Perry v Police [2018] NZHC 3246 (10 December 2018)

Last Updated: 14 December 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-325 [2018] NZHC 3246

BETWEEN	CLAIRE YVONNE PERRY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	10 December 2018
Appearances:	J Olsen on behalf of J Munro for the Appellant M Mortimer for the Respondent
Judgment:	10 December 2018

ORAL JUDGMENT OF GORDON J

Solicitors: Crown Solicitor, Auckland Counsel: J Munro, Auckland

PERRY v POLICE [2018] NZHC 3246 [10 December 2018]

Introduction

[1] The appellant, Claire Perry, pleaded guilty to the following four charges under the Land Transport Act 1998 (the Act):

(a) Two charges of driving with excess breath alcohol (third or subsequent);¹ and

(b) Two charges of driving contrary to a zero alcohol licence.²

[2] On 25 September 2018, Judge Dawson, in the District Court at Auckland, sentenced Ms Perry to seven months’ home detention.³ He also disqualified Ms Perry from driving for a total of three years and imposed an alcohol interlock sentence.

[3] Ms Perry only appeals the sentence insofar as it relates to the imposition of the cumulative disqualifications from driving together with the alcohol interlock sentence. She does not appeal the sentence of home detention.

Factual background

[4] On 25 November 2016, Ms Perry was issued with a zero alcohol licence.

[5] At about 2:30 pm on 8 November 2017, Ms Perry was driving a motor vehicle at Red Beach. The Police stopped her vehicle. Breath test procedures were carried out. They produced a result of 1,199 micrograms of alcohol per litre of breath.

[6] At about 7:15 pm on 23 December 2017, Ms Perry was driving a Suzuki motor vehicle on East Coast Road, Pinehill. The Police stopped Ms Perry’s vehicle. After speaking to Ms Perry, they carried out breath test procedures. They produced a result of 1,037 micrograms of alcohol per litre of breath.

¹ Land Transport Act 1998, s 56(1).

² Section 32(1)(b).

³ New Zealand Police v Perry [2018] NZDC 24668.

District Court decision

[7] After summarising the factual background, Judge Dawson identified that Ms Perry has six previous convictions for drink-driving and four others on her record.⁴

[8] The Judge then summarised the aggravating features of the offending as follows:

[8] The gravity of your offending in my view is high. The aggravating factors are the number of your previous convictions but, in addition, the last three occasions now when you have been drink-driving you have levels over 1000 micrograms per millilitre of breath. All three of those levels are extremely high. The concern I have from that is that it gives the appearance that your offending is escalating.

[9] After summarising the pre-sentence report, the Judge adopted a starting point of 20 months’ imprisonment.⁵ He uplifted that by four months to reflect the concurrent offending, before reducing it by six months in total to reflect Ms Perry’s guilty pleas and rehabilitative efforts.⁶ He then reduced it by a further four months because Ms Perry had spent a month in custody and had spent eight months on electronically monitored bail.⁷ That resulted in an end sentence of 14 months’ imprisonment.

[10] The Judge then concluded that a sentence of home detention was appropriate.⁸ He sentenced Ms Perry to seven months’ home detention on all four charges.⁹

[11] Significantly, for the purposes of this appeal, the Judge then stated:

[14] On the two driving with excess breath alcohol third or subsequent, you are disqualified for one year each and for the two charges of driving contrary to a zero alcohol licence, a further six months each. Disqualification will be applied. Each of those is the minimum. So you have lost your licence for three years. The alcohol interlock conditions will also apply.

Approach on appeal

[12] Section 250(2) of the Criminal Procedure Act 2011 provides:

⁴ New Zealand Police v Perry, above n 3, at [5].

⁵ At [11].

⁶ At [11].

⁷ At [11].

⁸ At [12].

⁹ At [13].

(2) The first appeal court must allow the appeal if satisfied that—

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

(b) a different sentence should be imposed.

[13] In any other case, the court must dismiss the appeal.¹⁰

[14] A sentence may be set aside where it is manifestly excessive.¹¹ Whether a sentence is manifestly excessive depends on the end sentence, not the process by which the sentence was reached.¹² The court will not intervene where the sentence is within range. But, if the court determines the sentence is manifestly excessive, it will form its own view of the appropriate sentence.¹³

Submissions

[15] Mr Olsen, for Ms Perry, submits that a mandatory disqualification for the driving with excess breath alcohol charges cannot be imposed together with an alcohol interlock sentence. He submits that Judge Dawson erred in law when he imposed the mandatory disqualification together with the alcohol interlock sentence on the two charges of driving with excess breath alcohol.

