Police v Cox
[2022] NZHC 1695
•15 July 2022
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2022-476-04
CRI-2022-476-05 [2022] NZHC 1695
BETWEEN NEW ZEALAND POLICE
Appellant
AND
MICHAEL WILLIAM COX AND DANIEL JOSEPH ELLIOT
Respondent
Hearing: 2 June 2022 Appearances:
A R McRae for Appellant
J A M Black for Respondent Cox
J B Lovely and H A Abdullahi for Respondent ElliotJudgment:
15 July 2022
JUDGMENT OF MANDER J
This judgment was delivered by me on 15 July 2022 at 4 pm pursuant to Rule 11.5 of the High Court Rules 2016
Registrar/Deputy Registrar Date: .
POLICE v COX [2022] NZHC 1695 [15 July 2022]
[1] Mitchell Cox and Daniel Elliot were both convicted on breath alcohol driving charges in the Timaru District Court. Because of their histories of drink-driving and the circumstances of their offending, an alcohol interlock sentence was imposed upon them pursuant to s 65AC of the Land Transport Act 1998 (the Act). When doing so, Judge Maze declined to make an additional order, under s 65 of the Act, requiring Messrs Cox and Elliot to attend an assessment centre.1 The Police appeal the Judge’s decision not to make that further order.2
Background
Mr Cox
[2] Mr Cox underwent a positive breath screening test after he was located at a service station in his vehicle. A subsequent evidential breath test returned a result of 504 mcg per litre of breath. He was convicted of driving whilst disqualified3 and driving with excess breath alcohol (being a third or subsequent offence),4 and sentenced to nine months’ disqualification.5 He was informed that at the end of that disqualification period he could apply for an alcohol interlock licence.
Mr Elliot
[3] Mr Elliot was stopped by police in his vehicle. He admitted having consumed alcohol and an evidential breath test returned a result of 1371 mcg of alcohol per litre of breath. Mr Elliot has previous convictions for driving with excess breath alcohol. On a previous occasion, some three years before, he returned a breath alcohol reading of 1144 mcg of alcohol per litre of breach which resulted in him being required to apply for a zero-alcohol licence.
1 Police v Cox [2022] NZDC 3543; Police v Elliot [2022] NZDC 3399.
2 Criminal Procedure Act 2011, ss 212 and 246.
3 Land Transport Act 1998, s 32(1)(a) and 32(3) — maximum penalty three months’ imprisonment or a fine not exceeding $4,500 and a six-month or more disqualification from obtaining a driver licence.
4 Section 56(1) and 56(4) — maximum penalty two years’ imprisonment or a fine not exceeding
$6,000 and a more than one-year disqualification from obtaining a driver licence.
5 Police v Cox, above n 1.
[4] Mr Elliot pleaded guilty to breaching his zero-alcohol licence6 and driving with excess breath alcohol, being his third or subsequent offence.7 He was sentenced by Judge Maze to three months’ community detention, nine months’ supervision and disqualified from holding a driver licence for six months. The Judge informed him that after the six-month disqualification he could apply for an alcohol interlock licence and, in due course, a zero-alcohol licence in substitution.
District Court decision
[5] In neither case did the sentencing Judge make an order requiring either respondent to attend an assessment centre under s 65 of the Act. The Police’s position is that, notwithstanding the imposition of an alcohol interlock sentence under s 65AC of the Act, the Judge was obliged to make that further order. Before turning to the Judge’s reasoning for not doing so, it is convenient to set out both provisions:
65 Mandatory disqualification and assessment for repeat offences
(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 Director 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
(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,
6 Section 32(1)(b) and 32(3) — maximum penalty three months’ imprisonment or a fine not exceeding $4,500, and a six-month or more disqualification from obtaining a driver licence.
7 Section 56(1) and (4) — maximum penalty two years’ imprisonment or a fine not exceeding
$6,000, and a more than one-year disqualification from obtaining a driver licence.
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).
(3A) The mandatory disqualification in subsection (2) is replaced by any alcohol interlock sentence ordered under section 65AC(1) (whether or not the alcohol interlock sentence is ordered at the same time as, or after, the order made under subsection (2)).
(4)The court must make an order that requires a person to attend an assessment centre and that disqualifies that person from holding or obtaining a driver licence until the Director removes that disqualification under section 100 if—
(a)the court convicts that person of a third or subsequent offence to which this section applies; and
(b)the 2 or more previous offences were committed within 5 years of the date of the commission of the offence being dealt with by the court.
