Vorster v Police [2015] NZHC 2930 (23 November 2015)

Last Updated: 4 December 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000281 [2015] NZHC 2930

BETWEEN	PHILLIP VORSTER Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	23 November 2015
Appearances:	T Fitzgibbon for Appellant K Muirhead for Respondent
Judgment:	23 November 2015

_{ORAL JUDGMENT OF WYLIE J}

Introduction

[1] This is an appeal from two sentences of disqualification from holding a driver’s licence, one indefinitely and the other for six months, imposed by Judge L I Hinton in the District Court at North Shore on 11 August 2015.

[2] The appellant, Mr Vorster, pleaded guilty to one charge of refusing blood – a third or subsequent offence, and to another charge of driving while disqualified – also a third or subsequent offence. In respect of the offence of driving while disqualified, he was sentenced to six months’ disqualification. In respect of the offence of refusing blood for a third or subsequent time, he was disqualified from holding a driver’s licence indefinitely.

_{[3] Mr Vorster appeals the disqualifications imposed.}

VORSTER v NZ POLICE [2015] NZHC 2930 [23 November 2015]

Factual background

[4] The summary of facts produced at the District Court hearing is accepted by

Mr Vorster. In short, he was suspended from driving as from 31 August 2014 until

29 November 2014 because he had excess demerit points. Nevertheless, at about

2.10am on Wednesday 10 September 2014 Mr Vorster was the driver of a motor vehicle on the state highway near Te Atatu. The front right tyre of his car blew out, and as a result he came to a stop in one of the lanes on the motorway. When the police attended, Mr Vorster was exhibiting signs of recent alcohol intake. He appeared agitated and paranoid. Compulsory impairment tests produced an unsatisfactory result. The police then required Mr Vorster to submit a sample of his blood for analysis. He refused to do so, stating that he didn’t like needles in his arm. Mr Vorster also stated that his license was suspended and that he had smoked something before driving.

[5] Mr Vorster was then charged with refusing to submit a blood specimen having been required to do so by an enforcement officer under s 72 of the Land Transport Act 1998. That is an offence pursuant to s 60(1)(a) of that Act, and it is subject to a maximum penalty of two years’ imprisonment or a $6,000 fine, and to

one or more years’ disqualification.¹

[6] Mr Vorster was also charged with driving a motor vehicle while his license was suspended for a third or subsequent time. This is an offence pursuant to s

32(1)(c) of the Act, and again it is punishable by a sentence of two years’

imprisonment or a fine of $6,000, and to one or more years’ disqualification.²

Judge’s Sentencing Notes

[7] Judge Hinton took into account the fact that Mr Vorster was, at the time of the offending, serving a sentence of community detention, and that he had previous relevant convictions in 2010 and 2014. The Judge considered that his options were limited. He recorded that, optimally, Mr Vorster would be sentenced to community or home detention, but that that option was not available because Mr Vorster was at

_{the time already serving the sentence of community detention.}

¹ _{Land Transport Act 1998, s 60(3).}

² Section 32(4).

[8] The Judge recorded that Mr Vorster had taken a number of steps to rehabilitate himself. He considered that Mr Vorster deserved some credit for these positive moves. He expressed the view that Mr Vorster should be sentenced to intensive supervision to help with his rehabilitation programmes, and to a period of community work. On the charge of refusing to give a blood sample, Mr Vorster was convicted, and sentenced to undertake 100 hours’ community work. He was indefinitely disqualified from holding a driver’s licence and sentenced to intensive supervision for a period of 15 months. In relation to the charge of driving while disqualified, he was disqualified for a period of six months and sentenced to intensive supervision, again for a period of 15 months. There was a special condition imposed requiring that Mr Vorster should undertake such courses and programmes as the Probation Service might require.

[9] It is not clear from the Judge’s decision whether or not the sentences were

concurrent or cumulative. Presumably they were intended to be concurrent.

Approach to the appeal

[10] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal if it is satisfied that:

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

and

(b) a different sentence should be imposed.

[11] In any other case the Court must dismiss the appeal.³

[12] The Court of Appeal in Tutakangahau v R,⁴ has confirmed that s 250(2) was not intended to change the approach taken by the Courts under the Summary Proceedings Act 1957. Further, despite the fact that s 250 makes no express reference to the words “manifestly excessive”, the Court held that this principle is

_{well ingrained in the Court’s approach to sentence appeals.}⁵

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

⁴ _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]- [27].}

⁵ At [33] and [35].

