Forges v Police

[2024] NZHC 340

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-463-000131

[2024] NZHC 340

ROGER DES FORGES

v

NEW ZEALAND POLICE

Hearing:

26 February 2024

Appearances:

E Dyche for the Appellant

H Speight for the Respondent

Judgment:

28 February 2024

JUDGMENT OF WALKER J

This judgment was delivered by me on 28 February 2024 at 3 pm Registrar/Deputy Registrar

Solicitors:

E Dyche, Barrister & Solicitor, Pawson Law, Te Puke H Speight, Pollett Legal Ltd, Crown Solicitor Tauranga

DES FORGES v NEW ZEALAND POLICE [2024] NZHC 340 [28 February 2024]

[1]    Roger Des Forges was convicted on charges of driving with excess breath alcohol (third or subsequent) 1 and driving contrary to a zero alcohol licence (third or subsequent).2    On  19  June  2023,  Mr   Des   Forges   was   sentenced   by   Judge I D R Cameron in the District Court at Waihi to four months’ home detention on stipulated conditions. The Judge also imposed six months’ post-detention conditions to include the special condition to complete any outstanding programmes recommended while subject to home detention. He was also disqualified from driving for one year and one day. That disqualification commenced on 8 May 2023 and, subject to this appeal, ends on 9 May 2024.3

[2]    On the charge of driving contrary to a zero alcohol licence, Mr Des Forges was sentenced to one month’s home detention concurrent with the four month home detention sentence and also disqualified from holding or obtaining a driver’s licence for a period of one year, commencing on the same date.

[3]    Mr Des Forges now appeals against the sentence imposed on him on the grounds that the Judge erred in law by failing to impose an alcohol interlock sentence rather than a finite disqualification. He does not take issue with the other elements of the sentence imposed. As far as the Court is aware, the sentence of home detention has now been served.

[4]    The sole issue in this appeal is whether an alcohol interlock order was a mandatory requirement. The appellant and respondent agree that it was mandatory. Consequently, that it overrode the mandatory disqualification period in the Land Transport Act 1998 (LTA). The appellant and respondent therefore agree that the appeal should be allowed and that the proper course is for this Court to substitute an alcohol interlock sentence operative from the date of sentencing in the District Court.

1      Land Transport Act 1998, ss 56(1) and 56(4). Maximum penalty of two years’ imprisonment or a fine not exceeding $6,000.

2      Sections 32(1)(b) and 32(4). Maximum penalty of two years’ imprisonment or a fine not exceeding $6,000.

3      Police v Des Forges [2023] NZDC 12342.

Offending

[5]The Police summary of facts records that on 24 December 2022, at around

11.30 pm, the appellant was stopped at a Police check point while driving a vehicle on Beach Road, Waihi. Police undertook a breath test which found that the appellant’s breath contained 724 micrograms of alcohol per litre of breath. The appellant told Police that he was driving home from the pub.

[6]The appellant was subject to a zero-alcohol licence at the time of the offending.

[7]    At sentencing, the Judge noted the appellant’s previous convictions for drink-driving, the most recent being 24 December 2017, with three others in 2013, 2010 and 2006.

Analysis

[8]    Despite the common position of the appellant and respondent, it is necessary to review the relevant provisions. The alcohol interlock provisions were inserted into the LTA by the Land Transport Amendment Act 2017.4 The effect was to alter the mandatory penalties for certain offences under the LTA. Offenders who commit specified offences under the LTA must be sentenced under the new regime if they have been convicted of the same type of offence within five years of committing the offence on which they appear for sentence.5

[9]    Driving with excess breath alcohol in contravention of s 56(1) of the LTA is one of the offences to which the new regime applies.6

[10]Section 65AC of the LTA provides:

65AC Alcohol interlock sentence

(1)If this section applies, the court must order an alcohol interlock sentence.

(2)An alcohol interlock sentence—

4      Land Transport Amendment Act 2017, ss 5 to 36.

5      Land Transport Act 1998, s 65AB.

6      Section 65AB(1).

(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.

(3)Subsection (1) applies unless for special reasons relating to the qualifying offence the court thinks fit to order otherwise and, if so,—

(a)section 94 may apply (and a reference to disqualification in section 94 must be treated as if it referred to an alcohol interlock sentence); but

(b)an alcohol interlock sentence may not otherwise be substituted by a community-based sentence.

[11]The test for an interlock order is found in s 65AB which reads:

65AB Qualifying offences

(1)Section 65AC applies if a court convicts a person of an offence in relation to alcohol against any of sections 56(1), 56(2), 57(1), 57(2), 57AA, 57C(1), 58(1)(a), 60(1)(a) to (c), 61(1), 61(2)(a), and 62(1)(a) and either—

(a)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 (whether or not section 65(2) or (4) also applies); or

(b)the offence for which the person is convicted involves either or both of the following:

(i)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 or exceeds 800 micrograms of alcohol per litre of breath:

(ii)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 or exceeds 160 milligrams of alcohol per 100 millilitres of blood.

