Brown v The Queen

[2020] NZHC 1494

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000125

[2020] NZHC 1494

BETWEEN

KAPE BROWN

Appellant

AND

THE QUEEN

Respondent

Hearing:	15 June 2020
Appearances:	Steven Mutch for the Appellant Conrad Purdon for the Crown
Judgment:	30 June 2020

JUDGMENT OF MOORE J

[Appeal against sentence]

This judgment was delivered by me on 30 June 2020 at 11:30 am

Registrar/ Deputy Registrar Date:

BROWN v R [2020] NZHC 1494 [30 June 2020]

Introduction

[1]    Kape Brown pleaded guilty to one charge of driving with excess breath alcohol (third or subsequent) under the Land Transport Act 1998 (“the LTA”).1 On 7 February 2020, he was sentenced by Judge C H Bennett in the North Shore District Court to 150 hours’ community work, 12 months’ supervision and disqualification from driving for one year and one day.2

[2]    Mr Brown appeals the sentence. He does so solely in relation to the disqualification component. He says that instead of ordering disqualification the Judge ought to have imposed an alcohol interlock sentence.

Background facts

[3]    The facts can be briefly stated. At around 1:30 am on 26 September 2019,  Mr Brown crashed his vehicle near Wellsford while driving to his home. The Police attended. When they spoke to him he showed signs of recent alcohol consumption. On testing, Mr Browne was found to have a breath alcohol reading of 594 micrograms per litre of breath. The legal limit is 400.

Circumstances of the offender

[4]    Mr Brown lives alone in a rural area where there is no public transport. He works on a dairy farm. The milking shed is two kilometres from his home. Without his licence he will be incapacitated. His employer has provided a letter to the Court outlining the employment difficulties that disqualification will create for Mr Brown. His contract requires him to hold a current driver’s license and the insurance requirements for the farm vehicles that his job requires him to operate prohibit him from using them if disqualified. Furthermore, without access to  public  transport,  Mr Brown needs his licence to meet his day-to-day needs, such as grocery shopping.

1      Land Transport Act 1998, ss 56(2) and 56(4).

2      Police v Brown [2020] NZDC 3059.

[5]    Mr Brown has three previous convictions for driving with excess breath or blood alcohol as follows:

(a)on 13 April 2011, a breath alcohol reading of 551 micrograms per litre of breath;

(b)on 20 September 2012, a breath alcohol reading of 180 micrograms per litre of blood; and

(c)on 21 October 2012, a breath alcohol reading of 586 micrograms per litre of breath.

[6]    Following his most recent offending, and before he was sentenced, Mr Brown took steps to address the underlying causes of his drinking. He has undertaken four counselling sessions with Te Hā Oranga. A report from his counsellor suggests he now has insight into how his drinking has affected his well-being over the last two decades and he self-reports abstinence.

District Court decision

[7]    The Judge, in a careful and well-reasoned decision, reviewed the submissions of counsel made on Mr Brown’s behalf, and in particular, his urgings that she impose an alcohol interlock sentence in lieu of disqualification. She concluded, not without evident regret, that the scheme of the LTA prohibited such a course.

Appeal principles

[8]    Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence will only be successful if the Court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.

Alcohol interlock regime

[9]    An alcohol interlock device is an electronically operated feature wired into a vehicle’s ignition system. It requires the driver to pass a breath test before they can start their car. Once the car is operating the device will, at random times, require the driver to re-submit a breath sample. If there is any detectable alcohol in their breath the car will be shut down. It is widely regarded as a very effective tool in the prevention of drink driving, particularly for recidivist drink drivers.

[10]   Under s 56 of the LTA, where a person is convicted of an offence of driving with excess breath or blood alcohol – whether it be a first, second, third or subsequent offence – the Court must order the person to be disqualified from holding or obtaining a driver’s licence for a finite period. However, if an alcohol interlock sentence is ordered under s 65AC(1) the mandatory disqualification does not apply.3

[11]Section 65AC relevantly provides:

“65AC Alcohol interlock sentence

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

…

(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.”

[12]Section 65AB stipulates when s 65AC applies:

“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—

3      Section 56(4A).

(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.”

Submissions

Appellant

[13]   Mr Mutch, for Mr Brown, submitted that an alcohol interlock device was available to the appellant despite having not met the s 65AB criteria. Section 65AB(1) expressly provides for circumstances where it is mandatory to impose an alcohol interlock sentence, but that does not stop the court from imposing such a sentence where the mandatory criteria are not met. Mr Mutch observed that an alcohol interlock sentence would accord with the public safety purpose of the LTA.4 He referred to the benefits of an alcohol interlock sentence, such as the proven reduction in drink driving for recidivist offenders.

[14]   Mr Mutch advised that there are two divergent approaches in the District Court; one which says that alcohol interlock sentences are available despite the s 65AB criteria not being met and the other, such as in the present case, where Judges have taken a narrower view. The present case is the first time an appellate Court has considered the issue.

4      See Rex v Police [2000] DCR 399.

[15]   As an example of the former, Mr Mutch referred me to Police v Kemble, where an alcohol interlock device sentence was imposed in the District Court for an offender who produced an alcohol reading exceeding 600 micrograms of alcohol per litre of breath and who had last been convicted of a drink driving offence 15 years prior.5 There Judge Davis noted:

“[19] Clearly the alcohol interlock provisions apply if a mandatory qualifying offence is committed. However, it does not provide any other guidances as to whether the section may be utilised. Equally it does not create any other boundaries or any other prohibitions for the alcohol interlock provisions to apply. It then sets out in s 65AC(2) the manner in which a disqualification is to be imposed and other conditions that attach to it.