(4A) The mandatory disqualification in subsection (4) is replaced by any alcohol interlock sentence ordered under section 65AC(1) (whether or not the alcohol interlock sentence is ordered at the same time as, or after, the order made under subsection (4)).
(5)For the purposes of this section, a conviction for an offence against a provision of the Transport Act 1962 corresponding to an offence to which this section applies is to be treated as a conviction for an offence specified in subsection (1).
...
65AC Alcohol interlock sentence
(1)If this section applies, the court must order an alcohol interlock sentence.
(2)An alcohol interlock sentence—
(a)disqualifies the person from holding or obtaining a driver licence for the period required by section 65AE; and
(b)authorises the person to apply for an alcohol interlock licence at the end of that period; and
(c)disqualifies the person from holding or obtaining any licence except an alcohol interlock licence; and
(d)authorises the person, after complying with the alcohol interlock licence requirements, to apply to replace the alcohol interlock licence with a zero alcohol licence.
(3)Subsection (1) applies unless for special reasons relating to the qualifying offence the court thinks fit to order otherwise and, if so,—
(a)section 94 may apply (and a reference to disqualification in section 94 must be treated as if it referred to an alcohol interlock sentence); but
(b)an alcohol interlock sentence may not otherwise be substituted by a community-based sentence.
[6] The Judge’s decision not to order Mr Cox to attend an assessment centre was not explored in Judge Maze’s sentencing notes concerning Mr Cox. However, the Judge explained her reasoning for rejecting the Police’s argument that it was a mandatory step to not only impose an alcohol interlock sentence under s 65AC of the Act but, additionally, to order a qualifying offender to attend an assessment centre under s 65(2), when the Judge sentenced Mr Elliot that same day.8
[7] Judge Maze did not accept the effect of s 65(3A) and (4A) was limited to the replacement of indefinite disqualification by an alcohol interlock sentence, but also extinguished the other requirement of subs (2) that a person attend an assessment centre. The Judge considered the correct approach to the interpretation of s 65 turned on whether subs (2) created one or two orders. Judge Maze observed:
[8] ... If one, then it is an order with two parts to it: referral to assessment centre and indefinite disqualification. But it is one order. If that is correct, then plainly it cannot be split into two and under s 65(3A) and s 65(4A), both parts of the one order are replaced by an alcohol interlock order.
[8] The Judge reasoned that the Police’s submission was dependent upon accepting s 65(2) involved the making of two orders. In rejecting that was the case, the Judge noted that subs (2) only referred to the making of “an order” and the Court did not have the jurisdiction to sever a single order into two parts. It is either made in its entirety or it is not made. The Judge noted the words “an order” were repeated in subss (3) and (4) and that if Parliament had intended there to be two orders the wording would have provided for the plural, and it did not. The Judge concluded the “logical
8 Police v Elliot, above n 1.
interpretation” of s 65 was that the “complete single order” described in s 65(2) was to be replaced in its entirety by an order under s 65AC.9
The appeals
[9] On behalf of the Police, Mr McRae submitted that where both ss 65 and 65AC applied to an offender, the Court was obliged, in accordance with the Act, to make two orders pursuant to each of those sections. In addition to sentencing the person to an alcohol interlock sentence under s 65AC, the Court was also required to make an order they attend an assessment centre under s 65 of the Act. These orders are mandated under the respective provisions when the requirements for their making are met, as they are here.
[10] The Police maintain that, while on its face an order disqualifying a person for an indefinite period under s 65 cannot be reconciled with the imposition of an alcohol interlock sentence under s 65AC, the effect of s 65(3A) and (4A) is to remove this difficulty by replacing the mandatory disqualification in s 65(2) with an alcohol interlock sentence ordered under s 65AC(1). Any conflict is resolved and the residual part of the mandatory order under s 65(2) requiring a person to attend an assessment centre is unaffected.
[11] Messrs Black and Abdullahi, on behalf of each of the respondents, opposed the appeals largely on the basis of the Judge’s analysis that an order under s 65(2) cannot be severed. They further submitted the requirement that an offender attend an assessment centre is for the sole purpose of an application under s 100 to have their indefinite disqualification removed. Where that mandatory disqualification is replaced by an alcohol interlock sentence, it was argued the requirement to attend an assessment centre is redundant. It follows, they submitted, the effect of subss (3A) and (4A) is the complete replacement of any order under s 65 with an alcohol interlock sentence.
