Park v Police
[2017] NZHC 692
•10 April 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2017-404-053 [2017] NZHC 692
BETWEEN YO HAN PARK
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 10 April 2017 Appearances:
B Meyer for the Appellant
M Mortimer for the RespondentJudgment:
10 April 2017
ORAL JUDGMENT OF MUIR J
Counsel/Solicitors:
B Meyer, High Street Law, Auckland
M Mortimer, Meredith Connell, Auckland
PARK v NEW ZEALAND POLICE [2017] NZHC 692 [10 April 2017]
Summary
[1] On 24 May 2016, the appellant, Mr Park, was sentenced after pleading guilty to one charge of driving with excess breath alcohol.1 He now appeals against that sentence, in particular the combination of a finite 13 month period of disqualification with an order authorising him to apply for an alcohol interlock license. The Police accept that the appeal should be allowed.
Background
[2] On 23 April 2016, a police officer observed Mr Park driving at excess speed on Taharoto Road in Takapuna, Auckland. The police officer stopped Mr Park and carried out breath testing procedures. Mr Park’s breath alcohol level was found to contain 1089 micrograms of alcohol per litre of breath (the statutory limit is 400
micrograms of alcohol per litre of breath).2 The police officer then suspended Mr
Park’s driver’s license for a period of 28 days.3
[3] Mr Park was subsequently charged with and pleaded guilty to one charge of driving with excess breath alcohol.4
[4] On 24 May 2016, Mr Park appeared before Judge Maude in the District Court for sentencing. The Judge commented that Mr Park’s alcohol reading was high, which inevitably created a high risk to other members of the public. He also observed that this was Mr Park’s second conviction for such an offence, having been convicted of driving with excess blood alcohol in 2011.5
[5] The Judge considered that a fine was not appropriate, given it was Mr Park’s
second offence and it was necessary to hold him accountable for his actions. His sentence comprised:
1 Police v Park [2016] NZDC 26839.
2 Land Transport Act 1998, s 56(1).
3 Under the Land Transport Act 1998, s 95.
4 Land Transport Act, s 56(1).
5 Note that Mr Park’s Criminal and Traffic History indicates that he was in fact convicted in
February 2012, although the offending happened in November 2011.
(2) indefinite disqualification from holding a license;
(3)disqualification from holding a driver’s license for a mandatory finite period of 13 months;
(4)an order authorising Mr Park, at the end of his disqualification period, to apply for a zero alcohol license that has effect for three years from the date issued (failure to apply meant his license would be treated as suspended); and
(5) authorisation to apply for an interlock license.
Submissions on appeal
[6] For Mr Park Mr Meyer argues that Judge Maude erred in the particular combination of orders that he made. Specifically, he submits that a 13-month period of disqualification under s 56 and orders relating to an interlock license under s 65A are alternatives and cannot be imposed together.
[7] The Police agree that the particular combination of orders imposed by the District Court Judge is contradictory. The Police do not therefore oppose the appeal. Both parties say that it is appropriate for me to re-sentence Mr Park today on the information before me and without the complication and delay of remitting this matter to the District Court.
Analysis
Approach to appeal
[8] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:
(1)for any reason, there is an error in the sentence imposed on conviction; and
[9] In any other case, the Court must dismiss the appeal.6
The Judge’s error
[10] Mr Park was convicted under s 56(1) of the Land Transport Act 1998. He had once previously been convicted of driving with excess blood alcohol under s 56(2) of the Land Transport Act, in February 2012.
[11] Section 56(3) deals with penalties for excess breath or blood alcohol offences:
(3) If a person is convicted of a first or second offence against subsection (1) or subsection (2), —
(a) the maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500; and
(b) the court must order the person to be disqualified from holding or obtaining a driver licence for 6 months or more.
[12] Given that this is Mr Park’s second offence under ss 56(1) and 56(2), it appears that a mandatory minimum disqualification period of six months must be imposed under s 56(3). Judge Maude decided to impose a longer finite disqualification period under this section, namely 13 months.
[13] Section 65 then contains mandatory penalties for repeat offenders:
65Mandatory penalties for repeat offences involving use of alcohol or drugs
(1) This section applies to offences against any of sections 56 to 62.
