NEW ZEALAND POLICE AND KIRIWAI TAHAU (aka COLLINS)
[2024] NZHC 2596
•10 September 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-83
[2024] NZHC 2596
BETWEEN NEW ZEALAND POLICE
Appellant
AND
KOHU AMOHAU PIRIPI (aka PHILLIPS)
Respondents
CRI-2024-409-84 BETWEEN
NEW ZEALAND POLICE
AppellantAND
KIRIWAI TAHAU (aka COLLINS)
Respondent
CRI-2024-409-85 BETWEEN
NEW ZEALAND POLICE
AppellantAND
PETER MATEHAERE KEEPA
Respondent
Hearing: 19 and 26 June 2024
Supplementary submissions 9 August, 19 August and 2 September
2024Appearances:
M J R Blaschke for the Appellant
E K Moore for the Respondent Piripi H V Bennett for the Respondent Tahau H C Coutts for the Respondent Keepa
Judgment:
10 September 2024
JUDGMENT OF HARLAND J
POLICE v PIRIPI, TAHAU, KEEPA [2024] NZHC 2596 [10 September 2024]
Introduction
[1] The New Zealand Police appeal the sentences imposed on the respondents who, following their conviction for driving with excess breath/blood alcohol (third or subsequent), were each disqualified from driving for six months. The mandatory period of disqualification provided for that charge is one of at least 12 months and one day under s 56(4) of the Land Transport Act 1998 (LTA).1
[2] The Judge in these cases utilised s 81 of the LTA to impose an order of disqualification less than the mandatory specified minimum period. Section 81 allows this to occur if the Court considers there are “special reasons relating to the offence” that satisfy the Court an order of less than the specified minimum period is appropriate. This appeal focuses on whether the time between an offender’s last previous conviction for excess breath/blood alcohol offending and a new similar charge may be considered a “special reason relating to the offence”.
[3] All respondents oppose the appeal. All respondents submit that the Judge was entitled to, and properly did, exercise her discretion to reduce their disqualification to a period of six months. As well, the respondents submit that, should the appeal be allowed, it will operate to unfairly increase the disqualification imposed on each of them in the District Court.
[4] I have decided to allow the appeals. This judgment sets out my reasons for doing so.
Factual background
[5] All respondents appeared for sentence on 27 February 2024 before Judge Wills in the Christchurch District Court, in the order set out below.
Kiriwai Tahau/Collins
[6] At around 3.40 am on 21 July 2023, Ms Tahau was stopped by the Police while driving near a takeaway premises in Christchurch. She was required to undertake a
1 Land Transport Act 1998, s 56(4). For Messrs Piripi and Keepa, the Judge referred to exercising her discretion under s 81 of the Land Transport Act; for Ms Tahau, she referred to s 85, but there is an argument that she meant s 81 of the Land Transport Act. Ms Tahau’s case will be considered following my consideration of s 81.
breath test which produced a reading of 789 micrograms of alcohol per litre of breath; the offence threshold being 400 micrograms of alcohol per litre of breath. Because Ms Tahau has five convictions for driving with excess breath or blood alcohol, she was charged with driving with excess breath alcohol (third or subsequent).
[7] Ms Tahau’s previous convictions for driving with excess breath or blood alcohol are:
(a) On 8 June 2007, she drove a motor vehicle with a blood alcohol reading of 109 micrograms of alcohol per litre of blood, when the legal limit is 80 micrograms of alcohol per litre of blood. On 7 September 2007, Ms Tahau was convicted and ordered to pay a fine of $400, court costs of $130 and was disqualified from driving for a period of six months.
(b) On 22 February 2010, she drove a motor vehicle with a blood alcohol reading of 171 micrograms of alcohol per litre of blood. On 15 October 2010, she was convicted and sentenced to home detention for a period of five months, 180 hours of community work and disqualified from driving for a period of 18 months.
(c) On 3 April 2010, she drove with an excess blood alcohol reading of 166 micrograms of alcohol per litre of blood. She was sentenced on the same day as the previous conviction (15 October 2010) to the same sentence.
(d) On 27 July 2010, she drove with an excess blood alcohol reading of 171 micrograms of alcohol per litre of blood. It was her third or subsequent similar offence and she was subject to the increased penalties outlined in s 56(4) of the LTA. On 22 December 2010, Ms Tahau was sentenced to 100 hours of community work (cumulative on an earlier community work sentence) and was indefinitely disqualified from driving. She also received a final warning and was ordered to pay reparation of $173.
(e) On 13 April 2012, Ms Tahau drove with excess breath alcohol (third or subsequent) of 754 micrograms of alcohol per litre of breath. On 22 August 2012, she was sentenced to eight months’ home detention and indefinitely disqualified from holding or obtaining a driver’s licence.
[8] Ms Tahau also has five convictions for driving while disqualified or driving while her licence was suspended or revoked, twice in 2010, once in 2012, once in 2013 and once in 2017.
[9] On 23 November 2023, Ms Tahau pleaded guilty to the 21 July 2023 charge. At sentencing, the Judge reviewed a Provision of Advice to Courts (PAC) report which recommended a sentence of intensive supervision and community detention. The Judge also had before her a s 27 cultural report and written submissions from Ms Bennett which suggested a starting point in the vicinity of six months’ imprisonment and an order of disqualification for a period of 12–18 months.
[10]The Judge’s sentencing notes comprise six paragraphs. She said:2
[1] Long story short I have read everything. There is a significant history of offending of this kind but the last offence is in 2012.
[2] I can see, Ms Tahau, that you have been through a very difficult time. It is a state of being a lot of women can relate to which is that everything is landing on you and obviously what that has meant is that you have taken some steps and committed this offending as a stress release or outlet for that but what I consider is very encouraging is that you have started some counselling. You are making some efforts to simplify your life and I have not heard about your new job but I am hoping that that is something that is slightly less stressful than what you were doing before.
[3] There are a lot of factors that have come into your offending in terms of your background and upbringing, and it seems to me your whānau has worked through quite a few of those issues but there is also a lot of underlying trauma still remaining.
[4] There was no fault with your driving and a key factor in reaching a sentencing decision is that it has been such a long time since the previous offending. So, what I am proposing to do is, under s 85, essentially to treat this as first offending and impose a fine and six months’ disqualification.
[5] Ms Tahau, you have heard all of my thoughts on that. I am pleased to hear that you are moving into a better space. You are convicted and disqualified from holding or obtaining a driver’s licence for six months from today and I impose a $500 fine.
2 Police v Tahau [2024] NZDC 4570.
Peter Matehaere Keepa (Grey)
[11] On 8 September 2023 at 7.56 pm, Mr Keepa was stopped by the Police while driving in Christchurch. He was required to undergo an evidential breath test which produced a reading of 762 micrograms of alcohol per litre of breath.