(2)However, section 65AI applies instead of section 65AC if a person described in subsection (1)—

(a)has a medical condition (as certified by an appropriately qualified health practitioner) that renders him or her incapable of providing a valid breath sample to activate an alcohol interlock device; or

(b)usually lives in a non-serviced area and is not prepared to drive to a serviced area for an initial installation and any necessary service; or

(c)has never held a New Zealand licence; or

(d)holds a licence that has been revoked or is suspended (except one that is suspended under section 90, 95, or 95A); or

(e)is not likely, during the term of any alcohol interlock sentence that would otherwise apply, to—

(i)have lawful possession of a motor vehicle to the extent of being able to use it and fit it with an alcohol interlock device; or

(ii)have the type of possession described in subparagraph

(i)   of a motor vehicle that is technically able to be fitted with an alcohol interlock device.

[12]   The question then is whether Mr Des Forges’ conviction brought him under   s 65AB(1) such that s 65AC applies. If it does apply, then the Judge erred in failing to impose an alcohol interlock sentence in place of disqualification unless any of the exceptions under s 65AB(2) apply.

[13]   The appellant and respondent submit that none of the exceptions apply. I accept that submission on the basis of the information presented to the Court.

[14]   Mr Des Forges argues that the LTA is subject to s 54 of the Legislation Act 2019 which provides rules for calculating time periods referred to in legislation. That section states that where a period is described as “being within a specified number of days of or after a specified day, act or event” then the period does not include that day or the day of the act or event.

[15]   Application of this ‘rule’ would mean that Mr Des Forges’ conviction on the qualifying offence fell within the five-year period under s 65AB(1)(a) because his most recent conviction was in respect of offending occurring just before midnight on

24  December  2017.   The  index  offending  occurred  at  around  11.30  pm  on    24 December 2022.

[16]   The relevant provision of the LTA does not express the time period in days. Instead, it refers to years. However, to conclude that the Legislation Act is not therefore engaged would be overly literal and inconsistent with the policy of both the Legislation Act and the regime under the LTA.

[17]    I am therefore satisfied that the qualifying offences were within the five-year period so that the criteria for an alcohol interlock order were met.

[18]   The sentencing notes of the Judge do not refer to the alcohol interlock provisions nor the Legislation Act 2019. Counsel informed the Court at the appeal hearing that the Judge was referred to both. The identified error lies in counting the commission of Mr Des Forges’ index offending as the first day within the calculated period rather than the day after. I accept this was a material error.

[19]   In summary then, the alcohol interlock provisions trump the mandatory disqualification period. Instead, the Court must disqualify the offender from driving for the applicable period specified in s 65AE.7 At the end of that period the offender may apply for an alcohol interlock licence and may only hold that type of licence. They are required to install an alcohol interlock in their vehicles at their own expense. Before the vehicle can be started, the offender must supply a sample of breath to the alcohol interlock device fitted to the vehicle. The vehicle will only start if no alcohol is detected in the person’s breath. An offender who complies with the alcohol interlock licence requirements is authorised to apply to replace that licence with a zero alcohol licence.8

[20]   Notably, the Court may still impose in its discretion a period of disqualification for concurrent offending of a type that does not fall within the alcohol interlock sentencing regime. This follows from s 65AE(d)(ii), which relates to periods of disqualification imposed under s 65AH(3). Alcohol interlock sentences do not obviate the need for periods of disqualification in appropriate cases. The Crown does not however submit that the concurrent disqualification in respect of the charge of driving contrary to a zero alcohol licence warrants disqualification alongside the alcohol

7      Section 65AC(2)(a).

8      Section 65AC(2)(d).

interlock order. It is apparent that the Judge looked to the mandatory 12-month disqualification under s 32(3A). Having rejected the submission that the alcohol interlock criteria were met, he did need to turn his mind to the exercise of any discretion to impose disqualification for the charge under s 32(1) of the LTA.

[21]   Counsel did not address me on this question but since nearly eight months have passed, it appears to me that any discretionary disqualification period would not have been longer than that period in any event. Both counsel urged me not to remit the matter to the District Court for re-sentencing. I agree that would not be efficient nor practical.

[22]   Importantly, the alcohol interlock regime is designed to assist recidivist and/or serious offenders to break the cycle of disqualification, and thereby to assist in rehabilitation, whilst still protecting the community from those who drive whilst intoxicated.

Result

[23]   I am satisfied that the Judge erred by failing to impose an alcohol interlock sentence as required. Accordingly, I make an order quashing that part of the sentence imposing a disqualification of one year and one day. 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 19 June 2023.

(b)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.

[24]   On that basis and for the reasons set out, the appeal is allowed. For the avoidance of doubt, the post-detention conditions imposed by the Judge remain.

............................................................

Walker J