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…

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 Nikora v Police

Details

AGLC: Nikora v Police [2015] NZHC 775
Case: [2015] NZHC 775
Decision Date: 21 April 2015

CaseChat Overview and Summary

The appeal in Nikora v Police was brought by Andrew Nikora, who challenged a one year and one month disqualification imposed by the District Court on a charge of excess breath alcohol, third or subsequent offence. The District Court sentenced Nikora to 250 hours of community work and disqualified him from holding or obtaining a driver's licence for one year and one month. Nikora argued that the District Court erred by imposing a disqualification period that conflicted with the mandatory three-month disqualification period provided by section 65A of the Land Transport Act 1998. The appeal hinged on whether the District Court could impose a concurrent period of disqualification when section 65A applied.

The court considered whether a concurrent period of disqualification could be imposed under section 65A of the Land Transport Act 1998. The relevant provisions of section 65A require a mandatory disqualification period of three months when an alcohol interlock disqualification is imposed. The court noted that once the court exercises its discretion to impose an alcohol interlock disqualification, the disqualification period mandated by section 65A(2) is mandatory. The tension between the mandatory disqualification period in section 56(4) and the three-month period in section 65A(2)(a) was examined. The court concluded that the disqualification periods under sections 56 and 65A were alternatives, and if the interlock disqualification was chosen, the required disqualification period was three months. The court held that the District Court could not impose a concurrent period of disqualification under section 56 when section 65A applied.

The court allowed the appeal, quashed the one year and one month disqualification, and left the three-month disqualification period in accordance with section 65A(2)(a). The mandatory requirements of section 65A remained in place, ensuring that Nikora would be disqualified from driving until he met the conditions for an alcohol interlock licence.

Orders