Heffernan v Police
[2015] NZHC 947
•6 May 2015
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2015-441-00003 [2015] NZHC 947
BETWEEN DYLAN JOHN HEFFERNAN
Plaintiff
AND
NEW ZEALAND POLICE Defendant
Hearing: 6 May 2012 Appearances:
P Ross for the Appellant
M Mitchell for RespondentJudgment:
6 May 2015
ORAL JUDGMENT OF TOOGOOD J
HEFFERNAN v NEW ZEALAND POLICE [2015] NZHC 947 [6 May 2015]
[1] This is an appeal against the imposition of an indefinite period of disqualification from driving under s 65 of the Land Transport Act 1998 (LTA), following a plea of guilty to a charge under s 56(2) of the LTA of driving a motor vehicle with a blood-alcohol level of more than 80 milligrams of alcohol per 100 millilitres of blood. It is submitted that the District Court Judge was wrong to refuse to make orders for an alcohol interlock licence disqualification under s 65A of the LTA. The appellant argues that the Judge did not consider his counsel’s written submissions and further, that the Judge incorrectly considered that an interlock licence would “ease the immediate effects of disqualification”. He submits that the Judge’s approach demonstrated a misunderstanding of the purpose and effect of s 65A and was wrong.
Factual background
[2] At about 11:15 pm on 22 November 2014, the appellant was driving a motor vehicle on Taradale Road, Napier, when Police observed the vehicle had no headlights on. The appellant’s vehicle continued for about 50 metres, half on the footpath and half on the road. The appellant then swerved the vehicle onto the roadway and pulled the handbrake on to slide the rear of the vehicle to the right, to line the vehicle up with a driveway on the east side of the road.
[3] Police pulled up beside the appellant with flashing blue and red lights but he ignored them and drove up the driveway. A Police officer went to the driver’s door of the vehicle where the appellant was attempting to get out of the locked vehicle.
[4] The appellant’s speech was slurred, his eyes glazed and he smelt of alcohol; the Police asked him to undertake a roadside breath screening test which he refused, and he was taken to the Police station for a breath/blood test. He failed to take an evidential breath test when directed. A blood test was then requested and taken by a registered medical officer. That test returned a reading of 156 milligrams of alcohol per 100 millilitres of blood; just short of double the permitted limit.
[5] The pre-sentence report recommended a sentence of supervision and community detention. The writer identified alcohol abuse and poor-decision making as being the key factors contributing to the appellant’s offending. The writer noted that the appellant was fearful of losing his fulltime employment as an apprentice mechanic if he was unable to have a driver’s licence as his job required him to travel occasionally for work.
Criminal history
[6] Despite being aged only 21 at the time of the offending, the appellant has four previous driving-related convictions:
(a) Failing to stop when followed by Red/Blue flashing lights –
21 August 2014.
(b) Operating a vehicle carelessly – 21 August 2014.
(c) Driving with a breath/alcohol level over 400 micrograms of alcohol per litre of breath – 20 September 2013.
(d) Being a person under 20, driving with a breath/alcohol level over
150 micrograms of alcohol per litre of blood – 24 April 2012.
[7] Section 65(4) of the LTA applies to the offending because the appellant had committed two previous offences against ss 56–62 of the Act within five years of the commission of the current offence. Accordingly, the Court was directed by the Act to make an order that required the appellant to attend an assessment centre and disqualify him from holding or obtaining a licence until the New Zealand Transport
Agency removed the disqualification.1
1Under s 100, the Agency must remove the disqualification if satisfied that the applicant is a fit person to hold a driver licence having regard to a report from a medical centre and any other evidence submitted by the applicant or otherwise available to the Agency relating to the medical condition of the person disqualified.
[8] Under s 65A of the LTA, however, the Court may impose a sentence for an alcohol interlock licence disqualification as an alternative to the mandatory disqualification under s 65. The operation of this section is discussed in more detail further in this judgment.
District Court decision
[9] The appellant was sentenced by Judge AJ Adeane on 27 January 2015 on the blood/alcohol charge and a charge of careless driving.2 After setting out the facts of the offending the Judge noted:
[5] The first bone of contention in the case concerns an interlock licence which would ease the immediate effects of disqualification, provided the appellant had a nil breath alcohol reading. Given the combination of factors in his present offending, together with the nature of his immediate past offending, I am not satisfied that the Court should exercise its discretion in the defendant’s favour on that particular topic.
