Mulligan v Police - [2019] NZHC 145

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…

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 Mulligan v Police

Details

AGLC: Mulligan v Police [2019] NZHC 145
Case: [2019] NZHC 145
Decision Date: 13 February 2019

CaseChat Overview and Summary

The appeal in Mulligan v Police was brought by the appellant, Jordan Francis Mulligan, against part of his sentence following a drink driving conviction. Mulligan had been sentenced to nine months supervision on special conditions, six months community detention, and an indefinite disqualification from driving under section 65 of the Land Transport Act 1998. Mulligan appealed against the indefinite disqualification, seeking an alcohol interlock sentence instead. The grounds for appeal were that Mulligan was not advised of the possibility of an alcohol interlock sentence and that, pursuant to sections 65AB and 65AC of the Act, an alcohol interlock sentence should have been imposed unless specific exceptions applied, which they did not. The Crown did not oppose the appeal, and Mulligan sought to have it determined on the papers. However, the appeal was filed out of time, requiring an extension of time to be granted. Mulligan claimed that his lawyer at the time of sentencing advised him against getting an alcohol interlock licence and that he was unaware of the factual error concerning the location of the nearest service centre. The court extended time for filing the notice of appeal and allowed the appeal on the basis that there was a mandatory obligation to impose an alcohol interlock sentence.

The legal issues in Mulligan v Police were whether Mulligan was entitled to an extension of time to file his appeal and, if so, whether the appeal should be allowed on the basis that there was a mandatory obligation to impose an alcohol interlock sentence instead of the indefinite disqualification. The court found that Mulligan was unaware of the factual error as to the location of the nearest service centre and that there was no obvious prejudice to any party in granting the extension. The appeal clearly had merit, and the Crown accepted that the appeal should be allowed. The court found that sentencing had proceeded on the basis of a mistaken understanding and that there was a mandatory obligation to impose an alcohol interlock sentence, given the factual error and Mulligan's desire to have such a sentence imposed. The court also considered Mulligan's request to have the sentence imposed retrospectively and found that section 85(1) of the Land Transport Act provided the court with the flexibility to direct that the period of disqualification was to commence 28 days prior to the date of judgment.

The court allowed Mulligan's appeal against part of his sentence and quashed the sentence of indefinite disqualification imposed under section 65 of the Land Transport Act 1998. In its place, the court imposed an alcohol interlock sentence under section 65AC of the Act. The court also directed that the period of disqualification required to be served under section 65AE was to commence 28 days before the date of judgment. This meant that Mulligan would have served that period of disqualification as at the date of the judgment and could immediately take steps to have an alcohol interlock device installed.

Orders