De Garnham-Riley v Police
[2017] NZHC 819
•28 April 2017
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2017-425-000006 [2017] NZHC 819
BETWEEN BRANDON WARREN DE GARNHAM-
RILEY Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 28 March 2017 Appearances:
K Barker for Appellant
M Mika for RespondentJudgment:
28 April 2017
JUDGMENT OF NICHOLAS DAVIDSON J
Introduction
[1] The appellant pleaded guilty to his fourth charge of driving while under the influence of alcohol, careless driving, and breaching his zero-alcohol licence.
[2] On 12 January 2017, he was sentenced to six months community detention, nine months supervision and 40 hours community work.1 He was also disqualified from driving for 18 months, after which he must only apply for a zero-alcohol licence.2
[3] The appellant appeals against the Judge’s refusal to authorise him to apply for an alcohol interlock licence.3 This involved the exercise of judicial discretion.
1 Police v de Garnham-Riley [2017] NZDC 336.
2 Pursuant to s 65B Land Transport Act 1998.
3 Pursuant to s 65A Land Transport Act 1998.
DE GARNHAM-RILEY v NEW ZEALAND POLICE [2017] NZHC 819 [28 April 2017]
Background to offending
[4] The offending occurred on 6 November 2016. At the time he was subject to a zero-alcohol licence. The appellant had returned home after drinking with friends. His partner was at an event elsewhere and the appellant drove to pick her up. On the way he had a serious motor accident and was badly injured.
District Court
[5] The Judge recognised that most of the appellant’s many previous convictions are related to his use of alcohol. She told him that if he offended again in this way, he would likely be sentenced to a lengthy term of imprisonment.
[6] It was to the appellant’s credit that, having lost his licence indefinitely, he had worked very hard to get his licence back, and that is not easy, for reasons which are developed in this judgment. While he had managed that, he had then, in the Judge’s words, “spoilt it all”.
[7] At first blush the Judge’s refusal to authorise an application for an interlock licence was well founded. The appellant’s previous offences included excess breath alcohol of 959 micrograms, 869 micrograms, and 984 micrograms. On this occasion, his level was 109 milligrams but, apart from his multiple previous offending, it was severely aggravating that he was driving when subject to a zero alcohol licence.
[8] The Judge noted that the appellant had been involved in incidents other than driving offences, but counsel submitted that they were associated with drinking, and that caused the Judge to query his brain maturity. The Judge was highly reluctant to impose an electronically monitored sentence, particularly when the appellant did not agree with the summary of facts, and said he was not over the limit.
[9] Home detention was an appropriate sentence, but as it would impact on his employment, the Judge stopped short of that. The maximum community detention sentence was imposed, beyond that recommended by Community Probation. Supervision and community work were also imposed. This was a proper recognition
of the strictures of community detention, and rehabilitation of an offender who poses such a risk to the public, and himself.
[10] The Judge addressed the submission that the appellant should be disqualified under s 65 of the Land Transport Act 1998, which would have allowed disqualification for a shorter period, and that he then be allowed to drive with an interlock device. The Judge would not accede to that because the appellant already had “the benefit” of a zero alcohol licence, and had showed contempt for that by again driving with excess alcohol. Hence, he was disqualified in the usual way, and once again will be the subject of a zero alcohol licence if and when he gets his licence back, which would apply for three years.
[11] The Judge set the disqualification period at 18 months to reflect the fourth drink-driving conviction.
Principles on appeal
[12] This is an appeal against sentence, which is 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 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
Submissions for appellant
[13] Ms Barker for the appellant submits that the Judge should have exercised the Court’s discretion to authorise the appellant to apply for an alcohol interlock licence. She made careful reference to the policy reasons supporting the use of alcohol
interlock devices, and their efficacy in reducing further drink-driving offending.
4 Criminal Procedure Act 2011, ss 250(2) and 250(3).
5 Ripia v R [2011] NZCA 101 at [15].
[14] Ms Barker cites two cases that emphasise that the principles of deterrence and denunciation can be adequately addressed through a sentence of community detention and supervision, making an appropriate order under s 65A authorising an application for an interlock licence.6
Submissions for the Crown
[15] The Crown, through Mr Mika, submits that the Judge was entitled to exercise her discretion not to make orders under s 65A. He points to cases where such an order was made, where defendants had taken positive steps towards rehabilitation, and needed a licence to travel to work. The Crown submits that these factors do not apply here.
