Douglas v Police
[2021] NZHC 316
•26 February 2021
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-463-149
[2021] NZHC 316
BETWEEN CHEARA ANNE DESRAY DOUGLAS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: On the papers Counsel:
L Owen for Appellant
G Banuelos for Respondent
Judgment:
26 February 2021
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 26 February 2021 at 4:30 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Rotorua
DOUGLAS v POLICE [2021] NZHC 316 [26 February 2021]
[1] Following her guilty plea Cheara Anne Desray Douglas (the appellant) was convicted on 19 November 2020 on a charge of driving with excess breath alcohol at Rotorua on 8 September 2020. Her evidential breath test showed her to have 1253 micrograms of alcohol per litre of breath. The appellant had been previously convicted of driving with excess breath alcohol on three previous occasions so that the conviction entered on 19 November 2020 was her fourth for that offence.
[2] The appellant appeals against the sentence imposed on her by Judge J J Brandts-Giesen in the District Court at Rotorua on 19 November 2020 on the grounds that the Judge erred in law by not imposing an alcohol interlock sentence rather than a finite disqualification. The appellant does not take issue with the other elements of the sentence imposed, namely six months’ community detention and 12 months’ supervision with conditions regarding her attendance at an alcohol and drug programme and a direction that she not possess or consume alcohol.
[3] The appellant notes that the Judge’s sentencing notes do not mention the imposition of a sentence of disqualification from driving, although the District Court record of hearing is noted “disqualification 1 year + 1 day from 20/11/20”. The appellant submits that the Court erred in imposing that disqualification sentence. The appellant submits that the Court was required pursuant to ss 56(4A) and 65AC of the Land Transport Act 1998 (LTA) to impose an alcohol interlock sentence.
[4]Sections 56(1), (4) and (4A) of the LTA 1998 provide:
(1)A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person’s breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, exceeds 400 micrograms of alcohol per litre of breath.
…
(4)If a person is convicted of a third or subsequent offence against subsection (1) or subsection (2), or any of sections 57A(1), 58(1), 60(1), or 61(1) or (2) (whether or not that offence is of the same kind as the person’s first or second offence against any of those provisions),—
(a)the maximum penalty is imprisonment for a term not exceeding 2 years or a fine not exceeding $6,000; and
(b)the court must order the person to be disqualified from holding or obtaining a driver licence for more than 1 year.
(4A) The mandatory disqualification in subsection (4)(b) does not apply if—
(a)an order is made under section 65; or
(b)an alcohol interlock sentence is ordered under section 65AC(1).
[5]Section 65 of the LTA relevantly provides:
(1)This section applies to offences against any of sections 56 to 62.
(2)A court must make an order requiring a person to attend an assessment centre and disqualifying the person from holding or obtaining a driver licence until the Agency removes that disqualification under section 100 if—
(a)the court convicts that person of a second or subsequent offence against any of sections 56 to 62; and
(b)the previous offence was committed within 5 years of the date of the commission of the offence being dealt with by the court.
(3)Despite subsection (2), the court may not make an order referred to in subsection (2) unless at least 1 of the offences was—
(a)an offence to which this section applies where either—
(i)the proportion of alcohol in the person’s breath, as ascertained by an evidential breath test, exceeded 1000 micrograms of alcohol per litre of breath; or
(ii)the proportion of alcohol in the person’s blood, as ascertained from an analysis of a blood specimen, exceeded 200 milligrams of alcohol per 100 millilitres of blood; or
(b)an offence against section 59 or section 60 (which relate to failing to remain or to accompany or to permit a blood specimen to be taken for the purposes of the administration of breath tests and blood tests).
(3A) The mandatory disqualification in subsection (2) is replaced by any alcohol interlock sentence ordered under section 65AC(1) (whether or not the alcohol interlock sentence is ordered at the same time as, or after, the order made under subsection (2)).
(4)The court must make an order that requires a person to attend an assessment centre and that disqualifies that person from holding or obtaining a driver licence until the Agency removes that disqualification under section 100 if —
(a)the court convicts that person of a third or subsequent offence to which this section applies; and
(b)the 2 or more previous offences were committed within 5 years of the date of the commission of the offence being dealt with by the court.
[6] The appellant submits that her case does not fall within s 65 of the LTA by reason of s 65(3) and that s 65AC and the related provisions, 65A – 65AK apply which govern mandatory alcohol interlock sentences for repeat offending and certain first offences.
[7]The relevant portion of s 65AC LTA provides:
(1)If this section applies, the court must order an alcohol interlock sentence.
(2)An alcohol interlock sentence—
(a)disqualifies the person from holding or obtaining a driver licence for the period required by section 65AE; and
(b)authorises the person to apply for an alcohol interlock licence at the end of that period; and
(c)disqualifies the person from holding or obtaining any licence except an alcohol interlock licence; and
(d)authorises the person, after complying with the alcohol interlock licence requirements, to apply to replace the alcohol interlock licence with a zero alcohol licence.
[8] The appellant accordingly submits that when she appeared before the District Court for sentence on 19 November 2020 for a qualifying offence for the purpose of s 65AB(1)(b)(i) of the LTA, namely an offence against s 56(1) of the LTA, when her evidential breath test exceeded 800 micrograms of alcohol per litre of breath that a number of exceptions specified in s 65AB(2) applied to her. The appellant accordingly submits that the Court was therefore required to impose a period of disqualification which should have been for 28 days as the appellant was not at the time disqualified from driving and held a full driver’s licence. The appellant submits that the Court was further required to authorise the appellant to apply for an alcohol interlock licence to
be held for 12 months or more1 and also authorised the appellant to apply for a zero alcohol licence to remain in place for three years.2
[9] The appellant accordingly submits that the disqualification imposed by the District Court should be quashed and replaced with the three step alcohol interlock licence.
Crown submissions
[10] For the Crown Ms Banuelos accepts that the District Court Judge erred in not imposing an alcohol interlock sentence. Ms Banuelos submits that the Judge was required to impose an alcohol interlock sentence because pursuant to s 65AB(1)(b)(i) of the LTA the proportion of alcohol in the appellant’s breath exceeded 800 micrograms of alcohol per litre of breath and that as this is a qualifying offence there is no discretion to not impose an alcohol interlock sentence. The respondent accepts that the appeal should be allowed.
[11] It appears from Judge Brandts-Giesen’s sentencing notes that the learned Judge did not address the issue of disqualification in the course of imposing a sentence and there is accordingly an inconsistency between the Judge’s sentencing notes and the Court record on which the Judge has noted “disqualification 1 year + 1 day from 20/11/20”.
[12] I am satisfied that the Judge erred by failing to impose an alcohol interlock sentence as required by s 65AB(1)(b)(i) and s 65AC(1) and s 65AE of the LTA.
[13] I accordingly make an order quashing that part of the sentence imposing a disqualification of one year and one day from 20 November 2011, and I substitute an alcohol interlock sentence as follows:
(a)The appellant is disqualified from holding or obtaining a driver licence for a period of 28 days commencing 20 November 2020.
1 Land Transport Act 1998, s 65AC(2)(b) and s 65AG.
2 Sections 65AC(2)(d) and 65B(2), (3); see also Lally v Police [2019] NZHC 352.
(b)At the end of that period of disqualification the appellant is authorised to apply for an alcohol interlock licence to be held for a term of 12 months or more.
(c)At the end of the period of the alcohol interlock licence, and subject to complying with the alcohol interlock licence requirements, the appellant is authorised to apply to replace it with a zero alcohol licence to remain in place for a period of three years.
[14]On the basis and for the reasons set out above, the appeal is allowed.
Paul Davison J
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