(2) A court must make an order requiring a person to attend an assessment centre and disqualifying the person from holding or obtaining a driver licence until the Agency removes that disqualification under section 100 if—
(a) the court convicts that person of a second or subsequent offence against any of sections 56 to 62; and
6 Criminal Procedure Act 2011, s 250(3).
(b) the previous offence was committed within 5 years of the date of the commission of the offence being dealt with by the court.
(3) Despite subsection (2), the court may not make an order referred to in subsection (2) unless at least 1 of the offences was—
(a) an offence to which this section applies where either—
(i) the proportion of alcohol in the person’s breath, as
ascertained by an evidential breath test, exceeded
1 000 micrograms of alcohol per litre of breath; or
(ii) the proportion of alcohol in the person’s blood, as ascertained from an analysis of a blood specimen, exceeded 200 milligrams of alcohol per 100 millilitres of blood; or
(b) an offence against section 59 or section 60 (which relate to failing to remain or to accompany or to permit a blood specimen to be taken for the purposes of the administration of breath tests and blood tests).
…
[14] As I have said this was Mr Park’s second offence against s 56, and on this occasion his breath alcohol level was found to contain over 1000 micrograms of alcohol per litre of breath. Section 65(2) therefore mandated an indefinite period of disqualification (until the New Zealand Transport Agency removes it) for Mr Park. This is exactly what Judge Maude imposed. Up until this point, there was not any conflict in the sentence: after the finite 13-month period of disqualification expired. Mr Park would have been able to apply to the New Zealand Transport Agency to have the indefinite disqualification removed.
[15] The problem arises when the alcohol interlock license provision is also invoked. Under s 65A of the Land Transport Act, the Court has the option of making an order authorising the defendant to apply for an alcohol interlock license:
65AAlcohol 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) either—
(i) the person convicted has previously been convicted of such an offence committed within 5 years of the date of the commission of the offence being dealt with by the court; or
(ii) the offence for which the person is convicted under paragraph (a) involves either or both of the following:
(A) the proportion of alcohol in the person’s breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, is 800 micrograms of alcohol per litre of breath or higher:
(B) 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 73, is 160 milligrams of alcohol per 100 millilitres of blood or higher.
(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
[16] Section 65A is discretionary, in the sense that if the prerequisites in s 65A(1) are met, the sentencing Judge has a discretion whether or not to grant authority to apply for an alcohol interlock license.7 This is the plain meaning of the phrase “if the court imposes a sentence for an alcohol interlock licence disqualification” in s 65A(2). However, once the Court decides to grant such authority, it must make the orders under s 65A(2): those orders are then mandatory.8 The effect of those orders is that the defendant is disqualified for three months (any indefinite disqualification under s 65 is put to an end), after which he or she can apply for an alcohol interlock license.9 In reality, the New Zealand Transport Agency has no practical power to refuse to grant such a license.10 An alcohol interlock license means that the defendant can only drive a vehicle to which an alcohol interlock device has been
fitted. The alcohol interlock device may be removed only after the defendant has
7 Wilson v Police [2014] NZHC 2474 at [14]–[17], cited with approval in Nikora v Police [2015] NZHC 775 at [7]. See also Nanai v Police [2013] NZHC 155 at [16]–[17].
8 Wilson v Police, above n 7, at [17], cited with approval in Nikora v Police, above n 7, at [7].
9 If the defendant does not do so, his or her license is treated as being of no effect; see Land
Transport Act 1998, s 65A(4).
10 Singh v Police [2013] NZHC 3065 at [18]; see Land Transport Act 1998, s 30(5)(b).
held an alcohol interlock license for at least 12 months, and has not breached its requirements in the preceding six months.
[17] Mr Park met the prerequisites of s 65A(1), given that he had been convicted of an offence under s 56(1) of the Land Transport Act and the proportion of alcohol found in his breath was over 800 micrograms per litre of breath. Judge Maude decided to grant authority to apply for an alcohol interlock license, but did not expressly make the mandatory consequential orders in s 65A(2). Among the mandatory orders that should have been made was an order ending Mr Park’s indefinite disqualification under s 65. It is clear from s 65A(2)(b)(v) that, should the Court choose to invoke s 65A, the alcohol interlock license provisions in the section
override the apparently mandatory indefinite disqualification in s 65.11 It is possible
that an order ending Mr Park’s indefinite disqualification under s 65 was implicit in Judge Maude’s grant of authority to apply for an alcohol interlock license, but I consider that it should have been made explicit.