Analysis
[16] Section 65A of the Land Transfer Act 1998 provides:
65A Alcohol 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 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:
6 Wiseman v Police [2014] NZHC 2327 and Heffernan v Police [2015] NZHC 946.
(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.
[17] Section 65B provides:
65B Mandatory 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) in 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).
[18] Section 65A is a discretionary provision. As the appellant had one relevant previous conviction within the last five years, the Judge could either:
(a) apply the mandatory penalties in s 56 and make orders under s 65B
requiring the appellant to apply for a zero-alcohol licence; or
(b)impose a three month disqualification under s 65A and order that, after that period, the appellant may apply for an alcohol interlock licence.
[19] There is no guidance in the Act on when to take the alcohol interlock route. The decision must be made according to the general purposes and principles of the Sentencing Act 2003.7
[20] Ms Barker submits that the Judge erred when she considered the zero alcohol licence which the appellant had obtained was a benefit to the appellant which he had not respected, and then to treat that perspective as relevant to the exercise of discretion. Ms Barker submits that the Judge erred in the application of s 65A (alcohol interlock licence) and s 65B (zero alcohol licence) under the Act.
[21] Under s 65B, if a person commits two offences within five years, the Court must make an order authorising the person to apply for a zero alcohol licence, which has effect for a period of three years from the date the licence is issued. Under s 65B(3) a person authorised to do so may only apply for a zero alcohol licence after other disqualification provisions have ceased to have effect.
[22] This is not an exercise of discretion, because after a disqualification is served, there is a mandatory zero alcohol restriction for a further three years. It does not reduce the disqualification, but imposes a further restriction.
[23] Here the appellant had been indefinitely disqualified when he appeared in the Invercargill Court on 21 February 2013. He had to go through an elaborate process designed to address his use of alcohol in order to have the indefinite disqualification removed. When he reapplied for his licence, he obtained that as a zero alcohol
licence for the next three years. The zero alcohol licence was submitted by
7 Wiseman, above n 6, at [14].
Ms Barker not to be a “benefit”, but all that he could obtain and he earned that by meeting the statutory requirements. Section 65B provides for this.
[24] Hence, Ms Barker submitted there was no privilege or benefit involved when the disqualification was lifted whereas the Judge plainly thought that there was. The Judge thought the appellant had shown contempt for the benefit or advantage, but rather he had shown contempt for the fact he had repeatedly offended, by doing so again.
[25] Submissions were developed in detail by Ms Barker, including the reasons
Parliament enacted s 65A.
The benefit of an alcohol interlock device
[26] Ms Barker referred to the Regulatory Impact Statement (“RIS”), put out by the Ministry of Transport, which was directed to the reduction in drink-driving levels and alcohol impaired driving generally. The RIS referred to the benefits of an alcohol interlock programme, which is “proven to be an effective tool to reduce episodes of drink-driving and to reduce the risk of repeat offending”.
[27] Those who participate in an interlock programme are reported to have an average reduction in repeat offending of 67 per cent, compared with those who serve a comparable term of licence disqualification. The benefits of an interlock device are significant for the driver, shortening an absolute disqualification and allowing connection to the community, retention of employment, and all the other advantages of having a licence. In that sense, the interlock is a real advantage, if the driver can afford it.
[28] At a rehabilitation level, Ms Barker emphasises that the RIS says that the interlock acts as a “constant reminder to the driver that they should not consume any alcohol before driving”. The RIS says it is harder to quantify the benefits for the Government, by which I take it is meant the apparatus of State, and the community, but they include a reduction in the number of offenders eligible for a term of imprisonment for repeat drink-driving serious offences, and a positive influence on employment, which is often affected when the offender is unable to drive. The RIS
also refers to potential benefits for the health system by addressing a person’s
alcohol issues before they escalate to the level of necessary medical intervention.
[29] In my view, of most consequence, the RIS says the benefits of interlock use have been well researched, and there is a proven reduction in reoffending after an interlock device has been employed. The use of an interlock after the first conviction appears to maximise the chance of a change in the offender’s attitude towards drink-driving.
