Nikora v Police

[2015] NZHC 775

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000021 [2015] NZHC 775

ANDREW NIKORA

v

NEW ZEALAND POLICE

Hearing:	16 April 2015
Appearances:	T Aickin for Appellant N A Pointer for Crown
Judgment:	21 April 2015

JUDGMENT OF DUNNINGHAM J

[1]      Mr Nikora appeals against a sentence of one year one month disqualification imposed by His Honour Judge Couch on a charge of excess breath alcohol, third or subsequent, in the District Court on 2 February 2015.1

[2]      This was the appellant’s fourth drink driving conviction and, in sentencing, the  Judge  sentenced  him  to  250  hours  community  work,  the  balance  of  the sentencing notes read as follows:

[2]       You will also be disqualified from holding or obtaining a driver licence for one year and one month or until an alcohol interlock licence is granted.   That  disqualification  will  commence  today.    The  zero  alcohol licence provisions of s 65B Land Transport Act 1998 will apply and the alcohol interlock disqualification procedure and provisions from s 65A will also apply.

[3]       So, it will be open to you to apply for an alcohol interlock licence but  I want  to  make  it  clear that  as  far as  I am concerned  you  will be

1      Police v Nikora [2015] NZDC 3292.

NIKORA v NEW ZEALAND POLICE [2015] NZHC 775 [21 April 2015]

disqualified or continue to be disqualified unless and until such a licence is granted.

Appeal grounds

[3]      The appellant submits this sentence was in error because the District Court Judge erred in simultaneously disqualifying the appellant from driving for one year one month, and imposing an alcohol interlock disqualification under s 65A of the Land Transport Act 1998 which requires a mandatory disqualification period of only three months.   Once the Judge had determined, in his discretion, that the alcohol interlock provisions should apply, he could only impose the disqualification period mandated by those provisions

Jurisdiction on appeal

[4]      Section 250(2) of the Criminal Procedure Act 2011 governs how the first appeal Court must determine an appeal.  The Court must allow the appeal if satisfied that:

(a)       For  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      A different sentence should be imposed.

[5]      The appellant considers there was an error in the sentence imposed, as the imposition of a one year one month disqualification period (which he would have been subject to under s 56(4)) conflicts with the mandatory disqualification period contained in the alcohol interlock disqualification provisions of three months.

Can a concurrent period of disqualification be imposed when s 65A applies?

[6]      The relevant provisions of s 65A of the Land Transport Act 1998 provide:

65A Alcohol 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) …

(2) If this section applies, the court must, if the court imposes a sentence for an alcohol interlock licence disqualification,—

(a) disqualify the person from holding any driver licence for a period of 3 months; and

(b) make an order that—

(i) authorises the person to apply for an alcohol interlock licence at the end of the 3-month disqualification period; and

(ii) requires the person, while holding an alcohol interlock licence, to—

(A) drive  only  a  vehicle  or  vehicles  to  which  an alcohol interlock device is fitted; and

(B) apply  for  a  zero  alcohol  licence,  which  the Agency may issue only on successful completion of the criteria specified in subparagraph (iv); and

(iii) provides that the person may apply for any other driver licence (including, but not limited to, a limited licence) only if the person has obtained, and has satisfied the requirements of, the alcohol interlock licence; and

(iv) provides that the alcohol interlock device in the person's vehicle may be removed only if the person—

(A) has held the alcohol interlock licence for at least

12 months; and

(B) has not violated any of the requirements of the alcohol interlock licence during the 6-month period preceding the date on which the alcohol interlock device is removed, or has completed an assessment and has not violated any of the requirements of the alcohol interlock licence during the 3-month period preceding the date on which the alcohol interlock device is removed; and

(v) ends the person's disqualification under section 65, if the person was disqualified under section 65.

(3) The  imposition  of  a  mandatory  disqualification  under  this  section  is subject to section 81.

(4) A person who is subject to an order under subsection (2) and does not apply for an interlock licence is to be treated as a person with a licence of no effect.