[10] The Judge found the appellant liable to disqualification simpliciter, noting that the appellant needed to appreciate that if he committed any further drink-driving offences he would be liable to imprisonment. The Judge also noted that the disqualification would impact on the appellant’s work, but said that that was an adult
consequence of adult offending. The Judge said, in relation to the appellant:3
… He is, I suspect, not entitled to apply for a work licence, so he will need
to take counsel’s advice if he so desires on that topic.
[11] The Judge then sentenced the appellant to four months’ community detention; nine months’ supervision with counselling and education programmes as directed; and indefinite disqualification under s 65.
Appellant’s submissions
[12] The appellant appeals only against the District Court Judge’s refusal to order
an alcohol interlock licence disqualification instead of the disqualification under s 65.
2 Police v Heffernan [2015] NZDC 1081.
3 At [7].
[13] The first ground of appeal raised is that the District Court Judge failed to consider the written material provided by counsel in support of the application for the alcohol interlock licence. This is argued on the basis that, during oral submissions, the Judge asked who paid the costs of installation and maintenance of the device. The answer to this question was set out in the defendant’s written submissions. Accordingly, the appellant argues that the Judge could not have considered this material.
[14] Second, the appellant submits that the Judge’s comment that an interlock licence would ease the immediate effect of disqualification was incorrect because a person has to be disqualified for three months before they may apply for the interlock licence. The appellant argues that this means there was a breach of natural justice, a fundamental error of law which allows this Court to consider the matter afresh.
[15] The appellant says that the reason for applying for an interlock licence was to preserve his employment and enable him to continue working and paying his mortgage. Permitting an interlock application would be the least restrictive sentence appropriate in the circumstances, as required by s 8(g) of the Sentencing Act 2002, but it would also satisfy public safety concerns as it would physically prevent the appellant from driving while drunk.
[16] The appellant’s notice of appeal raised several other arguments not pursued at the hearing and I do not need to address them.4
Respondent’s submissions
[17] In respect of the appellant’s argument that the District Court Judge had not read his submissions, the respondent submits that counsel are entitled to presume that the Judge will read the written material before the Court. The implications of
accepting the appellant’s argument would be absurd, in Ms Mitchell’s submission.
4 These were that the Judge noted that the appellant should consult counsel about seeking a limited licence, when he was in fact ineligible for a limited licence. Additionally, the notice of appeal states that the disqualification was manifestly excessive and the Judge placed insufficient weight on the appellant’s employment.
[18] In relation to the Judge’s comments about the interlock licence, the respondent submits that the word “immediate” was not intended as a temporal reference, but as a reference to the direct effect of disqualification – that of not being able to drive.
[19] In addressing whether the District Court Judge’s decision was plainly wrong, the respondent argues that the nature of this offending was serious and that it called for strong denunciation and deterrence, particularly in the context of the appellant’s history of driving offences. Further, the respondent pointed to an allegedly misleading statement by the appellant that his car had been destroyed, when the pre- sentence report states that the car was still in his possession, as evidence that the appellant does not appreciate the gravity of his offending. The Judge did not refer to that matter, however, and I accept from Mr Ross’s explanation from the Bar that what was said in the report may have misrepresented the position. I put that issue to one side.
Analysis
Relevant law
[20] Section 65A provides an alternative to mandatory disqualification under s 65, to which the appellant would otherwise be subjected. The section applies to recidivist drink drivers who have committed a specified offence within the previous five years and those convicted of drink driving with particularly high breath or blood alcohol levels. It provides:
65AAlcohol interlock requirements for repeat offences or certain first time offences involving use of alcohol
(1) This section applies if—
(a) a court convicts a person of an offence involving the use of alcohol against any of sections 56(1), 56(2), 57(1),
57(2), 58(1)(a), 60(1)(a) to (c), 61(1), 61(2), and 62(1)(a);
and
(b) either—
(i) 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; or
(ii) the offence for which the person is convicted under paragraph (a) involves either or both of the following:
(A) 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 800 micrograms of alcohol per litre of breath or higher:
(B) 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 160 milligrams of alcohol per 100 millilitres of blood or higher.
