Rao v Police [2014] NZHC 3348 (19 December 2014)

Last Updated: 29 April 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000264 [2014] NZHC 3348

IN THE MATTER	of the Land Transport Act 1998
BETWEEN	KARTIK RAO Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	17 November 2014
Appearances:	G Haydn for the Appellant K Eastwood for the Respondent
Judgment:	19 December 2014

_{JUDGMENT OF WOOLFORD J}

This judgment was delivered by me on Friday, 19 December 2014 at 11.00 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Counsel: G Haydn, Auckland

_{Solicitors: Crown Solicitor, Auckland}

KARTIK RAO v NEW ZEALAND POLICE [2014] NZHC 3348 [19 December 2014]

[1] On 11 June 2014 in the Auckland District Court, Kartik Rao pleaded guilty to two charges, one of refusing to permit a blood specimen to be taken, having been requested to do so by a medical practitioner, and one of careless driving.

[2] On 8 August 2014, he was convicted of refusing to permit a blood specimen to be taken and sentenced to 100 hours community work together with supervision for nine months on conditions which included that he undertake such counselling and/or treatment or courses for alcohol abuse as the probation officer directed. He was also disqualified indefinitely from holding or obtaining a driver’s licence. On the charge of careless driving, he was convicted and disqualified from holding or obtaining a driver’s licence from 12 months, which was to run concurrently with the indefinite disqualification.

[3] He now appeals against sentence on the basis that the District Court Judge wrongly refused his application for authority to apply for an alcohol interlock licence after three months disqualification as an alternative to indefinite disqualification.

Factual background

[4] Mr Rao is now 24 years old. On 31 July 2009 he was convicted of driving with a breath alcohol reading of 218 micrograms of alcohol per litre of breath, which exceeded the youth level of 150 micrograms of alcohol per litre of breath. The youth level applied to persons under 20 years. Mr Rao was 18 at the time of the offending. He was fined $350 with Court costs of $130 and disqualified from holding or obtaining driver’s licence for three months. He was also convicted of careless driving.

[5] On 23 February 2011, Mr Rao was convicted of driving with excess blood alcohol. He had a level of 131 milligrams of alcohol per 100 millilitres of blood. The adult level was 80 milligrams of alcohol per 100 millilitres of blood. Mr Rao was 20 at the time of the offending. On that occasion he was fined $800 with analysis fees of $93, Court costs of $132.89 and medical expenses of $80. He was also disqualified from holding or obtaining a driver’s licence for seven months. He was again also convicted of careless driving.

[6] At about 1.40 a.m. on 21 May 2014, when he was 23 years old, Mr Rao was driving a motor vehicle on Westminster Road in New Windsor, Auckland. He lost control of his vehicle and veered right, crashing into a parked motor vehicle. The owner was seated in the motor vehicle at the time and as a result of the crash, her driver’s door was damaged. Mr Rao got out of his vehicle and exchanged details with the victim. The Police were called and found Mr Rao asleep in the driver’s seat of his vehicle. He smelt of alcohol and breath testing procedures were carried out. However, Mr Rao refused to undertake an evidential breath test. He was then required to give a sample of his blood by the Police. A medical officer was summonsed to take a blood sample from him. However, when the medical officer arrived, Mr Rao refused to allow her to take a blood sample.

District Court sentence

[7] After reciting the summary of facts, Judge Gittos commented that it was obvious from the fact of the collision and from the state that he was in when found by the Police that Mr Rao must have been quite intoxicated. He noted, however, that Mr Rao had subsequently taken a responsible approach in that he had voluntarily attended a brief course with Community Alcohol and Drug Addiction Services, being a four week introductory course. He also paid for the cost of repairs to the victim’s vehicle.

[8] Judge Gittos then referred to the application made on Mr Rao’s behalf for the

Court to apply the alcohol interlock provisions of s 65A of the Land Transport Act

1998. Judge Gittos said that the legislation did not really set out any particular guidelines as to how the discretion should be exercised or when it should be exercised, but said he thought that some grounds for ameliorating the rigour of the usual sentence, that is, indefinite disqualification, needed to be made out. In that regard, all Judge Gittos said he had to assist him was the material set out in a letter that Mr Rao had put before the Court which talked about him having pursued a course of tertiary education and looking for work both in New Zealand and abroad.

[9] Judge Gittos also referred to advice from counsel for Mr Rao that he now had a job with a bank, which did not require him to drive a car, but it was a matter of

preference to have an alcohol interlock device in his car and to be able to continue to drive rather than to suffer the ordinary consequences of being a repeat drink driver, and that was indefinite disqualification.