[7]      Section 65A confers a discretionary power upon the Court to impose an alcohol interlock disqualification.  As was confirmed in Wilson v Police, once the Court has made the discretionary decision to impose an alcohol interlock disqualification, the provisions in s 65A(2) are mandatory.2

[8]      The tension between the mandatory disqualification period in s 56(4) which requires the Court to disqualify a person with a third or subsequent drink driving offence for more than one year has been the subject of judicial comment.  In Singh v Police, Her Honour Ellis J stated: 3

… the inclusion of that provision suggests that Parliament intended [to] give the court a discretion not to apply the former mandatory disqualification periods   in   circumstances   where   interlock   disqualification   is   more appropriate.

[9]      In Singh, the sentence which applied to the appellant would, in the absence of an alcohol interlock licence disqualification, require a mandatory disqualification for a period of greater than six months under s 56(3).   However, in Mr Singh’s circumstances it was held that:4

In the event that the s 65A course is followed, subsection 2(a) makes it clear that the disqualification imposed is limited to a lesser, 3 month, period.

[10]     Her Honour observed that there is “an interpretive issue arising from the different and apparently equally mandatory periods of disqualification stipulated in s 56(3) and s 65A”,5  and that while s 65A(2) expressly recognises and resolves the similar inconsistency that arises if a mandatory indefinite period of disqualification stipulated in s 65 would apply, it does not contain equivalent provision dealing with the conflict with s 56.

[11]     However, she concluded that, “in appropriate cases, s 65A can be interpreted to enable the Court to impose a sentence of disqualification under s 65A rather than

2      Wilson v Police [2014] NZHC 2474.

3      Singh v Police [2013] NZHC 3065 at [16].

4 At [9].

s 56”.6   In other words they were alternatives and if the interlock disqualification was chosen, the required disqualification period was three months, notwithstanding a longer mandatory disqualification period being prescribed elsewhere in the Act.

[12]     In the present circumstances it is clear that the sentencing Judge considered that the appellant could meet the requirements of s 65A(1) and he exercised his discretion to grant an alcohol interlock disqualification.   The real issue to be determined therefore is whether the Judge was able to effectively impose two alternate disqualification periods, with the longer one to prevail until or and unless an alcohol interlock licence was granted.

[13]     The difficulty with this is that it creates a tension whereby the person’s ability to apply for an alcohol interlock licence may be precluded by the continuing order for disqualification, a possibility which is avoided by the provisions of subsection

65A(2).

[14]     Accordingly, I do not consider that a sentence of disqualification under s 56 can be used in conjunction with a sentence of disqualification under s 65A.  Instead the Court must disqualify the defendant for three months as well as ordering the requirements set out in s 65A(2)(b)(ii)-(v).

[15]     The concern of the Judge that the appellant  should be disqualified  from driving  until  and  unless  an  alcohol  interlock  licence  is  granted  is,  I  believe, adequately addressed by:

(a)       Section 65A(4), which provides that the appellant’s licence is of no

effect until he applies for an interlock licence; and

(b)Section 65A(2)(b)(iii) which provides that a person may only apply for any other driver licence once they have obtained and satisfied the requirements of an alcohol interlock licence.

[16]     Only once Mr Nikora has satisfied these requirements, and the New Zealand Transport Agency has made an order pursuant to s 100A to remove the alcohol interlock requirements, will Mr Nikora be able to apply for a zero alcohol licence under s 65B.  For that reason, there is no need for the further one year and one month disqualification to ensure he cannot legally return to driving without completing the alcohol interlock requirements.

Outcome

[17]     Accordingly, the appeal is allowed.  The concurrent disqualification of one year and one month is quashed, leaving just the disqualification period of three months from 2 February 2015 in accordance with the provisions of s 65(2)(a).  For the avoidance of doubt, the other aspects of the sentence, imposing the mandatory requirements of s 65A, remain in place.

Solicitors:

T Aickin, Public Defence Service, Christchurch

Raymond Donnelly & Co., Christchurch