Governor v Police
[2021] NZCA 403
•24 August 2021 at 2.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA134/2021 [2021] NZCA 403 |
| BETWEEN | LISA ROBYN GOVERNOR |
| AND | NEW ZEALAND POLICE |
| Hearing: | 13 May 2021 |
Court: | Miller, Venning and Peters JJ |
Counsel: | J Y Yi for Appellant |
Judgment: | 24 August 2021 at 2.00 pm |
JUDGMENT OF THE COURT
ALeave to bring a second appeal is granted in part.
B The appeal against sentence is allowed. We quash the sentence and remit the matter back to the District Court for re-sentencing in light of this judgment.
____________________________________________________________________
REASONS OF THE COURT
(Given by Peters J)
The appellant, Ms Governor, seeks leave to bring a second appeal against conviction and sentence.
The proposed appeal is against a decision of Gordon J in the High Court, delivered on 16 March 2021, upholding a decision of Judge Mathers in the District Court on 3 December 2020.[1]
[1]Governor v Police [2021] NZHC 525 [High Court appeal]; and Police v Governor [2020] NZDC 25140 [District Court sentencing].
Ms Governor was before Judge Mathers on a charge of driving while disqualified (third or subsequent), this being an offence under s 32(1) of the Land Transport Act 1998 (the Act). She sought a community-based sentence under s 94 of the Act in lieu of the otherwise mandatory period of disqualification.[2]
[2]A community-based sentence is one within the meaning of Part 2 of the Sentencing Act 2002, that is a sentence of community work, supervision, intensive supervision, or community detention: s 44.
Applying the decision of van Bohemen J in Scadden v Police, the Judge held that she did not have jurisdiction to impose a community-based sentence because Ms Governor was subject to an alcohol interlock sentence (interlock sentence) imposed in September 2019 on a charge of driving with excess breath alcohol.[3]
[3]District Court sentencing, above n 1, at [4], citing Scadden v Police [2020] NZHC 1619.
Ms Governor had sought a discharge without conviction in the event she did not obtain a community-based sentence. Mr Yi advised us that this is not an unusual course for a defendant who is excluded from seeking a community-based sentence. If the discharge is granted, the offender simply continues on their interlock sentence as if the underlying offending had never occurred. It is clear from her sentencing notes that Judge Mathers was not impressed by that suggestion, and she was certainly not satisfied the consequences of conviction were out of all proportion to the gravity of the offending.[4] The Judge declined the application, convicted Ms Governor, disqualified her from driving for one year, and sentenced her to a period of community work.[5]
[4]At [7]–[10].
[5]At [14].
Gordon J declined Ms Governor’s appeal, largely for the same reasons as van Bohemen J on the jurisdiction issue.[6]
[6]High Court appeal, above n 1, at [28]–[47].
Ms Governor seeks leave to bring a second appeal against Gordon J’s decision regarding s 94 and, if unsuccessful in that, against the refusal of the discharge without conviction.[7]
[7]Criminal Procedure Act 2011, ss 237–238 and 253–254.
The Crown opposes the application for leave on its view of the merits. However, as the Crown acknowledges, the issue of jurisdiction under s 94 is important, and we grant leave to appeal on that point. We decline leave to bring a second appeal against the refusal of a discharge, which would be without merit.
Before we turn to the issues in the case, we endorse Judge Mathers’ and Gordon J’s remarks that Ms Governor’s driving record is appalling. Her conviction in September 2019 for driving with excess breath alcohol was her sixth, and that on 3 December 2020 for driving while disqualified was her seventh.
Background
Section 94 of the Act permits the Court to impose a community-based sentence in lieu of a period of disqualification if the offender has previously been ordered on conviction to be disqualified, and if the Court considers a further period of disqualification inappropriate, and a community‑based sentence appropriate.[8]
[8]Land Transport Act 1998, s 94(1).