[12] Mr Keepa has 12 previous convictions for driving with excess breath alcohol. These convictions are:
(a) In August 1989, he was charged with being an unlicenced driver and driving with an excess breath alcohol reading of 979 micrograms of alcohol per litre of breath. On 22 September 1989, he was convicted and sentenced to five months’ non-residential periodic detention and disqualified from driving for nine months.
(b) On 24 May 1991, he drove with an excess breath alcohol level of 687 micrograms of alcohol per litre of breath. On 12 June 1991, he was convicted and sentenced to three months’ non-residential periodic detention and disqualified from driving for a period of nine months commencing 12 June 1991.
(c) On 17 September 1989, he drove with an excess breath alcohol reading of 865 micrograms of alcohol per litre of breath. On 24 July 1991 he was convicted and sentenced to a non-residential community programme for seven months and disqualified from driving for a period of one year commencing 12 March 1992.3
(d) On 11 June 1991, he drove with an excess breath alcohol reading of 1059 micrograms of alcohol per litre of breath. On 24 July 1991 (the same date he was sentenced for his third excess breath alcohol charge, in (c) above), he was sentenced to what appears to be 19 months of a community non- residential programme and indefinitely disqualified for nine years and nine days commencing 24 July 1991. He was also ordered to attend an assessment centre.
3 It is not evident from the record why this charge was not dealt with earlier than July 1991.
(e) On 2 July 1991, he drove with an excess breath alcohol reading of 977 micrograms of alcohol per litre of breath. On 24 July 1991 (the same date he was sentenced for the third and fourth similar convictions, as per (c) and
(d) above), he was sentenced to a community non-residential programme for a period of seven months and disqualified from driving for one year commencing 12 March 1992.
(f) On 1 January 1992, he drove with an excess breath alcohol reading of 800 micrograms of alcohol per litre of breath. He was sentenced on 6 March 1992 to imprisonment for three months, indefinitely disqualified from driving for a period of eight years, four months and 27 days commencing 6 March 1992 and ordered to attend an assessment centre.
(g) On 15 September 1996, he drove, while disqualified, with an excess breath alcohol reading of 989 micrograms of alcohol per litre of breath. He was sentenced on 23 October 1996 to nine months’ non-residential periodic detention and disqualified from driving for one year commencing 23 October 1996.
(h) On 1 March 1997, he drove with an excess breath alcohol reading of 925 micrograms of alcohol per litre of breath. On 9 April 1997, he was sentenced to a (cumulative) term of imprisonment of three months and disqualified from driving for one year from 22 October 1997.
(i) On 1 January 1998, he drove with an excess breath alcohol reading of 989 micrograms of alcohol per litre of breath. On 4 March 1998, he was sentenced to a term of imprisonment for three months and disqualified from driving for a period of one year and three months commencing 21 October 1998.
(j) On 15 May 2003, he drove with an excess breath alcohol reading of 703 micrograms of alcohol per litre of breath. On 28 May 2003, he was convicted and fined the sum of $700, ordered to pay court costs and disqualified from driving for six months commencing 28 May 2003. It appears the Judge here took a lenient approach to sentencing.
(k) On 18 February 2001, he drove with an excess breath alcohol (third or subsequent) reading of 1048 micrograms of alcohol per litre of breath. On 17 March 2004, he was sentenced to imprisonment for one year and three months, indefinitely disqualified from driving from 17 March 2004 and also disqualified for a period of two years from 17 March 2004.
(l) On 19 August 2011, he drove with an excess blood alcohol (third or subsequent) reading of 230 micrograms of alcohol per litre of blood. On 26 April 2012, he was sentenced to eight months’ home detention and disqualified from driving for a period of two years commencing 26 April 2012.
[13] Many of the above convictions were also accompanied by convictions for driving while disqualified.
[14] On 23 November 2023, Mr Keepa pleaded guilty to the charge arising from the procedures undertaken on 8 September 2023.
[15] The PAC report prepared for Mr Keepa recommended a sentence of intensive supervision and community detention. No recommendation was made about the appropriate term of disqualification. Ms Coutts’ written submissions invited the Court to adopt the PAC report recommendations but did not address the length of disqualification.
[16] Judge Wills’ sentencing notes comprise seven paragraphs. She referred to Mr Keepa’s 12 previous convictions and the fact that his last conviction for similar offending was in 2011. The Judge then said:4
[3] I have read the pre-sentence report and it is obvious to me that, although you have an extensive history dating back some time, particularly in relation to these driving offences and although you have 12 convictions, your latest conviction was in 2011, so over 10 years ago.
[4] It is obvious that you have a long-term alcohol issue but obviously you have been managing that most recently and you have some embarrassment about your re-appearance today given that 11 year gap in convictions.
4 Police v Keepa [2024] NZDC 7593.
[5] Given that gap, I consider that I can take into account and essentially treat you as a first time offender again. The law allows me under s 81 also to consider special reasons why I might vary the disqualification, and in this case I think that is appropriate.
[6] There has been a case which provides authority to allow me to consider that the length of time between this conviction and your previous conviction is something I can take into account in relation to the offence. Under s 81 I can decide there are special reasons to disqualify you for a lesser period of time.
[7] I therefore disqualify you from holding or obtaining a licence for six months from today and fine you $600.
Kohu Amohau Piripi (Phillips)
[17] On 15 September 2023 around 9.20 pm, Mr Piripi was stopped at a Police checkpoint in Lyttleton. He provided a blood sample, returning a result of 126 milligrams of alcohol per 100 millilitres of blood, when the legal limit is 80 milligrams of alcohol per 100 millilitres of blood.
[18]Mr Piripi’s previous convictions are:
(a) On 18 February 1996, he drove with an excess breath alcohol of 689 micrograms of alcohol per litre of breath; the legal limit being 400 micrograms of alcohol per litre of breath. On 28 February 1996, Mr Piripi was convicted and fined $700 and disqualified from holding or obtaining a driver’s licence for a period of six months.
(b) On 16 March 2009, he drove with an excess breath alcohol of 672 micrograms of alcohol per litre of breath. On 2 April 2009, Mr Piripi was convicted and fined $700, ordered to pay court costs and disqualified from holding or obtaining a driver’s licence for a period of six months.
(c) On 12 January 2012, Mr Piripi was again apprehended for driving with excess breath alcohol. On this occasion, his level was 446 micrograms of alcohol per litre of breath, that being his third or subsequent similar offence. On 14 March 2012, he was convicted and sentenced to 200 hours’ community work and disqualified from driving for one year and one day.
[19] On 23 November 2023, Mr Piripi pleaded guilty to the charge arising from the procedures undertaken on 15 September 2023.
[20] Mr Piripi’s PAC report noted that he would struggle to travel to Christchurch to report and attend a rehabilitative programme if disqualification was imposed and observed that “a section 94 application may be appropriate”. The report writer recommended a sentence of supervision and community detention, together with a requirement for Mr Piripi to complete the Driving Change programme, noting that Mr Piripi was not suitable for community work given that he suffers from a serious health condition.