[30] The Land Transport (Road Safety and Other Matters) Amendment Bill (“LTAB”) is currently before Parliament. One of its aims is to reduce repeat drink-driving offences by strengthening the legislation covering alcohol interlock licences. Under the Bill, s 65A is replaced with s 65AB. That section makes it mandatory, rather than discretionary, for the Court to impose an alcohol interlock licence for relevant offences.8 The Explanatory Note to the Bill states that alcohol interlock devices have been recognised internationally as a highly effective tool for reducing the incidence of recidivist drink-driving. Parliament has recognised
reviews which indicate that alcohol interlock devices can reduce drink-driving re-offending by an average of 60 percent. Therefore the Bill’s amendments are aimed at improving road safety by ensuring the Courts make greater use of alcohol interlocks for high-risk offenders.
[31] The Alcohol Advisory Council of New Zealand (“ALAC”), made a submission in relation to LTAB. ALAC made the point that licensing sanctions such as disqualification from driving generally fail to deter habitual offenders from drinking and driving.
[32] Essentially, Ms Barker submits that alcohol interlock devices are shown to positively influence the behaviour of drink drivers and are successful in reducing recidivism. A 67 per cent reduction in repeat drink-driving offending is substantial.
Hence, Ms Barker submits that, while clearly an advantage to the offending drink
8 Unless specified exceptions apply, such as the offender not holding a licence, or living outside a service area.
driver, the device promotes public safety, and reduces the likelihood of reoffending, so it is rehabilitative.
[33] This being so, it would be ironic if an interlock device can only be employed by someone who can fund it. I do not know whether the appellant here can fund it, but the point made by Ms Barker about the advantage to the community is generic, whether an offender has funds or not. The LTAB seems to contemplate funding.
[34] Ms Barker says that the appellant, now 23 years of age, has not fully matured, as the Judge commented, and his criminal history is limited, mostly as a teenager. All of his convictions carry the mark of alcohol consumption. He does not offend while sober, but when intoxicated he makes poor choices. Ms Barker submits that, assuming those poor choices will continue, an alcohol interlock device would manage his particular risk factors, at least so far as driving is concerned.
Case law
[35] The Crown refers to a number of authorities which Ms Barker distinguishes. In each case the Court was required to impose either an indefinite disqualification under s 65 of the Act, or impose an alcohol interlock licence pursuant to s 65A of the Act.
[36] An indefinite disqualification, such as that imposed on the defendant on
21 February 2013, has quite different ramifications. To regain a licence the offender must undergo a rehabilitative process, just as the appellant did here. The choice made by the Court following conviction was between the more restrictive s 65 indefinite disqualification, or a s 65A alcohol interlock licence authorisation.
[37] Section 65 does not apply in this case, so the choice between indefinite disqualification or an alcohol interlock licence is not before the Court. The issue here is whether the Judge was right to impose a finite period of disqualification, rather than authorise an alcohol interlock licence with its lesser driving restraint.
[38] Ms Barker says the authorities demonstrate the Court’s interest in
rehabilitation when deciding whether to impose a s 65 indefinite disqualification,
which compels rehabilitation before a licence can be reissued. Where that has already been undertaken, as here, counsel submits that the need diminishes and, as an alternative, a s 65A alcohol interlock order becomes viable.
[39] Ms Barker says that rehabilitative considerations should be considered in this setting, and the appellant will have to take rehabilitative steps as part of his sentence of supervision. He has already told the Probation Officer that he needs to do something about his alcohol use and counselling is probable.
[40] The appellant cannot say an alcohol interlock licence will assist his work prospects as he has work, although it is hard for him to get to his workplace. His connection to the community is noted in the RIS. He gets to work with help, but due to his community detention, he sometimes has to leave earlier and that requires other assistance. He is a keen sportsman. An alcohol interlock licence would keep the appellant in the community purposefully, allowing his independence, and he would be able to drive only with a clear breath sample.
[41] Ms Barker cites Courtney J in Wiseman v Police, who held that deterrence and denunciation and protection of the public can be addressed by a combination of sentences in conjunction with an interlock order.9 Toogood J observed this in Heffernan v Police.10
[42] It comes down to a submission that the least restrictive sentence which meets the purpose of rehabilitation is appropriate here. The alcohol interlock authorisation is submitted to be the least restrictive sentence in the context of disqualification and the most effective response for the appellant and for the community. In essence, Ms Barker says that an alcohol interlock device does provide a benefit to the offender, but it has other benefits to the community which should be recognised in the exercise of discretion, and this submission is based on successful rehabilitation.