(2) If this section applies, the court must, if the court imposes a sentence for an alcohol interlock licence disqualification,—
(a) disqualify the person from holding any driver licence for a period of 3 months; and
(b) make an order that—
(i) authorises the person to apply for an alcohol interlock licence at the end of the 3-month disqualification period; and
(ii) requires the person, while holding an alcohol interlock licence, to—
(A) drive only a vehicle or vehicles to which an alcohol interlock device is fitted; and
(B) apply for a zero alcohol licence, which the Agency may issue only on successful completion of the criteria specified in subparagraph (iv); and
(iii) provides that the person may apply for any other driver licence (including, but not limited to, a limited licence) only if the person has obtained, and has satisfied the requirements of, the alcohol interlock licence; and
(iv) provides that the alcohol interlock device in the person's vehicle may be removed only if the person—
(A) has held the alcohol interlock licence for at least 12 months; and
(B) has not violated any of the requirements of the alcohol interlock licence during the 6- month period preceding the date on which the alcohol interlock device is removed, or has completed an assessment and has not violated any of the requirements of the alcohol interlock licence during the 3-month period preceding the date on which the alcohol interlock device is removed; and
(v) ends the person's disqualification under section 65, if the person was disqualified under section 65.
(3) The imposition of a mandatory disqualification under this section is subject to section 81.5
(4) A person who is subject to an order under subsection (2) and does not apply for an interlock licence is to be treated as a person with a licence of no effect.
[21] Where a court decides to use this section, it must make an order disqualifying the person from driving for three months and order that the person apply for a zero alcohol licence after the three month disqualification period. Although the court may only order the offender to apply for a licence, the Land Transport Agency has no meaningful power to refuse a licence where the application is authorised under this section.6
[22] The section itself gives no specific guidance on the criteria to be applied for such an order. However, this Court has approached the issue on the basis of the general purposes and principles of sentencing in the Sentencing Act.7
Approach on appeal
[23] Section 244 of the Criminal Procedure Act 2011 gives a person convicted of an offence the right to appeal against the sentence imposed for that offence, unless
the sentence is one fixed by law.
5 Land Transport Act 1998, s 81(1) provides that if any provision of the Act (other than section 63) requires a court to disqualify a person from holding or obtaining a driver licence for a period not less than the specified minimum period, the court must order that the person be disqualified accordingly unless for special reasons relating to the offence it thinks fit to order otherwise.
6 See for example Wiseman v New Zealand Police [2014] NZHC 2327 at [15].
7 Wiseman v New Zealand Police, above n 6, at [16].
[24] Section 250(2) provides that the court must allow the appeal if it is satisfied that there is an error in the sentence imposed on conviction and a different sentence should be imposed. The approach taken under the section is the same as that taken under the former Summary Proceedings Act 1957:8
(a) There must be an error vitiating the lower court’s original sentencing
discretion: the appeal must proceed on an “error principle.”
(b)To establish an error in sentencing it must be shown that the Judge in the lower court made an error whether intrinsically or as a result of additional material submitted to the appeal court.
(c) It is only if an error of that character is involved that the appeal court should re-exercise the sentencing discretion.
[25] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.9
First ground of appeal: failure to consider submissions
[26] The first ground of appeal raised is that the Judge failed to have regard to the appellant’s written submissions. In order for this submission to succeed, the appellant must show that there has been “a material error in the sentencing process which requires a re-assessment of the sentence” or that the sentence was manifestly excessive or wrong in principle.10 This Court must “examine the significance of the
error to decide whether a different sentence should be imposed.”11
[27] In Lin v New Zealand Customs Service a sentence appeal was allowed because the Judge had sentenced the appellant without hearing sentencing
submissions from his counsel and therefore in breach of natural justice.12 Sentencing
8 R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[140]; applied in Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
9 Ripia v R [2011] NZCA 101 at [15].
10 Te Aho v R [2013] NZCA 47 at [30] cited with approval in Tutakangahau v R, above n 8, at [30].
11 Tutakangahau v R, above n 8, at [32].
12 Lin v New Zealand Customs Service [2013] NZHC 3499 at [6] and [28].
on such a basis would be wrong in principle and allow the Court to consider whether a different sentence should be imposed.13
[28] I do not accept, however, that it is necessary to infer that Judge Adeane had not read counsel’s written submissions because the answer to the Judge’s question about the cost of installing and maintaining the interlock device was set out in them. The Judge may simply have overlooked that point, or forgotten it. In any event, it seems counsel answered the question so that the Judge approached the sentence knowing that the cost of the interlock device would be borne by the appellant. No miscarriage of justice is evident and this point fails.