[21] The Judge’s sentencing notes comprise six paragraphs.5 The Judge referred to the recommendation of supervision and community detention but said:
[3] … However, given the length of time that has transpired between your last conviction and this conviction, I am prepared to treat this as a first offence and, under s 81 of the Act, if I find there are special circumstances that allow me to reduce the length of the disqualification.6
[22]The Judge then said:
[6] What I intend to do is I will disqualify you from holding or obtaining a driver’s licence for seven months, but I am going to backdate it one month so that you can apply for your limited licence straight away. So that disqualification will commence on 30 January 2023 [sic] and you are fined
$500. You will be ordered to pay the blood test fees as well, so the total of those is $365.34, that is for the analyst and the doctor’s fee for getting the blood test.
All respondents
[23] The Judge has footnoted the case of Rewi v Police in her sentencing notes for each respondent.7 She has cited Rewi as authority to support her conclusion that the length of time between the charge before her and each respondent’s last previous conviction was something she could consider in relation to “the offence” under s 81. Because it was not clear whether the Judge had in fact referred to Rewi in Court, at
5 Police v Phillips [2024] NZDC 4702.
6 Rewi v New Zealand Police [2021] NZHC 1950.
7 Rewi v New Zealand Police, above n 6.
counsel’s request, I obtained a transcript of each sentencing hearing. There is no reference in any of them to Rewi.
[24] Given the volume of work in the District Court and the nature of these charges, it is not critical that Rewi was not specifically referred to in Court. In all but Ms Tahau’s case, it is clear that the reference to Rewi was intended to be a reference to s 81 of the LTA. In Ms Tahau’s case, the situation is more complicated because, although the Judge referred to Rewi in a footnote in the body of her judgment, she referred to s 85 of the LTA. That provision enables a Court to backdate a disqualification, but it is not utilised in Rewi.
[25] Because the Judge inserted Rewi as a footnote in her sentencing notes after the respondents were sentenced, whether it does or should apply to each of the respondents was not traversed at the District Court hearing. This is important because there are competing High Court authorities on the interpretation of s 81 of the LTA. And, as counsels’ respective submissions in the District Court reveal, none of them had expected or indeed sought alternatives to the mandatory period of disqualification provided for in s 56(4) under either ss 81 or 85 of the LTA. Counsel and the prosecutor ought to have been given the opportunity to consider all the authorities on the point and, at the very least, the Judge should have acknowledged the different authorities and given reasons as to why she preferred to adopt Rewi.
[26] However, the Judge was entitled to raise these matters herself and it was entirely within her power to form a view about whether or not ss 81 or 85 applied to each or any respondent. The Judge’s response in this regard was undoubtedly compassionate. The question raised on appeal is whether she correctly applied the law in doing so.
Legal framework
LTA provisions
[27] All three respondents were convicted under ss 56(1) or (2) and (4) of the LTA for driving with excess breath or blood alcohol. I set out the relevant provisions of s 56 below:
56 Contravention of specified breath or blood-alcohol limit
(1) A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person’s breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, exceeds 400 micrograms of alcohol per litre of breath.
…
(2) A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while 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 section 73, exceeds 80 milligrams of alcohol per 100 millilitres of blood.
…
(4) If a person is convicted of a third or subsequent offence against subsection (1) or (2) or any of sections 57A(1), 57B(1), 57C(1), 58(1), 60(1), or 61(1) or (2) (whether or not that offence is of the same kind as the person’s first or second offence against any of those provisions),—
(a)the maximum penalty is imprisonment for a term not exceeding 2 years or a fine not exceeding $6,000; and
(b)the court must order the person to be disqualified from holding or obtaining a driver licence for more than 1 year.
(4A)The mandatory disqualification in subsection (4)(b) does not apply if—
(a)an order is made under section 65; or
(b)an alcohol interlock sentence is ordered under section 65AC(1).
…
(6) The imposition of a mandatory disqualification under this section is subject to section 81 (which allows a court not to order disqualification for special reasons relating to the offence).
[28]Section 81 applies to all disqualification provisions in the LTA. It provides:
81 Mandatory disqualification: court’s discretion if special reasons relating to offence
(1) If any provision of this Act (other than section 63) requires a court to disqualify a person from holding or obtaining a driver licence or transport service licence for a period not less than the specified minimum period, the court must order that the person be disqualified accordingly unless for special reasons relating to the offence it thinks fit to order otherwise.
(2) Nothing in any provision referred to in subsection (1) or in section 65 restricts any other duty or power of the court to disqualify a person from
holding or obtaining a driver licence or transport service licence or to impose any other penalty.
(3) This section is subject to section 94 (which allows a court to substitute disqualification with a community-based sentence).
(emphasis added).
[29]As Ms Tahau’s case also engages s 85 of the LTA, I set it out below:
85 When disqualification starts
(1) If an order is made by a court under any Act disqualifying a person from holding or obtaining a driver licence, the period of disqualification starts on the day the order is made unless the court otherwise directs or that Act otherwise provides.
(2) The person disqualified does not commit the offence of driving while disqualified contrary to section 32(1)(a) merely because, on the day of the making of the order, he or she drove a motor vehicle on a road on that day before the making of the order.
(3) In the case of a person who is at the time of the order already disqualified from holding or obtaining a driver licence, the period of disqualification ordered starts when the order or the last of the orders to which the person is already subject ceases to have effect.
Jurisdiction on appeal
Jurisdictional issues
[30] All respondents took issue, at least initially, with this appeal proceeding under s 246 of the Criminal Procedure Act 2011 (CPA).8 The respondents argue the appeal relates to a mandatory sentence fixed by law, an appeal barred under s 246, and that the appeal should have been brought under s 296 of the CPA.
[31] The difficulty with this argument is that the sentences imposed on Messrs Keepa and Piripi were, on a plain reading of the term “fixed by law”, not such sentences.9 The statutory fixed sentence is more than one year and each received six months. As well and as was accepted by Ms Moore, a sentence “fixed by law” in any case is not a sentence that allows for discretion to be exercised. Submissions on this
8 Ms Moore for Mr Piripi retracted from this submission at the hearing. It was most strongly advanced by Ms Bennett for Ms Tahau and the s 85 issue raised there, with Ms Coutts referring to Ms Bennetts submissions as supportive of her agreed stance.
9 Ms Tahau’s jurisdiction issues will be addressed separately below.
issue were lengthy, but appear to be largely academic—there is a sufficient case law history of appeals on this issue proceeding as appeals against sentence.10
[32] Ms Coutts referred to Fitzgerald v R, where the Supreme Court noted that, with reference to s 10A of the Sentencing Act 2002, a sentence begins at the stage of a fine or reparation, with anything less considered an order.11 The Supreme Court found the Sentencing Act amendment uses imprecise language that “does not give much hint at what it was supposed to achieve”, before noting its accepted effect was to be a mechanism to allow the Court to discharge offenders without conviction, even where an offence requires the Court to make an order. However, I do not read Fitzgerald as an intentional dismissal of the cited case law on excess breath alcohol sentence appeals.
