Do v Police - [2016] NZCA 420

IN THE COURT OF APPEAL OF NEW ZEALAND

CA600/2015
[2016] NZCA 420

BETWEEN	DINH TU DO Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	24 August 2016
Court:	Miller, Cooper and Winkelmann JJ
Counsel:	A Shaw for Appellant A M Powell and E J Devine for Respondent
Judgment:	8 September 2016 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for leave to appeal is granted.
BThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

This is an application for leave to bring a second appeal. The Court previously ordered that the merits would be argued with the leave application.[1]
[1]Do v R CA600/2015, 12 November 2015 (Minute of Harrison J) at [2].
The point is a narrow one, concerning the application of s 65B of the Land Transport Act 1998. That provision requires the District Court to authorise an offender convicted of driving with excess alcohol to apply for a zero alcohol licence, which has a term of three years from the date of issue. As its name suggests, a zero alcohol licence prohibits the holder from driving with any alcohol in his or her system.[2] If the offender does not apply for such licence, any existing licence is deemed ineffective.[3] Thus a zero alcohol licence is the only means by which the offender can drive after his or her disqualification from holding or obtaining a licence has expired.
[2]Land Transport Act 1998, s 2, definition of “zero alcohol licence”.
[3]Section 65B(4).
Section 65B applies where the offender has been convicted for a second or subsequent offence, having previously committed a drink-driving offence within the previous five years. It was enacted during the period between the appellant’s first and second offences. He contends that he ought to have been sentenced as if s 65B had not been enacted, for to apply it would give the section retrospective effect and amount to double punishment.
The facts are not in dispute. In October 2011 the appellant drove with excess blood alcohol and was subsequently sentenced to a fine of $500 and disqualification for a period of six months, the minimum for a first or second offence.[4] In September 2012 s 65B came into effect. On 29 December 2013 he again drove with excess blood alcohol. He pleaded guilty and was sentenced to a fine of $750 and eight months’ disqualification.[5] Judge Tuohy made a zero alcohol licence order.[6]
[4]Section 56(3).
[5]Police v Do [2015] NZDC 7581 at [7].
[6]At [8].
Sentencing was delayed because the appellant disputed whether a zero alcohol licence might be ordered. Judge Broadmore rejected that contention, stating that:[7]
[11] The punishment in prospect in this case is the punishment prescribed by the Act for repeat drink driving. Mr Do is not facing punishment for drink driving in October 2011, but for drink driving in December 2013. Not for drink driving in the first instance, but for doing it again. The 2011 offence does no more than satisfy the qualifying criteria for sentencing…

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 Do v Police

Details

AGLC: Do v Police [2016] NZCA 420
Case: [2016] NZCA 420
Decision Date: 8 September 2016 at 2.30 pm

CaseChat Overview and Summary

In this case, Dinh Tu Do, the appellant, appealed against a zero alcohol licence order imposed on him by the District Court. The respondent, New Zealand Police, argued that the appeal should be dismissed. The case was heard by Miller, Cooper, and Winkelmann JJ of the Court of Appeal of New Zealand. The central issue before the court was whether the application of s 65B of the Land Transport Act 1998 was retrospective and whether it amounted to double punishment for the appellant’s prior drink-driving offence.

The court examined the appellant's argument that s 65B, which requires a zero alcohol licence for repeat drink-driving offenders, should not apply to him as it would be retrospective and punitive. The appellant argued that the imposition of a zero alcohol licence amounted to double punishment for his prior offence in 2011. The court rejected this argument, holding that s 65B did not have retrospective effect as it did not alter the legal nature or consequences of the first offence. The court also found that the zero alcohol licence was not additional punishment but rather a public safety measure, which did not infringe on the appellant's rights or constitute double jeopardy.

The Court of Appeal granted leave to appeal but dismissed the appeal, affirming the decisions of the lower courts. The reasoning of the Court of Appeal was that s 65B did not alter the legal consequences of the appellant's first offence and thus did not operate retrospectively. The zero alcohol licence was deemed a reasonable measure for repeat offenders, aimed at public protection and deterrence, rather than additional punishment for the first offence.

Orders