Second ground of appeal: Judge’s characterisation of the interlock licence
[29] Second, the appellant argues that the Judge’s comments that an interlock licence would “ease the immediate effect of disqualification” amounted to an error of law.
[30] It is correct, as Mr Ross submits, that a person must be disqualified for three months before applying for an interlock licence and that the interlock licence does not “immediately” ease the disqualification. But, I do not consider that that is what the Judge meant by that comment. I understand the Judge to have meant that an interlock licence would have the direct effect of allowing the appellant to drive a vehicle. This is in keeping with the legislative provisions and with existing authority that characterises an interlock order as less restrictive than disqualification under
s 65.14
Was there any other error in the District Court Judge’s decision rendering it wrong?
[31] In a case such as this, disqualification from driving is mandatory. It cannot be argued that a sentence was manifestly excessive when the Court declines to apply
s 65A and the offender is disqualified under s 65. But the discretion to apply s 65A
13 See for example Harris v Police HC Christchurch CRI 2011-409-92, 6 December 2011 where the Court held that sentencing the appellant in chambers without him present was a breach of natural justice and wrong in principle.
14 See for example Wilson v Police [2014] NZHC 2474 at [67]; and Lose v R [2014] NZCA 368 at
[21].
or simply disqualify under s 65 is analogous to the decision whether to impose home detention instead of short-term imprisonment, and is susceptible to appellate review. In this context, the Court of Appeal has held that the choice “is the exercise of a fettered discretion, with appellate review focusing … on the identification of error, if any, in the court below”. In exercising the discretion, a sentencing judge must
consider the purposes and principles of sentencing relevant to the particular case.15
[32] In Wilson v Police, an appeal against a District Court Judge’s refusal to make s 65A orders was allowed. The High Court noted that the Judge’s view that indefinite disqualification was a more appropriate sentence was contrary to the sentencing principles contained in s 8(g) of the Sentencing Act which requires the least restrictive outcome appropriate in the circumstances. Section 65A is intended to serve the dual purposes of being appropriate for the offender and protecting the
community.16
[33] Where both s 65 and s 65A apply, there is no presumption in favour of the harsher outcome; the starting point is that the discretion whether to apply s 65A is to be exercised in accordance with sentencing purposes and principles.17
[34] In declining to order an interlock device, in the present case, Judge Adeane said that given the combination of factors in the appellant’s present offending, together with the nature of his immediate past offending, he was not satisfied that the Court should exercise its discretion in the appellant’s favour.
[35] With due respect to the Judge, those observations miss the point, which is that the appellant’s current and past offending was of a type in respect of which the section is intended to apply. It is in the very nature of the section that the factors referred to by the Judge engage its operation when a specified offence is committed and either the offender has committed one of those offences in the previous five years, or the offending involves an extremely high blood/breath alcohol level. The specified offences include contravening the blood/breath alcohol limit, the offence
for which the appellant was sentenced, but also include driving a motor vehicle on a
15 Manikpersadh v R [2011] NZCA 452 at [12] and [14].
16 Wilson v Police, above n 14, at [67].
17 Rao v Police [2014] NZHC 3348 at [21].
road while under the influence of drink or a drug to such an extent that they are incapable of having proper control of the vehicle, and being in charge of a motor vehicle and causing bodily injury or death while under the influence of drink or a drug. In the scheme of these offences, the factors involved in the appellant’s current offending and his four previous driving convictions are of such a character as to accommodate the imposition of this sentence.
[36] The purposes of denunciation and deterrence are clearly important considerations in the case of recidivist drink driving. However, as Courtney J found in Wiseman v Police, “the considerations of deterrence and denunciation and protection of the public can still be addressed by a suitable combination of sentences
… in conjunction with an interlock order.”18
[37] Here, as in Rao v Police, it is significant that the appellant was charged with careless driving,19 meaning that denunciation and deterrence were important considerations in sentencing for that offending. They are relevant as well to the offence of driving with an excess blood/alcohol level and were properly recognised in the sentences of community service and supervision which were imposed for that offending and are not challenged. However, those purposes assume much less relevance, if any, in a consideration of whether s 65A should be applied.
