Wilson v Police [2014] NZHC 2474 (8 October 2014)

Last Updated: 23 October 2014

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-000061
CRI-2014-463-000060

CRI-2014-463-000066 [2014] NZHC 2474

ROBIN JAMES WILSON SHONTELLE MOKA

ANNE-MAREE LORRAINE COWEN Appellants

v

NEW ZEALAND POLICE Respondent

Hearing:	30 September 2014
Appearances:	Cate Andersen for Wilson and Moka Viv Winiata for Cowen Richard Jenson for the Respondent
Judgment:	8 October 2014

RESERVED JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by on 8 October 2014 at 2:30pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

_Date:

WILSON & ORS v NEW ZEALAND POLICE [2014] NZHC 2474 [8 October 2014]

[1] These appeals were heard together because the principle in issue is common to all, although the consequences of this Court’s determination will vary for each appellant. The appeals relate to the imposition (in the case of Ms Moka and Ms Cowen) and non-imposition (in the case of Mr Wilson) of an alcohol interlock licence disqualification made under s 65A of the Land Transport Act 1998 (“the LTA”).

[2] The issue common to each appeal is whether the imposition of an alcohol interlock licence disqualification is mandatory or discretionary.

[3] Counsel advised me that in this region at least, there are conflicting judicial approaches to the interpretation of s 65A and, in particular, whether the provision is mandatory or discretionary. The Cowen and Moka appeals arise from the conclusion that s 65A is mandatory in the sense that if the qualifying criteria of s 65A are met the sentencing Judge has no discretion other than to invoke the section with the consequences set out in s 65A(2). The consequences under s 65A(2) are that the person is disqualified from holding or obtaining a driver’s licence for a period of three months at the end of which they are authorised to apply for an alcohol interlock licence. While holding the alcohol interlock licence they may only drive a vehicle to which such a device is fitted and they must apply for a zero alcohol licence following the successful completion of the criteria specified later in the section.

Section 65A of the LTA

[4] Section 65A was inserted by s 30 of the Land Transport (Road Safety and Other Matters) Amendment Act 2013 on 10 September 2012.¹ Section 65A provides as follows:

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),

¹ Section 65B, mandatory zero alcohol requirements for repeat offences involving use of alcohol was inserted by the same provision.

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’s breath, 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’s blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or 73, is 160 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 the person's vehicle may be removed only if the person—

(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.

Approach on appeal

[5] This is an appeal against sentence. Section 250 of the Criminal Procedure Act 2011 applies. Pursuant to that provision the Court must allow the appeal if it is satisfied that:

(a) for any reason there was an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

[6] In any other case the Court must dismiss the appeal.² This section confirms the approach taken by the Courts under the Summary Proceedings Act 1957 where the Court said: ³

(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle”.

(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[7] This Court will not intervene where the sentence was available to the Judge.

District Court decisions

[8] Judge Ingram’s reasoning that the sentence under s 65A is mandatory applies

to both Ms Moka and Ms Cowen.

[9] The relevant extracts from his judgments are set out below. In Ms Cowen’s case his Honour’s reasoning is as follows:⁴

You meet the qualifying criteria for s65, Land Transport Act 1998, and pursuant to that section you are ordered to attend an assessment centre and disqualified from holding or obtaining a driver licence until the Director of Land Transport removes the disqualification. Under s65A, I consider likewise you meet the mandatory requirements of that section. I am not persuaded by the authorities, which indicate that somehow or other it is discretionary. In my view, the only discretion which is referable to s65A is the discretion contained in s81 which allows the court to find special reasons and not disqualify or reduce a disqualification for those I take comfort too from the reference in s81 to the fact that the court must disqualify where the words “must” are used or “mandatory” are used in relation to disqualifications.

² _{Criminal Procedure Act 2011, s 250(3).}

³ _{Yorston v Police HC Auckland, CRI-2010-404-164, 14 September 2010.}

⁴ Police v Cowen DC Tauranga CRI-2014-070-001840, 19 August 2014 at [5].