[18] The relationship between the alcohol interlock license provisions in s 65A and the minimum disqualification period in s 56(3)(b) is not clear on the face of the statute. The mandatory six-month minimum period of disqualification under s 56(3)(b) is inconsistent with the three-month mandatory period of disqualification under s 65A(2)(a) where authority to apply for an alcohol interlock license is granted.
[19] This interpretative difficulty has been the subject of comment in the case law.12 The courts have turned to s 81 of the Land Transport Act to resolve the apparent conflict. Section 81 becomes relevant because s 56(5) states that the imposition of a mandatory disqualification under s 56 is subject to s 81. Section 81 provides:
81 Provisions relating to mandatory disqualification
(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
11 Singh v Police, above n 10, at [12]; see also Nanai v Police, above n 7, at [18].
12 See for example Singh v Police, above n 10; Nikora v Police, aboven n 7; and Lose v R [2014] NZCA 368.
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 relates to community- based sentences).
[20] In a passage later upheld by the Court of Appeal,13 Ellis J held in Singh v
Police:
[16] In circumstances where there are two conflicting but equally mandatory applicable disqualification periods, therefore, s 81(2) permits the Court to choose between them. While, on that analysis, there would have been no need for s 65A(2)(b)(v) to have been included, equally, 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. Furthermore, s 65A(1) expressly states that the section applies if a person is convicted for an offence against (inter alia) s 56.
[17] All these factors, in my view, mean that, in appropriate cases, s 65A can be interpreted to enable the Court to impose a sentence of disqualification under s 65A rather than under s 56. There is probably no need to resort to other rules of statutory interpretation which might also assist.
[21] It follows, therefore, that the alcohol license provisions in s 65A and the mandatory minimum period of disqualification in s 56(3)(b) are alternatives. The two cannot be imposed together.14
[22] I therefore consider that the sentencing Judge fell into error in imposing a finite 13-month period of disqualification under s 56(3)(b) and granting authority to apply for an alcohol interlock license under s 65A. Further, in invoking the alcohol interlock license provisions, the Judge should have made it explicit that Mr Park was no longer subject to indefinite disqualification under s 65, as required by
s 65A(2)(b)(v).
13 See Lose v R, above n 12, at [16].
14 Nikora v Police, above n 7, at [11] and [14].
[23] My discussion concerning these various sections only serves to emphasise how complex the relevant provisions of the Land Transport Act have become. In particular, the interrelationship of the provisions creates difficulties even for those legally trained let alone those who are not. The fact that the District Court Judge fell into error in his combination of sentences is readily explicable in the context of a busy list and a desire to do justice in the overall circumstances of the case. The relevant provisions could, in my view, readily benefit from redrafting in a more coherent and understandable manner.
[24] However, the Judge’s error means that a different sentence must be imposed, and the appeal is accordingly allowed. I further accept the submission of both Mr Meyer and Mr Mortimer that it is appropriate for me to re-sentence Mr Park rather than remitting the matter to the District Court.
Re-sentencing
[25] In written submissions the Police offer the following alternative sentence combinations:
(1)Sentence as imposed, but without the 13 month finite period of disqualification and with the consequential orders required by s 65A(2).
(2)Sentence as imposed, but opting not to grant authority to apply for an alcohol interlock license.
(3)Another sentence combination involving, for example, a shorter period of finite disqualification if no authority to apply for an alcohol interlock license is to be granted.
[26] I have had an opportunity to discuss this range of alternative sentences with counsel. They jointly submit and I agree that the appropriate alternative sentence is to reduce Mr Park’s finite period of disqualification from 13 months to a period of 12
months and one day, to delete from the sentence the authority to apply for an interlock licence and to otherwise confirm the District Court’s sentence.
[27] On that basis Mr Park remains indefinitely disqualified. He will, after the one year and one day’s mandatory disqualification, be entitled to apply for and be issued with a zero alcohol licence for the three years that that licence applies. That will be the only licence to which he is entitled for that period and his ability to obtain one will be dependent on the provision of appropriate reports. I consider that this represents an overall just result in the circumstances of what has occurred.
[28] For the avoidance of doubt I add that these orders are to run from the date of the original sentence, namely 24 May 2016.
[29] I order accordingly.
Muir J
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