Lally v Police - [2019] NZHC 352

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2018-463-127

[2019] NZHC 352

BETWEEN
GURMAIL LALLY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 6 March 2019

Appearances:

R Webby for Appellant A Pollett for Respondent

Judgment:

6 March 2019

ORAL JUDGMENT OF TOOGOOD J

LALLY v NEW ZEALAND POLICE [2019] NZHC 352 [6 March 2019]

Introduction

[1] Gurmail Lally pleaded guilty to one charge of driving while disqualified (third or subsequent)1 and one charge of driving with excess alcohol (third or subsequent).2

[2] On 13 November 2018, Judge C J Harding sentenced him to nine months’ imprisonment and disqualified him from driving for two years.3 The Judge also imposed a zero-alcohol licence requirement; with Mr Lally being able to apply for such a licence after the expiry of the two-year disqualification period.

[3] Mr Lally now appeals his sentence. For reasons which I will explain, Ms Pollett, on behalf of the Police, do not oppose the appeal.

Factual background

[4] On 16 September 2018, Mr Lally drove to a liquor store in Waihi. He attempted to purchase a bottle of whisky but was refused service, presumably because he was intoxicated. Mr Lally then drove away from the premises.

[5] The Police were notified. They caught up with Mr Lally as he was pulling into his driveway. Breath alcohol procedures were undertaken, and Mr Lally was found to have 1524 micrograms of alcohol per litre of breath, a result Judge Harding described appropriately as a “stupendously high level and roughly six times the legal limit.”

History of driving offences

[6] Mr Lally’s disgraceful history of driving while disqualified and under the influence of alcohol has a bearing on the course of the appeal:

(a)In February 1996, Mr Lally was convicted of driving with excess blood alcohol, and disqualified from driving for six months.

1      Land Transport Act 1998, s 32(1)(a) and (4); the maximum penalty is two years’ imprisonment or a fine of $6,000. The Court must also order the person to be disqualified from holding a licence for one year or more.
2      Section 56(1) and (4); the maximum penalty is two years’ imprisonment or a fine of $6,000. The Court must also order the person to be disqualified from holding a licence for one year or more.
3      Police v Lally [2018] NZDC 24194.

(b)In July 2004, he was convicted of driving with excess breath alcohol and was again disqualified from driving for six months.

(c)In December 2004, Mr Lally was convicted of driving with excess breath alcohol (third or subsequent) and driving while disqualified. He was disqualified from driving for one year and six months and received sentences of community work and supervision.

(d)In August 2009, Mr Lally was convicted of driving with excess breath alcohol (third or subsequent). This time he was disqualified from driving indefinitely and sentenced to two and half months’ home detention with post-release conditions.

(e)In January 2015, Mr Lally was convicted of driving with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 352
Decision Date: 6 March 2019

CaseChat Overview and Summary

Gurmail Lally, the appellant, is challenging the sentence imposed on him by Judge C J Harding in the Tauranga District Court, who found him guilty of driving while disqualified (third or subsequent) and driving with excess alcohol (third or subsequent). The sentencing included a nine-month imprisonment term, a two-year driving disqualification period, and a zero-alcohol licence requirement after the disqualification period. Lally appeals the sentence, specifically the zero-alcohol licence requirement, arguing that under the recent amendments to the Land Transport Act 1998, an alcohol interlock licence should have been imposed instead.

The legal issue before the High Court was whether the District Court's imposition of a zero-alcohol licence requirement was in error, given the statutory requirement to impose an alcohol interlock licence under section 65AC of the Land Transport Act 1998. This arises because Lally had a prior conviction within five years of the current offence, thus satisfying the criteria under section 65AB(1)(a) of the Act for an alcohol interlock sentence. The court had to determine if the District Court erred in not imposing such a sentence.

In its decision, the High Court found that the District Court indeed erred in not imposing an alcohol interlock licence sentence. The court noted that Lally’s history of driving offences, including a conviction within five years of the current offence, met the criteria under section 65AB(1)(a) of the Land Transport Act 1998. As a result, the court was mandated to impose an alcohol interlock licence under section 65AC of the Act. The court quashed the zero-alcohol licence requirement and replaced it with an alcohol interlock sentence, while affirming the rest of the sentence imposed by the District Court.

In conclusion, the High Court allowed the appeal in part, replacing the zero-alcohol licence requirement with an alcohol interlock licence requirement as mandated by the recent amendment to the Land Transport Act 1998. The remainder of the sentence, including the imprisonment term and the two-year driving disqualification, remains unchanged.

Orders