Douglas v Police - [2021] NZHC 316

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…

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.

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Details

Case: [2021] NZHC 316
Decision Date: 26 February 2021

CaseChat Overview and Summary

The High Court of New Zealand, Rotorua Registry, considered an appeal by Cheara Anne Desray Douglas against her sentence for driving with excess breath alcohol. The appellant had been previously convicted of driving with excess breath alcohol on three occasions and was convicted again on 19 November 2020. The appellant appeals against the sentence imposed by the District Court, arguing that the court erred in imposing a finite disqualification from driving instead of an alcohol interlock sentence. The appellant argues that the District Court was required to impose an alcohol interlock sentence under sections 56(4A) and 65AC of the Land Transport Act 1998 (LTA). The court was required to determine whether the District Court erred in imposing a finite disqualification from driving instead of an alcohol interlock sentence, as required by the LTA. The court examined the relevant provisions of the LTA and concluded that the District Court erred in imposing a finite disqualification from driving instead of an alcohol interlock sentence. The court quashed the disqualification and substituted an alcohol interlock sentence, which includes a 28-day disqualification from holding or obtaining a driver licence, followed by an alcohol interlock licence for 12 months or more, and a zero alcohol licence for three years. The appeal was allowed, and the sentence was substituted as described.

Orders