[33] The Crown appeals in relation to Messrs Keepa and Piripi are properly considered under s 246 of the CPA.
Approach
[34] Under s 246, the Court must allow an appeal if it is satisfied that there was an error in the sentence and a different sentence should be imposed.12
[35]I adopt the approach taken by Collins J in Morgan v Police:13
[13] A decision not to waive an otherwise mandatory period of disqualification from driving can involve both:
(1)an assessment of fact and application of law in determining whether “special reasons” exist; and
(2)the exercise of judicial discretion in making an order other than the mandatory disqualification.
10 Police v Noblett [2024] NZHC 2195; Police v Tuhou HC New Plymouth CRI-2010-442-9, 12 May 2011 (under the Summary Proceedings Act 1957); Woolston v Police [2013] NZHC 3225 at [6]– [7]; Anderson v Police [2016] NZHC 942 at [12];
11 Fitzgerald v R [2021] NZSC 131; [2021] 1 NZLR 551 at [96]–[97].
12 Criminal Procedure Act 2011, s 250(2).13 Morgan v Police [2013] NZHC 3431.
[14] Thus, an appeal from a decision that makes an assessment of whether the circumstances of the offending constitute “special reasons” is subject to the standards of appeal articulated by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar. In this type of appeal:
(1)The appellate court must reach its own view on the merits of the appeal, bearing in mind.
(2)The appellant bears the onus of satisfying the appellate court that it should differ from the decision appealed from.
(footnotes omitted)
[36] Therefore, I must reach my own view as to whether Messrs Keepa and Piripi present special reasons relative to the offending and, subsequently, whether they are of sufficient magnitude to justify a sentence other than mandatory disqualification.
[37] As well, these are Crown appeals. As the learned authors in Adams on Criminal Law outline:14
The main purpose [of Crown appeals] is to maintain consistency in the application of sentencing principles in those cases that fall clearly below established sentencing levels, or in cases where it can be said that the sentence is manifestly inadequate even though there is no established pattern of sentencing.
[38] The Crown accepts that, should the Court determine that as a result of these appeals the length of any respondent’s disqualification is increased on the grounds of manifest inadequacy or error of principle, that period of disqualification should only be increased to the level that accords with the lowest range of what is appropriate.15
An overview of the issues on appeal
[39] Section 81 of the LTA allows the Court to make an assessment and exercise its discretion to order a period of disqualification less than the specified minimum period but only if there are “special reasons relating to the offence”. These appeals principally concern whether or not “special reasons relating to the offence” includes
14 Mathew Downs (ed) Adams on Criminal Law—Sentencing (online ed, Thomson Reuters), at [SAB5.09]; McCaslin-Whitehead v R [2023] NZCA 259 at [29]-[32].
15 Solicitor-General v Kosetatino [2024] NZHC 1464 at [24], citing McCaslin-Whitehead v R [2023] NZCA 259, at [32]; R v Ormsby-Turner [2023] NZCA 601 at [5].
the personal circumstances of the offender, including the nature and age of their previous convictions.
[40] Various cases (several conflicting) have considered this issue in the High Court, but there is no binding Court of Appeal authority. The Crown submits that, for each respondent, the Judge made the following errors of law which justify its appeal being allowed:
(a) section 81 was not engaged at all because there were no special reasons relating to the offence in each case, rather, the reasons given by the Judge to justify her decision to reduce the term of imprisonment were personal to the offender;
(b) if s 81 is engaged, the Judge failed to take into account factors relevant to the exercise of her discretion in each case; and
(c) the Judge wrongly exercised her discretion under s 81 in each case.
What does “special reasons relating to the offence” under s 81 mean?
[41] The appellant submits that Rewi, relied on by the Judge in each case, does not support the approach taken by her because it relies on an earlier decision in Maniapoto v Police which no longer represents the settled law.16 There were a number of reasons advanced to support this submission, including:
(a) the authorities following Maniapoto do not endorse its approach, which were not referred to in Rewi but, in any event, Rewi was based on different LTA provisions (the alcohol interlock provisions) and the legislative amendments relating to s 81 were not referred to by the Judge in Rewi;
(b) that there have been recent amendments to the LTA which do not support the approach taken by the Judge; and
(c) the legislative scheme of the LTA does not support the outcome the Judge sought to achieve by engaging s 81 as there are other provisions in the Act
16 Maniapoto v Police HC Rotorua CRI-2008-463-1, 18 April 2008.
which alleviate the impact of a disqualification either by providing an alternative to it by imposing a community-based sentence (s 94) or under the limited licence regime (s 105).
Analysis of previous authorities
Maniapoto v Police
[42] In Maniapoto (decided in April 2008), the appeal focussed on an order of disqualification imposed in the District Court for a period of one month and one day in respect of a third drink driving offence.17 Of note, Ms Maniapoto was not legally represented when her plea was entered. She had been driving to collect her frightened niece from an address in Taupō where fights had broken out. Winkelmann J stated:
[20] I consider that the fact that the two previous offences were committed some 20 years previously and both within a period of six days is in itself capable of amounting to “special reasons”. It can readily be ascertained by a contextual analysis of the legislation that the legislative intent behind the increased minimum period of disqualification under s 56(6) is an escalation of penalty to deter repeated drink driving. There may also be public safety considerations in the increased period of minimum disqualification; taking recidivist drink drivers off the roads for a longer period of time. However, in this circumstance, Ms Maniapoto cannot properly be characterised as a recidivist drink driver. She seems to have made very genuine attempts to turn her life around. I am also satisfied that the circumstances are such that it can at least be said that she did not lightly drink drive on the night in question. If the Judge had s 81 referred to him, he would have been justified in reducing the minimum period of disqualification to the minimum period that would have been applied if Ms Maniapoto was in fact a first time offender in respect of drink driving. That would provide a minimum period of disqualification of six months. Such a reduction does not undermine the deterrence and public safety objectives of s 56.
Merry v Police
[43] In Merry v New Zealand Police, Ronald Young J considered the competing approaches taken by this Court to the interpretation of s 81.18 He referred to Maniapoto v Police and Maranui v Police, where Dobson J had found that “the mere length of time since the last relevant conviction cannot constitute special reasons relating to the offence”.19 Ronald Young J preferred the interpretation favoured by
17 At [7].
18 Merry v New Zealand Police HC Nelson CRI-2009-442-07, 19 May 2009, at [7]–[10].
19 Maranui v Police HC Whanganui CRI-2009-483-9, 1 April 2009 at [15].
Dobson J in Maranui v Police and referred to a Court of Appeal decision that, although in a different statutory context, confirmed “special reasons relating to an offence” must relate to the facts involved with or connected to the commission of the offence.20
[44]In relation to the purpose of s 81, Ronald Young J said:21
Parliament has seen fit to exclude the personal circumstances of the offender from any category of special reasons entitling consideration of reduced mandatory disqualification. The previous criminal record of the offender is personal to that offender. Therefore, permitting the detail of the offender’s past record to be the basis of “special reasons” seems to offend against Parliament’s wish that personal circumstances of an offender must not be taken into account in deciding if there are special reasons. I am, therefore, satisfied that whatever the historic nature of the previous convictions of the appellant they cannot be considered as special reasons relating to the offence because they do not relate to the offence itself.
