Mulligan v Police
[2019] NZHC 145
•13 February 2019
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2018-476-000009
[2019] NZHC 145
BETWEEN JORDAN FRANCIS MULLIGAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 7 February 2019 (By way of AVL) Appearances:
K M Henry for Appellant H Bennett for Respondent
Judgment:
13 February 2019
JUDGMENT OF DUNNINGHAM J
Introduction
[1] On 7 February 2019, I allowed Mr Mulligan’s appeal against part of his sentence following a drink driving conviction. Specifically, the sentence of indefinite disqualification imposed under s 65 of the Land Transport Act 1998 (LTA 1998) was quashed and in its place, I imposed an alcohol interlock sentence under s 65AC of the LTA 1998.
[2] Given time constraints, I did not give reasons for allowing the appeal nor did I address the issue of when the period of disqualification under s 65AE was to commence. This judgment explains why I have allowed the appeal and on what terms it is allowed.
MULLIGAN v NEW ZEALAND POLICE [2019] NZHC 145 [13 February 2019]
Background
[3] The appeal initially seemed straightforward. Mr Mulligan pleaded guilty to drink driving and was sentenced to nine months supervision on special conditions, six months community detention and was disqualified indefinitely under s 65 LTA 1998.
[4] The notice of appeal focused solely on the sentence of indefinite disqualification asking that it be replaced with an alcohol interlock sentence. The grounds were that:
(a)“counsel … never advised of the possibility of an alcohol interlock sentence”; and
(b)pursuant to s 65AB and s 65AC LTA 1998, an alcohol interlock sentence should have been imposed unless specific exceptions applied and none of the exceptions applied.
[5] The Crown did not oppose allowing the appeal and the appellant sought to have the appeal determined on the papers.
[6] However, the appeal was lodged out of time, and needed an extension of time to be granted to file the appeal.1 I sought further information on the reasons for the delay in filing the appeal in order to determine whether an extension of time to file the appeal should be granted. That was complicated by the fact that I had located on the file a declaration signed by the appellant in relation to the imposition of an alcohol interlock sentence which he had completed prior to sentencing. This cast doubt on the assertion in the notice of appeal that he was unaware of this sentencing option at the time of sentencing which was the ostensible reason for the delay in filing the appeal.
1 Criminal Procedure Act 2011, s 248(4).
[7] Counsel for the appellant filed a memorandum in response to explain the delay. In summary, it asserted that the appellant’s lawyer at sentencing advised him against getting an alcohol interlock licence and when he signed the declaration he simply “trusted what his lawyer said at the time in regard to it”. He later found out more information about interlock licences and how they work and it took some time going through different lawyers before finding his present lawyer who filed this appeal.
[8] That memorandum was supported by an affidavit from the appellant sworn on 5 February 2019 which said that his lawyer at the time of sentencing was “dismissive of (an alcohol interlock licence) as an option”. It also said that he did not read the declaration but simply signed it, as he has limited reading skills. He says he now realises he was wrongly advised. He has also since learnt that there is an interlock licence service centre in Oamaru where he lives and he would not have to travel to Timaru to have the alcohol interlock device fitted and serviced, which was his understanding at the time.
[9] On the day of the hearing, the appellant’s lawyer, Ms Henry, provided further evidence to verify that a service centre for alcohol interlock devices was set up in Oamaru shortly before the appellant was sentenced. It began installing alcohol interlock devices on 30 August 2018, the day after he was sentenced. In his declaration regarding an alcohol interlock licence signed on 28 August 2018, he stated that he lived more than 70 kilometres from an alcohol interlock service centre, and said that he was not prepared to travel that distance to have the device installed and monitored. His understanding as to the availability of a local service centre has now been shown to be incorrect.
Leave to file appeal out of time
[10] The appeal was filed on 7 December 2018, more than 10 weeks after the 20 working day timeframe for filing an appeal,2 and the appellant seeks an extension of time for filing his notice of appeal. Such applications are regularly determined
2 Criminal Procedure Act 2011, s 248(2).
having regard to the reasons for the delay and the merits of the proposed appeal.3 In this case I am satisfied that Mr Mulligan was unaware of the factual error as to the location of the nearest service centre. It was not until he approached his present lawyer that he (eventually) became aware of this ground of appeal. There is no obvious prejudice to any party in granting the extension and the appeal clearly has merit. Indeed, the respondent accepts that the appeal should be allowed, as in the circumstances as they are now understood to be, there was a mandatory obligation to impose an alcohol interlock sentence.