[13] This Court will not intervene with sentences which are within the range that can be properly justified on accepted sentencing principles. The Court must proceed on an “error principle”.⁶ Whether a sentence is manifestly excessive is to be examined in terms of the sentence imposed, rather than the process by which the sentence was reached.⁷

Submissions

[14] Ms Fitzgibbon for Mr Vorster submitted that indefinite disqualification, with a further six months’ disqualification, was manifestly excessive, and that the sentences imposed require this Court to undertake the sentencing process afresh. In particular she submitted that this Court should consider whether a sentence requiring an alcohol interlock device should be imposed under s 65A of the Act. She submitted that Mr Vorster satisfied the requirements for an alcohol interlock licence at the time of sentencing. She noted that Mr Vorster wants to work, that he is a qualified builder, and that his focus is and has been to return to stable employment. She also advised that Mr Vorster is aware of the requirements for an alcohol interlock licence, and the cost of the same.

[15] Ms Muirhead for the respondent accepted that the Judge erred in not considering an order under s 65A. She also accepted that Mr Vorster meets the statutory criteria for an order under that section, and that it is for the Court to form its own view as to the appropriate sentence. The respondent abided the decision of the Court in this regard.

Analysis

[16] Relevantly s 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), 57(1), 57(2),

_{58(1)(a), 60(1)(a) to (c), 61(1), 61(2), and 62(1)(a); and}

⁶ _{R v Shipton [2007] 2 NZLR 218 (CA) at [138].}

⁷ Ripia v R [2011] NZCA 101 at [15]; Gibson v R [2015] NZCA 57 at [9].

(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) ...

(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.

[17] There has been some divergence of opinion in relation to the application of this section. The position was comprehensively considered by Moore J in Wilson v Police.⁸ I agree with the analysis there undertaken. It is now clear that:

(a) Section 65A(1) sets out the criteria which determine whether the section can apply.

(b) The qualifying criteria in s 65A(1)(a) and (b) are conjunctive. (c) Once the qualifying criteria are satisfied, s 65A(2) is engaged.

(d) If the qualifying criteria are met, the sentencing Judge has a discretion whether or not to impose a sentence for an alcohol interlock licence disqualification.

(e) If the Court decides to impose such a sentence for an alcohol interlock licence disqualification, the provisions in s 65A(2) are mandatory. If the Court is not so inclined, the provisions contained in s 65A(2) are not engaged.

(f) If the qualifying criteria in s 65A(1) are satisfied, a sentencing Judge must consider whether to impose an alcohol interlock licence disqualification. This flows from s 8(g) of the Sentencing Act 2002, which requires the imposition of the least restrictive sentence

_{appropriate in the circumstances.}

⁸ Wilson v Police [2014] NZHC 2474.

[18] In Mr Vorster’s case, the conjunctive qualifying criteria contained in s 65A(1) were met. First, he was convicted of an offence against s 60(1)(a), and as a result s 65A(1)(a) applied. Secondly, according to Mr Vorster’s criminal history, he was convicted of driving with excess breath alcohol pursuant to s 56(1) of the Land Transport Act on 3 September 2010 for an offence which occurred on 27 August

2010. The offending in respect of which Mr Vorster was being sentenced by Judge

Hinton occurred on 10 September 2014, and the guilty pleas were entered on 11

August 2015. Section 65A(1)(b)(i) applied.

[19] There is nothing in Judge Hinton’s sentencing notes to suggest that he turned his mind to s 65A. Had he done so, he would have been able to canvass with counsel appearing for Mr Vorster, Mr Vorster’s position in relation to a sentence of an alcohol interlock licence disqualification. Counsel for Mr Vorster would have been able to address the Court on whether or not such a sentence was appropriate. This did not occur.

[20] As I have noted above, both of the offences in respect of which Mr Vorster was convicted required the Judge to disqualify him from holding or obtaining a driver’s licence for one year or more.⁹ In relation to the offence of refusing to submit a blood specimen Mr Vorster was disqualified indefinitely, presumably pursuant to s 65. In relation to the offence of driving while disqualified, the Judge imposed a disqualification of six months. This is at odds with the requirement in s

32(4)(b) which mandates disqualification for a third or subsequent offence of one or more years. It appears that the Judge erred in this regard.

[21] Section 65A contemplates that a sentence of alcohol interlock licence disqualification can be imposed when s 60 is breached. In the event that s 65A applies, subsection 2(a) makes it clear that the initial total disqualification imposed is for a three month period only. This is less than the mandatory period of disqualification required by s 60(3)(b) when the offending against s 60(1) occurs for a third or subsequent time.

[22] Section 65A(2)(b)(v) makes it clear that, if s 65A(2) is engaged, the Court, can, in the exercise of its discretion, impose an alcohol interlock licence

⁹ Sections 32(4)(b) and 60(3)(b).

disqualification notwithstanding the apparently obligatory terms of s 65. There is no equivalent provision dealing with disqualification under s 60(3) or under s 32(4). However both of these sections, as well as s 65A(3), state that the imposition of a mandatory disqualification is subject to s 81.

