Loo v Police HC Auckland CRI-2010-404-394

[2011] NZHC 101

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-394

POI KWAN LOO

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         21 February 2011

Counsel:         M Kan for the appellant

W Fotherby for the respondent

Judgment:      21 February 2011

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Mr M Kan, Barrister, Auckland

Mr W Fotherby, Meredith Connell, Office of the Crown Solicitor, Auckland

LOO V NEW ZEALAND POLICE HC AK CRI-2010-404-394 21 February 2011

[1]      On 1 October 2010 Mr Loo, having pleaded guilty, was convicted on one charge of driving with 136 milligrams of alcohol per 100 millilitres of blood (compared with the maximum permitted of 80 milligrams of alcohol).

[2]      This was Mr Loo’s third conviction for an offence of this nature.   On 2

October 2007 he committed the offence of driving with excess breath alcohol (and was convicted on 24 January 2008).   On 1 April 2005 he committed an earlier offence of driving with excess breath alcohol.

[3]      In addition to a sentence of 200 hours community work Mr Loo was:

(a)      disqualified from holding or obtaining any motor driver’s licence for two years, commencing on the date of sentence of 1 October 2010; and

(b)      indefinitely disqualified from holding or obtaining a motor driver’s

licence.

[4]      Mr Loo appealed against the sentence on the basis that the total sentence

(community work and two types of disqualification) was manifestly excessive.

[5]     Following the filing and service of Mr Fotherby’s careful and helpful submissions for the respondent, Mr Kan, for the appellant, recognised and accepted that the Judge had inadvertently imposed periods of disqualification which he did not have jurisdiction  to  impose;  he was  bound  by the  Land Transport Act  1998  to disqualify for an indefinite period, but could not also disqualify for a fixed period.  I will set out the relevant provisions of the Land Transport Act 1998:

56       Contravention of specified breath or blood-alcohol limit

(1)       A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person's breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, exceeds 400 micrograms of alcohol per litre of breath.

(2)       A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while 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 section 73, exceeds 80 milligrams of alcohol per 100 millilitres of blood.

…

(4)       If a person commits a third or subsequent offence against subsection (1) or subsection (2) or any of sections 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), the person commits an indictable offence and on conviction—

(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)     Subsection (4)(b) does not apply if an order is made under section

65.

65       Mandatory penalties for repeat offences involving use of alcohol or drugs

(1)      This section applies to offences against any of sections 56 to 62.

…

(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 Agency 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.

(5)       For the purposes of this section, a conviction for an offence against a provision of the Transport Act 1962 corresponding to an offence to which this section applies is to be treated as a conviction for an offence specified in subsection (1).

[6]      Section 65(4) applies to Mr Loo.  The present offence was committed on 23

March 2010.  The two earlier offences, as recorded above, were therefore committed within five years of the date of commission of the third offence.   The indefinite disqualification under s 65(4) is mandatory.  And in that circumstance, pursuant to

s 56(4)(a) there was no jurisdiction also to disqualify Mr Loo for the fixed period of two years.

[7]      For these reasons the appeal must be allowed to the extent of quashing the order of disqualification for two years.  In all other respects the sentence imposed

stands.

Peter Woodhouse J