[10] In relation to Ms Moka’s case, the relevant passage states:⁵

In relation to s 65A, I am satisfied that you meet the qualifying criteria set out in s 65A(1) and I read the word “must” into subs(2) has been mandatory and I construe the word “if” contained in that same subsection as being a reference to subs(3) which provides that the imposition of a mandatory disqualification under the section is subject to s 81 which is a discretionary provision allowing the court to not disqualify or disqualify for a shorter period if special reasons exist. None are advanced here. Accordingly, I consider that you are caught by the provisions of s 65A and there will be, accordingly, an order under s 65A(2) disqualifying you from holding or obtaining a driver licence for a period of three months starting now.

[11] It is apparent from these extracts that Judge Ingram’s conclusion that s 65A

operates in a mandatory fashion is based, primary, on the wording of subsection (3).

[12] The position is a little different in relation to Mr Wilson’s appeal where his Honour, Judge Rollo, determined it was within his discretion not to sentence Mr Wilson to an alcohol interlock licence disqualification.⁶ The reasons for that are dealt with more fully later in this judgment although, in summary, his Honour determined that the principles of the Sentencing Act 2002 were more appropriately reflected by imposing a period of indefinite disqualification under s 65 of the LTA rather than imposing an alcohol interlock sentence under s 65A.

Analysis

[13] The question raised by these appeals is straightforward. It is whether s 65A creates a mandatory requirement to impose an alcohol interlock licence sentence if the criteria in s 65A(1) are met.

[14] In my view a plain reading of the section demonstrates that the provision is discretionary in the sense that if certain pre-requisites are met the sentencing Judge has a discretion as to whether or not to impose it.

[15] Section 65A(1) lists the criteria which determine whether the section applies or not. These are contained in s 65A(1)(a) and (b). The requirements are

_{conjunctive and require the defendant to have been convicted of a nominated offence}

⁵ _{Police v Moka DC Tauranga CRI-2014-070-002455, 1 August 2014 at [3].}

⁶ Police v Wilson DC Opotiki CRI-2014-047-000100, 10 July 2014.

involving the use of alcohol and for the defendant to have either been previously convicted of such an offence within five years or, the evidential breath test ascertained a proportion of alcohol in the person’s breath of 800 milligrams of alcohol per litre of breath or higher (s 65A(1)(b)(ii)(A)) or, in the event of a blood sample, a reading of 100 milligrams of alcohol per 100 millilitres of blood or higher (s 65A(1)(b)(ii)(B)). Those are the qualifying statutory criteria which determine whether s 65A applies.

[16] Once the qualifying statutory criteria are satisfied s 65A(2) is engaged. It is this step which is the source of divergent judicial views. This section provides that if the section applies, i.e. if the criteria in s 65A(1) are met the Court must “... if the Court imposes a sentence for an alcohol licence disqualification ...” make certain orders.

[17] In my view, on a plain reading of the statutory words, there is only one available interpretation. The subsection will only apply if the Court elects to impose a sentence for an alcohol interlock licence disqualification. However, once the Court has decided to impose such a sentence the provisions in s 65A(2) are mandatory. If the Court is not so inclined the provisions contained in subsection 2 are not engaged.

Submissions to the contrary

[18] Mr Jenson for the Crown adopted a neutral stance on these appeals. Notwithstanding this, he provided helpful and objective submissions both for and against the proposition urged by counsel for the appellants.

[19] He pointed out that should this Court conclude the sentence is discretionary it creates a regime where those who are unable to afford the device may be discriminated against because s 65A may be regarded as a “lesser sentence”. However, such a position is not unique in the context of sentencing principles. There are other effective sentencing options which may be regarded by some as “lesser sentences”. For example, where an offender has sufficient means to make reparation payments to their victim that is a factor which the sentencing Judge is obliged to take

into account in assessing the appropriate sentence.⁷ In that sense a reduction reflecting reparation made may be regarded as discriminatory in that it tends to favour those who have means over those who do not. It is a fact of sentencing jurisprudence and its implicit complexities and variables which necessarily mean there will be competing considerations, not always readily reconcilable, in assessing sentencing options. That is because few offences or offenders present the same issues on sentence.