[23] Section 81(1) provides that the Court must order disqualification for the period prescribed unless, for special reasons “relating to the offence”, the Court thinks fit to order otherwise. This provision does not assist in the present case. It is not suggested that there are any special reasons relating to Mr Vorster’s offending which would permit the Court to depart from the mandatory disqualification period required by ss 32(4) and 60(3). However s 81(2), goes on to provide as follows:

Nothing in any provision referred to in subsection (1) or in section 65 restricts any other duty or power of the court to disqualify a person from holding or obtaining a driver licence or transport service licence or to impose any other penalty.

This subsection permits a sentencing Judge to choose between conflicting but equally mandatory disqualification periods.¹⁰ This subsection, and s 65A, enable the Court to impose a sentence of disqualification under s 65A, notwithstanding that other provisions purport to require a longer period of disqualification than that specified in s 65A(2). I do not consider that ss 32(4) or 60(3), precluded Judge Hinton from considering s 65A.

[24] The question therefore becomes whether or not a sentence of an alcohol interlock disqualification is appropriate in Mr Vorster’s case.

[25] Ms Fitzgibbon advises me that prior to sentencing on 11 August 2015, Mr Vorster had completed the right track programme, and that he wanted to work. She pointed out that Mr Vorster is a qualified builder, and that in order to work, he needs to be able to drive to work sites when required to do so. His focus is apparently to return to stable employment as a builder. She advised that Mr Vorster was aware of the requirements for, and cost of an alcohol interlock licence, and that he is prepared

_{to meet the same.}

¹⁰ Singh v Police [2013] NZHC 3065 at [9] and [12]-[17]; and see Wilson v Police, above n 8, at

[63]; Lose v R [2014] NZCA 368.

[26] There is an affidavit from Mr Vorster that was filed this morning. He confirmed his preparedness and means to pay for an alcohol interlock licence. He stated that he is a qualified builder. He recorded that he completed the Capri Hospital programme and advised that he has been offered a job as a builder, conditional on him holding a driver’s licence so that he can get to and from work sites.

[27] There is a positive report from a counsellor at Capri Hospital. It confirmed that Mr Vorster was in residential treatment for a period of four weeks and that he participated fully in the programmes offered. The counsellor considered that Mr Vorster had gained insight into his problems with alcohol and that he had developed positive coping strategies. There was also a positive report from the plant manager at Capri Hospital and a positive pre-sentence report. I am persuaded that Mr Vorster has, albeit belatedly, seen the error of his ways.

[28] While Mr Vorster has a history of non compliance with sentences of disqualification, Ms Muirhead confirmed that this was not a case where he was grossly intoxicated or involved in additional offending such as careless driving.

[29] Section 8(g) of the Sentencing Act requires me to impose the least restrictive sentence appropriate in the circumstances. A sentence of an alcohol interlock licence disqualification is less restrictive than a sentence of indefinite disqualification. Moreover, in my judgment it is appropriate in the circumstances.

[30] Rehabilitation and reintegration are important purposes of sentencing. I agree with observations made by Courtney J in Wiseman v Police.¹¹ It is in society’s interests that recidivist offenders who finally recognise the error of their ways and take steps towards rehabilitation be supported in that course.

[31] Mr Vorster has taken positive steps towards rehabilitation. He wants to return to the workforce, and his skills as a qualified builder make it likely that he will be required to drive to and from work sites. It is in society’s interest that he completes his rehabilitation, and that he returns to gainful employment. He must however be

_{prevented from driving while alcohol impaired in the, hopefully unlikely, event that}

¹¹ Wiseman v Police [2014] NZHC 2327.

he falls into his past ways. In my view, an interlock licence order is appropriate in

Mr Vorster’s case.

[32] Mr Vorster’s appeal is allowed, and the orders for disqualification made by

Judge Hinton are quashed.

[33] A sentence of an alcohol interlock licence disqualification is imposed on the following terms, as required by s 65A(2):

(a) Mr Vorster is disqualified from holding any driver’s licence for a

period of three months from the date of this judgment. (b) I make an order that:

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

(ii) Requires Mr Vorster, 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 New Zealand Transport Agency may issue only on the successful completion of the criteria specified in (iv) below; and

(iii) Mr Vorster 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

(iv) 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;

(v) Mr Vorster’s disqualification under s 65 ends.

[34] In all other respects, the sentences imposed by Judge Hinton are upheld.

[35] I thank counsel for their comprehensive and helpful submissions and I am grateful to Ms Muirhead for the sensible and pragmatic approach taken to this appeal by the respondent.

Wylie J