McConnell v Police - [2018] NZHC 1927

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2018-412-18

[2018] NZHC 1927

BETWEEN
LYNETTE EMMA McCONNELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 30 July 2018

Appearances:

M Taylor-Cyphers for Appellant C Ure for Respondent

Judgment:

31 July 2018

JUDGMENT AND REASONS FOR JUDGMENT OF NICHOLAS DAVIDSON J

Judgment

[1] Judgment was delivered in Court on 31 July 2017. The Judgment is recorded in these Reasons for Judgment.

Introduction

[2] Ms McConnell was sentenced in the District Court after pleading guilty to a charge of dangerous driving, and driving with excess blood alcohol. The summary records that she drove erratically around Dunedin in the afternoon of 8 April 2018, zigzagging across the road and forcing a number of vehicles to take evasive action. She was more than four times over the legal breath alcohol limit. The conviction was

McCONNELL v NEW ZEALAND POLICE [2018] NZHC 1927 [31 July 2018]

Ms McConnell’s second drink-driving offence, having been convicted in January 2017.

[3] This appeal is based on a legislative provision which was not clear to either counsel at sentencing, and was not it seems addressed before the Judge.

[4] The Judge ordered the installation of an interlock device under s 65AC of the Land Transport Act 1998 (“the Act”), a provision which came into force on 1 July 2018, and also made an order that Ms McConnell surrender her vehicle for confiscation under s 129 of the Sentencing Act 2002 (“the Sentencing Act”). The confiscation is the only aspect of the sentence which is challenged on appeal. Ms Taylor-Cyphers submits that the amendments to the Sentencing Act which also came into force on 1 July, preclude a confiscation order if an interlock order is made.

Interlock devices

[5] The Judge identified the appellant’s clear issues with alcohol and thought she may suffer from alcoholism. She had been drinking, yet drove to pick up her son. The Judge rightly said she did not recognise the reality of her situation at all, when she disputed the dangerous driving and attempted to minimise it. The Judge plainly would have imposed an indefinite disqualification, but that was precluded as a matter of jurisdiction. He saw little rehabilitative intent, and there was nothing to demonstrate the appellant was seeking drug and alcohol counselling.

[6] The Judge noted legislative amendments which provide for 28 days disqualification, alcohol interlock disqualification for 12 months, and three years zero alcohol licence. He concluded that the law has been amended to provide for a “lesser” or “lower” penalty than the old. He then referred to the “first step” in sentencing as confiscation forfeiture of the Hyundai motor vehicle.

[7] The Judge then turned to what he described as “the punitive element of sentence”. He imposed community detention of five months with a curfew starting on the day of sentencing, at a curfew address to be there 7:00pm to 7:00am for five months, and 100 hours community work. This…

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 McConnell v Police

Details

AGLC: McConnell v Police [2018] NZHC 1927
Case: [2018] NZHC 1927
Decision Date: 31 July 2018

CaseChat Overview and Summary

The appellant, Ms McConnell, was sentenced in the District Court after pleading guilty to dangerous driving and driving with excess blood alcohol. The appellant's sentence included the installation of an alcohol interlock device and the confiscation of her vehicle. Ms McConnell appealed the confiscation order on the basis that it was precluded by legislative amendments that came into force on 1 July 2018. The appeal was heard in the High Court of New Zealand, Dunedin Registry.

The primary legal issue in this appeal was whether the legislative amendments that came into force on 1 July 2018 precluded the confiscation order. The appellant's counsel argued that the amendments to the Sentencing Act precluded a confiscation order if an interlock order was made. The respondent's counsel conceded that the appeal must be allowed, but argued that the sentencing was carefully structured and the punitive elements of the sentence were not influenced by the confiscation order.

The court held that the legislative amendments were a variation of penalty and that the new regime constituted a lower penalty. The court found that being subject to an interlock order but not confiscation was less punitive than potentially being subject to both. The court also found that the appellant was entitled to be sentenced under the amended legislation. The appeal was allowed, and the confiscation order was quashed. The case was remitted to the District Court for the Judge to resentence.

This case highlights the importance of ensuring that the court is aware of relevant legislative amendments and their effect on sentencing. It also demonstrates that the court will strive to ensure that the sentence imposed is appropriate and reflects the intent of the legislature.

Orders