[11] In the circumstances, I extend time for filing the notice of appeal and go on to outline my reasons for granting it.
Principles on appeal
[12] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.
Discussion
[13] The appeal is in part advanced on the ground that counsel gave erroneous advice about the merits of alcohol interlock licence. However, no steps had been taken in accordance with r 8.7 Criminal Procedure Rules 2012 to provide the appellant’s lawyer at the time of sentencing a copy of the notice of appeal and the opportunity to exchange affidavit evidence on the allegations made regarding incorrect advice. For these reasons, I was not prepared to grant the appeal on grounds of counsel error, and I make no findings on the veracity of the appellant’s assertions about the legal advice he was given.
3 Mikus v R [2011] NZCA 298.
[14] However, I am satisfied that sentencing proceeded on the basis of a mistaken understanding which was shared by the appellant and his lawyer, and that mistaken information was then provided to the Judge. That mistake is plain from the face of the declaration and does not require to be tested with further affidavit evidence. It is an understandable mistake as the Oamaru service centre had only just been set up and only commenced installing alcohol interlock devices on the day following sentencing.
[15] Under s 65AB and s 65AC of the LTA 1998 there are exceptions to the presumptive mandatory alcohol interlock sentence. Section 65AB(2)(b) provides that an alcohol interlock sentence need not be imposed where the person “usually lives in a non-serviced area and is not prepared to drive to a serviced area for an initial installation and any necessary service”.
[16] Mr Mulligan completed his declaration of information required as to whether alcohol interlock licence is imposed, on the understanding that he lived in a non-serviced area. As a consequence, he said he was not prepared to drive to such a centre for an initial installation and any necessary service. Given this information, the Judge was not required to impose an alcohol interlock sentence.
[17] However, as I have said, all parties were labouring under a misunderstanding as to where the nearest alcohol interlock centre was. One was available within 70 kilometres and Mr Mulligan’s evidence is that he does wish to have an alcohol interlock sentence imposed. In those circumstances, and where no other exceptions under s 65AB or s 65AC LTA 1998 apply, it was mandatory to impose an alcohol interlock sentence.
[18] Given the factual error which sentencing proceeded on and Mr Mulligan’s desire to have the mandatory alcohol interlock sentence imposed, I am satisfied that there was an error in sentencing and a different sentence should be imposed.
When should the 28 day period of disqualification commence?
[19] Mr Mulligan sought to have the sentence imposed retrospectively, so that the period of disqualification mandated by s 65AE was served during the period of his disqualification (which has now run for more than five months since sentencing).
[20] While the jurisdictional basis for this request was not advanced at the hearing, I consider that s 85(1) LTA provides flexibility to address this request. That section provides:
If an order is made by a Court under any Act disqualifying a person from holding or obtaining a driver’s licence, the period of disqualification starts on the day the order is made unless the Court otherwise direct or that Act otherwise provides.
[21] This provision has been held to afford the Court an “unfettered discretion as to the date the disqualification is to run from”.4 In that case, Venning J held “the Court may ‘otherwise direct’ the period of disqualification be backdated or commence on a future date”.5
[22] As Mr Mulligan has already effectively served a great deal more than the 28 day disqualification period which applies on an alcohol interlock sentence, I am satisfied that it is appropriate to direct that the disqualification period is to commence 28 days prior to the date of this judgment. The practical effect of this is that Mr Mulligan will have served that period of disqualification as at the date of this judgment. He may immediately take steps to have an alcohol interlock device installed.
Outcome
[23] As ordered on 7 February 2019, the appeal is allowed. The sentence of indefinite disqualification imposed under s 65 of the LTA 1998 is quashed and in its place, I impose an alcohol interlock sentence under s 65AC of the LTA 1998.
[24] Pursuant to s 85 LTA 1998, I direct that the period of disqualification required to be served under s 65AE is to commence 28 days before the date of this judgment.
Solicitors:
Katherine Henry, Barrister, Oamaru Gresson Dorman & Co., Timaru
4 Edwards v Police [2012] NZHC 1350 at [26].
5 Edwards v Police, above n 2, at [26].
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