Kerehoma v Police
[2022] NZHC 2212
•31 August 2022
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI 2022-443-39
[2022] NZHC 2212
BETWEEN EKAU-O-TE-RANGI KEREHOMA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 18 August 2022 Counsel:
P J Mooney for Appellant
L A Blencowe for Respondent
Judgment:
31 August 2022
JUDGMENT OF MALLON J
Introduction
[1] The appellant pleaded guilty to and was convicted of six driving related charges in the District Court. He was sentenced in the District Court on 15 June 2022 to 18 months’ intensive supervision, and disqualified for indefinite periods on four of the charges and for a period of one year and a day on one charge.1
[2] He appeals his sentence on the basis that the Judge erred in failing to impose an interlock sentence and in imposing the disqualification periods. The respondent agrees. The error is in failing to apply ss 32(4A), 65(3A) and 65(4A) of the Land Transport Act 1998 pursuant to which indefinite periods of disqualification are replaced with an alcohol interlock sentence and a discretion as to disqualification periods for concurrent offending.
1 New Zealand Police v Kerehoma [2022] NZDC 11204 (Judge A S Greig).
KEREHOMA v POLICE [2022] NZHC 2212 [31 August 2022]
The District Court
Charges and sentences
[3] The charges on which the appellant was convicted and the sentences imposed in the District Court were as follows:
(a) 25 February 2021: driving with excess breath alcohol (third or
subsequent):2 The appellant was driving in the carpark of a fast food outlet, with a passenger, in a manner that resulted in police being called. He was breath tested and found to have an excess breath alcohol level of 1067 micrograms per litre of breath. He was sentenced to 18 months’ supervision, to attend an assessment centre and was disqualified indefinitely.
(b) 25 February 2021: driving contrary to a zero alcohol licence:3 The incident in the carpark was also contrary to the appellant’s zero alcohol licence. He was sentenced to the same sentence as for the driving with excess breath alcohol.
(c) 26 June 2021: driving contrary to a zero alcohol licence:4 The appellant was observed pulling out of a carpark without indicating and twice stopping in the middle of road. He refused to blow sufficient volume for a breath test and refused a blood test. He was initially charged with refusing to supply a blood specimen but that charge was withdrawn. He was given an indefinite disqualification.
(d) 19 July 2021: careless driving:5 The appellant lost control of a vehicle he was driving on loose gravel and crashed into a small gully. The fire service attended and the police were called. He was convicted and discharged on this offence.
2 Land Transport Act 1998, s 56(1) and (4).
3 Section 32(1)(b) and (3).
4 Section 32(1)(b) and (3).
5 Section 37(1).
(e) 19 July 2021: driving while suspended (third or subsequent):6 This relates to the same events as in (d). He was disqualified from driving for one year and one day.
(f) 19 July 2021: driving with excess blood alcohol (third or subsequent):7 This relates to the same events as in (d). A blood test returned a result two and a half times the legal limit. He was sentenced to 18 months’ intensive supervision and was ordered to attend an assessment centre and disqualified indefinitely.
Conviction history and personal circumstances
[4]The appellant is 34 years old.
[5] He has an extensive history of driving offending. Relevantly, he has seven convictions for driving with excess breath or blood alcohol and two convictions for refusing to provide a blood specimen. He also has four convictions for driving while disqualified, one charge for driving a vehicle carelessly and one charge for driving a motor vehicle at a dangerous speed. He has received fines and community work sentences for his offending and, as his offending continued, sentences of imprisonment.
[6] The pre-sentence report advised the Court that the appellant reported having secured employment, attending virtual AA meetings since he last appeared before the courts, engaging with a support group and counselling and was taking medication to alleviate his intense cravings. The report writer considered that he seemed motivated to address his addiction. A s 27 cultural report described the appellant’s exposure to alcohol and domestic violence at a young age.
Sentencing remarks
[7] The Judge said that he had initially intended to send the appellant to prison because he was a real risk to road users. He accepted, however, that the appellant was
6 Section 32(1)(c) and (4).
7 Section s 56(2) and (4).
at an age and stage where he was wanting to try to address his alcoholism, and the probation officer was convinced of this. The Judge also discussed that he had received submissions about the appropriate disqualification orders but these were complex and he had insufficient time to consider them. He decided to accept the prosecutor’s submissions over those of the appellant’s counsel about them. He did so because “I think that keeps the community safest and it just seems to me to make sense and I have not got a chance to give better reasons that that, but all this is to keep the community safe”.8
Analysis of appeal
[8] Section 56(4) of the Land Transport Act prescribes what must be done where a person has committed their third or subsequent excess breath or blood alcohol offence:
56 Contravention of specified breath or blood-alcohol limit
…
(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 apply if—
(a)an order is made under section 65; or
(b)an alcohol interlock sentence is ordered under section 65AC(1).