9 At [9]–[10].
Analysis
Application of sentencing provisions
[12] In broad terms, a person must be sentenced to indefinite disqualification and attend an assessment centre under s 65 of the Act if they are convicted of two drink- driving offences within five years and their blood or breath alcohol level is four times the legal limit,10 or they have committed three drink-driving offences within the last five years.11
[13] Eligibility for an alcohol interlock sentence under s 65AC is very similar. An alcohol interlock sentence must be imposed where the person has either been convicted of two specified drink-driving offences within the last five years,12 or they have been convicted of one specified drink-driving offence where they have been twice the blood alcohol limit or around three times the limit for breath alcohol.13 There are exceptions for persons who have a medical condition which prevent them from using the alcohol interlock device or who live in such a remote place the device cannot be installed.14 Alternatively, the court may consider there are “special reasons relating to the qualifying offence” that justify not making an order.15 As the present two cases illustrate, there will be a substantial number of offenders who are liable to both mandatory sentences. Messrs Cox and Elliot fall into that category of offender.
[14] Section 65 applies to Mr Cox because he has been convicted of a third offence against s 56 of the Act, with two of his previous offences having been committed within five years of the date of the commission of the offence for which he was for sentence.16 Section 65 applies to Mr Elliot because he has been convicted of two offences against s 56 of the Act, with one previous offence being within five years of the commission of the offence for which he was before the Court and was more than four times above the legal limit.17
10 Land Transport Act, s 65(2) and (3).
11 Section 65(4).
12 Section 65AB(1)(a).
13 Section 65AB(1)(b).
14 Section 65AB(2).
15 Section 65AC(3).
16 Section 65(1) and (4).
17 Section 65(1), (2) and (3).
[15] Section 65AC applies to Messrs Cox and Elliot because they have been convicted of a qualifying offence (s 56(1) of the Act) and have previously been convicted of the same or similar qualifying offences within five years of their commission of the present offence.18 Additionally, Mr Elliot’s evidential breath test level exceeded 800 mcg of alcohol per litre of breath.19 None of the statutory exceptions apply.20
Inconsistency between s 65 and 65AC
[16] Where either s 65 or 65AC apply the Court “must” make an order in accordance with the terms set out in the respective provisions. However, the orders have conflicting effects, at least insofar as s 65 requires the offender to be disqualified on an indefinite basis until such time as the New Zealand Transport Agency removes the disqualification under s 100 of the Act.
[17] In contrast to the indefinite period of disqualification that is imposed as a result of an order made under s 65, an order made pursuant to s 65AC imposes a finite period of disqualification before which a person can apply for an alcohol interlock licence.21 However, until such time as a person applies for an alcohol interlock licence they will remain disqualified from holding or obtaining a driver licence.22 An alcohol interlock licence replaces any licence held by a person and requires the holder to drive only a motor vehicle or vehicles to which an alcohol interlock device is fitted.23
[18] The differences between the two orders that must be imposed on a person to whom both ss 65 and 65AC apply are reconciled by s 65(3A) and (4A). Those subsections were inserted into s 65 when the alcohol interlock sentence was introduced as part of the Act.24 They provide for the replacement of the mandatory indefinite disqualification by any alcohol interlock sentence when that sentence is ordered to be imposed on the same offender, whether at the same time or after an indefinite period of disqualification is ordered under s 65.
18 Section 65AB(1)(a).
19 Section 65AB(1)(b)(i).
20 Sections 65AB(2) and 65AC(3).
21 Section 65AE.
22 Section 65AF.
23 Section 65AG(1) and (2).
24 Land Transport Amendment Act 2017, s 25(2) and (3).
Statutory interpretation
[19] It is trite that the meaning of an enactment must be ascertained from its text and in the light of its purpose and context.25 In enacting the new alcohol interlock sentences, Parliament did not repeal s 65. The courts’ obligation to impose mandatory indefinite disqualification on a recidivist offender who qualifies for such a sentence in accordance with the terms of s 65(2) or (4) of the Act, on the face of that subsection, remained. However, the legislature was also aware that a significant group of offenders to whom s 65 applied would now also be caught by s 65AC. In enacting subss (3A) and (4A), Parliament reconciled the effect of the two provisions by granting precedence to the alcohol interlock sentence over the imposition of an indeterminant period of disqualification.
