Sadler v Police

[2021] NZHC 1126

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000043

[2021] NZHC 1126

BETWEEN

TE KIRIPUTE (CHRIS) SADLER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

17 May 2021

Appearances:

Appellant in person

B N Kirkpatrick for Respondent

Judgment:

19 May 2021

Reissued:

8 June 2021

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 19 May 2021 at 3.00 pm

Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:
Crown solicitor, Auckland

Copy to: The appellant, Mr Sadler.

SADLER v NEW ZEALAND POLICE [2021] NZHC 1126 [19 May 2021]

Introduction

[1]    On 25 March 2018, the appellant Te Kiripute (Chris) Sadler, was charged with driving with excess blood alcohol – a third or subsequent offence – pursuant to ss 56(2) and (4) of the Land Transport Act 1998. On 7 June 2019, Mr Sadler pleaded guilty to the charge in the Auckland District Court. He was sentenced by Judge Collins, also in the Auckland District Court, on 11 October 2019.1 The Judge sentenced Mr Sadler to six months’ community detention, including an electronically monitored curfew from 7.00 pm to 6.00 am. He disqualified Mr Sadler from driving for one month, but recorded that thereafter he could apply for a zero alcohol licence and have an alcohol  interlock  device  installed  in  his  vehicle.  He  also  ordered Mr Sadler to pay an analyst’s fee of $93 and medical expenses of $80.

[2]    Mr Sadler appealed his conviction and sentence to this Court. He argued that there was trial counsel incompetence or misconduct in relation to the taking of his guilty plea, that there was misconduct by the police, that the police and the probation service failed to follow proper procedures and that there was an intrusion into his privacy by the probation service that was prejudicial to his case. The appeal was heard on 5 October 2020. Campbell J issued his judgment dismissing the appeal on 13 October 2020.2

[3]    Mr Sadler then sought leave to appeal to the Court of Appeal. He also applied to this Court to defer the disqualification ordered by Judge Collins under s 107(4) of the Land Transport Act pending the final resolution of his appeal to the Court of Appeal.

[4]    Mr Sadler advised that the application for leave and the appeal were heard on 13 May 2021.

Factual background

[5]    At about 9.00 pm on 25 March 2018, Mr Sadler was driving on a street in Freemans Bay, Auckland. He was signalled to stop by the police due to his manner of

1      Police v Sadler [2020] NZDC 26646 (citation should read 2019).

2      Sadler v Police [2020] NZHC 2681.

driving and his speed. Police officers then spoke to him. His behaviour suggested that he had recently consumed alcohol. An evidential breath test was performed and subsequently a blood sample was taken from Mr Sadler. His blood was found to contain 180 milligrams of alcohol per 100 millilitres of blood. Mr Sadler could give no explanation for why he had been driving under the influence of alcohol, nor could he recall the type and amount of alcohol he had consumed.

[6]Mr Sadler has four previous convictions for driving with excess blood alcohol

– in 1978, 1999, 2007 and 2009.

Additional factual material

[7]    During the course of the hearing, Mr Sadler advised me that he sought and obtained an alcohol interlock licence and that he had an alcohol interlock device fitted to his vehicle on 22 November 2019. However, he had a crash in his vehicle in April 2021. The vehicle was written off by his insurer. He does not currently have a motor vehicle, but an application has nevertheless been made on his behalf for full reinstatement of his driver’s licence.

Analysis

[8]Section 107(4) of the Land Transport Act provides as follows:

107Appeals against court orders relating to disqualification or grant of limited licence, and deferral of disqualification

…

(4)If an application is made to the Court of Appeal for leave to appeal to that court against a sentence of the District Court or the High Court that is or includes an order of disqualification, the High Court may, if it thinks fit, defer the operation of the order pending the application for leave to appeal and, if leave is granted, pending the determination of the appeal.

…

[9]    Mr Sadler submitted that he has good grounds supporting his application for leave to appeal to the Court of Appeal and any resulting appeal in the event that leave is granted. He told me that he needs to be able to drive so that he can get to medical appointments, go shopping and the like. He also told me that he has enrolled in a full-

time course at a tertiary education institution and that he needs to be able to drive to get to that institution. He has limited mobility and has to walk with a walking stick. Irregular surfaces pose difficulties for him.

[10]   Mr Kirkpatrick argued that Mr Sadler’s appeal has little prospect of success in the Court of Appeal and that it in any event is inappropriate to defer disqualification pending the outcome of the appeal. He also argued that Mr Sadler’s application is nugatory, noting that he was disqualified from driving for driving for one month from the date of sentencing – 11 October 2019. He observed that on 22 November 2019, Mr Sadler applied for and received an alcohol interlock licence and had an alcohol interlock device installed in his vehicle. He asserted that Mr Sadler was only a disqualified driver until he received his alcohol interlock licence and that, in terms of s 107(4), there is no “operation of the order” for disqualification to be deferred.

[11]   In my judgment, Mr Kirkpatrick’s interpretation of s 107(4) is correct. Here, Judge Collins disqualified Mr Sadler from driving for a period of one month from 11 October 2019. Mr Sadler was disqualified for that period. Thereafter, he was able to and did apply for an alcohol interlock licence. His application was successful and he had an alcohol interlock device installed in his vehicle. He was no longer a disqualified driver after the expiry of the one month period. The order for disqualification has run its course and there is nothing to defer pending the outcome of the application for leave to appeal to the Court of Appeal and any resulting judgment given on the appeal if leave is granted.

[12]   That is enough to dispose of this matter, but even if I am wrong in relation to this issue, I would not have deferred disqualification pending the outcome of the Court of Appeal hearing. While there is a presumption in favour of granting applications for deferral,3 it is clear that the Court is given a discretion and that that discretion falls to be exercised judicially. Here, deferment is not necessary because it would not render Mr Sadler’s appeal to the Court of Appeal nugatory. The application for leave and any resulting appeal have already been heard by the Court of Appeal and it is likely that the Court of Appeal will issue its decision sooner rather than later. Further, there is a

3      Aualiitia v Ministry of Transport [1983] NZLR 727 (CA).

public interest in road safety. Mr Sadler’s history of drink driving offending, albeit that the most recent offence was over 10 years ago, is, in my view, relevant. It suggests that any extant disqualification should remain in place pending final determination of Mr Sadler’s appeal.

[13]   Accordingly, for the reasons I have set out, I decline Mr Sadler’s application to defer the period of disqualification ordered by Judge Collins.

Wylie J