Section 94 was enacted to address the fact that many offenders fail to comply with court-ordered periods of disqualification and, if this happens sufficiently often, that offender becomes caught up in a never-ending cycle of disqualification. The person is disqualified for some offence, say careless driving; breaches the disqualification and is charged accordingly; a further period of disqualification is imposed; this is then breached; and this breach is followed by a further charge, and on it goes. The rationale for s 94 was that a community-based sentence might be more likely to engender compliance with court orders, with the added advantage of being a step short of imprisonment.[9]
[9]See for instance Police v Body [2013] NZHC 1586 at [5].
Section 94 provides, and it is s 94(4)(aa) that is particularly important for present purposes:
94 Substitution of community-based sentences
(1) This section applies if—
(a)the offender has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence; and
(b) the court, having regard to—
(i) the circumstances of the case and of the offender; and
(ii)the effectiveness or otherwise of a previous order of disqualification made in respect of the offender; and
(iii)the likely effect on the offender of a further order of disqualification; and
(iv)the interests of the public,—
considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver licence; and
(c)the court considers that it would be appropriate to sentence the offender to a community-based sentence in accordance with Part 2 of the Sentencing Act 2002.
(2)Despite any provision of this Act that requires a court (in the absence of special reasons relating to the offence) to order a person convicted of an offence to be disqualified from holding or obtaining a driver licence, the court may instead make an order referred to in subsection (3) if this section applies.
(3)If the court sentencing an offender determines under this section not to make an order of disqualification,—
(a)the court must impose a community-based sentence on the offender; and
(b)the imposition of such a sentence does not limit or affect the power of the court to impose any other sentence for the offence that, in accordance with the provisions of the Sentencing Act 2002, it may impose in addition to the community-based sentence; and
(c)in determining the appropriate sentence to be imposed on the offender in respect of the offence, the court must take into account the gravity of the offence and the fact that the offender would otherwise have been liable to disqualification from holding or obtaining a driver licence.
(3A)For the purposes of subsection (3)(a), the court may impose a sentence of supervision or intensive supervision as a community-based sentence if—
(a)that sentence is appropriate; and
(b)a suitable programme is available; and
(c)the offender attends a suitable programme.
(4)This section does not apply if—
(a)section 63 or section 65 applies; or
(aa)an alcohol interlock sentence has been ordered under section 65AC(1); or
(b)the offender is prohibited from applying for a limited licence under section103(2)(a), (b), or (d).
(Emphasis added.)
The issue on this appeal is whether, as van Bohemen J in Scadden decided and as Gordon J agreed, the effect of s 94(4)(aa) was to exclude Ms Governor from a community-based sentence for her offending in 2020 as a result of the interlock sentence imposed in 2019.
Counsel for Ms Governor, Mr Yi, submits that the only effect of s 94(4)(aa) is to preclude a community-based sentence in lieu of the period of disqualification which inevitably arises under an interlock sentence under ss 65AC and 65AE, and to which we refer below.
Crown counsel acknowledged that s 94(4)(aa) is open to construction both as Mr Yi submitted, referred to as the “narrow” construction, and as the Judges to date have construed it, referred to as the “broad” construction. The broad construction is that anyone ordered to serve an interlock sentence is excluded from s 94, although possibly read down to exclude only those subject to an extant interlock sentence.
Alcohol interlock regime
The current alcohol interlock regime (interlock regime) in the Act took effect from July 2018. Subject to exceptions referred to below, it became mandatory, as opposed to the previous discretionary regime, for the Court to impose an interlock sentence on an offender who had committed a “qualifying offence” as defined in s 65AB.
A qualifying offence is one committed in breach of what we refer to as the breath and blood alcohol provisions in the Act,[10] and is either the offender’s second such offence within five years, or a particularly egregious first offence. The excess breath alcohol offence of which Ms Governor was convicted on 11 September 2019 was a qualifying offence.
[10]Land Transport Act, ss 56(1), 56(2), 57(1), 57(2), 57AA, 58(1)(a), 60(1)(a) to (c), 61(1), 61(2)(a), and 62(1)(a).