Anderson v Police
[45] In 2016, in Anderson v Police, Wylie J was also required to interpret s 81 of the LTA.22 In that case, the appellant had been disqualified from driving for six months and ordered to pay a fine of $200. The appeal focused on the District Court Judge’s refusal to find special reasons under s 81.
[46] Wylie J observed that “a special reason” had been defined as “a mitigating or extenuating circumstance…directly connected with the commission of the offence”23 and he found that “[p]ersonal circumstances are not relevant, except to the extent that they influence the events leading up to the commission of the offence, or [are] part and parcel of the offending itself”.24 Wylie J affirmed the District Court Judge’s conclusion that every possible alternative to drink driving had not been fully explored by the appellant and, subsequently, no special reasons were found to exist.25
20 Merry v New Zealand Police, above n 18, at [15], citing Basile v Atwill [1995] 2 NZLR 537 at 539.
21 At [19].
22 Anderson v Police, above n 10.
23 At [14], citing R v Crossen [1939] NI 106 at 112.
24 At [15], citing Mail v Police [2012] NZHC 1851 at [14].
25 At [20]–[22].
[47] Anderson v Police has since been cited with approval in Walford v Police, where drink driving to seek medical help for a friend was not considered a “special reason”,26 Vincent v Police where drink driving during a mental health breakdown involving a possible suicide attempt was not a “special reason”,27 and Rota v Police where the Court noted that there are policy factors at play that necessitate Parliament’s strict approach to excess breath alcohol offending, meaning the “special reasons” threshold is necessarily high.28
Rewi v Police
[48] In 2019, Rewi v Police was decided by Cull J. This was an appeal against a sentence imposed in relation to the appellant’s fourth excess breath alcohol conviction. The appellant was sentence to two months’ community detention, six months’ supervision and disqualified from driving for one year and one day. The appellant contended that the sentence imposed on her in the District Court was manifestly excessive and that an alcohol interlock sentence should have been imposed in lieu of the order for disqualification.
[49] I put to one side the discussion of the law regarding alcohol interlock devices in Rewi—Cull J also considered s 81 of the LTA, in light of the conflicting authorities.
In allowing the appeal, Cull J said:29
[37] …both the length of time that has elapsed since the last drink driving convictions, and convictions for two or more drink driving offences in close succession are conceptualised as aggravating factors for the purpose of assessing the start point for the offending. It would be inconsistent to consider these factors as relevant to establishing the starting point of the offending, and then to fail to return to these factors again when evaluating the appropriate consequences for the offending.
…
[39] Ms Rewi has three EBA convictions (compared to Mr Tuhou’s nine convictions). Her previous offending occurred 15, 23 and 27 years ago respectively. She reports she no longer likes to drink as she does not like the way it tastes, and only did so on this night because it was a special celebratory occasion.
26 Walford v Police [2016] NZHC 2785.
27 Vincent v Police [2017] NZHC 283.
28 Rota v Police [2019] NZHC 2892.
29 Rewi v Police, above n 6.
[40] I consider the legislative intent behind the increased minimum period of disqualification is to deter repeated drink driving, as well as the public safety reason of keeping recidivist drink-drivers off the roads for a longer period. I adopt the approach of Winkelmann J in Maniapoto. Ms Rewi cannot properly be characterised as a recidivist drink driver. I consider Ms Rewi does not pose a risk to the public to warrant disqualification period of one year and one day. A six-month disqualification period, being that imposed on first and second EBA offenders, is an appropriate deterrent and penalty in the circumstances. Ms Rewi has already served one month of community detention, so no further penalty such as a fine is warranted.
(footnotes omitted)
Police v Noblett
[50] While my decision in this case was reserved, Gwyn J released her judgment in Police v Noblett about the interpretation of s 81 of the LTA.30 Mr Blaschke appeared for the Crown in Noblett and advanced a similar argument to the one he advanced before me. The issue on appeal was whether “special reasons relating to the offence” can include the time that has elapsed between the offences. In this case, Mr Noblett had amassed six convictions for drink driving stretching back to 1984. There were 18 years between Mr Noblett’s current and former drink driving convictions.31
[51] As to whether previous convictions could be viewed as special reasons relating to the offence, her Honour found:
[44] As the Court of Appeal noted in R v Cameron,32 s 56(4) is not a separate offence, but concerns penalty. [Andrews J] applied that approach in Woolston v New Zealand Police33, and concluded that previous convictions were not therefore part of the offence under s 60(3) of the Act (which has a similar scheme to s 56(4)) and previous convictions could not therefore constitute “special reasons relating to the offence”.
[45] I acknowledge that s 56(4) is not framed as a separate offence and that the previous offending referred to in s 56(4) relates to penalty. However, I think Ms Barclay's reference to the provisions of the Criminal Procedure Act provides a helpful context to consider the question. Here, s 56(4) has the effect of modifying the offence itself (subss (1) and (2)), making it more serious offending. As a matter of practicality, when a defendant is charged with driving with excess breath alcohol, third or subsequent, it will always be necessary to provide the court with evidence as to the previous convictions in order to prove that the offending was third or subsequent. As in this case, such defendants will be charged under both s 56(1) and (4), not either subss (1) or
30 Police v Noblett, above n 10.
31 At [26].
32 R v Cameron CA329/02, 29 November 2002.
33 Woolston v New Zealand Police, above n 10.
(4) alone. That is because subs (1) is the offence of driving with excess breath alcohol simpliciter (that is, not third or subsequent) and subs (4) is the penalty applying to subs (1) when that offence under subs (1) is third or subsequent. Subsections (1) and (4) are inherently interlinked for the charge of driving with excess breath alcohol, third or subsequent.34
[52] Gwyn J noted that the link between subss (1) and (4) has consequences not only for the period of disqualification, but also for other aspects of the sentence, such as whether or not imprisonment is an appropriate sentencing response. She referred to Cull J’s view that it would be inconsistent to consider factors such as the time that had elapsed between prior and current convictions (and their proximity to each other), as relevant to starting point assessment, but irrelevant to an assessment of appropriate consequences.35
[53] Gwyn J found that time between offences could constitute special reasons relating to the offence. She considered that this finding did not undermine the legislative purpose of s 56.36 But, in assessing Mr Noblett’s case in comparison to Maniapoto and Rewi, Gwyn J found that the circumstances did not establish special reasons relating to the offence. She referred to Mr Noblett’s infringement offence in 2021 and considered, with respect correctly, that such an offence must colour her view as to whether he remained a recidivist drink driver, the kind of offender the LTA clearly targets under s 56.37 Accordingly, Gwyn J allowed the appeal, quashed the order for disqualification for a period of six months and, instead, ordered that the appellant be disqualified for a period of one year and one day, effective from the original disqualification date.
