Harrison v Police

[2013] NZHC 69

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-441 [2013] NZHC 69

BETWEEN  CRAIG PHILLIP HARRISON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         5 February 2013

Counsel:         HT Tevita for Appellant

K V Mills for Respondent

Judgment:      5 February 2013

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:           Jonathan Natusch, P O Box 39-113, Auckland 2145 for Appellant

(Email:  [email protected])

Meredith Connell, P O Box 2213, Auckland 1140 for Respondent

(Email:  [email protected] )

Copy to:            Mr HT Tevita

(Email:  [email protected] )

CRAIG PHILLIP HARRISON V NEW ZEALAND POLICE HC AK CRI-2012-404-441 [5 February 2013]

[1]      Mr Harrison pleaded guilty in the District Court at Manukau to driving a motor vehicle with excess breath alcohol (third or subsequent offence).   He was ordered by Judge Rollo to pay a fine of $1,300 and Court costs and disqualified from holding or obtaining a driver’s licence for 13 months.   Judge Rollo also made an order directing that, pursuant to s 65B(2) of the Land Transport Act 1998 (the Act), Mr Harrison apply for a zero alcohol licence within three months of the expiration of the period of disqualification.

[2]      Mr Harrison appeals against sentence as it concerns the order relating to the zero alcohol  licence.   There is  no  challenge to  other elements  of the sentence. Mr Harrison’s contention is that Judge Rollo had no jurisdiction to make the order under s 65B(2). The Crown agrees with that contention.

[3]      A “zero alcohol licence” is defined in s 2 of the Act as follows:

(a)       is issued to a person who is authorised to obtain the licence by a court order made under section 65B(2); and

(b)      authorises  the  person  to  drive  on  the  condition  that  neither  the

person’s breath nor the person’s blood contains alcohol.

[4]      Section 65B provides as follows:

65BMandatory   zero   alcohol   requirements   for   repeat   offences involving use of alcohol

(1)      This section applies if—

(a)       a  court  convicts  a  person  of  an  offence  against  any  of sections 56(1), 56(2), 57(1), 57(2), 57AA, 58(1)(a), 60(1)(a) to (c), 61(1), 61(2), and 62(1)(a); and

(b)       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.

(2)       If this section applies, the court must make an order authorising the person to apply for a zero alcohol licence that has effect for a period of 3 years from the issue of the licence.

(3)       A person  authorised  under  subsection  (2)  may  apply  for  a  zero alcohol licence,—

(a)       in the case of a person who is subject to 1 or more orders of disqualification, no earlier than the day after the end of the last period of disqualification to which the person is subject; or

(b)       in the case of a person who is subject to an order made under section 65A(2)(b), when the Agency makes an order under section 100A(1).

(4)       A person who is subject to an order under subsection (2) and does not apply for a zero alcohol licence is to be treated as a person with a licence of no effect under section 29(1).]

[5]      Mr Harrison satisfied subs (1)(a) in that he had committed an offence against s 56(1) of the Act.  However, he did not satisfy the requirements of subs (1)(b).  He had been previously convicted of an offence (in fact, two) specified in subs (1)(a). However, it is common ground that no relevant offending had taken place within five years of the offending for which he was being sentenced.  Accordingly, he did not fall within subs (1)(b) and the Court had no power to make the order under subs (2).

[6]      The appeal is allowed.  The order authorising Mr Harrison to apply for a zero alcohol licence is quashed.