…
8 New Zealand Police v Kerehoma, above n 1, at [10].
[9] The effect of s 56 is that, for the offending referred to at [3(a) and (f)] above, an order disqualifying the appellant for more than one year was mandatory unless an order was made under s 65 or an interlock sentence was ordered under s 65AC(1).
[10] Section 65 sets out the requirements for imposing mandatory indefinite disqualification and assessment for repeat excess breath or blood alcohol offences:
65 Mandatory disqualification and assessment for repeat offences
…
(2)A court must make an order requiring a person to attend an assessment centre and disqualifying the person from holding or obtaining a driver licence until the Director removes that disqualification under section 100 if—
(a)the court convicts that person of a second or subsequent offence against any of the sections 56 to 62; and
(b)the previous offence was committed within 5 years of the date of the commission of the offence being dealt with by the court.
(3)Despite subsection (2), the court may not make an order referred to in subsection (2) unless at least 1 of the offences was—
(a)an offence to which this section applies where either—
(i)the proportion of alcohol in the person’s breath, as ascertained by an evidential breath test, exceeded 1000 micrograms of alcohol per litre of breath; or
(ii)the proportion of alcohol in the person’s blood, as ascertained from an analysis of a blood specimen, exceeded 200 milligrams of alcohol per 100 millilitres of blood; or
(b)an offence against section 59 or section 60 (which relate to failing to remain or to accompany or to permit a blood specimen to be taken for the purposes of the administration of breath tests and blood tests).
(3A) The mandatory disqualification in subsection (2) is replaced by any alcohol interlock sentence ordered under section 65AC(1) (whether or not the alcohol interlock sentence is ordered at the same time as, or after, the order made under subsection (2)).
(4)The court must make an order that requires a person to attend an assessment centre and that disqualifies that person from holding or obtaining a driver licence until the Director removes that disqualification under section 100 if—
(a)the court convicts that person of a third or subsequent offence to which this section applies; and
(b)the 2 or more previous offences were committed within 5 years of the date of the commission of the offence being dealt with by the court.
(4A) The mandatory disqualification in subsection (4) is replaced by any alcohol interlock sentence ordered under section 65AC(1) (whether or not the alcohol interlock sentence is ordered at the same time as, or after, the order made under subsection (4)).
…
[11] The effect of this provision is that a mandatory indefinite disqualification period and requirement to attend an assessment centre under s 65(2) or (4) would replace the period of disqualification imposed under s 56 for the offending referred to at [3(a) and (f)] above, unless an interlock sentence is imposed under s 65AC(1).9 As discussed in Police v Cox, if an interlock sentence is imposed, it replaces the mandatory indefinite disqualification period that would otherwise have been imposed under s 65(2) or (4), but it does not replace the mandatory order requiring a person to attend an assessment centre.10
[12] Whether an interlock sentence is imposed under s 65AC(1) depends on s 65AB. This section provides:
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, 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
9 The appellant submits that the Judge failed to consider s 65(3A) which required that an interlock sentence be imposed. The respondent submits that both s 65(3A) and (4A) applied to the appellant. That appears to be correct but whether it was one or both of these subsections does not matter for present purposes because they lead to the same outcome.
10 Police v Cox [2022] NZHC 1695 at [21]. As discussed at [27] of that judgment, the key components of the attending an assessment centre process are a comprehensive alcohol and drug assessment, supporting medical examinations, engagement by the offender with alcohol and drug treatment, and other potential interventions as considered appropriate.
(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:
(i) 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.
…
[13] It is not in dispute that the appellant qualifies for an interlock sentence under s 65AB in relation to the offending referred to at [3(a) and (f)] above. This means that an interlock sentence was required to be imposed under s 65AC. That section provides:
65AC Alcohol interlock sentence
(1)If this section applies, the court must order an alcohol interlock sentence.
(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.
…
[14] In other words, after attending the assessment centre (as required by s 65(2) or (4)) and serving the period of disqualification that applies under s 65AE, the appellant would be able to apply for an interlock licence, would be disqualified from holding any licence expect the alcohol interlock licence, and after complying with the requirements of an alcohol interlock licence could apply to have that licence replaced
with a zero-alcohol licence. 11 If, however, the appellant does not apply for an alcohol interlock licence, he would be disqualified from holding or obtaining a driver licence pursuant to s 65AF.