Discussion
Legislative amendments
[54] The legislative changes to the LTA in 2017 (coming into effect on 1 June 2018) were raised by Mr Blaschke for the Crown as relevant to the interpretation exercise I must undertake. He submitted that:
34 The same applies for driving with excess blood alcohol, third or subsequent, under subss 56(2) and (4).
35 Police v Noblett, above n 10, at [46], citing Rewi v Police, above n 6, at [38].
36 Police v Noblett, above n 10, at [50].
37 At [56].
(a) Previously, the heading to s 81 read “provisions relating to mandatory disqualification”. In 2017, the heading was updated to read “Mandatory disqualification: court’s discretion if special reasons related to the offence”.
(b) Reference to s 81 in s 56 of the LTA was also amended. Prior to the 2017 amendments, s 56(6) provided: “(6) The imposition of a mandatory disqualification under this section is subject to section 81.” The 2017 amendment was:
(6) The imposition of a mandatory disqualification under this section is subject to section 81 (which allows a court not to order disqualification for special reasons relating to the offence).
[55]I agree with Gwyn J’s finding about the relevance of these amendments. In
Police v Noblett, she said:38
Mr Blaschke put some reliance on 2018 amendments to the Land Transport Act, which changed the heading to s 81 and specifically set out in s 56 the key words of s 81. However, the amendments do not prohibit the time between offences being considered as a special reason or otherwise limit the application of the section. I do not think anything can be taken from those amendments—they do not change the words or the interpretation of s 81.
[56] As I see it, all that Parliament was doing was quoting the words used in s 81, which does not assist with the definition of what is meant by “the offence” and, specifically, whether it can include prior convictions.
Section 94 of the LTA
[57]Section 94 of the LTA was referred to by all parties. It provides:
94 Substitution of community-based sentences
(1) This section applies if—
(a)the offender has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence; and
38 At [43].
(b)the court, having regard to—
(i)the circumstances of the case and of the offender; and
(ii)the effectiveness or otherwise of a previous order of disqualification made in respect of the offender; and
(iii)the likely effect on the offender of a further order of disqualification; and
(iv)the interests of the public,—
considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver licence; and
(c)the court considers that it would be appropriate to sentence the offender to a community-based sentence in accordance with Part 2 of the Sentencing Act 2002.
(2) Despite any provision of this Act that requires a court (in the absence of special reasons relating to the offence) to order a person convicted of an offence to be disqualified from holding or obtaining a driver licence, the court may instead make an order referred to in subsection (3) if this section applies.
(3) If the court sentencing an offender determines under this section not to make an order of disqualification,—
(a)the court must impose a community-based sentence on the offender; and
(b)the imposition of such a sentence does not limit or affect the power of the court to impose any other sentence for the offence that, in accordance with the provisions of the Sentencing Act 2002, it may impose in addition to the community-based sentence; and
(c)in determining the appropriate sentence to be imposed on the offender in respect of the offence, the court must take into account the gravity of the offence and the fact that the offender would otherwise have been liable to disqualification from holding or obtaining a driver licence.
…
[58] In Blake v Police, Neazor J considered the inter-relationship between s 94 and s 81 of the LTA:39
If a person is required by some other provision (other than s 63) to be disqualified, then he or she must be, unless for special reasons relating to the offence the Court decides not to make the order. If there are no special reasons, so that the order must be made, attention can be turned to s 94 and the
39 Blake v Police HC Nelson T8/02, 31 May 2002, [2002] BCL 624 at [16].
possibility of applying a community-based sentence instead of disqualifying if that is warranted by the criteria of s 94, including that the offender is someone who is entitled to apply for or hold a limited licence. Section 81 applies to relief by reference to a specific offence; s 94 to an alternative approach based on a much wider range of considerations. Each addresses a different problem, and the two can sensibly and by their wording be looked at separately.
[59] Mr Blaschke referred to the provisions in the LTA that can ameliorate the harshness of the minimum period of disqualification provided under s 56(4). He submitted that s 94 is the primary way the LTA can ameliorate the effects of the minimum disqualification period on offenders whose circumstances require a more tailored approach.
[60] Under s 94, the Court is directed to have regard to a much fuller range of factors in substituting the mandatory disqualification period for a community-based sentence. These include “the circumstances of the case and the offender”, the “likely effect” of a further disqualification on the offender, the effectiveness of previous disqualifications and the interests of the public.40
[61] Ms Moore, on behalf of Mr Piripi, submitted that a purposive approach, supporting the inclusion of past offending into “special circumstances”, should be applied to the interpretation of s 81. She referred to other cases where such an approach was taken to LTA provisions 41 and contended that doing so here would achieve consistency with the overall legislative scheme. Ms Moore highlighted several other factors to support her submission:
(a) s 81(3) of the LTA provides that s 81 is subject to s 94;
(b) in some circumstances, a full period disqualification may not be appropriate (noting that such a disqualification requires the offender to requalify for their license),42 but a reduced period may be sufficient to achieve the legislative purpose of ensuring road safety; and
40 Land Transport Act, s 94(1)(b)
41 Governor v Police [2021] NZCA 403; Smith v Police [2022] NZHC 1496.
42 Land Transport Act, s 83.
(c) s 81 does not stipulate that no disqualification can be imposed at all—it allows a court to “order otherwise” if it considers it proper to do so.
[62] Ms Moore submitted that because the law is clearly aimed at recidivist offenders, a lengthy gap in time between offences goes some way towards mitigating any concerns about the offender’s recidivism.
[63] For Mr Keepa, Ms Coutts submitted that the imposition of a community-based sentence to replace the disqualification would substantially increase the penalty imposed on him and therefore prejudice him. While I accept that submission, the prejudice here is not substantial and cannot change this Court’s obligation to correct the sentence if it finds it was imposed in error.
[64] The existence of an enabling provision such as s 94 of the LTA could be said to suggest that the approach taken in Maniapoto and Rewi, as well as that argued by the respondents, is incorrect. While I consider that this argument has some force, I am not persuaded by it.
[65] Section 94 enjoys wide application—I accept it is not only intended for those caught in a cycle of offending,43 but its original intended purpose was to target such offenders.44 The interpretation of s 81 advanced by Ms Moore is preferable in light of s 8(g) of the Sentencing Act 2002. The ability to order a reduced period of disqualification is consistent with the Sentencing Act principles and provides another “tool”, alongside s 94, to be impose as an appropriate part of a sentence in a given case. In cases with mitigating special circumstances and where the offending may be characterised as an aberration (such as in Maniapoto and Rewi), a reduced period of disqualification may be justified. I stress, while such cases will be rare, the availability of a reduced period of disqualification under s 81 in appropriate cases allows for a more tailored sentencing process.