Other considerations which support s 65A being discretionary

[20] Set out below are further reasons why s 65A should be interpreted as being discretionary.

High Court and Court of Appeal authorities

[21] Cooper J in Nanai v Police clearly regarded the section as introducing a discretionary sentencing regime.⁸ Cooper J stated:⁹

...the absence of any direct power to impose such a sentence means that there are no explicit statutory criteria which are to govern the exercise of what on the face of it, is a discretionary power. This is odd bearing in mind that, for reasons that will later emerge, it appears that Parliament's intention is that orders made under s 65A(2), will, when made, have effect instead of the “mandatory penalties” provided for by s 65. Put simply, the question that sentencing Judges will have to confront is what circumstances will make an order of a kind contemplated by s 65A(2) appropriate in a case where, as here, the defendant plainly qualifies for a mandatory penalty under s 65. In the absence of any specific guidance in s 65A itself, that is an issue which will have to be resolved by resort to the general purposes and principles of sentencing set out in Part 1 of the Sentencing Act.

[22] Ellis J in Singh v Police also approached the sentence as a discretionary section. Her Honour stated:¹⁰

...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.

⁷ _{Sentencing Act 2002, s 10.}

⁸ _{Nanai v Police [2013] NZHC 155.}

⁹ _{At [17].}

¹⁰ Singh v Police [2013] NZHC 3065.

[23] Ellis J took into consideration the financial ability of the appellant when determining whether to exercise the discretion. She concluded:¹¹

... although the costs of fitting an alcohol interlock device may sometimes prove to be a practical impediment to the imposition of a sentence under s

65A, this is not so in his case.

[24] Finally in Lose v R the Court of Appeal described the s 65A as “the discretion

given to a sentencing Judge to impose an alcohol interlock disqualification”.¹²

Hansard and Parliamentary Reports

[25] Notwithstanding the provisions of s 5 of the Interpretation Act 1999 the Courts may also have recourse to extraneous material to assist in their interpretation of legislation. The leading international authority for this proposition is Pepper v Hart where it was noted: ¹³

The exclusionary rule should be relaxed so as to permit reference to parliamentary materials where:

(a) legislation is ambiguous or obscure, or leads to an absurdity;

(b) the material relied upon consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other parliamentary material as is necessary to understand such statements and their effects;

(c) the statements relied on are clear.

[26] However, Mr Jenson for the Crown properly reminded me that the Courts in New Zealand have made it clear that no matter how compelling the comments and opinions contained in Hansard may be these, along with other extraneous material, should not be used to alter the meaning of statutory words where the meaning of those words is clear and unambiguous.¹⁴ He submits that while the Court may have regard to Hansard and other reports the Court must first examine the meaning of the words on their face and in their context before resorting to other material to assist in

_{the exercise of interpretation.}

¹¹ _{At [16].}

¹² _{Lose v R [2014] NZCA 368 at [3].}

¹³ _{Pepper v Hart [1992] UKHL 3; [1993] AC 593 at 640.}

¹⁴ R v Howard [1997] 1 NZLR 347 at 353; Tautau v Minister of Transport [1990] NZHC 1161; [1991] 2 NZLR 204 at 212.

[27] With that reservation in mind, the explanatory note to the Land Transport (Road Safety and Other Matters) Amendment Bill is instructive and supports the proposition the provision was intended to be a new sentencing option available to the Court. It states:¹⁵

The Bill proposes to—

Toughen sanctions for serious or repeat driving offenders by—

• introducing a zero BAC limit for repeat drink drivers (2 or more convictions within a 5-year period), which will apply for 3 years from the date when the driver’s licence disqualification period ends and a new licence is obtained; and

