Ashby v The Queen
[2020] NZHC 1330
•12 June 2020
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 period the offender may apply for an alcohol interlock licence and may only hold that type of licence.6 Offenders who receive an alcohol interlock sentence are required to install an alcohol interlock in their vehicles at their own expense. Before the vehicle can be started the offender must supply a sample of breath to the alcohol interlock device fitted to the vehicle. The vehicle will only start if no alcohol is detected in the person’s breath. An offender who complies with the alcohol interlock licence requirements is authorised to apply to replace that licence with a zero alcohol licence.7
[8] Where a person is convicted of driving with excess breath alcohol on a third or subsequent occasion s 56(4)(b) ordinarily requires a Court to disqualify the offender from holding or obtaining a driver’s licence for more than one year. The new provisions remove the requirement to impose this period of disqualification when an alcohol interlock sentence is imposed.8 In such a case the period of disqualification to be imposed on the offending is governed by s 65AE, which provides as follows:
65AE Period of disqualification
the period of disqualification for an alcohol interlock sentence is the greatest of the following periods:
(a)28 days; and
3 Land Transport Act 1998, s 65AB. The regime also applies to offenders who drive with more than 800 micrograms of alcohol per litre of breath or more than 160 milligrams of alcohol per 100 millilitres of blood: s 65AB(1)(a)(i) and (ii).
4 Section 65AB(1).
5 Section 65AC(2)(a).
6 Section 65AC(2)(c).
7 Section 65AC(2)(d).
8 Section 56(4A).
(b)any period when the person’s licence is expired or suspended under section 90, 95 or 95A; and
(c)any period when the person is in prison (because of the qualifying offence or otherwise); and
(d)any period when the person is disqualified from holding or obtaining a driver licence, including –
(i)under s 65AD; or
(ii)under section 65AH(3); or
(iii)because of an existing disqualification (except a disqualification under section 65(3A) and (4A).
[9] The court may still impose a period of disqualification for concurrent offending of a type that does not fall within the alcohol interlock sentencing regime. This follows from s 65AE(d)(ii), which relates to periods of disqualification imposed under s 65AH(3). Section 65AH(3) relevantly provides as follows:
65AH When court may take alcohol interlock sentence into account
…
Disqualifications
(3)For a concurrent offence:
Injury or death
(a)that resulted in jury or death, the court must disqualify the person from holding or obtaining a driver license for the period of disqualification that is appropriate under the provision relaying to the 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.
[10] As will be clear from the wording used in the sub-section, s 65AH(3)(b) provides the court with a discretion not to impose a period of disqualification that is otherwise mandatory for concurrent offending. This is obviously designed to ensure the objectives of the alcohol interlock scheme are not routinely thwarted through the imposition of lengthy periods of disqualification for concurrent offending. In
appropriate cases, however, these will be appropriate. As the Court of Appeal observed in Lally v Police, disqualification still has an important function under the new regime because it operates as a harm reduction measure and also has a punitive element.9 The fact that an alcohol interlock sentence is to be imposed will therefore not obviate the need for lengthy periods of disqualification in appropriate cases. Section 65AE(ii) provides the court with the ability to impose longer periods of disqualification than the other subsections permit.
[11] The issue in the present case is whether the period of disqualification that the Judge imposed complies with the requirements imposed by s 65AE.
Decision
[12] It is common ground that the only provision in s 65AE that applied to Mr Ashby was that in s 65AE(c). The Judge plainly considered this required him to ensure the period of disqualification and the length of the sentence of imprisonment he imposed were the same. That is not, however, what s 65AE requires. It requires the period of disqualification to be the same as the length of time the offender is “in prison”.
[13] The period an offender is in prison will almost always be different to the term of imprisonment imposed by the court. An offender who receives a sentence of two years imprisonment or less will be released automatically after serving one-half of the sentence imposed. An offender who receives a sentence of more than two years imprisonment will be eligible to apply for parole after serving one-third of the sentence.
[14] Mr Ashby was arrested on 26 February 2020 and remained in custody until he was sentenced on 22 April 2020. He will therefore be released automatically on or about 7 October 2020. He will remain disqualified from driving, however, until 22 July 2021.
9 Lally v Police [2019] NZCA 286 at [13], citing Perry v Police [2018] NZHC at 3246 at [46].
[15] I do not consider this was the intention of s 65AE. It anticipates that the period of disqualification for offenders who receive sentences of more than eight weeks imprisonment will end when the offender is released from prison.10 Such persons will then be entitled to drive once they have installed an alcohol interlock device in their vehicle.
[16] The alcohol interlock regime is obviously designed to assist recidivist and/or serious offenders to break the cycle of disqualification, and thereby to assist in rehabilitation, whilst still protecting the community from those who drive whilst intoxicated. It does this by permitting an offender to drive immediately after release from prison using the safeguard provided by an alcohol interlock device. The ability to drive immediately after release from prison provides an obvious incentive to offenders. Conversely, a period of disqualification that lasts for a lengthy period after an offender is released from prison amounts to a form of disincentive. It creates the risk that the offender will not wait until the period of disqualification expires before driving and, in all probability, driving whilst intoxicated. This is the very outcome the new regime is designed to avoid. Periods of disqualification that extend well beyond release from prison therefore risk undermining the overall effectiveness of the regime.
[17] It will often be difficult to calculate the exact date when an offender will be released from prison. This can be overcome by making an order that the period of disqualification is to continue until the date on which the offender is released from prison.
Result
[18] The appeal is allowed to the extent that the order disqualifying Mr Ashby from driving for 15 months is quashed. In its place I make an order under s 65AC(2)(a) disqualifying Mr Ashby from holding or obtaining a driver licence until the date he is released from prison on the charge of driving with excess breath alcohol.
Lang J
10 A sentence of less than eight weeks imprisonment will attract a period of 28 days disqualification by virtue of s 65AE(a).