The rationale for the new mandatory regime was that an interlock sentence was expected to prove a better public safety measure than the imposition of a period of disqualification on a recidivist drink driver. The explanatory note to the Bill introducing the amendments includes the following:[11]
[11]Land Transport Amendment Bill 2017 (173-2) (Explanatory note) at 2.
... The Bill has 6 components, which will—
• strengthen the legislation relating to alcohol interlocks:
...
Mandatory alcohol interlocks
The Bill proposes to improve road safety by reducing recidivist drink driving.
The Act contains a discretionary alcohol interlock sentence that the courts can impose on first-time offenders with high alcohol levels and offenders with repeat drink-drive convictions. However, the discretionary sentence is applied sparingly. The Bill makes alcohol interlocks mandatory for these offenders, with limited grounds for exception. Alcohol interlocks will also become mandatory for drink-drive offenders subject to alcohol assessment orders under section 65 of the Act.
...
Alcohol interlocks are a highly effective tool for reducing the incidence of recidivist drink-driving. International reviews of alcohol interlock programmes indicate that alcohol interlocks can reduce drink-drive reoffending by an average of 60% while the device is fitted. The amendments contained in the Bill are expected to result in greater use of alcohol interlocks by high-risk offenders and, in turn, improve road safety.
...
Section 65
There is an overlap between s 65 (set out below) and the interlock regime. Section 65 applies to an offender who commits three specified offences within five years, or two such offences within five years with one of those being an even more serious breach of the breath and blood alcohol provisions than is required to engage s 65AB. The specified offences include all those at footnote 10 above but also driving offences committed under the influence of qualifying drugs.
When the new interlock regime was enacted, the previous indefinite disqualification that applied to breath and blood alcohol offending under s 65 was replaced by a mandatory requirement to impose an interlock sentence. The only remaining point of difference for such an offender is that the Court must order him or her to attend an “assessment centre”.
Coming back to the case at hand, s 65AC(2), which defines an interlock sentence, provides:
(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.
Section 65AE makes provision for determining the period of disqualification imposed by s 65AC(2)(a). Although this was only 28 days in Ms Governor’s case, the period could be substantially longer depending on the nature of the offending or the offender’s circumstances.
Following the period of disqualification, by ss 65AC(2)(b), (c) and (d), the offender may apply for an interlock licence; is prohibited from holding any other licence; and then, after a certain period of compliance, the offender may apply for a zero alcohol licence.[12] In substance, an interlock licence requires the offender to drive only a vehicle fitted with an interlock device. This device, which must be recalibrated every few months, prevents the vehicle from starting if it detects excess breath alcohol.
[12]A zero alcohol licence authorises the person to drive on condition that neither the person’s breath nor blood contains alcohol. See Land Transport Act, s 2 definition of “zero alcohol licence”.
A driver who does not apply for the interlock licence is disqualified from driving by s 65AF. Ms Governor did not apply.[13] As a result, as of 12 July 2020, Ms Governor was disqualified from driving. She was stopped by the police that day, not for any driving-related reason but in the course of random checks the police were undertaking. It was this that caused her appearance before Judge Mathers. Ms Governor had, however, obtained an interlock licence and had the necessary device fitted to her vehicle by the time she appeared before Judge Mathers.
[13]Ms Governor’s explanation for her failure to do so was an inability to afford the device.
In [16] above we referred to exceptions from the mandatory regime. These are as follows.
First, an offender may be excluded from the interlock regime by personal circumstances, for instance, an offender who does not own a vehicle. Such an offender is sentenced in the usual way.[14]
[14]Sections 65AB(2) and 65AI.
Secondly, s 65AC(3) permits the Court to order a community-based sentence in lieu of an interlock sentence if (and only if) special reasons relating to the qualifying offence make that appropriate.
