Read v Police
[2019] NZHC 2720
•31 October 2019
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 Clee, on behalf of Mr Read, submits that the alcohol interlock licence imposed by Judge Ryan was manifestly excessive because Her Honour was unaware of relevant material, namely Mr Read’s demerit points, and in particular, that Mr Read had 130 demerit points extant at the date of his sentence. In Mr Clee’s submission, had Mr Read known about his demerit points he would not have sought an alcohol interlock licence. Likewise, Mr Clee submits that had Judge Ryan known of the demerit points the seven-month disqualification originally proposed would have been more appropriate; as the disqualification would have exceeded six months s 91(3) of the Act would have applied and therefore Mr Read’s demerit points would have been cancelled, meaning that he would not have been subject to the demerit points suspension. Instead, as things stand, in Mr Clee’s submission, unless Mr Read is successful in his appeal he will remain suspended from driving, given he does not now intend to obtain an alcohol interlock licence. More pressingly, unless Mr Read’s ongoing suspension for failure to obtain an alcohol interlock licence is lifted Mr Read will have to address his additional charges of driving while suspended. Mr Clee therefore requests that if the appeal is allowed Mr Read be sentenced to seven months’ disqualification with effect from 27 September 2017.
Legal principles
[6] Although Mr Read’s appeal is well out of time, s 248(4)(a) of the Criminal Procedure Act 2011 (“CPA”) allows a Court to extend the time for filing a notice of appeal beyond the 20-working-day limit set by s 248(2) of the CPA. The touchstone for whether time should be extended is the interests of justice, which often reduces to the reasons why the appeal was filed late and the merits of the proposed appeal.6
6 R v R [2019] NZCA 135 at [23]; and Mikus v R [2011] NZCA 298 at [26].
[7] If granted leave to appeal, the appeal must be allowed if the Judge is satisfied that there is an error in the sentence imposed on conviction and that a different sentence should be imposed.7 In any other case, the appeal must be dismissed.8 The measure of error is the sentence be “manifestly excessive”, a principle “well engrained” in the Court’s approach to sentence appeals.9 That is to be determined by reference to the final sentence, not the route adopted to reach it.10 How the sentence was structured is not material.11
Discussion
[8] It is clear that the principle reason for bringing this appeal is not primarily concerned with whether the sentence imposed by Judge Ryan was excessive. Rather, as a result of his failure to comply with the sentence imposed, Mr Read has entangled himself in a Kafkaesque knot of his own making which has led to him seeking leave to appeal almost two years after being sentenced. It is clear however that the difficulties that Mr Read has got into post-sentence are not as a result of any defect in his sentencing but rather his own inability to comply with the sentence imposed by Judge Ryan and the subsequent suspension, and are therefore irrelevant to this appeal.
[9] Despite that, Ms Fraser on behalf of the Police accepts there is no prejudice if leave is given to bring the appeal, the Police’s principle objection to leave being granted is the lack of merit in the appeal itself. In these circumstances leave is granted to appeal out of time.
[10] Turning to the substantive appeal, as Mr Clee has acknowledged, the only possible issue that could be alleged is whether Judge Ryan erred in imposing an alcohol interlock licence on Mr Read. As noted above, the only conceivable error is whether Her Honour failed to appropriately take into account the effect of Mr Read’s demerit points, as otherwise it is clear that Her Honour did not simply approve
7 Criminal Procedure Act 2011, s 250(2).
8 Section 250(3).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33] and [35].
10 Ripia v R [2011] NZCA 101 at [15].
11 Mita v R [2012] NZCA 137.
Mr Read’s request to be granted an alcohol interlock licence, but undertook a thorough analysis against the statutory criteria then applying pursuant to s 65A of the Act.12
[11] Against this background the issue of demerit points is in fact irrelevant. As Mr Clee confirmed post hearing, Mr Read had in fact already accrued his 130 demerit points for which he was subsequently suspended by 20 May 2017. While this appears to have arisen as part of the same incident that led to Mr Read being sentenced for the excess breath alcohol, the demerit points was not a matter that was required to be brought before the Court when he was sentenced on 27 September 2017. This is because Mr Read’s suspension for accruing more than 100 demerit points arises by operation of law, with the New Zealand Transport Agency being required to issue a suspension notice once more than 100 demerit points have been accrued within a two year period.13 The issue was considered by both the High Court and Court of Appeal in Henderson v Director of Land Transport New Zealand.14 In that case the plaintiff had argued that by the time the suspension notice was served by the Director (now the New Zealand Transport Agency), a number of his demerit points had expired and as a result, as at the date of service of the suspension notice he had less than the 100 demerit points required for a suspension. Confirming the High Court judgment, the Court of Appeal noted:15
The Director has a statutory obligation to suspend the licence of a driver if, in any two year period, a total of 100 or more demerit points is recorded against that driver. Once that obligation has been imposed on the Director, the Director becomes obligated to serve a notice of suspension on the relevant driver. The effect of the suspension is to cancel the demerit points recorded against the driver: s 91 (2). The fact that there is delay in effecting service of the suspension notice does not alter the fact that the obligation on the Director to suspend the licence has been activated, and that the suspension will be enforceable once the relevant notice is served. In our view, it is clear that the fact that there is delay in achieving the service of a suspension notice does not change the fact that the statutory consequence of accumulating 100 points in the two year period will arise.
12 Noting that subsequently the legislative regime has changed. Section 65A of the Land Transport Act 1998 provided the courts with a discretionary tool to impose an alcohol interlock license. This section was repealed and replaced with s 65AB from 1 July 2018 which provides that an interlock sentence is mandatory for eligible offenders, unless certain exceptions apply.
13 Henderson v Director of Land Transport New Zealand HC WGN CIV-2004-485-736 at [32].
14 Henderson v Director of Land Transport New Zealand HC WGN CIV-2004-485-736; and
Henderson v Director of Land Transport New Zealand [2006] NZAR 629 [CA].
15 At [51].
[12] It follows that as Mr Read’s liability for suspension in respect of the demerit points arose on 20 May 2017, at the time he incurred the last 50 demerit points, and even if his demerit points had been cancelled pursuant to s 91(3) of the Act at the time of sentence on 27 September 2017, this would not have had any effect on his subsequent demerit point suspension, with the timing of that suspension a matter for the New Zealand Transport Agency rather than the Court.
[13] Even if this were not the case, as Ms Fraser submitted, it was otherwise by no means clear that an alcohol interlock licence would not have been imposed, given Judge Ryan’s ultimate conclusion that the alcohol interlock licence was indeed appropriate for the charge for which Mr Read was being sentenced. I also note that the combined disqualification for the alcohol interlock licence and the demerit points suspension was still less than the seven months’ disqualification that Mr Read now seeks. At best it can said that there was an alternative sentence possibly open to Judge Ryan. That does not however mean that Her Honour was in error in concluding that an alcohol interlock licence was indeed appropriate for Mr Read, particularly given his driving history to that point.
[14] Taken together I am satisfied that there is no merit to Mr Read’s appeal and therefore no jurisdiction so as to intervene to ameliorate the position Mr Read now finds himself in.
Decision
[15]The appeal is dismissed.
Powell J
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