Lally v Police
[2019] NZHC 352
•6 March 2019
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 excess breath alcohol (third or subsequent) and driving while disqualified. He was disqualified from driving for one year and six months and a zero- alcohol licence applied for two years. For that offending, he was also sentenced to 250 hours’ community work, three months’ community detention and two years’ intensive supervision.
[7] At the time of the current offending, Mr Lally was a disqualified driver. That is because he never reapplied for a licence after being disqualified indefinitely in August 2009. In addition, Mr Lally’s licence expired in April 2016, and no new licence has been issued. Mr Lally, therefore, is an unlicensed driver as well as a disqualified driver.
The appeal
[8] Ms Webby, appearing for Mr Lally, does not take issue with the term of imprisonment imposed by Judge Harding. That is a realistic and proper concession by counsel: successive judges have done their best to provide Mr Lally with opportunities to address his obvious alcohol addiction while remaining in the community. Now, he represents a major threat to the safety of road users and the need to make him accountable for his continued offending is a prime sentencing factor.
[9] The sole point of appeal relates to the imposition of an alcohol interlock licence. Ms Webby submits that Judge Harding was required to impose such a licence under a recent amendment to the Land Transport Act 1998 (the LTA).
[10] That amendment came into force on 1 July 2018 but Judge Harding did not mention it in delivering his sentence, which I understand was in the course of the usual busy list in the District Court.
[11]The relevant provisions read as follows:
Mandatory alcohol interlock sentence for repeat offences and certain first offences
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)... and either-
(a) the person convicted has previously been convicted of such an offence within 5 years of the date of the commission of the offence being dealt with by the court…
…
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.
…
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-
…
(iii) because of an existing disqualification…
[12] The Police agree with Ms Webby’s submission that the effect of the law change is that Judge Harding was required to impose an alcohol interlock licence sentence.
Decision
[13] I must allow Mr Lally’s appeal if I am satisfied that there is an error in the sentence appealed from such that a different sentence should be imposed.4
[14] I agree with counsel that the ground is made out. Mr Lally has been convicted of driving with excess breath alcohol within five years of the index offending, namely in January 2015. This satisfies s 65AB(1)(a). Under s 65AC, therefore, the Court must order an alcohol interlock sentence.
[15] Mr Lally is disqualified from holding or obtaining a licence until his existing disqualification period expires,5 but I have already noted that he was disqualified indefinitely in August 2009. On top of that, Judge Harding disqualified him for two years on 13 November 2018 on account of the driving while disqualified charge. I see no reason why that should be adjusted. After that period of two years has lapsed, Mr Lally may apply for an alcohol interlock licence. He may not apply for any other licence;6 but after complying with the alcohol interlock requirements, he may apply to replace an alcohol interlock licence with a zero-alcohol licence requirement.7
4 Criminal Procedure Act 2011, s 250(2).
5 Section 65AC(2)(a) and 65AE(d)(iii).
6 Section 65AC(2)(c).
7 Section 65AC(2)(d).
Result
[16]I allow the appeal in part accordingly.
[17] Judge Harding’s imposition of a zero-alcohol licence requirement is quashed. I replace that part of the sentence with an alcohol interlock sentence under s 65AC(2) of the Land Transport Act 1998. The rest of Judge Harding’s sentence stands.
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Toogood J
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