[20] The District Court’s approach to the interpretation exercise focussed on whether s 65(2) and (4) provided for the making of a single order and concluded the intended effect of subs (3A) and (4A) could only have been the replacement of the entire order. However, that construction overlooks the actual words of those subsections which refer only to the replacement of the mandatory disqualification, which is the only part of an order made under s 65 that conflicts with an order made pursuant to s 65AC. The subsections do not alter the mandatory obligation under subss (2) and (4) to make an order where s 65 applies, but replace the indefinite disqualification part of the order with an alcohol interlock sentence where such a sentence is imposed under s 65AC(1). By so doing, the conflict between the two different mandatory sentences that would otherwise be imposed on a person for the same offending is avoided.
[21] Subsections (3A) and (4A) do not address, nor therefore do they affect, the remaining part of the mandatory order required to be imposed when subss (2) and (4) that require a person to attend an assessment centre. There is no reason to consider the obligation on the court to make an order in those terms changes. Subsections (3A) and (4A) are not directed at removing the court’s obligation to make orders under subss
(2) and (4) but change their effect where an alcohol interlock sentence has been ordered. As a matter of law, a disqualification imposed by subs (2) or (4) is replaced
25 Interpretation Act 2019, s 10.
by an alcohol interlock sentence, but neither subs (3A) or (4A) change the mandatory requirement that a person attend an assessment centre where they are caught by the qualifying criteria of s 65. This part of the mandatory order does not conflict with an alcohol interlock sentence ordered under s 65AC(1).
[22] If it had been intended for subss (3A) and (4A) to extend to the replacement of the requirement to attend an assessment centre, there is no reason why Parliament would not simply have stated in those subsections that an order made under subs (2) or (4) is replaced by an alcohol interlock sentence ordered under s 65AC(1), rather than specifically identifying one part of the order made under subs (2) or (4) being “replaced” with the sentence with which it would otherwise conflict. If no order was required to be made under s 65 as a result of the effect of subs (3A) and (4A), those provisions would have expressed such an intention in explicit terms. That Parliament did not intend subss (3A) and (4A) to have such an effect as a consequence of introducing the alcohol interlock sentence is apparent from the way the provision governing the requirements of that new sentence contemplate some offenders being subject to orders made under both ss 65 and 65AC.
[23] Section 65AG(3) sets out the requirements to be fulfilled by a person seeking to replace an alcohol interlock licence with a zero alcohol licence:
65AG Alcohol interlock licence requirements
...
(3)A person may apply under section 100A to replace an alcohol interlock licence with a zero alcohol licence if—
(a)every motor vehicle the person has driven for 12 months (or more) had an alcohol interlock device fitted and operating; and
(b)in relation to a person who is required to attend an assessment centre under section 65 (or any other section), the person has attended and been assessed as being a fit person to hold a driver licence; and
(c)during the previous 6 months, the person—
(i)has not attempted to drive while the person’s breath contained a proportion of alcohol above the level to which the device is set; and
(ii)has not committed a qualifying offence or an offence against section 55A; and
(iii)has complied with any relevant regulations made under this Act.
(4)The 6-month period referred to in subsection (3)(c) may be reduced to 3 months if the person has been assessed at an assessment centre (whether the attendance was voluntary or ordered by a court) as a fit person to hold a driver licence.
(emphasis added)
[24] There is no reason to consider Parliament did not intend those offenders, who would otherwise have been subject to an indefinite period of disqualification but for the introduction of the alcohol interlock sentence, were not to remain subject to the additional step of being required to attend an assessment centre in order to be assessed as being a fit person to hold a driver licence before being eligible to have their alcohol interlock licence replaced with a zero alcohol licence. This was anticipated by the explanatory note to the Bill that introduced s 65AC:26
The Act contains a discretionary alcohol interlock sentence that the courts can impose on first-time offenders with high alcohol levels and offenders with repeat drink-drive convictions. However, the discretionary sentence is applied sparingly. The Bill makes alcohol interlocks mandatory for these offenders, with limited grounds for exceptions. Alcohol interlocks will also become mandatory for drink-drive offenders subject to alcohol assessment orders under section 65 of the Act.