[10] Judge Gittos did not see any basis upon which the Court could exercise its discretion to apply the alcohol interlock provisions of s 65A as an exercise in clemency. He said it was a clear case where Mr Rao was incapable of driving because he collided with a parked car and was quite intoxicated. He therefore imposed the sentences set out above.

Mr Rao’s affidavit

[11] Mr Rao had filed an affidavit in support of his appeal against sentence, although no application has been made for the admission of fresh evidence on appeal. He says that the main reason he wanted an alcohol interlock licence was that it would ensure that he did not black out again as he did on 21 May 2014 and get behind the wheel of a car. He says he realised after that night that it could have been much worse and he wanted to protect himself and others. Mr Rao is a university student and also works 35 hours per week at a bank in central Auckland. He currently takes public transport to and from central Auckland, but finds it difficult with the number of hours he works and is required to study. He is attending alcohol counselling and also intends to complete a defensive driving course. He hopes his appeal will succeed as having an alcohol interlock device fitted to his car would be very helpful with ongoing rehabilitation.

[12] The respondent does not oppose the admission of Mr Rao’s affidavit, but notes that it is evidence that should have been reasonably available at the time of the District Court sentencing. Notwithstanding its availability at the time of sentencing, I admit the affidavit as evidence in the appeal because it confirms matters which were the subject of submissions at the time of sentencing.

Discussion

[13] An alcohol interlock device is defined as a device which is part of the starting system of a motor vehicle and uses breathalyser technology to determine whether the

starting system should start the motor vehicle. The alcohol interlock device regime is an alternative to indefinite disqualification which involves a minimum disqualification period of a year and a day.¹ The Court is able to make an order authorising a person to apply for an alcohol interlock licence at the end of a mandatory three month disqualification period, which would enable him or her to drive subject to certain restrictions after three months, rather than at least a year and a day.

[14] The alcohol interlock device regime is set out in s 65A of the Land Transport

Act 1998. It provides:

(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’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—

¹ Although I note the approach adopted by Woodhouse J in Collier v Police [2013] NZHC 2273 of imposing an indefinite disqualification under s 65 as a back up to the alcohol interlock device regime in case the defendant was unable to obtain an alcohol interlock licence.

(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.

[15] There are two aspects of s 65A which stand out, according to Cooper J, in Nanai v Police. These were the lack of a specific power to impose such a sentence and the lack of any statutory criteria. He stated:²

[16] There are two aspects of s 65A(2) which stand out. First, where s

65A applies, the Curt is directed to take certain action “if” it imposes a

sentence for an alcohol interlock licence disqualification. The language used in subs (2) might be thought to imply that there is another statutory provision

which directly authorises the imposition of such a sentence. However,

counsel advised that they have not been able to find such a provision, and neither have I. It appears that the power to impose such a sentence is to be inferred from the wording of subs (2) itself, in the context of s 65A as a whole.

[17] Second, 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.

[16] An order under s 65A disqualifying a defendant from holding or obtaining a driver’s licence for three months and authorising him or her to apply for an alcohol interlock licence after that time has also been held to be a lesser penalty than indefinite disqualification under s 65.³

[17] The appellant submits that absent a specific impediment there is a presumption that if a defendant meets the requirements of both s 65 and s 65A then the lesser penalty in s 65A is to be preferred. An impediment might be: (a) the inability to meet the costs associated with an alcohol interlock licence; (b) a history of breaching alcohol interlock licences or other court orders: and/or (c) the absence of any sign of taking responsibility for the offending, including through efforts made towards rehabilitation.

[18] The appellant further submits that the ill-defined lack of hardship test adopted by the District Court Judge was not properly an impediment and accordingly the presumption that s 65A applications would be granted should have led the Judge to making an order under s 65A.

[19] I am of the view, however, that if a defendant meets the requirements of both s 65 and s 65A, then there is not a presumption that the lesser penalty in s 65A should apply. First, there is no presumption evident in the wording of s 65 or s 65A. Nor can such a presumption be inferred from the wording of s 65 or s 65A, in my view. The Court is directed to take certain action “if” it imposes a sentence for an alcohol interlock licence disqualification. Such a power is clearly discretionary and not to be presumptively applied. The Court of Appeal has described s 65A as “the

discretion given to a sentencing Judge to impose an alcohol interlock

disqualification”.⁴

[20] Likewise, there is no presumption that if a defendant meets the requirements of both ss 65 and 65A, then the harsher penalty in s 65 should apply. It is here that I have reached the view that Judge Gittos fell into error when he said that some grounds for ameliorating the rigour of the “usual” sentence under s 65 needs to be made out. He incorrectly held that the “ordinary consequences” of being a repeat drunk driver was indefinite disqualification. Judge Gittos further stated that he could not see a basis upon which the Court should exercise the discretion to give Mr Rao authority to apply for an alcohol interlock device after three months disqualification “as an exercise in clemency”. In other words, Judge Gittos was wrong to find that there was a presumption that the harsher penalty in s 65 should apply.

