Anglem v Police
[2018] NZHC 329
•5 March 2018
IN THE HIGH COURT OF NEW ZEALAND
INVERCARGILL REGISTRY
CRI-2018-425-000006
[2018] NZHC 329
BETWEEN DANIEL TROY ANGLEM
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 5 March 2018 Appearances:
Appellant Appears in Person R W Donnelly for Respondent
Judgment:
5 March 2018
ORAL JUDGMENT OF GENDALL J
ANGLEM v NZ POLICE [2018] NZHC 329 [5 March 2018]
Introduction
[1] This appeal came before me today, 5 March 2018. It relates to an appeal by the appellant which it seems was lodged on 23 January 2018. Mr Donnelly appeared before me today as counsel for the respondent. He has filed detailed submissions on this appeal on behalf of the respondent on 20 February 2018.
[2] There was no appearance before me today from or on behalf of the appellant, Mr Anglem. When this matter was initially called this afternoon and it became apparent that Mr Anglem, who I understand is self-represented, was not present in Court I adjourned matters for a period of about 15 minutes in order that enquiries could be made around the courthouse as to whether Mr Anglem may have been present elsewhere. Those enquiries have now been made and I am informed that when this matter was again called there was and is no appearance by or on behalf of Mr Anglem.
[3] I note that there are also no written submissions filed on behalf of the appellant, Mr Anglem.
[4] Notwithstanding this, Mr Donnelly, counsel for the respondent, has indicated that the respondent seeks that this appeal be addressed and disposed of today, 5 March 2018. I now do so.
Background
[5] By way of background, the appellant was sentenced in the District Court at Queenstown on 27 November 2017 for driving with a breath alcohol limit over 400 micrograms per litre of breath1 and driving in a dangerous manner.2 Judge Brandts- Giesen in the Queenstown District Court sentenced the appellant to one year’s supervision, disqualified him from driving for 10 months and ordered him to pay reparation of $4982.3 As I have already noted, the appellant has formally given notice that he now appeals that decision.
1 Pursuant to Land Transport Act 1998, s 56(1).
2 Pursuant to Land Transport Act 1998, s 35(1)(b).
3 Police v Anglem [2018] NZDC 29733.
Facts
[6] Turning now to the factual background in this matter, around 12.10 am on 23 September 2017, the appellant was driving near Queenstown. He came around a moderate bend in the roadway and drove along the centre line. The appellant crashed into a vehicle travelling in the opposite direction, narrowly avoiding a head-on collision as he swerved to the left. The other vehicle had no time to brake or swerve to avoid the collision.
[7] Police attended the scene and noticed that the appellant showed signs of recent alcohol intake. A later evidential blood test returned a result of 773 micrograms of alcohol per litre of breath. The appellant admitted having several beers before driving.
District Court decision
[8] In his decision in the District Court the Judge noted that the appellant had only one previous conviction, which was also for driving over the alcohol limit. This was only about a year prior to the present offending.
[9] The Judge noted that the appellant was a mechanic, for whom not having a driving licence would be a significant disadvantage, that he had lost his vehicle in the crash (a vehicle worth around $12,000), and that there would be a substantial reparation order.
[10] Judge Brandts-Giesen considered the appellant had an alcohol issue which he needed to address so he imposed a 12-month period of supervision. He disqualified the appellant from driving for 10 months on each driving charge, to be served concurrently. The Judge then ordered the appellant pay $4892 in reparation.
[11] The Judge, in his decision, noted that s 65B of the Land Transport Act 1998 applied so the appellant could not get a driver’s licence in the next three-year period unless it was a zero-alcohol licence.
Principles on appeal
[12] Turning now to the principles on appeal, appeals against sentence, which is the nature of the appeal here, are allowed as of right by s 244 of the Criminal Procedure Act 2011, and they must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 It is only appropriate for this court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.5
The appeal
[13] Turning now to the present appeal, as I have noted above, the appellant makes no appearance today and has provided no written submissions to the Court in support of his appeal. In the Notice of Appeal, it seems the appellant bases this appeal on the fact that he was not aware, being self-represented, of the ability to apply for an alcohol- interlock licence.
Legal Position
[14] In this respect, this appeal deals with ss 65A and 65B of the Land Transport Act which provide as follows:
65AAlcohol 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
(b)either—
(i)the person convicted has previously been convicted of such an offence committed within 5 years of the date of the commission
4 Criminal Procedure Act 2011, ss 250(2) and 250(3).
5 Ripia v R [2011] NZCA 101 at [15].
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.
65BMandatory zero alcohol requirements for repeat offences involving use of alcohol
(1)This section applies if—
(a)a court convicts a person of an offence 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), and 62(1)(a); and
(b)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.
(2)If this section applies, the court must make an order authorising the person to apply for a zero alcohol licence that has effect for a period of 3 years from the issue of the licence.
(3)A person authorised under subsection (2) may apply for a zero alcohol licence,—
(a)in the case of a person who is subject to 1 or more orders of disqualification, no earlier than the day after
the end of the last period of disqualification to which the person is subject; or
(b)the case of a person who is subject to an order made under section 65A(2)(b), when the Agency makes an order under section 100A(1).
(4)A person who is subject to an order under subsection (2) and does not apply for a zero alcohol licence is to be treated as a person with a licence of no effect under section 29(1).
[15] In considering these sections, as the appellant has a previous relevant conviction, both ss 65A and 65B apply. In Wilson v Police,6 Moore J held that if an appellant qualifies under s 65A, the Judge has a discretion on whether or not to impose an alcohol interlock licence disqualification. If a Judge does not exercise this discretion, the mandatory requirements of s 65B apply.
[16] In that decision Moore J held that a sentencing Judge must consider an order under s 65A whenever the conditions are met because s 8(g) of the Sentencing Act 2002 requires the court to impose the least restrictive sentence available.7
[17] In Tamati v Police,8 the original sentencing Judge did not consider 65A despite the appellant qualifying. On appeal, Simon France J noted that the section was not raised with the Judge. He commented:9
There are many sentencing options and directives within the Sentencing Act. Some mandatory considerations will be unrealistic in a particular case and so are often not expressly referred to in sentencing remarks. That is not an error. The Court is sentencing a person and speaking to them, and the exercise is not to become a checklist. If counsel wishes the court to particularly consider an option, the correct approach remains to place it squarely before the Judge. With this particular option, an alcohol interlock device will cost somewhere around $2,000 a year and the offender is required to pay. That will be beyond many and so in reality the particular order will not be a possibility.
[18] Simon France J allowed the appeal as there was new evidence before the Court in that case that a position in an alcohol interlock programme was available to the appellant.
6 Wilson v Police [2014] NZHC 2474.
7 Wilson v Police, above n 6, at [51].
8 Tamati v Police [2017] NZHC 2543.
9 At [9].
[19] In the present case, the appellant was self-represented before the District Court, it is therefore perhaps understandable that he did not bring s 65A to the Judge’s attention. However, in order for this Court to allow the current appeal, the appellant would have needed to bring some evidence about whether he is able to afford an alcohol interlock licence and as to the appropriateness of such an order being made. At that point, this Court would then be in a position to assess the factors relevant to the offending and the offender to determine whether the Judge in the District Court erred in not imposing orders under s65A.
[20] None of this material is before this Court. As I have noted, there has been no appearance for or on behalf of the appellant for this appeal. Further, no submissions have been provided to the Court for or on behalf of the appellant. There is simply nothing before the Court to consider which might in any way support the grounds upon which this appeal is brought. For all these reasons this appeal is dismissed.
...................................................
Gendall J
Solicitors:
Preston Russell Law, Invercargill Copy to Appellant