[25] In order to replace their alcohol interlock licence with a zero alcohol licence it is a prerequisite that offenders to whom s 65 applies have attended and been assessed as being a fit person to hold a driver licence.27 Potentially by so doing, the compliance period before an application can be made for a zero alcohol licence can be reduced.28 The retention of this process of assessment for offenders who would otherwise be subject to indefinite disqualification under s 65 was part of the reforms that introduced the alcohol interlock sentence regime. The Transport and Industrial Relations Select Committee, when reporting on the Land Transport Amendment Bill 2016 that
26 Land Transport Amendment Bill (No 2) 2016 (173-1) (explanatory note) at 1 (emphasis added).
27 Land Transport Act, s 65AG(3)(b).
28 Section 65AG(4).
introduced the mandatory alcohol interlock sentence as part of the Act, commented that:29
Clause 18 of the bill would amend section 65 to replace the mandatory indefinite disqualification with an alcohol interlock sentence. A person receiving an alcohol interlock sentence under section 65 would still need a satisfactory assessment report from an approved assessment centre to complete the requirements of the alcohol interlock sentence.
(emphasis added)
[26] While the issue was not specifically before the Court of Appeal, its observations in Governor v Police are consistent with s 65 continuing to have application, notwithstanding the introduction of the alcohol interlock sentence regime, by requiring offenders to whom s 65 applies to attend an assessment centre:30
[19] There is an overlap between s 65 (set out below) and the interlock regime. Section 65 applies to an offender who commits three specified offences within five years, or two such offences within five years with one of those being an even more serious breach of the breath and blood alcohol provisions than is required to engage s 65AB. ...
[20] When the new interlock regime was enacted, the previous indefinite disqualification that applied to breath and blood alcohol offending under s 65 was replaced by a mandatory requirement to impose an interlock sentence. The only remaining point of difference for such an offender is that the Court must order him or her to attend an “assessment centre”.
[27] The importance of requiring a person to whom s 65 applies to attend an assessment centre under that section is apparent when regard is had to the nature of the assessments and their purpose. The “key components” of this process are described in a Ministry of Health publication as including a comprehensive alcohol and other drug assessment, supporting medical examinations, and engagement by the offender with alcohol and drug treatment and other potential interventions as considered appropriate.31 This reflects the objectives of the assessment centres to minimise road safety risks and promote community safety by assessing the fitness of repeat offenders to drive and to use s 65 of the Act to maximise the opportunity to change the thinking and behaviour of repeat offenders convicted of offences involving
29 Land Transport Amendment Bill (No 2) 2016 (173-2) (select committee report) at 4.
30 Governor v Police [2021] NZCA 403 (emphasis added).
31 Ministry of Health Assessing the Fitness to Drive of People Sentenced under Section 65 of the Land Transport Act 1998: Standard operating procedure (Ministry of Health, Wellington, 2017) at 1.
alcohol and other drug use.32 Ensuring a consistent nationwide approach to the process that allows people sentenced under s 65 of the Act to apply to have their disqualification removed is also identified as a further objective of these assessment centres.33
[28] Section 65 provides for the identification of high-risk road users who have repeatedly offended, often with high blood/breath alcohol levels. There is no reason to suggest this process of assessment was not intended to continue to apply to offenders as a mandatory sentencing requirement imposed by s 65 to attend an assessment centre. Nor is it apparent that Parliament intended drivers to whom indefinite disqualification under s 65 would otherwise have applied would now be able to avoid that assessment process before being able to hold a driver licence as a result of becoming subject to an alcohol interlock sentence. To the contrary, the alcohol interlock licence regime specifically provides for persons who have been directed to attend an assessment centre under s 65.34
Conclusion
[29] I do not consider ss 65 and 65AC are mutually exclusive, as appears to have been the conclusion of the District Court. They provide separate but overlapping sentencing regimes for drink-driving. Notably, not everyone who qualifies for an alcohol interlock sentence will qualify for assessment under s 65. However, there will, as the present two cases illustrate, be a substantial number of offenders who may satisfy both requirements, in which case the sentencing court is required to make orders in accordance with the terms of both sections.
[30] By dint of subss (3A) and (4A), where that overlap arises, indefinite disqualification will be replaced by an alcohol interlock sentence, but the requirement that such offenders attend an assessment centre remains. A sentencing court is obliged in such situations to make an order to that effect. I consider the Judge erred by not doing so in respect of Messrs Cox and Elliot.
32 At 1.
33 At 1.
34 Land Transport Act, s 65AG(3)(b).
Result
[31] The appeal is allowed. Both Messrs Cox and Elliot’s sentences are varied and each is ordered, pursuant to s 65 of the Act, to attend an assessment centre. The order imposed on each appellant is in addition to the sentences and orders imposed by the District Court at the time they were sentenced.
Solicitors:
Crown Solicitor, Timaru