43 Wadsworth v Police [2014] NZHC 3302 at [18].
44 Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011 at [30]-[33]; Grimwood v Ministry of Transport HC Christchurch AP184/91, 16 August 1991 at 3; Flavell v Police [2021] NZHC 1710 at [30].
[66] This reasoning also applies to the submissions I received regarding the limited licence regime under ss 103–104 of the LTA. The availability of a limited licence may suggest, as raised by Mr Blaschke, that a departure from the minimum disqualification is not justified. However, obtaining such a licence is not easy, cheap or even possible for many offenders and, again, a reduced period of disqualification under s 81 may be the most appropriate sentence, depending on the factual matrix before the Court.
Summary of findings on s 81
[67] In my view, the time that has elapsed between an offender’s convictions may, in very few cases, constitute a special reason relating to the offence under s 81, justifying an alternate order to the minimum period of disqualification of one year and one day.
[68] I have reached this conclusion based on, what I consider to be, a plain reading of the statutory provision. The Court must order disqualification unless for special reasons relating to the offence it thinks fit to order otherwise. The offence is a third or subsequent excess breath/blood alcohol charge under ss 56(1), (2) and (4). The fact many years have passed between the last excess breath alcohol offence and the contemporary one must, in some cases, count as a special reason relating to the offence, as it forms a core part of the charge.
[69] While Wylie J took a different view in Anderson, he said that personal circumstances were irrelevant to the s 81 analysis unless they are “part and parcel of the offending itself”.45 In my view, that statement reinforces the proposition that prior offending can be considered in the s 81 exercise as previous offending is very much a “part and parcel” of the offence charged.
[70] I apply similar reasoning to Ronald Young J’s dicta in Merry v Police, where he cited a Court of Appeal ruling that noted special reasons relating to an offence must “relate to the facts involved in or connected with the commission of an offence in a particular case.”46 Again, while a plain view reading would usually accord with the
45 Anderson v Police, above n 10, at [15].
46 Merry v New Zealand Police, above n 18, at [15], citing Basile v Atwill, above n 20, at 539.
view taken in Anderson, Merry and other cases that disagreed with Winkelmann J’s approach in Maniapoto, the unique nature of this offence (requiring prior convictions) satisfies me, as well as the overall interests of justice, that the approaches taken in Maniapoto, Rewi and Noblett are correct.
[71] I note it is unlikely that the circumstances of Maniapoto would be sufficient to pass the interpretation of s 81 suggested by Wylie J in Anderson v Police. However, on review of Maniapoto, it is hard, in my view, to reach any other conclusion than that reached by Winkelmann J.
[72] The use of the term “special reasons” suggests that several factors may be considered, such as the reason/s the offender drove and why other options were not undertaken or available. That is consistent with the finding of Gwyn J in Noblett where she assessed the circumstances of the respondent’s offending “as a whole”.47 Wylie J’s dicta in Anderson v Police is also instructive:48
A Court will not lightly find that there are special reasons in the alcohol impairment context. Whether reasonable or possible available alternatives to drink driving have or could have been explored, will often be a factor of considerable importance. When a sudden onset of illness or some other emergency may require an intoxicated person to drive, the decision to do so must nevertheless be objectively reasonable. Where all reasonable or possible alternatives are not explored, it is unlikely that special reasons will be found.
[73] This appears to be the approach taken by Winkelmann J, who not only considered the gap between Ms Manaipoto’s convictions for similar offending, but also the fact she did not “lightly drink drive on the night in question”.49 Sparing use of s 81 would also be consistent with the legislative purpose of s 56(4) of the LTA, as discussed in Noblett,50 Maniapoto51 and Rewi.52
47 Police v Noblett, above n 10, at [55].
48 Anderson v Police, above n 10, at [34].
49 Maniapoto v Police, above n 16, at [20].
50 Police v Noblett, above n 10, at [48]–[58].
51 Maniapoto v Police, above n 16, at [20] and [22].
52 Rewi v Police, above n 6, at [36] and [40].
Section 81 and the respondents in this case
[74] Having found that the approach in Maniapoto and Rewi was correct, I now explain why I do not consider any of the respondents in these appeals qualify for a reduced period of disqualification.
[75] As noted by the Crown, both Maniapoto v Police and Rewi v Police involved more compelling factual matrices. In Maniapoto, Winkelmann J noted:53
On cross-examination, Ms Maniapoto said that she did not telephone police to check if the police attending at the address because she had no money on her cellphone to ring them. For the same reason, she did not phone for a taxi. She initially claimed that she rang her sister, but then clarified on further questioning that she sent a text message to her sister to ask if she could help, but her sister was also out for the night. She could not think who else to ring and so decided to drive across town to collect her niece and nephew. She felt she had no choice as her niece was very distressed and she knew that the area they were in had a bad name. She asked her next door neighbour to come and sit with her children. Her next door neighbour could not drive, as he had no licence.
[76] Furthermore, Ms Maniapoto would have had to resit her numerous special licenses, obtained through night school and necessary for her employment, had she been disqualified for the mandatory period.54 Alongside the gap in convictions of 19 years, these factors were considered by Winkelmann J to justify a reduced period of disqualification.
[77] In Rewi, the appellant’s previous conviction was 15 years before and she was driving without fault when stopped by the Police. She had three prior convictions which occurred in 1994, 1998 and 2006. Having considered the risk posed to the public by Ms Rewi, Cull J considered the Maniapoto approach to be appropriate and ordered a period of six months’ disqualification.55
Mr Keepa
[78] Mr Keepa presented with nearly double the legal limit of alcohol per litre of breath. He has 12 previous convictions, the most recent being in 2011. He accrued
53 Maniapoto v Police, above n 16, at [7].
54 At [9]
55 Rewi v Police, above n 6, at [40].
nine driving infringements and was suspended as a result of demerit points in 2020. Although those infringements were not alcohol related, they are relevant. Further, in the PAC report, it is noted that Mr Keepa “expressed reluctance to address his substance abuse issues stating he would drink every day, if he could afford it, and does not wish to change this behaviour”. He was assessed as someone who is capable of “high to very high harm from alcohol use”.
[79] No explanation was offered as to why Mr Keepa drove, to the Police or to the PAC report writer. Furthermore, Mr Keepa’s approach to alcohol, driving laws and rehabilitation clearly raise concerns about public safety. Apart from the fact his last conviction was over ten years ago, there is no reason the standard disqualification period under s 56(4) of the LTA should not have been imposed.
[80] Ms Coutts has submitted that Mr Keepa would face undue prejudice because he would need to reapply for his license. The PAC report notes Mr Keepa receives a benefit and does not have access a car, a situation he does not intend to change. While there is some prejudice in extending the disqualification order on appeal, it is not undue and what prejudice he will suffer is tempered by Mr Keepa’s personal circumstances.
[81] Bar the gap in Mr Keepa’s convictions, “special reasons” do not exist to a sufficient degree to justify any sentence other than the mandatory disqualification provided for under s 56(4) of the LTA.
