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Do v Police

Do v Police

Case [2015] NZHC 2235 16 September 2015

Retrospectivity

Double Jeopardy

Statutory Interpretation

Sentencing

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2015-485-17 [2015] NZHC 2235

BETWEEN
DINH TU DO

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 23 June 2015

Counsel:

A Shaw for Appellant
S W P Woods for Respondent

Judgment:

16 September 2015

JUDGMENT OF CLIFFORD J

Introduction

[1] The appellant, Dinh Tu Do, challenges a zero alcohol licence order made against him by Judge Tuohy in the District Court as part of his sentence for driving with excess blood alcohol.1 Mr Do says that, in the circumstances of his case, the imposition of that part of his sentence breached fundamental principles of criminal law relating to retrospectivity and double jeopardy.

Facts

[2] Mr Do was stopped by the police in the early hours of Sunday 29 December

2013 whilst driving along the Wellington/Porirua Motorway. Mr Do was breathalysed. Mr Do subsequently elected to have a sample of his blood taken. That sample showed that Mr Do’s blood contained 111 milligrams, +/- five, of alcohol per
100 millilitres of blood. Mr Do was charged under s 56(2) of the Land Transport Act

1998 with driving with excess blood alcohol (106 milligrams of alcohol per 100

1 New Zealand Police v Dinh Tu Do [2015] NZDC 7581.

DO v NEW ZEALAND POLICE [2015] NZHC 2235 [16 September 2015]

millilitres of blood). Mr Do pleaded guilty to that charge and was convicted on

11 April 2014. He was remanded for sentence to 10 June 2014.

[3] Mr Do has a previous conviction of driving with excess blood alcohol, entered on 16 December 2011.

[4] Section 65B of the Land Transport Act provides for the imposition of what are known as zero alcohol requirements. Where a person convicted of a drink driving offence2 has within the previous five years been convicted of a like offence, the Court must make a zero alcohol licence order. Such an order requires the convicted person to apply for a zero alcohol licence when his or her mandatory period of disqualification expires. Such a licence permits that person to drive only when they have no alcohol in their blood. If that person does not obtain such a licence, they are treated as not having a licence.

[5] On Mr Do’s sentence remand date his lawyer, Mr Shaw, raised with the District Court the applicability of s 65B. Mr Shaw’s submission was that s 65B could not apply to Mr Do because Mr Do’s previous conviction pre-dated s 65B coming into effect. To apply s 65B to Mr Do, and make him subject to the mandatory requirement to obtain a zero alcohol licence, would – Mr Shaw suggested
– be to give s 65B unlawful retrospective effect.

[6] Mr Do’s sentencing was therefore deferred. That question of unlawful retrospectivity was ultimately argued before Judge Broadmore on 28 July 2014. The Judge found that the application of s 65B to Mr Do would not infringe against principles concerning retrospectivity.3 The Judge put it this way:

[11] The punishment in prospect in…

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 [2015] NZHC 2235
Case: [2015] NZHC 2235
Decision Date: 16 September 2015

CaseChat Overview and Summary

Dinh Tu Do appeals against a zero alcohol licence order imposed by the District Court as part of his sentence for driving with excess blood alcohol. The appeal focuses on the legality of the order, arguing that it infringes principles of retrospectivity and double jeopardy. The appeal was heard by Clifford J in the High Court at Wellington. Mr Do had previously been convicted of a similar offence in December 2011 and was convicted again in December 2013. The District Court imposed a zero alcohol licence order as part of his sentence for the 2013 offence. The order requires Mr Do to apply for a licence permitting him to drive only when he has no alcohol in his blood. If he does not obtain such a licence, he is treated as not having a licence.

The appeal raises two issues. The first concerns whether the imposition of the zero alcohol licence order constitutes an unlawful retrospective penalty. The second concerns whether the order breaches the prohibition on double jeopardy. The High Court found that the order did not infringe either principle. The penalty for the 2013 offence had not been varied between the time the offence was committed and the time of sentencing. Moreover, the imposition of the zero alcohol licence order was not a case of punishing Mr Do again for the 2011 offence. Rather, the order was a reasonably orthodox application of the principle that past conviction history may be a relevant consideration when sentencing current offending. The imposition of the zero alcohol licence order on Mr Do was therefore lawful. Mr Do’s appeal was dismissed.

Orders