[43] Mr Mika for the Crown takes a different view. In Wiseman, Courtney J held it was appropriate that an alcohol interlock order be granted, which would help as the
9 Above n 6.
10 Above n 6.
appellant lived in a rural area and needed transport to get to work and there were signs that he was appreciating the gravity of his offending and addressing his alcohol problem. In Heffernan, Toogood J brought to account that the offender was likely to lose his job if disqualified from driving, affecting his apprenticeship. The alcohol interlock licence would assist his reintegration. There had been no issues with non-compliance in the past and the offender was motivated to address his alcohol problem. In Vorster v Police, the offender appealed two sentences of disqualification, one indefinite and the other for six months for refusing to supply
blood (third or subsequent), and driving while disqualified (third or subsequent).11
The sentencing judge had not addressed s 65A and the offender was a qualified builder who needed his licence to travel to the work site. He had also been on the “right track” programme. The appeal was allowed and an alcohol interlock licence imposed.
[44] Mr Mika submits that these authorities involve offenders who had taken active steps towards rehabilitation, and are distinguishable from this case. However, I consider that the appellant had already done a lot in that regard, as his indefinite disqualification was lifted only after he had taken rehabilitative steps.
[45] Approaching the discretion from a different perspective, the appellant was subject to a zero alcohol licence when he offended. Mr Mika submitted this told against the grant of an alcohol interlock licence, as did his poor attitude, and poor decision making. The appellant did not believe the careless driving charge was warranted, although he was convicted for that. His attitude is submitted to be undeserving of the personal advantage of an interlock device, recognising the force of Ms Barker’s submission.
Conclusion
[46] There is substance in the submissions made by Ms Barker. There is clearly an advantage to an offender if authorised to obtain an alcohol interlock licence. In
short, he or she can drive after a short period of disqualification.
11 Vorster v Police [2015] NZHC 2930.
[47] Viewed from the community’s perspective, the exercise of discretion involves a range of considerations. Ms Barker is right that there appears to be a positive response to use of an alcohol interlock device. I recognise the advantage of the appellant being able to drive, in his connection with the community. He would be subject to a zero alcohol licence once more, something which did not however deter him from driving on this occasion. The point really reduces to the advantage to the community and the appellant of an alcohol interlock licence by assisting his rehabilitation. The Judge was right that there would be a benefit to the appellant, although she found him undeserving, and that is properly in the exercise of the Courts discretion according to sentencing principles.
[48] I consider that the deterrence and denunciation elements of sentencing are met by the overall sentence imposed, so the question in this appeal comes down to whether the Judge has exercised her discretion according to principle, and that, if the Court had addressed matters as submitted by Ms Barker, the discretion would and should have been exercised differently.
[49] This Court will not disturb the exercise of discretion unless it is manifestly wrong which will usually mean that something has been wrongly brought to account, or left out of account. There are rehabilitative elements in the grant of an alcohol interlock licence, which appears to be beneficial in addressing recidivist behaviour, and constitutes the least restrictive sentence. The Judge was not in my view wrong to refer to the zero alcohol licence obtained by the appellant, because that was the product of the appellant taking rehabilitative steps to qualify for it, and have his indefinite disqualification set aside. A broader lens would bring to account the advantage of the alcohol interlock device not to the appellant, but to the community, to address his repeat drink-driving. The obvious advantage to the appellant through convenience is of little weight, as his behaviour is so undeserving.
[50] In the end, this is an appeal against the exercise of discretion, and I do not identify any rehabilitative intent of the appellant, to any real degree. That conclusion is consistent with his seemingly casual attitude to the offending. The appellant seems to be in denial. These are relevant factors, and I consider the exercise of
discretion here must give due weight to these countervailing factors. In due course
Parliament may legislate an override to this factor and compel an interlock device.
[51] Ms Barker has addressed this appeal very carefully and persuasively, but in the end the exercise of discretion should, in my view, include a minimum of some element of respect shown by an offender for the circumstances in which he or she has placed themselves and the community, and that is lacking here. I conclude that the Judge’s decision should not be disturbed as the appellant’s attitude negates the appeal being allowed, but I agree the exercise of discretion should in all cases recognise the apparently positive effects of the interlock device for an offender, and to the community.
Disposition
[52] The appeal is dismissed.
………………………………………….
Nicholas Davidson J
Solicitors:
Preston Russell Law, Invercargill
Eagles Eagles & Redpath, Invercargill
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