[16] Mr Olsen further submits that although the additional one-year disqualification on the two zero alcohol licence charges (six months on each one) was available at the discretion of Judge Dawson, it should not have been imposed in the circumstances.

[17] Therefore, Mr Olsen submits that the Court should quash the two cumulative one-year disqualifications on each of the two driving with excess breath alcohol charges, as there was no statutory basis to impose them. He also submits that the Court should quash the order for disqualification for one year made in respect of the two zero alcohol licence charges.

¹⁰ Criminal Procedure Act 2011, s 250(3).

¹¹ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].

¹² Kumar v R [2015] NZCA 460 at [81].

¹³ Tutakangahau v R, above n 11, at [30].

[18] Mr Mortimer, for the Crown, accepts that the two cumulative one-year disqualifications on each of the driving with excess breath alcohol charges could not have been imposed. But he submits the Judge did not err in imposing a period of disqualification on the zero alcohol licence charges.

Issues

[19] The two issues on appeal are:

(a) Issue one: could the Court impose the two-year component of the three- year disqualification period, on the two charges of driving with excess breath alcohol?

(b) Issue two: was the District Court Judge correct (to exercise his discretion)¹⁴ to impose the one-year disqualification on the two charges of driving contrary to a zero alcohol licence?

Discussion

Issue one

[20] Prior to 1 July 2018, although it was a mandatory consideration, it was not mandatory to impose an alcohol interlock order when a defendant was convicted of certain offences.¹⁵ From 1 July 2018, ss 65AB and 65AC replaced s 65A of the Act.¹⁶ The new provisions have the effect of making alcohol interlock sentences mandatory in cases where defendants are convicted of certain offences. Those two sections relevantly provide as follows:

65AB Qualifying offences

(1) Section 65AC applies if a court convicts a person of an offence in relation to alcohol against any of sections 56(1), 56(2), 57(1), 57(2), 57AA, 58(1)(a), 60(1)(a) to (c), 61(1), 61(2)(a), and 62(1)(a) and either—

14. See discussion at [38] below. It appears that the Judge did not appreciate that he had a discretion whether or not to impose the period of disqualification.

¹⁵ Land Transport Act, ss 65A and 65B. See also Anglem v Police [2018] NZHC 329 at [14]- [16].

¹⁶ See Land Transport Amendment Act 2017, s 2(1)(a).

(a) 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 (whether or not section 65(2) or (4) also applies); or

(b) the offence for which the person is convicted involves either or both of the following:

(i) 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 or exceeds 800 micrograms of alcohol per litre of breath:

(ii) 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 or exceeds 160 milligrams of alcohol per 100 millilitres of blood.

...

65AC Alcohol interlock sentence

(1) If this section applies, the court must order an alcohol interlock sentence.

(2) An alcohol interlock sentence—

(a) disqualifies the person from holding or obtaining a driver licence for the period required by section 65AE; and

(b) authorises the person to apply for an alcohol interlock licence at the end of that period; and

(c) disqualifies the person from holding or obtaining any licence except an alcohol interlock licence; and

(d) authorises the person, after complying with the alcohol interlock licence requirements, to apply to replace the alcohol interlock licence with a zero alcohol licence.

(3) Subsection (1) applies unless for special reasons relating to the qualifying offence the court thinks fit to order otherwise and, if so,—

(a) section 94 may apply (and a reference to disqualification in section 94 must be treated as if it referred to an alcohol interlock sentence); but

(b) an alcohol interlock sentence may not otherwise be substituted by a community-based sentence.
[21] The Land Transport Amendment Act 2017 was responsible for these changes. It introduced the concept of mandatory alcohol interlock sentences.¹⁷ The amendments had the effect of changing the mandatory penalties for certain offences.

[22] In this case, Ms Perry was convicted under ss 32 and 56 of the Act. As at the time of her convictions on the driving with excess breath alcohol charges, she was subject to the following penalties in s 56(4) of the Act:

(4) If a person is convicted of a third or subsequent offence against subsection (1) or subsection (2), or any of sections 57A(1), 58(1), 60(1), or 61(1) or (2) (whether or not that offence is of the same kind as the person’s first or second offence against any of those provisions),—

(a) the maximum penalty is imprisonment for a term not exceeding 2 years or a fine not exceeding $6,000; and

(b) the court must order the person to be disqualified from holding or obtaining a driver licence for more than 1 year.

