Ashby v The Queen - [2020] NZHC 1330

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2020-488-000013

[2020] NZHC 1330

BETWEEN
CORY ASHBY

Appellant

AND

THE QUEEN

Respondent

Hearing: 10 June 2020

Appearances:

S Thode and B Harris for Appellant S Patia for Respondent

Judgment:

12 June 2020

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 12 June 2020 at 3.30 pm.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Whangarei Thode Utting, Auckland

ASHBY v R [2020] NZHC 1330 [12 June 2020]

[1] Mr Ashby pleaded guilty in the District Court to charges of driving with excess breath alcohol in its aggravated form, driving whilst disqualified and breaching a sentence of home detention. On 22 April 2020 Judge K B de Ridder sentenced Mr Ashby to 15 months imprisonment on the charge of driving with excess breath alcohol.1

[2] The Judge also disqualified Mr Ashby from driving for 15 months on the charge of driving with excess breath alcohol and noted that he was “subject to the interlock disqualification provision”. The Judge imposed concurrent sentences of two months and one month imprisonment respectively on the charge of breaching home detention conditions and driving whilst disqualified. The Judge disqualified Mr Ashby from driving for a period of one month on the latter charge.

[3] Mr Ashby appeals solely against the sentence of 15 months disqualification the Judge imposed on the charge of driving with excess breath alcohol.

Factual background

[4] On 30 January 2020 Mr Ashby was sentenced to five months home detention on three charges of driving with excess breath alcohol. Less than one month later, on 26 February 2020, Mr Ashby breached the conditions of that sentence by leaving his home address and driving his motor vehicle. He was stopped by the police and underwent breath testing procedures. This revealed that Mr Ashby had 787 micrograms of alcohol per litre of breath. This was the sixth occasion on which Mr Ashby has been convicted on a charge of driving with excess breath alcohol.

The alcohol interlock provisions

[5] The alcohol interlock provisions were inserted into the Land Transport Act 1998 (the LTA) by the Land Transport Amendment Act 2017.2 The amendments changed the mandatory penalties for certain offences under the LTA.

1 New Zealand Police v Ashby [2020] NZDC 6748.
2 Land Transport Amendment Act 2017, ss 5-36.

[6] Offenders who commit specified offences under the LTA must be sentenced under the new regime if they have been convicted of the same type of offence within five years of committing the offence on which they appear for sentence.3 Driving with excess breath alcohol in contravention of s 56(1) of the LTA is one of the offences to which the new regime applies.4

[7] The components of an alcohol interlock licence are set out in s 65AC of the LTA. In summary, the court must disqualify the offender from driving for the applicable period specified in s 65AE.5 At the end of that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ashby v The Queen

Details

AGLC: Ashby v The Queen [2020] NZHC 1330
Case: [2020] NZHC 1330
Decision Date: 12 June 2020

CaseChat Overview and Summary

In Ashby v The Queen, the appellant, Cory Ashby, appealed against the sentence imposed by the District Court on the charge of driving with excess breath alcohol. The District Court sentenced Ashby to 15 months imprisonment and disqualified him from driving for 15 months. The appeal focused solely on the sentence of 15 months disqualification imposed on the charge of driving with excess breath alcohol. The court had to determine whether the period of disqualification imposed by the District Court complied with the requirements imposed by section 65AE of the Land Transport Act 1998.

The court found that the period of disqualification that the Judge imposed did not comply with the requirements imposed by section 65AE. The section requires the period of disqualification to be the same as the length of time the offender is "in prison." The court held that the period of disqualification should end when the offender is released from prison, rather than being the same as the term of imprisonment imposed by the court. The court held that a period of disqualification that lasts for a lengthy period after an offender is released from prison amounts to a form of disincentive and risks undermining the overall effectiveness of the alcohol interlock regime.

The appeal was allowed to the extent that the order disqualifying Ashby from driving for 15 months was quashed. In its place, the court made an order disqualifying Ashby from holding or obtaining a driver licence until the date he was released from prison on the charge of driving with excess breath alcohol.

Orders