• providing the courts with an option to impose an alcohol interlock sentence for serious drink drivers (BAC reading of 0.16 or higher) or repeat offenders (2 or more convictions within a 5-year period), where the offender would serve a 3-month licence disqualification period, be required to have an interlock for at least 12 months, and, at the sentence’s conclusion, be subject to a zero BAC limit for a further 3 years (the alcohol interlock device would be set at a zero BAC; the interlock will not allow a driver to start the vehicle if there is any alcohol on his or her breath and will periodically request a breath specimen while the vehicle is being driven; a failure to provide a specimen, or providing a specimen with an alcohol content, will be recorded as a violation);

[28] Additionally, the statements made to the House by the responsible Minister during the Second Reading of the Bill, as reproduced in Hansard, confirm the purpose of the new legislation and, more particularly, emphasise that s 65A was intended to provide a further and alternative sentencing option. The Minister of

Transport, the Honourable Stephen Joyce, is recorded as saying:¹⁶

The committee also recommended changes to alcohol interlock provisions. These changes will make it explicit that a person subject to an interlock is also subject to a zero breath-alcohol level; clarify that a driver subject to indefinite qualification can, at the court’s discretion, be sentenced to an alcohol interlock as an alternative sentence; and allow the New Zealand Transport Agency to authorise the removal of interlocks from a vehicle. This will ease administration but not allow the agency to remove a court order.

¹⁵ _{Land Transport (Road Safety and Other Matters) Amendment Bill (213-3) (explanatory note).}

¹⁶ (6 April 2011) 671 NZPD at 17789.

[29] In the Third Reading of the Bill the Minister stated: ¹⁷

Alcohol interlocks are a new initiative for New Zealand, but they are well proved overseas. Although they are not a silver bullet, they are a new tool in the tool box for dealing with these drivers, making it clear to them that they have to separate their drinking from their driving.

(Emphasis added)

[30] The Honourable Ian Lees-Galloway stated:¹⁸

Going back to what I was saying about harsher penalties, I repeat that if someone is silly enough to be a repeat offender or has not had the support to deal with an alcohol addiction, then some consequences are going to have to come with that, and I suppose the giving up of some liberties is going to have to come with that. The ability to drive without that interlock does not seem like a great liberty to have to give up, and this will ensure that drivers have not imbibed too much alcohol before they behind the wheel.

[31] The Honourable Rahui Katene stated:¹⁹

The key changes proposed encompassed in the vote today take into account the push to raise the minimum licensing age from 15 to 16 years, a zero breath or blood alcohol concentration for drivers aged 20 years of age and under, tough sanctions for serious or repeat driving offenders, possibilities of an alcohol interlock sentence and a zero alcohol licence, and a range of other measures for enforcement and control.

[32] There is no reference in the Third Reading of the Bill to the fact that the imposition of the alcohol interlock licence was to be mandatory. Indeed the reference to the availability of a new tool in the tool box for dealing with recidivist drink drivers emphasises the purpose of the new provision was to add to the range of sentencing options. The plain implication from the debates is that the alcohol interlock licence is a further option available to a Judge when faced with repeat drink drivers or those with chronic alcohol issues.

[33] Against this the Ministry of Transport discussion document, “Safer Journeys

2020” (August 2009)²⁰ and the New Zealand Law Commission’s Report, “Alcohol in

_{Our Lives; Curbing the Harm”}²¹ _{each discuss a move in favour of the imposition of}

¹⁷ _{(5 May 2011) 672 NZPD at 18424.}

¹⁸ _{At 18424.}

¹⁹ _{At 18424.}

²⁰ _{Safer Journeys 2020 (Ministry of Transport, Discussion Document, February 2013)}

²¹ Law Commission Alcohol in Our Lives: Curbing the Harm (NZLC RW114, 2010).

mandatory alcohol interlock licences. However the overwhelming evidence of parliamentary intention operates in favour of the submission that the new sentence was introduced to provide Judges with a further sentencing option when dealing with recidivist drink drivers.

[34] In these circumstances the extraneous parliamentary materials are consistent with the plain meaning of the words contained in s 65A.

Section headings – Section 65, 65A and 65B

[35] A further feature tending to indicate that s 65A is discretionary in its application is derived from the headings of the sections which precede and follow s 65A.