[23] Ms Perry was also subject to a mandatory confiscation of motor vehicle order under s 129(3) of the Sentencing Act 2002. Section 129(4) prevented the Court from making the order if it would result in extreme hardship to the offender or undue hardship to any other person.

[24] However, s 56(4A) of the Act was introduced as part of the amendments. It provides:

(4A) The mandatory disqualification in subsection (4)(b) does not apply if—

(a) an order is made under section 65; or

(b) an alcohol interlock sentence is ordered under section 65AC(1).

[25] Section 129(4) of the Sentencing Act was also amended to read as follows:¹⁸

(4) Despite subsection (3), the court must not make an order under that subsection if—

¹⁷ See Land Transport Amendment Act, ss 5-36.

¹⁸ See Land Transport Amendment Act, s 110(1).

(a) it will result in extreme hardship to the offender or undue hardship to any other person; or

(b) an interlock is or is to be fitted to the motor vehicle.

[26] It is not in dispute in this case that the conditions in s 65AB(1) are satisfied and that s 65AC applies. Therefore, if the offences under s 56 (driving with excess breath alcohol) of the Act had occurred after 1 July 2018, then Judge Dawson would clearly have had no jurisdiction to order a period of disqualification in respect of those two charges due to the effect of s 56(4A)(b).

[27] What is the position where the offences took place prior to 1 July 2018, namely on 8 November 2017 and 23 December 2017?

[28] Mr Olsen relies on s 6 of the Sentencing Act, which provides:

6. Penal enactments not to have retrospective effect to disadvantage of offender

(1) An offender has the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty.

(2) Subsection (1) applies despite any other enactment or rule of law.

[29] The question that arises in the context of this case is whether a lesser penalty is now in place.

[30] In McConnell v Police, Davidson J considered the new amendments in the context of confiscation orders under s 129 of the Sentencing Act.¹⁹ The Judge said:

[13] ... before the amendments, interlock orders were discretionary, and regardless of whether such an order was imposed, the vehicle would be confiscated. Now, an interlock order in the prescribed circumstances is mandatory, and if such an order is made, there can be no confiscation order.

[31] The Judge stated that the question for the Court was whether the legislative amendments were a “variation of penalty” and whether the new regime in that respect constituted a “lower penalty”.²⁰

¹⁹ McConnell v Police [2018] NZHC 1927.

²⁰ At [15].

[32] The Judge concluded:

[16] The learned authors of Burrows and Carter Statute Law in New Zealand state that both the term “penalty” and the term “variation” have been given a broad construction. Minimum periods of imprisonment and driving disqualifications have been held to fall within s 6. Here, interlock orders and confiscations are sentences available to the Court, and both are punitive in nature in different degrees. I am in no doubt s 6 covers the legislative changes made. Additionally, making the interlock order mandatory, may seem to increase the penalty rather than lowering it, but must be taken in the context of the amendment to the Sentencing Act which came in at the same time. Overall, there can be little doubt that being subject to an interlock order but not confiscation is less punitive than potentially being subject to such an order on top of mandatory confiscation.

(Citations omitted)

[33] I am similarly of the view that s 6 of the Sentencing Act covers the legislative changes relevant in this case. I am satisfied that being subject to an alcohol interlock order but not confiscation and disqualification is less punitive than potentially being subject to such an order on top of mandatory confiscation and disqualification.

[34] It follows that Ms Perry was entitled to be sentenced under the amended legislation. Therefore, it was an error of law for Judge Dawson to impose a mandatory period of disqualification in respect of the two charges of driving with excess breath alcohol under s 56.

Issue two

[35] I turn now to the two charges under s 32 of the Act. These were Ms Perry’s first and second such charges. At the time of her convictions on the zero alcohol licence charges, she was subject to the following penalties in s 32(3) of the Act:

(3) If a person is convicted of a first or second offence against subsection (1),—

(a) the maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500; and

(b) the court must order the person to be disqualified from holding or obtaining a driver licence for 6 months or more.

