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 the Judge described as the “appropriate penalty”.

[8]        It does not seem that the Judge regarded the interlock order as being punitive, and as I read the legislation and the debate around it, it seems to be rehabilitative of recidivist drink drivers and in that sense protective of the community.

[9]Prior to 1 July, alcohol interlock orders were governed by s 65A of the Act:

65AAlcohol interlock requirements for repeat offences or certain first time offences involving use of alcohol

(1)This section applies if—

(a)a court convicts a person of an offence involving the use of alcohol against any of sections 56(1), 56(2), 57(1), 57(2), 58(1)(a), 60(1)(a) to (c), 61(1), 61(2), and 62(1)(a); and

(b)either—

(i)the person convicted has previously been convicted of such an offence committed within 5 years of the date of the commission of the offence being dealt with by the court; or

(ii)the offence for which the person is convicted under paragraph (a) involves either or both of the following:

(A)the proportion of alcohol in the person’s breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, is 800 micrograms of alcohol per litre of breath or higher:

(B)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   73,    is  160 milligrams of alcohol per 100 millilitres of blood or higher.

(2)       ...

[10]      An interlock order under this section was not mandatory, although it was a mandatory  consideration.1    However, from 1  July  2018, s  65A was replaced  by sS 65AB and 65AC, which make alcohol interlock sentences mandatory in circumstances like the present:

1      Wilson v Police [2014] NZHC 3028.

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), 56(2), 57(1), 57(2), 57AA, 58(1)(a), 60(1)(a) to (c), 61(1), 61(2)(a), and 62(1)(a) and either—

(a)the person convicted has previously been convicted of such an offence committed within 5 years of the date of the commission of the offence being dealt with by the court (whether or not section 65(2) or (4) also applies); or

(b)the offence for which the person is convicted involves either or both of the following:

(i)the proportion of alcohol in the person’s breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, is or exceeds 800 micrograms of alcohol per litre of breath:

(ii)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 73, is or exceeds 160 milligrams of alcohol per 100 millilitres of blood.

(2)       …

65AC Alcohol interlock sentence

(1)If this section applies, the court must order an alcohol interlock sentence. (emphasis added)

(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.

(3)Subsection (1) applies unless for special reasons relating to the qualifying offence the court thinks fit to order otherwise and, if so,—

(a)section 94 may apply (and a reference to disqualification in section 94 must be treated as if it referred to an alcohol interlock sentence); but

(b)an alcohol interlock sentence may not otherwise be substituted by a community-based sentence.

Vehicle confiscation

[11]      Confiscation of vehicles in which recidivist drink drivers have an interest, and relevantly used in the offending,  is governed by s 129  Sentencing Act. Prior to       1 July 2018, it read:

129     Confiscation of motor vehicle after [subsequent] offence

(1)This section applies if,—

(a)on or after 26 July 1996, a person commits an offence (the first offence”) against any of sections 32(1)(a) or (b), 35(1)(a) or (b), 36(1), [36AA,] [36A(1)(a) or (c),] [39(1),] [52(6), 52A(1),] 56(1) or (2), [57A(1),] 58(1), 60(1), 61(1), [61(2)] or 62(1) of the Land Transport Act 1998 (which relate to driving offences) [or section 171 of the Crimes Act 1961 (but only where the manslaughter involved the use of a motor vehicle)]; and

(b)within 4 years after the date of the commission of that offence, the person commits a [subsequent offence] against any of those provisions of the Land Transport Act 1998.

(2)For the purpose of subsection (1), it does not matter whether or not the [subsequent] offence is of the same kind as the first offence, but it must be an offence that arises from a different incident from the one that gave rise to the first offence.

(3)If the court by or before which the offender is convicted of the [subsequent] offence is satisfied that any motor vehicle owned by the offender or in which the offender has any interest was being driven by, or in the charge of, the offender at the material time, the court must order that the motor vehicle be confiscated.

(4)Despite subsection (3), the court must not make an order under that subsection if it will result in extreme hardship to the offender or undue hardship to any other person.

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

[12]On 1 July 2018, subs (4) was replaced with:

(4)Despite subsection (3), the court must not make an order under that subsection if—

(a)it will result in extreme hardship to the offender or undue hardship to any other person; or

(b)an interlock is or is to be fitted to the motor vehicle.

[13]      In short then, before the amendments, interlock orders were discretionary, and regardless of whether such an order was imposed, the vehicle would be confiscated. Now, an interlock order in the prescribed circumstances is mandatory, and if such an order is made, there can be no confiscation order.

Discussion

[14]      Ms Taylor-Cyphers submits that a confiscation order could not be made and that is clearly the case if the new legislation applies, so the issue is whether it does when the offence was committed prior to the amendments coming into force.

[15]      Section 6 Sentencing Act states that an offender has the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lower penalty. The question for the Court is whether the legislative amendments are a ‘variation of penalty’ and whether the new regime in this respect constitutes a ‘lower penalty’.

[16]      The learned authors of Burrows and Carter Statute Law in New Zealand state that both the term ‘penalty’ and the term ‘variation’ have been given a broad construction.2 Minimum periods of imprisonment and driving disqualifications have been held to fall within s 6.3 Here, interlock orders and confiscations are sentences available to the Court, and both are punitive in nature in different degrees. I am in no doubt s 6 covers the legislative changes made. Additionally, making the interlock order mandatory, may seem to increase the penalty rather than lowering it, but must be taken in the context of the amendment to the Sentencing Act which came in at the same time. Overall, there can be little doubt that being subject to an interlock order but not confiscation is less punitive than potentially being subject to such an order on top of mandatory confiscation.

2      Ross Carter (ed) Burrows and Carter Statute Law in New Zealand (5th ed, Lexis Nexis, Wellington, 2015) at 630.

3      Davies v R [2012] 1 NZLR 364 (CA); Nanai v Police [2013] NZHC 155.

[17]      Ms Ure for the respondent, sensibly conceded this must be the right outcome but I agree with her that as the sentencing was carefully structured, there remains the question whether had the Judge been told of the legislative amendments and their effect, it may have increased the punitive elements of the sentence to reflect there being no confiscation. I read the Sentencing Notes as meaning that the punitive elements were not influenced by the did confiscation. However, the Judge will know what he intended.

Conclusion and Disposition

[18]Ms McConnell was entitled to be sentenced under the amended legislation.

[19]      The appeal is allowed to quash the confiscation order, and I order remission to the District Court for the Judge to resentence. If my inference is correct, then a short hearing will suffice. If not, the Judge will need to readdress the punitive elements of sentence.

……………………………………………..

Nicholas Davidson J

Solicitors:

M Taylor-Cyphers, Barrister Dunedin RPB Law, Dunedin