[36] Section 65 of the LTA is headed, “Mandatory penalties for repeat offences involving use of alcohol or drugs”. This section is sometimes described as the indefinite disqualification provision. It enables the Court to make an order requiring a defendant to attend an assessment centre and to disqualify the defendant until the Transport Agency removes that disqualification. The pre-conditions include those convicted of a second or subsequent offence where that offence was committed within five years of the date of the commission of the offence and where at least one of the offences involved a very substantial evidential breath test or blood alcohol reading.

[37] Section 65B is entitled, “Mandatory zero alcohol requirements for repeated offences involving alcohol”. This provision, too, requires the Court, if the section is engaged, to make an order authorising the defendant to apply for a zero alcohol licence.

[38] It is significant that s 65A, sandwiched as it is between the other provisions discussed above, is not in its title expressed to be mandatory if that was the legislature’s intention.

Community Magistrates and s 358 of the Criminal Procedure Act 2011

[39] The interpretation that the section is discretionary is further supported by s

358 of the Criminal Procedure Act 2011 which outlines the powers of community magistrates in imposing penalties provided for in the LTA.

[40] Section 358(ga) provides a Community Magistrate with a discretion to impose an alcohol interlock licence under s 65A(1) of the LTA. The use of the word “may” in s 358(ga) is instructive. This is to be contrasted with the mandatory “must” in the succeeding paragraph. Section 358(ga) provides as follows:

(ga) may, if that offence is an offence to which section 65A(1) of the Land Transport Act 1998 applies, impose an alcohol interlock licence disqualification:

(gb) must, if an alcohol interlock licence disqualification is imposed under section 65A of the Land Transport Act 1998,—

(i) make, in addition to any other penalties it may impose, an order under section 65A(2)(a) disqualifying the person from holding any driver licence for a period of 3 months; and

(ii) make an order under section 65A(2)(b) of the Land

Transport Act 1998.

(Emphasis added)

[41] It would be most inconsistent if the scheme of the legislation permitted a Community Magistrate to exercise their discretion under s 65A(1) while the same provision would have mandatory effect when a District Court Judge was undertaking the same sentencing exercise.

Consequences if s 65A is interpreted as mandatory

[42] Counsel for all parties identified certain procedural and practical difficulties if s 65A was interpreted in mandatory fashion.

[43] First, there will be some defendants who, like Ms Cowen in this appeal, do not have sufficient resources to avail themselves of an alcohol interlock licence. It was explained to me in argument that there are substantial costs associated with obtaining, fitting, using and monitoring an alcohol interlock device. This is because

those who are subject to an alcohol interlock licence disqualification are required to meet the expenses associated with the device.²²

[44] It would be unreasonable to require an impecunious defendant to meet these costs. A consequence is that for those defendants who have insufficient resources to obtain an alcohol interlock licence they will remain without a licence until/if their means enable them to enter the alcohol interlock licence process.

[45] Furthermore, Mr Jenson has helpfully made enquiries with the Ministry of Transport which administers the alcohol interlock licence regime. He advised me from the bar that as at 31 August 2014 244 people held an alcohol interlock licence and that on average the Courts impose around 20 to 30 interlock licence sentences per month. By contrast, it is estimated that approximately 10,000 offenders per year would meet the criteria for eligibility under s 65A and would, potentially, be subject to such a licence were it mandatory. It is reasonable to infer that if the regime was interpreted to be mandatory the supervising Ministry would be swamped and unable to meet its obligations in terms of giving effect to the penalty regime.

[46] Mr Jenson also advised me that the Ministry is currently conducting a penalties review of LTA sentences, including a review of the alcohol interlock licence programme. It is anticipated that this review will be concluded by July 2015. That review is expected to address any issues encountered with s 65A and its influence on other sections under the LTA sentencing regime.

Procedural consequences of this Court’s finding

[47] Because I have determined that s 65A is discretionary it is necessary to comment on the practical consequences of that determination on Judges sentencing recidivist drink drivers.