[38] In imposing the indefinite disqualification, Judge Adeane noted that the disqualification would impact on the appellant’s work but said that that was simply one of the adult consequences of adult offending. The observation overlooks one of the primary purposes of s 65A, which is to provide an alternative to s 65 disqualification; the alternative not having the same devastating impact on an offender’s employment. I note that disqualification is likely to have a profoundly more punitive effect on someone in the appellant’s position than on someone who did not need to drive for work purposes.
[39] The potential impact of indefinite disqualification on employment compared to the impact of an interlock licence has been treated as a very relevant consideration
18 Wiseman v Police, above n 6, at [17].
19 See Rao v Police, above n 17, at [28].
in the decision whether to grant an interlock licence. As Courtney J noted in
Wiseman:20
[21] It is in society’s interests that those with full-time employment be supported in that, all things being equal. It is in society’s interest that a recidivist offender who finally recognises the error in his ways and takes steps towards rehabilitation be supported in that. It is also in society’s interests that an offender, who, realistically, is likely to ignore a mandatory disqualification is otherwise prevented from driving while alcohol impaired.
[40] In this respect, the appellant can be distinguished from the offender in Rao, who was not dependent on using a car as he used public transport to attend university and work. An alcohol interlock device was not necessary for the offender in that case to continue his employment and therefore did not serve the purpose of helping his rehabilitation and reintegration.
[41] The pre-sentence report recorded the present appellant’s statement that he was likely to lose his job if he was disqualified. This is supported by the affidavit of Matthew Durham, the Account Manager of Apprentice Training New Zealand Trust (AMAT), in which it is said to be a key requirement for all apprentices to hold a restricted licence for any placement. Mr Durham notes that if the appellant was not
able to drive, AMAT would have to consider the termination of his employment.21
Loss of the appellant’s employment would also affect his ability to finish his apprenticeship training.
[42] An alcohol interlock licence, therefore, would serve the purpose of assisting reintegration. It would not do so at the expense of necessary concerns about public protection because the effect of the licence would be to prevent the appellant from driving after consuming alcohol. It also weighs in the appellant’s favour, in my view, that, despite this being his third drink-driving conviction in a short period, he
has no history of non-compliance with sentences of finite disqualification.
20 Wiseman v Police, above n 6.
21 ATNZ employs apprentices and seconds them to companies to complete the on-the-job learning component of the apprenticeship.
[43] Further, the pre-sentence report notes that the appellant has been attending Alcoholics Anonymous twice weekly, showing that he has made some steps towards rehabilitation.
[44] In my view, the District Court Judge erred in failing to apply adequately the relevant purposes and principles of sentencing in considering whether orders under s 65A would be appropriate in the circumstances. It was necessary for the District Court to take into account that it was imposing a mix of sentences, the cumulative effect of which would need to address the relevant principles. Orders under s 65A were appropriate and in line with imposing the least restrictive sentence as well as meeting the purpose of rehabilitation. The purposes of denunciation and deterrence are addressed adequately through the sentences of community detention and supervision which were imposed.
Result
[45] Accordingly, I allow the appeal and set aside the order for disqualification under s 65 of the LTA.
[46] The appellant has already been subject to disqualification from driving for more than three months but I am required nevertheless to make an order under s 65A(2)(a) of the LTA. It shall have effect from 27 January 2015, the date of the original sentencing, and will be treated as having been served. Section 65A(4) of the LTA means, however, that in the period between the making of these orders today and the granting of an interlock licence, the appellant will be a person whose current driver’s licence is of no effect. I have asked Mr Ross to make it very clear to the appellant that he is not permitted to drive, despite the disqualification period having ended.
[47] For these reasons I make:
(a) An order under s 65A(2)(a) Land Transport Act 1998 disqualifying the appellant from driving for a period of three months from
27 January 2015; and
(b) An order in terms of subparagraphs (i)–(v) of s 65A(2)(b) Land
Transport Act 1998.
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Toogood J
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