[15] The period of disqualification that applies to an alcohol interlock sentence is set out in s 65AE. It provides:
65AE Period of disqualification
The period of disqualification for an alcohol interlock sentence is the greatest of the following periods:
(a)28 days; and
(b)any period when the person’s licence is expired or suspended under section 90, 95 or 95A; and
(c)any period when the person is in prison (because of the qualifying offence or otherwise); and
(d)any period when the person is disqualified from holding or obtaining a driver licence, including—
(i)under section 65AD; or
(ii)under section 65AH(3); or
(iii)because of an existing disqualification (except a disqualification under section 65(2) or (4): see section 65(3A) and (4A)).
[16] In other words, if s 65AE(b), (c) and (d)(i) do not apply, as they do not here, the disqualification period for the offending for which an interlock sentence is imposed (here [3(a) and (f)]) is 28 days unless there is an existing disqualification or if a period longer than 28 days is imposed under s 65AH(3).
[17] This means that here the disqualification period for the interlock sentence will be the longest of 28 days, or a disqualification period that may be imposed for concurrent offending ([3(b), (d) and (e)]) or any disqualification period imposed for the non-concurrent offending ([3(c)]).
11 A person may apply for a zero alcohol licence under s 100A if they have complied with the requirements of s 65AG.
[18] For concurrent offending that did not result in injury or death ([3(b), (d) and (e)]), s 65AH(3) provides that, taking into account the interlock sentence that must be ordered for a qualifying offence under s 65AC, the court may “choose not to order any disqualification period that might otherwise apply to the concurrent offence”.
[19] For the careless driving offence ([3(d)]), s 37 provides that a Court “may order the person to be disqualified from holding or obtaining a driver licence for such period as the court thinks fit”. As this is a concurrent offence to the driving with excess blood alcohol offence, pursuant to s 65AH(3) the Court may choose not to impose a disqualification period for this offending.
[20] For the driving contrary to a zero alcohol licence ([3(b) and (c)]) and the driving while suspended offences ([3(e)]), s 32 provides:
32 Contravention of section 5(1)(c)
(1)A person commits an offence if the person drives a motor vehicle on a road—
(a)while disqualified from holding or obtaining a driver licence; or
(b)contrary to an alcohol interlock licence, a zero alcohol licence, or a limited licence; or
(c)while his or her driver licence is suspended or revoked.
…
(3)If a person is convicted for a first or second offence against subsection (1),—
(a)the maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500; and
(b)the court must order the person to be disqualified from holding or obtaining a driver licence for 6 months or more.
(3A) If an offence against subsection (1) is a concurrent offence in relation to a qualifying offence for an alcohol interlock sentence, then the mandatory disqualification in subsection (3)(b) does not apply and section 65AH(3)(b) applies.
(4)If a person is convicted of a third or subsequent offence against subsection (1) …,—
(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 1 year or more.
(4A)If an offence against subsection (1) is a concurrent offence in relation to a qualifying offence for an alcohol interlock sentence, then the mandatory disqualification in subsection (4)(b) does not apply and section 65AH(3)(b) applies.
[21] This means that, but for the interlock sentence, the disqualification periods would have been at least six months for the zero alcohol licence offending ([3(b)]) and one year or more for the driving while suspended (third or subsequent) ([3(e)]). However, as they are offending concurrent on offending that qualifies for an interlock sentence, the Court may choose not to impose a disqualification period. 12
[22] The offending at [3(c)] is not, however, concurrent offending. Counsel for the appellant sought to argue that it was. This was because, as the District Court Judge commented, “[a]lthough the charge that was laid at the time of refusing to provide a specimen of blood for analysis was withdrawn, it is clear that [the appellant] had been drinking on that occasion”. 13 However, while the appellant may have offended on that day in a way that would have resulted in an interlock sentence if he had been charged and convicted of that offending, he was not in fact convicted of the offending.
[23] That the [3(c)] offending is not concurrent offending is apparent from the terms of s 65AH(3). This provides:
For a concurrent offence … that did not result in injury or death, the court may, taking into account the alcohol interlock sentence that must be ordered for the qualifying offence under section 65AC, choose not to order any disqualification that might otherwise apply to the concurrent offence.