[48] I am of the view that once the pre-conditions contained in s 65A(1) are satisfied a sentencing Judge must consider whether or not to impose an alcohol

_{interlock licence disqualification.}

²² The costs are set out in Collier v Police [2013] NZHC 2273 at [25]. They include an application fee of $200, installation fee of $150-$175, and rental fee for the 12 month period of $1,800-$2,100.

[49] I was advised from the bar that the general practice is that that such an order is normally only made on the application of the defendant.

[50] Section 65A makes no reference to the need for a defendant to apply before a Judge may impose such a sentence. Indeed, such an approach would be inconsistent with the legislative intention as evidenced from Hansard and other extraneous legislative sources. It is also inconsistent with other factors already mentioned in this judgment.

[51] In my view it is incumbent on the sentencing Judge, once the pre-conditions contained in s 65A(1) are met, for the Judge to turn their mind to the question of whether to order an alcohol interlock licence. This is in line with s 8(g) of the Sentencing Act 2002 which requires the imposition of the least restrictive sentence appropriate in the circumstances. Obviously one factor which will be relevant to the exercise of the discretion as to whether to make such an order will be the views of the defendant regarding that sentencing option. Furthermore, if the means of the defendant are such that hardship would be caused if such an order was made this would be a relevant consideration for a Judge to reject an alcohol interlock licence as a suitable sentencing option.

[52] As with the many sentencing options contained in the Sentencing Act 2002, the LTA and other legislation, reaching the appropriate sentence will always involve the application of judgment and principle.

Consequences for the appellants

[53] Given my decision in relation to this matter I must now turn to the consequences for the three appellants. I shall deal with each in turn.

Ms Cowan

[54] In the light of my determination that s 65A is discretionary, Ms Cowan’s

appeal is allowed.

[55] This raises the issue of whether I should substitute a new sentence or whether

Ms Cowan’s case should be remitted to the District Court for re-sentencing.

[56] Judge Ingram sentenced Ms Cowan to home detention for three months. Furthermore, under s 65 of the LTA he ordered her to attend an assessment centre and disqualified her from holding or obtaining a driver’s licence until the Director of Land Transport removes the disqualification. Judge Ingram, for the reasons already outlined in this judgment, determined he had no discretion but to make orders under s 65A.

[57] In the circumstances I see no reason or benefit to Ms Cowan in having this matter remitted to the District Court for the imposition of sentence. In my view the appropriate course is to quash the order made under s 65A but leave the other sentences imposed intact.

[58] I do note that s 65A(2)(v) requires the Court when imposing a sentence under s 65A to make an order that ends the person’s disqualification under s 65. There has been confusion over whether an indefinite disqualification should be given alongside a s 65A order. This has arisen out of concern for the possible gap which exists if an order under s 65A is made, and then an application for the licence is not

successful.²³ The applicant would have no remedy to apply to have the licence

reinstated under s 100 as they would with an indefinite disqualification. This situation can be distinguished from a person who does not apply for the licence who is dealt with under s 65A(4) which states that a person who does not apply for an interlock licence is to be treated as having a licence of no effect. As a result of this concern Woodhouse J suggested that s 65A(2)(b)(v) should be interpreted to:²⁴

...enable the Court to make an order of indefinite disqualification under s 65, and then make a further order pursuant to s 65A(2) that the order of indefinite disqualification will end if an application is made under subsection (2)(b)(i) and if that application is successful.

²³ _{Nanai v Police, above n 8.}

²⁴ At [26].

[59] However in line with Ellis J’s comments in Singh v Police I do not consider this to be an issue.²⁵ The reality is that the Land Transport Agency has no power to refuse to grant an interlock licence. The effect of this is that it is thus unnecessary to cater for this so-called gap. As a result, in accordance with s 65A(2)(b)(v), a sentencing Judge can make an order which ends the mandatory s 65 disqualification if an order under s 65A is made.

Ms Moka

[60] Ms Moka was originally charged with driving with excess breath alcohol, third or subsequent. However, this charge was amended and a plea of guilty was entered to driving with excess breath alcohol under s 56 of the LTA.

