Read v Police - [2020] NZCA 101

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA593/2019
[2020] NZCA 101

BETWEEN	DAVID OMEGA READ Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	27 February 2020
Court:	Clifford, Simon France and Lang JJ
Counsel:	Applicant in person C A Brook for Respondent
Judgment:	20 April 2020 at 12 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Mr Read applies for leave to bring a second appeal in relation to a sentence imposed on him on a charge of driving with excess breath alcohol.[1]
[1]Police v Read [2019] NZDC 29900; Read v Police [2019] NZHC 2720; Criminal Procedure Act 2011, s 253(1); and Land Transport Act 1998, s 56(1).
At the time of sentencing, Judge Ryan indicated a sentence of seven months’ supervision, 150 hours’ community work and seven months’ disqualification. Counsel for Mr Read intervened, at his direction, and sought a variation of the last component. Instead of seven months’ disqualification, a sentence of three months’ disqualification and a direction to install an alcohol interlock device was sought.[2] At that time, the imposition of an alcohol interlock licence was discretionary. The Judge reviewed the requirements of those licences, agreed the statutory criteria were met, and imposed the amended sentence.[3]
[2]Land Transport Act, s 65A.
[3]Police v Read, above n 1, at [15]–[19].
At the time of the sentencing, seemingly unknown to Mr Read and the Court, Mr Read had separately from this offence acquired more than 100 demerit points, an occurrence which triggers a three-month suspension. This occurred on 20 May 2017, so about four months before sentencing. Mr Read had not at that stage been served with the suspension notice, but his liability to a three months’ suspension was in place and awaiting activation.
Mr Read served the three months’ disqualification imposed at sentencing and then recommenced driving. He was not entitled to do so because, although he had an interlock licence, he had not installed the device. He says his financial circumstances had changed, and he could no longer afford to do so. However, until he did, or until he had the sentence varied, he was suspended from driving. As noted, Mr Read did drive and he was stopped. As well as being suspended from driving because of the interlock device situation, the police became aware of the pending demerit point suspension. That three months’ suspension was therefore activated at that time.
Since then, Mr Read has again driven unlawfully and he faces further charges for driving while suspended. Although his demerit point suspension has ended, he has still not applied for an alcohol interlock licence, and is therefore still suspended from driving. He says he still cannot afford the interlock device. We are advised he has unsuccessfully sought review of the sentence he presently appeals.
Mr Read accepts the current sentence imposed in the District Court was imposed at…

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 Read v Police

Details

AGLC: Read v Police [2020] NZCA 101
Case: [2020] NZCA 101
Decision Date: 20 April 2020 at 12 pm

CaseChat Overview and Summary

In Read v Police, the applicant, David Omega Read, sought leave to bring a second appeal against a sentence imposed on him for driving with excess breath alcohol. The original sentence was imposed by Judge Ryan in the District Court, which involved seven months' supervision, 150 hours' community work, and a seven-month disqualification from driving. Mr Read intervened at the time of sentencing to seek a variation of the last component, resulting in a three-month disqualification and a direction to install an alcohol interlock device. However, Mr Read did not install the device due to financial constraints and subsequently drove while suspended, leading to further charges.

The legal issue before the Court of Appeal was whether the original sentence imposed by Judge Ryan was flawed due to the Court's unawareness of Mr Read's separate acquisition of more than 100 demerit points, which triggered a three-month suspension. Mr Read argued that had the Court been aware of the demerit points, they would have imposed the original sentence of seven months' disqualification without an interlock device requirement. The Court found that section 91(3) of the Land Transport Act 1998, which provides for the cancellation of demerit points upon disqualification for six months or more, did not apply to the demerit point suspension triggered by the accrual of 100 points. Therefore, Mr Read would have had to serve the three-month demerit point suspension regardless of the sentencing option chosen.

The Court concluded that the original sentence was favourable to Mr Read and the best option available at the time to get him back driving as quickly as possible. The fact that the sentencing Judge was unaware of the demerit point situation did not affect the outcome, nor did it occasion a miscarriage. The Court found no error in the original sentence and declined the application for leave to bring a second appeal. The consequence of Mr Read's decision to ignore his legal incapacity to drive did not render the original sentence flawed.

Orders