[21] Having found Judge Gittos to be in error in his approach to s 65A, I am able, on appeal, to form my own view of the appropriate sentence.⁵ The starting point is clearly that the discretion whether or not to apply s 65A is to be exercised in accordance with the purposes and principles of the Sentencing Act, as noted by Cooper J in Nanai and as implicitly upheld by the Court Appeal in Lose.

[22] There is no statutory guidance in s 65A. Case law provides only limited guidance. In Singh v Police,⁶ Ellis J took into account the importance of Mr Singh continuing in employment and his ability to meet the costs associated with an order. By considering the defendant’s ability to continue in employment Ellis J was upholding s 7(1)(h) of the Sentencing Act 2002 by assisting in the offender’s rehabilitation and reintegration. Furthermore, if a defendant cannot meet the costs associated with an order then the purposes of sentencing the defendant to such an order will be frustrated. Not imposing an alcohol interlock order in that case upholds

s 8(h) of the Sentencing Act, that the Court must take into account any particular circumstances of the offender that mean that a sentence that would otherwise be

_{appropriate would, in the particular instance, be disproportionately severe.}

⁴ _{Lose v R [2014] NZCA 368 at [2].}

⁵ _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].}

⁶ Singh v Police [2013] NZHC 3065.

[23] In Wiseman v Police,⁷ Courtney J held that although an alcohol interlock order under s 65A was a lesser penalty than the mandatory indefinite disqualification imposed under s 65, the considerations of deterrence and denunciation and protection of the public could still be addressed by a suitable combination of sentences, including fines, community work and community detention in conjunction with an alcohol interlock order. In deciding the appropriateness of an order in that case, Courtney J said:

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.

[24] In Wilson & Ors v Police,⁸ Moore J also discussed the factors which should be taken into account when deciding whether to make an order under s 65A. He referred to s 8(g) of the Sentencing Act 2002 which requires the imposition of the least restrictive sentence appropriate in the circumstances. He also referred to the views of the defendant as one factor which would be relevant to the exercise of the discretion. Furthermore, if the defendant’s means were such that hardship would be caused if such an order was made, that too would be a relevant consideration for a Judge to reject an alcohol interlock order as a suitable sentencing option.

[25] Moore J was of the view in that case that the District Court Judge had acted in error in refusing an alcohol interlock order. Moore J said:⁹

[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

⁷ _{Wiseman v Police [2014] NZHC 2327 at [21].}

⁸ _{Wilson & Ors v Police [2014] NZHC 2474.}

⁹ At [66] – [67].

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.

[26] I turn then to look at Mr Rao’s circumstances and whether the imposition of an alcohol interlock order is appropriate in this case. In Singh, Wiseman and Wilson one of the primary sentencing purposes was rehabilitation and reintegration into the community. The alcohol interlock device was necessary for all of the offenders to enable them to continue in employment so that they could reintegrate into the community. That purpose is not of such importance in this case as Mr Rao uses public transport to and from work and to attend university. An alcohol interlock device will still, however, help in his reintegration in the sense of being able to socialise in the weekends and participate in activities outside of work more readily.

[27] I note however that on all three occasions upon which Mr Rao has been convicted of drink driving, he has also been convicted of operating a vehicle carelessly. This was a point clearly in the mind of Judge Gittos. He stated:

This was not a technical offence. It was a clear case where you were incapable of driving because you collided with a parked car and you were considerably intoxicated, obviously, for that to happen and given, as I say, the state you were found in and your refusal to undergo a blood test.

[28] The purposes of denunciation and deterrence under s 7(1)(e) and (f) of the

Sentencing Act therefore assume more prominence in this case.

[29] Courtney and Moore JJ in Wiseman and Wilson both referred to the purpose of the protection of the public. Again, that principle assumes less importance in this case because Mr Rao does not have an extensive history of non-compliance with sentences of disqualification. I note that under s 8(g) of the Sentencing Act, I must impose the least restrictive outcome, but that is the least restrictive outcome in the circumstances as they apply to the offender. For this offender, Mr Rao, I consider that the least restrictive outcome is indefinite disqualification as the principles of

denunciation and deterrence have more significance than the purposes of rehabilitation, reintegration and public protection, which are less relevant in his personal circumstances.

[30] The appeal is accordingly dismissed. Notwithstanding the error of approach by Judge Gittos, the sentences imposed by him are confirmed.

.....................................

Woolford J