Provision is also made for the possibility of concurrent and subsequent offending.[15] Mr Yi relied on one of these, s 65AJ, in the context of his submissions in favour of the narrow construction, and we refer to this below. Aside from this, however, the provisions which deal with subsequent offending illustrate the difficulty encountered in seeking to reconcile some of the sections included in this part of the Act. Section 65AJ applies to a person “with an alcohol interlock sentence” convicted of a subsequent qualifying offence. Section 65AK applies to a person “with an existing alcohol interlock licence” (not sentence, so Ms Governor fell outside the provision) convicted of a subsequent non‑qualifying offence. Why this terminology is different is not immediately apparent. And then there is s 32 itself, which not only makes it an offence to drive while disqualified, but also to drive contrary to, amongst other things, an interlock licence and a zero alcohol licence, and which has its own sentencing provisions.
Exclusions in s 94(4)
[15]Sections 65AH, 65AJ and 65AK.
By s 94(4)(a) and (b), s 94 does not apply if ss 63 and 65, and 103(2)(a), (b) and (d) apply. Section 103(2) identifies certain categories of offender who may not apply for a limited licence.
Sections 63 and 103(2)(b) both apply to a driver of a vehicle being used in a “transport service”, for instance a taxi driver, who offends against the excess breath and blood alcohol provisions in the Act (why there should be this duplication is not apparent).
We have already referred to an offender to whom s 65 applies. Section 103(2)(a) likewise applies to such an offender, and likewise is a duplication.
Section 103(2)(d) applies to an offender disqualified from driving on conviction for a specified offence within five years of the commission of another such offence. The specified offences include some of the qualifying offences so potentially might affect a driver to whom ss 65 and 65AB apply.
The remaining three categories within s 103(2), that is of drivers who may not be granted a limited licence but who may receive a community-based sentence under s 94 are, in order, a driver who is disqualified under s 32; a driver subject to an interlock sentence, or who would have been but who is within the exception referred to in [26] above; and a driver in respect of whom a “driver licence stop order” is in effect for non-payment of fines.
High Court decision
Gordon J, as did van Bohemen J, considered the broad construction the most natural interpretation of the words “has been ordered” in s 94(4)(aa). Gordon J said:[16]
[29] I agree with the Judge [van Bohemen J in Scadden] that the plain wording of s 94(4)(aa) supports the broad interpretation, namely that an offender already subject to an alcohol interlock sentence is precluded from applying for a community-based sentence to be substituted for a period of disqualification under s 94. This interpretation is the most natural meaning of “has been ordered”. The plain wording of the section is clear.
[16]High Court appeal, above n 1.
Gordon J also rejected Mr Yi’s submissions that the broad construction gave rise to various anomalies which, if not determinative, counted against it.[17]
[17]At [40]–[47].
Nor was the Judge persuaded to prefer the narrow construction on the ground that the purpose of s 94 was to prevent a “treadmill of disqualification”. Rather, the Judge considered the purpose of s 94(4)(aa) to be clear, namely to underline that compliance with an extant interlock sentence is critical, and that to impose a community-based sentence on an offender such as Ms Governor would undermine that objective.[18]
Discussion
[18]High Court appeal above n 1, at [31] and [46], referring to Scadden v Police, above n 3, at [37]–[38].
The meaning of legislation is to be ascertained from its text and in the light of its purpose and context.[19]
[19]Legislation Act 2019, s 10(1).
We agree with Gordon J, and with van Bohemen J, that the words “has been ordered” in s 94(4)(aa) are sufficient to include an interlock sentence previously imposed (even one which is spent for that matter). Equally, the words do not preclude Mr Yi’s narrow construction.
Overall, however, we consider the purpose of s 94 supports the narrow construction for the following reasons.
Section 94 is an enabling provision. It was enacted to permit the Court to impose a community-based sentence, which might be advantageous and in the public interest for any number of reasons. However, the Court is not required to impose such a sentence. It must be satisfied that a further period of disqualification is inappropriate having regard to the matters in s 94(1)(b), and that a community‑based sentence would be appropriate. The nature of the offending for which the offender is before the Court, and his or her driving record, will be relevant to whether a community‑based sentence is an appropriate substitute for disqualification. Section 94(1)(b)(i) expressly requires the Court to have regard to the circumstances of the case and of the offender and, as this Court said in Lally v Police, disqualification periods still have an important function under the new regime.[20]
[20]Lally v Police [2019] NZCA 286 at [13].