[36] Section 32(3A) was introduced as part of the amendments. It provides:

(3A) If an offence against subsection (1) is a concurrent offence in relation to a qualifying offence for an alcohol interlock sentence, then the mandatory disqualification in subsection (4)(b) does not apply and section 65AH(3)(b) applies.

[37] Section 65AH(3)(b) provides:

Disqualifications

(3) For a concurrent offence,—

...

No injury or death

(b) that did not result in injury or death, the court may, taking into account the alcohol interlock sentence that must be ordered for the qualifying offence under section 65AC, choose not to order any disqualification that might otherwise apply to the concurrent offence.

(emphasis added)

[38] Judge Dawson, therefore, had a discretion to choose not to order a period of disqualification in respect of the two charges under s 32 (driving contrary to a zero alcohol licence). Given the Judge did not appreciate the effect of the amendments in respect of the above charges, I infer that he did not appreciate that he had a discretion in respect of those two charges.

[39] As a result, I propose to undertake the exercise afresh. I must now consider whether it was appropriate to order periods of disqualification on these two charges.

[40] Mr Olsen notes that these are Ms Perry’s first and second offences in respect of her zero alcohol licence. He says that she has, for the first time, properly addressed her alcohol abuse. She has attended all stages of the Salvation Army Bridge rehabilitation programme and has also addressed her alcohol abuse through psychological treatment. Both of these offences occurred before Ms Perry began her treatment.

[41] Mr Olsen further notes that Ms Perry will be on an alcohol interlock licence for at least a year.²¹ After that time, and after having completed the necessary

²¹ Land Transport Act, s 65AG(3).

requirements, she can ask the New Zealand Transport Agency to convert the interlock licence into a zero alcohol licence. She will then be subject to that licence for three years.²²

[42] Mr Olsen submits that the presence of these sentences provides for the necessary oversight and public protection. The additional disqualification does not provide any further benefit.

[43] Mr Mortimer, on the other hand, submits that periods of disqualification are important mechanisms for both the protection of the public against recidivist drink drivers and as a punitive mechanism to remove the privilege of driving from those who cannot drive responsibly. Alcohol interlock orders do not completely replace periods of disqualification.

[44] Mr Mortimer recognises the positive rehabilitative steps that Ms Perry has taken and the fact that these were her first breaches of zero alcohol licence conditions. But, he submits that the breath alcohol readings in this case and Ms Perry’s previous convictions colour the seriousness of her breach of the zero alcohol licence conditions.

[45] I accept that alcohol interlock licences and periods of disqualification can co- exist. The Act explicitly contemplates that. Sections 32(3A) and 65AH(3)(b) do not create a presumption that disqualifications will be avoided where alcohol interlock orders have been made.

[46] Periods of disqualification still have an important function under the new regime, operating as both a harm reduction measure and having a punitive element. Alcohol interlock orders are but one tool in the goal of reducing drink driving. They do not completely replace periods of disqualification.

[47] I accept Mr Mortimer’s submission that it is therefore still appropriate to have regard to the importance of disqualification which Parliament has retained (as a discretionary measure) for this type of offending.

²² Section 65B(2).

[48] In exercising my discretion, I note, on the one hand, that Ms Perry’s breath alcohol readings were very high and they were far from her first offences. Those factors colour the seriousness of her breaches of the zero alcohol licence condition. Further, the zero alcohol licence condition was an opportunity given to Ms Perry to regain the use of her car on strict conditions. She breached those conditions.

[49] On the other hand, and weighing against those factors are the positive steps Ms Perry has taken to address her issues with alcohol. Her letter to the District Court Judge is supported by both a letter from the Salvation Army Bridge rehabilitation programme and two reports from a psychologist. I am satisfied that Ms Perry has taken real steps to address her problems with alcohol. This is not simply a case of promises to a Court.

[50] On balance, given Ms Perry’s rehabilitative efforts, and the fact that these are her first and second offences in respect of her zero alcohol licence, I consider that a period of disqualification is unnecessary.

[51] In giving this decision, I do not suggest that the way in which I have exercised my discretion under s 65AH(3)(b) should be read more widely than its application to the particular facts of this case.

Conclusion

[52] The appeal is allowed. The periods of disqualification of one year each in respect of the two charges of driving with excess breath alcohol are quashed.

[53] For the avoidance of doubt, the alcohol interlock sentence remains.

[54] The periods of disqualification of six months each (one year in total) in respect of the two charges of driving contrary to a zero alcohol licence are also quashed.




Gordon J