Lose v R - [2014] NZCA 368

IN THE COURT OF APPEAL OF NEW ZEALAND

CA113/2014
[2014] NZCA 368

BETWEEN	RICHARD LES LOSE Appellant
AND	THE QUEEN Respondent

Hearing:	28 July 2014
Court:	Harrison, Goddard and Andrews JJ
Counsel:	P Stokes for Appellant J M Jelas for Respondent
Judgment:	5 August 2014 at 11.15 am

JUDGMENT OF THE COURT

AThe appeal against disqualification for one year and one day is allowed.
BThe proceeding is remitted back to the District Court for reconsideration of sentence.

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REASONS OF THE COURT

(Given by Andrews J)

The issue in this appeal is whether the District Court Judge was wrong to conclude that the appellant, Richard Lose, was not eligible for the imposition of an alcohol interlock licence disqualification following his third conviction on a charge of driving with excess breath alcohol.
The appeal raises issues as to the interaction of the mandatory disqualification period under s 56(4) of the Land Transport Act 1998 (the Act) and the discretion given to a sentencing Judge to impose an alcohol interlock licence disqualification (incorporating a mandatory disqualification for three months) under s 65A of the Act.
A further issue raised on the appeal is whether s 65A has retrospective effect, given that Mr Lose’s offending occurred in 2009, prior to s 65A coming into force on 10 September 2012.

Facts

On 7 July 2009 Mr Lose was stopped by Police at a checkpoint. He appeared to have been drinking alcohol. His breath was found to contain 641 micrograms of alcohol per litre of breath. He was charged with an offence under s 56(1) of the Act. He had previously been convicted on charges of driving with excess breath alcohol in 1992, 2000, and 2007.
Mr Lose pleaded guilty to the charge and was convicted. However, he successfully appealed his conviction. The matter was scheduled to be reheard. Following a sentence indication, Mr Lose pleaded guilty a second time.
A pre-sentence report was prepared, assessing Mr Lose’s risk of reoffending and risk of harm to others as low. It was noted that Mr Lose was dealing with his alcoholism and psychological disorders with some success, and had not offended since his offending in 2009.
Mr Lose was sentenced on 22 January 2014.[1] Judge P Sinclair took a starting point of imprisonment but concluded that given the length of time that had elapsed since Mr Lose’s last conviction, other sentencing options were available. As Mr Lose had been addressing issues relating to his offending, the Judge considered a sentence of community work to be appropriate, coupled with supervision.
[1]R v Lose DC Auckland CRI-2009-004-15827, 22 January 2014.
It was submitted at sentencing that Mr Lose was eligible for an alcohol interlock licence disqualification under s 65A of the Act. The Judge concluded that s 65A did not apply to the appellant, saying:
[16] In my view, s 65A is applicable to a defendant who has been indefinitely disqualified. My reading of s 65A is that when a person has been indefinitely disqualified and s…

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.

Continue reading Lose v R

Details

AGLC: Lose v R [2014] NZCA 368
Case: [2014] NZCA 368
Decision Date: 5 August 2014 at 11.15 am

CaseChat Overview and Summary

In the appeal of Lose v R, the appellant, Richard Lose, sought to challenge the decision of the District Court which disqualified him from driving for one year and one day following his fourth conviction for driving with excess breath alcohol. The appeal raised questions regarding the interaction between the mandatory disqualification period under section 56(4) of the Land Transport Act 1998 and the discretion given to a sentencing judge to impose an alcohol interlock licence disqualification under section 65A of the Act. Additionally, the appeal considered whether section 65A had retrospective effect given that Mr Lose's offending occurred in 2009, prior to the commencement of section 65A on 10 September 2012.

The Court of Appeal held that the District Court Judge was incorrect in concluding that Mr Lose was ineligible for an alcohol interlock licence disqualification. The Court found that section 65A of the Act does not require indefinite disqualification as a prerequisite for the imposition of an alcohol interlock licence. Furthermore, the Court held that the mandatory disqualification period under section 56(4) does not preclude consideration of an alcohol interlock licence disqualification under section 65A. The Court of Appeal also found that section 65A provides a "lesser penalty" for the purposes of section 6 of the Sentencing Act 2002 and section 25(g) of the New Zealand Bill of Rights Act 1990, as it imposes a shorter disqualification period than the indefinite disqualification under section 56(4).

The appeal was allowed, and the proceeding was remitted back to the District Court for reconsideration of sentence. The Court held that the proper course was to remit the case back to the District Court for the sentencing judge to consider the imposition of an alcohol interlock licence disqualification under section 65A of the Act.

Orders