Read v Police - [2019] NZHC 2720

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-318

[2019] NZHC 2720

BETWEEN
DAVID OMEGA READ

Appellant

AND

NZ POLICE

Respondent

Hearing: 1 October 2019

Appearances:

T Clee for the Appellant

G J Fraser for the Respondent

Judgment:

31 October 2019

JUDGMENT OF POWELL J

This judgment was delivered by me on 31 October 2019 at 10.30 a.m.
Registrar/Deputy Registrar Date:

Solicitors/Counsel: Tudor Clee, Auckland

Meredith Connell, Crown Solicitor, Auckland

READ v NZ POLICE [2019] NZHC 2720 [31 October 2019]

[1] The appellant, David Read, has, extremely belatedly, appealed against a decision of Judge Ryan imposing an alcohol interlock licence for driving with excess breath alcohol pursuant to s 56(1) of the Land Transport Act 1998 (“the Act”).1 Two years following the sentence Mr Read now claims that the alcohol interlock licence imposed by Judge Ryan is manifestly excessive; and instead of imposing an alcohol interlock licence he should have been sentenced to seven months’ disqualification.

Background to the appeal

[2] There is no dispute that the sentence came about at Mr Read’s request. It is clear from Judge Ryan’s sentencing notes on 27 September 2017 that Her Honour was considering sentencing Mr Read to seven months’ disqualification,2 when she received a request from Mr Read’s counsel “to consider an alcohol interlock licence under… s 65A [of the] Land Transport Act”.3 Judge Ryan accordingly went on to consider carefully whether an alcohol interlock licence was appropriate. This included specifically checking that Mr Read had sufficient resources to install the device required,4 and confirmed in Court the procedure he needed to follow.5

[3] In the event Mr Read did not take steps to install the alcohol interlock device upon the expiry of the three-month disqualification imposed under s 65A. As a result, he has remained suspended since his period of disqualification ended.

[4] In addition, shortly after the expiry of the three-month disqualification, Mr Read received notice of a three-month suspension for accrued demerit points pursuant to s 90(3) of the Act, which took effect from 4 January 2018 (“the demerit points suspension”). While therefore subject to both suspensions as a result of failing to obtain his alcohol interlock licence and the demerit point suspension, Mr Read was apprehended for driving while suspended for which he was disqualified for a further year from 7 November 2018 (“the November 2018 disqualification”). In the meantime, prior to being sentenced on that charge, Mr Read has also been charged

1      New Zealand Police v Read [2017] NZDC 29900. It should be noted Mr Read was also sentenced to seven months’ supervision and 150 hours’ community service but does not appeal those parts of his sentence.
2 At [10].
3 At [14].
4      At [15](b).
5      At [17]–[19].

with three further counts of driving while suspended, with the fresh alleged offending happening after the expiry of the demerit point suspension, and before the November 2018 disqualification took effect.

The case for Mr Read

[5] Mr…

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 [2019] NZHC 2720
Case: [2019] NZHC 2720
Decision Date: 31 October 2019

CaseChat Overview and Summary

In the High Court of New Zealand, David Omega Read appealed against a decision by Judge Ryan to impose an alcohol interlock licence for driving with excess breath alcohol. The appeal was lodged two years after the sentence was handed down. Read claimed that the alcohol interlock licence imposed was manifestly excessive and that a seven-month disqualification would have been more appropriate. The appeal was brought extremely late, and the court had to consider whether it should be allowed despite the delay. The court noted that Read's difficulties arose from his own failure to comply with the sentence and the subsequent suspension. The appeal was allowed to proceed despite the delay because the Police did not object to the appeal being heard on its merits.

The court considered whether the alcohol interlock licence imposed by Judge Ryan was an error. The court found that the decision was based on a thorough analysis of the statutory criteria and that the issue of demerit points was irrelevant because the suspension for demerit points arose by operation of law. The court noted that even if the demerit points had been cancelled at the time of sentencing, it would not have affected the subsequent demerit point suspension. The court concluded that there was no error in imposing the alcohol interlock licence and that the sentence was appropriate given Read's driving history.

The court dismissed the appeal, and Read's alcohol interlock licence sentence stood. The court noted that the difficulties Read faced were a result of his own actions and not due to any defect in the sentencing.

Orders