[82] I am of the view that imposing a one year and one day disqualification from the date of judgment is adequate to dispose of this case. I will not be backdating this order for the reasons I will come to when I address Ms Tahau’s case.
Mr Piripi
[83] Mr Piripi presents with more sympathetic facts. His last offence was in 2014 and his last excess breath alcohol conviction was in 2012. Commendably, Mr Piripi offered no excuse for his actions. The bar he was drinking at had taxi and courtesy van options available, but he made the “snap decision” to drive.
[84] Mr Piripi’s attitude to drinking appears to have improved over the years, but the PAC report suggests he still maintains a problematic relationship with alcohol, with his youngest daughter expressing concern about his drinking habits. Though lessened, there is still some tangible concern for public safety, and, again, bar the length of time since his last conviction, there is nothing to justify the use of the s 81 discretion. There are no special facts present here other than the time elapsed since Mr Piripi’s last conviction.
[85] As with Mr Keepa, an order of disqualification of one year and one day from the date of sentencing, being 27 February 2014, is required.
What is the jurisdiction for appeal in relation to Ms Tahau?
[86] Ms Bennett submits the Judge made Ms Tahau’s order under s 85 of the LTA as opposed to s 81. Ms Bennett’s supplementary submissions take the position that her Honour intended to use s 85 to backdate the disqualification as opposed to the original notion that, due to uncertainty as to what was used, the appeal should be dismissed.56 Ms Bennett notes the discretion under s 85 is unfettered.57
[87] Ms Bennett submits the appeal was improperly advanced under s 246 of the CPA. She submits the Solicitor-General cannot appeal sentences “fixed by law”, with the mandatory disqualification period being one such sentence.58 Ms Bennett acknowledges this Court could determine the appeal as a question of law under s 296 of the CPA, but submits such leave should be declined on the grounds that the Judge properly exercised her discretion under s 85 to impose a merciful sentence, using s 85 in light of the cultural and personal information received about Ms Tahau through a s 27 report. Ms Bennett stresses that Ms Tahau should not be punished for the current situation where, she submits, the Police did not use proper channels to advance a challenge to the Judge’s decision. Ms Bennett also submits that the transcript from the hearing confirms that the Police prosecutor made no further submission when invited to do so by Judge Wills in Ms Tahau’s case.
56 There is some variance on this point in submissions due to the fact the transcript was not available by the time of initial submissions but was by the time of the supplementary submissions.
57 Edwards v Police [2012] NZHC 1350 at [26].
58 Citing s 246 of the Criminal Procedure Act.
[88] Ms Bennett submits the appropriate action, should this Court have any concerns about whether the Judge relied on s 81 instead of s 85, would be to remit the matter to the District Court for rehearing, with directions for reasons and whether s 81 or s 85 was relied upon. Ms Bennett notes that seeking clarification for reasons is provided for under ss 177 and 180 of the CPA. However, even here, Ms Bennett submits that course of action would result in prejudice to Ms Tahau as, by the time the District Court adjudicated on the matter, the remaining six months’ disqualification would be complete.
[89] Ms Bennett acknowledges that Ms Tahau has accrued a further drink driving charge, which she claims was a result of the stress placed on Ms Tahau by these proceedings.
Discussion
[90] Ms Bennett’s submissions cite no cases where s 85 of the LTA has been used in the manner suggested. If the Judge intentionally used s 85 of the LTA to backdate a mandatory fixed sentence, that would need to be made clearly and sufficiently justified. As things stand, nothing about Ms Tahau’s situation suggests a s 85 backdating to circumvent the minimum disqualification period was, or is, appropriate.
[91] While the discretion in s 85 is unfettered, it cannot be the case that it operates as an effective “backdoor” to the rule under s 81 of the LTA. The discretion to backdate is commonly used to ensure a defendant who has already been subject to some form of court imposition on their ability to drive is not doubly punished, with a bail condition that a person will not drive prior to sentencing being a common example.59 In the absence of having served a disqualification already, or some form of procedural problem, courts have been reluctant to backdate a disqualification.60 Section 81 grants a specific exception to the general rule and s 85, in most cases, cannot be used to circumvent that.
59 Prowse v Police [2019] NZHC 307 at [27]; R v Keepa [2019] NZHC 3042 at [33].
60 Hood v Police [2022] NZHC 120 at [35].
[92] I set little by the fact that the Police prosecutor did not take issue with the Judge’s sentence on the day as submitted by respondent counsel. Like the District Court Judge, the prosecutor would have been dealing with many cases that day and the issue is now before this Court to resolve.
[93] Ms Bennett submitted that the Judge intended to use s 85 of the LTA. however, I have found s 85 was not available for use in this way.
[94] While that could be the end of the matter, because there is some uncertainty about the provision used, I will review Ms Tahau’s case in the same manner as the other two respondents. It follows that I will consider Ms Tahau’s appeal on the same jurisdictional grounds that relate to Messrs Keepa and Piripi.
[95] Ms Tahau’s breath alcohol reading was nearly double the legal limit at around 3 am when she was apprehended by the Police. In explanation, she was purchasing food after a few drinks following her shift at work.61 Ms Tahau acknowledged the risk she posed to herself and others.
[96] I have read and considered Ms Tahau’ s 27 report and acknowledge her cultural disconnection, difficult upbringing and the many burdens she now bears. Some of the report raises intensely personal matters that have clearly cast a long shadow over Ms Tahau’s life, and I have no doubt she acts as the “backbone” of her whānau.
[97] However, I am not satisfied the s 27 report establishes a causative connection between the factors outlined in it and Ms Collins’ offending. The report lists exposure to violence, alcoholism and addiction during childhood, parental neglect and abuse as “possible causative factors contributing to Ms Collins’ offending”. I accept that these factors could result in some form of reduced risk assessment, relevant to these facts. However, while I do not cast the prospect away entirely, it is difficult to envisage circumstances where a s 27 report could reduce or alter the mandatory disqualification penalty under s 56 of the LTA where appropriate alternate measures already exist under
61 There is a slight discrepancy between what Ms Tahau said to police and what the PAC report recounts, with her claiming to be purchasing food on the way home to police and the PAC report noting she found there was no food at home when she arrived after drinking at work. Nothing turns on this, so I do no more than note it.
ss 81 and 94. As a final point, I note the report may have had more relevance at the initial sentencing with regard to any possible starting point taken.
[98] I have found the Judge’s use of s 85 of the LTA to have been unavailable to her, which would mean the one year and one day disqualification should have been imposed. I have also considered the case under s 81 and not found in favour of Ms Tahau on that ground either. There are insufficient grounds present to justify a reduction of the mandatory period of disqualification. Accordingly, a disqualification period of one year and one day is imposed from the date of sentencing, being 27 February 2024.
Result
[99]The appeals are allowed.
[100] The order for disqualification of six months in each case is set aside and replaced with an order that each respondent is disqualified from holding or obtaining a driver’s licence for a period of one year and one day, effective from the date of the original order, that being 27 February 2024.
Harland J
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