to cancel alcohol interlock sentence]

[1] On 15 August 2019, Joshua Lyall Cox was sentenced to intensive supervision for 12 months and an alcohol interlock sentence on a charge of driving with excess breath alcohol, third or subsequent. Under the terms of the alcohol interlock sentence imposed under s 65AC of the Land Transport Act 1998 (“LTA”), Mr Cox was disqualified for 28 days and then required to apply for an alcohol interlock licence, followed by a zero alcohol licence.

NEW ZEALAND POLICE v JOSHUA LYALL COX [2020] NZDC 25788 [26 November 2020]

[2] He now applies under s 100B of the LTA to cancel the alcohol interlock sentence and instead be disqualified for the mandatory minimum period which applied to the charge, of a year and a day.1

[3] An application can be brought under s 100B if the person’s personal circumstances have changed significantly. In his application Mr Cox advises that he was still trying to raise the money to have the interlock device fitted to his car and apply for the alcohol interlock licence when he was caught driving on 24 September 2019. His car was impounded and while it was there it caught fire and was destroyed. He says that he has not owned or had access to a vehicle since.

[4] I note that he appeared in the Dannevirke District Court on 13 January this year and was sentenced to community work for driving while disqualified on 24 September 2019, but no disqualification was ordered because the judge found that special reasons existed.

[5] Mr Cox said that when he appeared on 13 January and explained his position to the judge, the judge suggested that he wait for the remaining months on the alcohol interlock sentence to finish and then apply for a zero alcohol licence. At least that is what Mr Cox understood he was told.

[6] Mr Cox says in his application that he did not realise that he was required to hold an alcohol interlock licence for a year before he could apply for a zero alcohol licence (although it is set out in the notice of disqualification given to him on the day he was sentenced). He says that once he found he could not afford the alcohol interlock device, he thought he could just wait out the 12 months without driving and then apply for a zero alcohol licence. When he tried to apply for a zero alcohol licence recently, he was told by the transport agency he still had to apply for an alcohol interlock licence and hold that for 12 months first.

[7] I am satisfied Mr Cox’s circumstances have changed significantly enough to warrant cancellation of the alcohol interlock sentence. It is clear from his application

1 His application was filed as a review of sentence and named Community Corrections as the respondent. However, any application to cancel an alcohol interlock sentence must be made under s 100B of the LTA and the New Zealand Police are the correct respondent.

that his part-time work as a contract painter not only affects his ability to fund the device but also it makes it difficult for him to be restricted to only driving a vehicle which has an interlock device fitted to it, as there are work vehicles which he would otherwise be able to drive. I note that Mr Cox has completed his Intensive Supervision sentence, which included an 8-week rehabilitation programme, and says he is “celebrating” 10 months of sobriety.

[8] On cancellation of an interlock sentence, s 100B(2) requires me to disqualify the person for the period which would otherwise have applied, which in this case is one year and one day. However, s 100B(3) allows me to set the length of disqualification after having regard to the length of time that has elapsed since the alcohol interlock sentence was imposed and the person’s compliance with the alcohol interlock sentence.

[9] I am satisfied that the length of disqualification must be a year and a day but, given the matters I have just outlined, I am imposing disqualification to take effect from 25 September 2019 and apply for a year and a day from that date. The practical effect of this is that the disqualification period has now ended, and Mr Cox is authorised to apply for a zero alcohol licence.

Judge S B Edwards

District Court Judge

Date of authentication: 11/12/2020

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.