[61] Judge Ingram fined Ms Moka $1,000 and disqualified her for driving for a six month period. It was because the appellant had two previous convictions within a five year period that his Honour turned his mind to s 65A and made the orders under that section.

[62] Again, I see no good purpose in Ms Moka’s case being remitted to the District Court for re-sentencing. With the exception of the order under s 65A she was dealt with appropriately by the sentencing Judge.

[63] I note that in Singh v R Ellis J established that if the situation requires a disqualification under s 56 for a period greater than six months, the Court under s 81(2) can instead impose an interlock order which requires a lesser disqualification of 3 months. Thus if an order under s 65A is made, no other disqualification should be imposed under s 56.

[64] In the circumstances the proper course is to quash the order made under s 65A but leave the other sentences imposed intact.

Mr Wilson

[65] Mr Wilson’s position is different from the other appellants.

[66] Judge Rollo did not make orders in terms of s 65A despite the appellant seeking it. As Mr Jenson submitted, the Judge’s decision needs to be viewed in the context of sentencing options in Opotiki, a small provincial town where the majority of drink driving offenders do not have the ability to fund the requirements of an alcohol interlock licence. For Judge Rollo, this reality, coupled with Mr Wilson’s poor record of drink driving, tipped the balance in favour of the deterrent and protective sentence of an indefinite disqualification. Despite his counsel’s request that the Judge make orders under s 65A so that Mr Wilson could continue to work but also ensure public safety was not compromised, his Honour determined that a more appropriate sentence would be indefinite disqualification. He also imposed a three monthly judicial monitoring programme as well as ordering a zero alcohol licence under s 65B.

[67] However this approach is contrary to the sentencing principles contained in s 8 of the Sentencing Act which requires the imposition of the least restrictive outcome that is appropriate in the circumstances. Refusing to make an order under s

65A in circumstances where it serves the dual purposes of being appropriate for the offender and protecting the public is not unjust simply because financial circumstances are a consideration. I also note Courtney J’s decision in Wiseman v Police where in considering whether to make an order under s 65A in regard to an

offender who needed his licence to maintain employment she stated: ²⁶

It is in society's interests that those with full-time employment be supported in that, all other things being equal. It is in society's interests that a recidivist offender who finally recognises the error of his ways and takes steps towards rehabilitation be supported in that. It is also in society's interests that an offender who, realistically, is likely to ignore a mandatory disqualification is otherwise prevented from driving while alcohol impaired. For these reasons, I consider that an interlock order is appropriate in this case.

Result

[68] Ms Cowen’s appeal is allowed and the order made under s 65A of the LTA is quashed. All other sentences and orders imposed remain.

[69] Ms Moka’s appeal is allowed and the order made under s 65A of the LTA is

quashed. All other sentences and orders imposed remain.

[70] Mr Wilson’s appeal is allowed in part. The sentence of indefinite disqualification is quashed and a sentence imposing an alcohol interlock licence is substituted on the following statutory terms:

(a) he is disqualified from holding any driver’s licence for a period of three months from the date of this judgment and I make an order that:

(i) authorises him to apply for an alcohol interlock licence at the end of the three month disqualification period; and

(ii) requires him, while holding an alcohol interlock licence to:

(1) drive only a vehicle or vehicles to which an alcohol interlock device is fitted; and

(2) apply for a zero alcohol licence which the Agency may issue only on the successful completion of the criteria specified in (iv) of s 65A(2)(b) of the LTA; and

(3) he may apply for any other driver’s licence (including, but not limited to, a limited licence) only if he has obtained, and has satisfied the requirements of, the alcohol interlock licence; and

(4) the alcohol interlock device in his vehicle may be removed only if he:

(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 six 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 three month period preceding the date on which the alcohol interlock licence is removed; and

(5) his disqualification under s 65 ends.

_{All other sentences and orders imposed remain.}

Moore J

Solicitors:

C Andersen, Rotorua

V Winiata, Rotorua

Crown Solicitor, Tauranga