That an offender is subject to an interlock sentence does not in itself seem to provide good reason to preclude a community-based sentence under s 94 if it would otherwise be appropriate. By way of example, on the broad construction, a driver subject to an interlock sentence subsequently convicted of, say, careless driving (whether the offence was committed before or after the qualifying offence) could not be ordered to serve a community-based sentence in lieu of disqualification. We do not consider that result consistent with Parliament’s intention in enacting s 94.
Mr Yi made two further submissions to us to the effect that the broad construction cannot have been intended.
The first concerns the provision made as regards a person subject to an interlock sentence who commits a subsequent qualifying offence. The effect of s 65AJ is to require that offender be dealt with under s 65AC. That is, either a fresh interlock sentence is to be imposed, or a community-based sentence imposed under s 94 if s 65AC(3) is engaged (see [27] above), or the offender may be dealt with in the usual way if he or she falls within one of the exceptional situations referred to in [26] above.
Mr Yi submits that the statutory acknowledgement that such an offender may receive a community-based sentence indicates the broad construction of s 94(4)(aa) cannot be correct. He also makes a further submission that the course mandated by s 65AJ as a whole indicates the legislature anticipated those subject to an interlock sentence were to stay the course, notwithstanding even subsequent qualifying offending.
The second matter arises from the failure to refer to s 103(2)(e)(i) in s 94(4)(b). Section 103(2)(e)(i) precludes a person subject to an interlock sentence from seeking a limited licence. Mr Yi’s point is that if Parliament did intend to exclude such a driver from s 94, it would have referred to s 103(2)(e)(i) in s 94(4).
Moreover, Mr Yi referred us to other provisions in the Act which make express reference to a driver who “is subject to an alcohol interlock sentence” (for instance ss 99(7) and 103(2)(e)(i)). Mr Yi submits that, if Parliament intended to exclude from s 94 any offender subject to an existing interlock sentence, it would have said so in these terms.
Mr Yi’s submissions on these points are well made. However, and with respect, the deficiencies in the drafting of the legislation mean we cannot place great weight on them, or at least the last two points mentioned in [45] and [46]. The more important point is that the broad construction is inconsistent with the purpose of s 94, and we do not consider it can have been intended.
Conclusion
We accept Mr Yi’s submission that the effect of s 94(4)(aa) is to preclude a community-based sentence in lieu of the period of disqualification imposed pursuant to ss 65AC(2)(a) and 65AE. It does not preclude a community-based sentence in lieu of a period of disqualification arising under another provision of the Act.
That leaves the position of Ms Governor herself to resolve.
Crown counsel made strong submissions to us as to why, even if we allowed the appeal in principle, a period of disqualification in Ms Governor’s case was still appropriate and required. There is considerable force in those submissions.
On the other hand, whatever Ms Governor’s appalling record and the blatant disregard she has shown for the Court’s orders to date, she has now purchased the interlock device, obtained the interlock licence, and it is possible she will be able to make out a case for a community-based sentence.
In the circumstances, we propose to remit her case back to the District Court for re-sentencing under s 94. It will be a matter entirely for the District Court whether a period of disqualification is inappropriate and a community-based sentence appropriate having regard to the matters identified in s 94(1).
Result
We decline leave to bring a second appeal against conviction and sentence, that is against the refusal to discharge the appellant without conviction.
We grant leave to bring a second appeal against sentence, that is in respect of the issue arising under s 94 of the Act.
The appeal against sentence is allowed. We quash the sentence imposed by Judge Mathers on 3 December 2020 and remit the matter back to the District Court for re-sentencing in light of this judgment.
Solicitors:
Crown Law Office, Wellington for Respondent
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