…

[21] In this instance Parliament, in my view, has not specifically sought to exclude any person from applying for an alcohol interlock license. Similar exclusionary language has not been incorporated into the Act. I infer from that that the policy reasons behind that are to do with the broader safety issues.”

[16]   Mr Mutch pressed this Court to adopt the same reasoning and approach, noting that Mr Brown took full responsibility for his actions and had voluntarily undertaken productive measures to address his offending.

Police

[17]   Mr Purdon, for the Police, accepted that while the appeal largely engages a relatively narrow point of statutory interpretation there are compelling practical and societal reasons for holding that alcohol interlock sentences should be available for imposition in respect of offenders such as Mr Brown. Despite this, Mr Purdon submitted that the LTA does not empower a Judge to sentence an offender to an alcohol interlock sentence in his or her discretion and outside the mandatory criteria set out in the Act.

[18]   At the hearing, Mr Purdon also noted that the LTA provides that drivers like Mr Brown, who have not offended in such serious circumstances, can apply for a limited licence. An offender who is subject to s 65AC is not able to apply for a limited

5      Police v Kemble [2019] NZDC 9069.

license.6 This demonstrates that Parliament has deliberately turned its mind to different categories of offenders in the different forms of licence they may have after offending and after disqualification.

Discussion

[19]   The merits of imposing an alcohol interlock sentence here are clear. I do not doubt the efficacy of the devices in helping habitual offenders and promoting public safety, or the obvious practicality in this case of allowing Mr Brown to have a device which will permit him to continue working and driving in a safe manner. However, for reasons which follow, that is not the issue engaged on this appeal. The question here is whether such a sentence may be imposed where the s 65AB criteria are not met.

[20]   The LTA is unambiguous as to the penalty for a drink driving offence. When someone is convicted of such an offence, the Court must order a disqualification. That consequence operates irrespective of whether it is a first, second, third or subsequent offence.7 What differs is the available penalty, including the period of mandatory disqualification. Section 65AC is the only provision which expressly empowers a Judge to impose an alcohol interlock sentence. As to when such a sentence is available, the criteria are clear and unambiguous. Only if those criteria are met may an alcohol interlock sentence be imposed. The provision applies only to offenders who have been previously convicted of similar offending within the period of five years prior to the date of committing the most recent offence, or where the proportion of alcohol in the person’s breath or blood is double the specified limit for conviction. Despite the obvious benefits of reading its application more widely, there is no room, either on the face of the section itself or within the scheme of the statute, to read it more widely.

[21]   With respect, I differ from Judge Davis’ view in Kemble that the LTA is deliberately silent as to whether s 65AC may be utilised outside the purview of s 65AB, so the broader policy purpose of the LTA justifies a generous reading of the regime. That interpretation is inconsistent with the sections’ specific legislative

6      Land Transport Act 1998, s 103.

7      Land Transport Act 1998, ss 56(3)(b) and (4)(b).

history. At the time the alcohol interlock regime was introduced, the Minister of Transport described it as “targeted and effective” and a “hardline approach”.8 As is apparent from the Parliamentary debates, the purpose of the new sentence was:9

“…to reduce drink-driving reoffending… The bill proposes to make alcohol interlocks mandatory for first-time high-alcohol offenders and repeat offenders. There are limited grounds for exceptions proposed.”

[22]   It is apparent from the above that the proposed amendment was introduced to meet a particular purpose; that is to provide a further layer of restriction for either first time offenders returning high breath or blood alcohol levels or recidivist drink drivers. For both categories it was considered that an innovative protective measure was required where licence disqualification and fines had proved ineffective in stopping such offending.

[23]   Nowhere in the debates is it apparent that Parliament anticipated the devices might also provide for a more flexible or practical alternative sentencing option for less serious drink driving offending.

[24]   Further, mandatory disqualification is the default penalty for repeat offenders, even those with interlock licenses - it operates as a harm reduction measure and also has a punitive element.10 Any specific derogation from that within the LTA needs to made out in clear terms.

Conclusion

[25]   Regrettably, for these reasons, I find there is no provision under the LTA for an offender who does not meet the specific criteria for the imposition of a mandatory alcohol interlock sentence to apply for one. As everyone connected to this case has observed, the installation of an alcohol interlock device on vehicles used by Mr Brown represents a common sense and effective sentencing response to his particular circumstances. The principles of sentencing in almost every other area of offending emphasise the need to approach the exercise in a balanced way which takes account

8      (10 August 2016) 716 NZPD (Questions to Ministers, Craig Foss).

9      (24 May 2017) 722 NZPD (Land Transport Amendment Bill Second Reading, Simon Bridges).

10     Lally v Police [2019] NZCA 286 at [13] citing Perry v Police [2018] NZHC at 3246 at [46].

of the community’s need to be protected against those who pose a threat to public safety weighed against the particular circumstances of the offender. The mandatory drink driving penalty provisions of the LTA represent an exception to the flexibility implicit in the exercise of sentencing discretion. While that approach is understandable in the context of road  safety,  its potential to create unfairness in cases such as      Mr Brown’s, and apparently others, is plain. The use of alcohol interlock devices has been proved to be a most effective sentencing tool. The circumstances of this case reveal that experienced Judges sentencing for drink driving offending recognise its effectiveness and value when used in combination with other sentencing measures.

[26]   For that reason I direct a copy of this judgment be forwarded to the policy division of the Ministry of Justice with the expectation that the comments contained in it will be reflected upon and the question of possible amendment considered.

Result

[27]The appeal is dismissed.

Moore J

Solicitors:

Mr Mutch, Auckland Crown Solicitor, Auckland