[24] There is no qualifying offence on 26 June 2021 in respect of which the Court must order an alcohol interlock sentence (because the charge was withdrawn) in respect of which the driving contrary to a zero alcohol licence is concurrent. This means that the appellant must be ordered to be disqualified from driving for at least
12 Section 65AH(3).
13 New Zealand Police v Kerehoma, above n 1, at [3].
six months on this offence.14 After this period of disqualification the appellant can apply for an alcohol interlock licence.15 I consider that disqualification for the [3(c)] offending of nine months is appropriate. The offending came relatively soon after the similar [3(b)] offending, indicating the public safety risk that the appellant poses if he does not rehabilitate.
[25] As to the concurrent offending ([3(b), (d) and (e)]), the appellant submits I should exercise my discretion not to impose disqualification periods. The respondent submits that I should impose disqualification periods for public safety reasons.
[26] I consider a concurrent disqualification period for the [3(e)] offending of one year is appropriate. This reflects the fact that it is his fifth offence of this kind and it came soon after the February and June offending. As the Judge said, there is a need to keep the community safe. A disqualification period of this length will allow time for the sentence of intensive supervision with judicial monitoring to potentially assist the appellant with sustained rehabilitative efforts before the interlock licence is sought. The appellant will then still have six months of supervision with judicial monitoring while he has the interlock licence where his progress can be overseen.
[27]As it was said in Ashby v R:16
[10] As will be clear from the wording used in the sub-section, s 65AH(3)(b) provides the court with a discretion not to impose a period of disqualification that is otherwise mandatory offending for concurrent offending. This is obviously designed to ensure the objectives of the alcohol interlock scheme are not routinely thwarted through the imposition of lengthy periods of disqualification for concurrent offending. In appropriate cases, however, these will be appropriate. As the Court of Appeal observed in Lally v Police, disqualification still has an important function under the new regime because it operates as a harm reduction measure and also has a punitive element. The fact an alcohol interlock sentence is to be imposed will therefore not obviate the need for lengthy periods of disqualification in appropriate cases. ...
14 Section 32(1)(b) and (3)(b).
15 I note that, if an interlock sentence had been imposed for the 25 February 2021 offending ([3(b)] above), then s 65AK would apply. That would mean that the appellant could apply for an interlock sentence after serving the disqualification period ordered for the 26 June offending ([3(c)] above). That is, the same outcome follows whether the non-concurrent offending is sentenced at the same time or not.
16 Ashby v R [2020] NZHC 1330.
[28] In Ashby v R, Mr Ashby was convicted of driving with excess breath alcohol, driving while disqualified and breaching a sentence of home detention. He had five recent convictions for driving with excess breath alcohol. He was sentenced to prison for 15 months and disqualified until the date of his release from prison (as is required by s 65AE(c)). At that time he would be able to apply for his alcohol interlock licence under s 65AC(2)(b).
[29] In Lally v Police the Court of Appeal upheld a two-year disqualification period on top of an alcohol interlock sentence for driving with excess blood alcohol and driving while disqualified, where the offender had been disqualified on four previous occasions, had two previous convictions for driving while disqualified and showed no remorse for his offending.17
[30] Here, although the appellant’s history is much worse than Lally, he is motivated to address his addiction. The appellant is a risk to community safety but his motivation to address his addiction was the reason he avoided a prison sentence. In contrast, the defendant in Ashby was in the “grip of a severe addiction” and was “incapable of making responsible and proper decisions not to be driving after consuming alcohol” as reflected in the rapidity with which his third, fourth, fifth and sixth offences occurred and the need for an imprisonment sentence in his case.18 The disqualification period was required by s 65AH to be set with reference to the period the person was in prison.
[31] I do not impose a disqualification period on the careless driving charge ([3(d)]). As reflected in the Judge’s decision to convict and discharge him on this offence, I consider this offending is adequately covered by the interlock sentence and the disqualification period imposed on the other offending on that occasion ([3(e) and (f)]). I also do not impose a disqualification period for the concurrent offending in [3(b)] reflecting that the appellant might be given one chance for his first breach of a zero alcohol licence but that is it.
17 Lally v Police [2019] NZCA 286.
18 New Zealand Police v Ashby [2020] NZDC 6748 at [4] and [8].
Result
[32] The appeal is allowed. The disqualification orders imposed for the offending at [3(a), (b), (c), (e) and (f)] are quashed. Concurrent interlock sentences are imposed for the offending in [3(a) and (f)]. A disqualification period of one year is imposed for the offending in [3(e)]. Concurrent on that period, a disqualification period of nine months is imposed for the offending in [3(c)]. The sentence of 18 months’ intensive supervision and judicial monitoring imposed for the [3(a) and (f)] offending remains in place.
Mallon J
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