Scadden v Police
[2020] NZHC 1619
•8 July 2020
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI 2020-463-000047
[2020] NZHC 1619
BETWEEN JEREMY SCADDEN
Applicant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 8 July 2020 Appearances:
A D Hill for the Applicant
G Banuelos for the Respondent
Judgment:
8 July 2020
JUDGMENT OF VAN BOHEMEN J
Solicitors/Counsel:
A D Hill, Barrister (Lawyers on Pukaki, Rotorua) Crown Solicitor (Gordon Pilditch, Rotorua)
SCADDEN v NEW ZEALAND POLICE [2020] NZHC 1619 [8 July 2020]
Introduction
[1] Jeremy Scadden appeals the sentence imposed by the District Court on 9 June 2020 of 60 hours of community work and 12 months’ disqualification for one charge of driving while disqualified.1 Because it was Mr Scadden’s third or subsequent offence, the maximum penalty for the offence was two years’ imprisonment and a mandatory disqualification period of at least 12 months.2
[2] Mr Scadden says the sentencing Judge erred in declining to apply s 94 of the Land Transport Act 1998 (LTA), under which a judge may order a community-based sentence if he or she considers that it would be inappropriate to order than an offender
-be disqualified from holding or obtaining a driver’s licence. The Judge considered he was barred by s 94(4)(aa) of the LTA from considering Mr Scadden for a community-based sentence because Mr Scadden was still subject to an alcohol interlock sentence. Mr Scadden says that the sentencing Judge was wrong in his interpretation of the effect of s 94(4)(aa) and that the matter should be remitted back to the District Court so that it may consider the discretionary factors under s 94.
[3]The sole issue on appeal is the interpretation of s 94(4)(aa) of the LTA.
Factual background
[4] Mr Scadden has had a number of traffic convictions starting in 2016 and has been disqualified from driving on four occasions:
(a)In January 2017, he was convicted of driving with an excess breath alcohol level, fined $500 and disqualified from driving for six months;
(b)In October 2018, he was convicted of dangerous driving and driving with an excess breath alcohol level and was sentenced to 80 hours of community service, ordered to apply for an interlock licence and disqualified from driving for six months;
1 Police v Scadden [2020] NZDC 10501.
2 Sections 32(1) and 32(4) of the Land Transport Act 1998.
(c)In January 2019, he was convicted of driving while disqualified, fined
$500 and disqualified from driving for six months;
(d)In March 2019, he was convicted of driving while disqualified, sentenced to six months’ supervision and disqualified from driving for a further six months.
[5] The present offending occurred in the early hours of 18 January 2020 when Mr Scadden was stopped by Police when driving on Fairy Springs Road, Rotorua. Mr Scadden’s explanation to the police for driving while disqualified was that he was taking home a friend who had had too much to drink.
[6]Mr Scadden pleaded guilty to the charge of driving while disqualified.
[7] Under the alcohol interlock sentence imposed in 2018, Mr Scadden was disqualified from holding any licence other than an alcohol interlock licence. Such a sentence imposes at least a 28-day disqualification and requires the defendant to obtain an alcohol interlock licence and have an alcohol interlock device fitted to his or her car.3 If there are no breaches of that licence within a 12-month period, a defendant may transition to a zero alcohol licence for the next three years.
[8] Prior to the present offending Mr Scadden had failed to apply for an interlock licence or to have an interlock device fitted to his car. As a consequence, he had failed to comply with the terms of the alcohol interlock sentence and was precluded from obtaining any other form of licence until he had completed the requirements of the sentence by obtaining an alcohol interlock licence and having an alcohol interlock device fitted to his car. Subsequent to the offending but before sentencing, Mr Scadden applied for and obtained an alcohol interlock licence.
3 Land Transport Act 1998, ss 65AC and 65AE.
District Court decision
[9] Mr Scadden appeared initially for sentence before Judge Cooper in the District Court in Rotorua. Judge Cooper remanded Mr Scadden on his guilty plea and asked for submissions on whether s 94 of the LTA may apply to his circumstances.
[10] On 9 June 2020, the matter came before Judge Snell of the District Court for sentencing. Judge Snell interpreted s 94(4)(aa) as follows:
[11] … my view is that s 94(4)(aa) indicates that while an alcohol interlock order is currently applying to the defendant, then s 94 is statute barred and cannot apply. That is my interpretation of the legislation.
[11]On that basis, the sentencing Judge imposed the following sentence:
[13] When I look at this matter and look at overall sentencing issues, I would consider, taking into account all of the circumstances surrounding the driving in this instance, that a start point on this of 80 hours community work would be appropriate. I would discount that by 25 percent to 60 hours community work. He has previously had supervision and fines for driving while disqualified and he needs to face the consequences of continually doing so.
[14] Given my view that s 94 does not apply to him, he will be disqualified the minimum amount given under the section which is one year.
[15] He is presently subject to the alcohol interlock order and has now obtained a driver’s licence under the alcohol interlock. However, given that I have found that s 94 does not apply to him, he will be disqualified from today for one year, the statutory minimum that can be applied to him today.
[12]As an addendum, the Judge stated:
[16] I should add that in terms of s 94, I have not addressed the issues of whether you would even fit within s 94 as warranting consideration of that section to have your disqualified dealt with under that section by way of an additional community-based sentence as an alternative to disqualification. I have not addressed that in any way because at the preliminary point as to whether I had jurisdiction in your particular case, where you were subject to an interlock sentence at the time of the offending, and had not obtained the interlock device, I do not believe that I have jurisdiction because it is statute barred. So I leave that entirely to be dealt with at a separate occasion if it gets to that. But I add that as an addendum here in open Court.
Approach to appeals against sentence
[13] Under s 250(2) of the Criminal Procedure Act 2011, the Court must allow the appeal if it is satisfied that there is an error in the sentence imposed on conviction and that a different sentence should be imposed.
[14] In determining whether to impose a different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.4 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.5 The focus is on the end result rather than the process by which the sentence was reached.6
Section 94(4)
[15] The issue on appeal is a narrow one, namely the correct interpretation of s 94(4)(aa) of the LTA. Neither Mr Hill, counsel for Mr Scadden, or Ms Banuelos, counsel for the Crown, was able to find any previous decision in which this aspect of s 94 has been considered.
[16]Section 94 provides:
94 Substitution of community-based sentences
(1)This section applies if—
(a)the offender has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence; and
(b)the court, having regard to—
(i)the circumstances of the case and of the offender; and
(ii)the effectiveness or otherwise of a previous order for disqualification made in respect of the offender; and
(iii)the likely effect on the offender of a further order of disqualification; and
(iv)the interests of the public,—
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
5 Tutakangahau v R, above n 4, at [30]-[35]; and Te Aho v R [2013] NZCA 47 at [30].
6 Tutakangahau v R, above n 4, at [36].
considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver licence; and
(c)the court considers that it would be appropriate to sentence the offender to a community-based sentence in accordance with Part 2 of the Sentencing Act 2002.
…
(4)This section does not apply if—
(a)section 63 or section 65 applies; or
(aa)an alcohol interlock sentence has been ordered under section 65AC(1); or
(b)the offender is prohibited from applying for a limited licence under section 103(2)(a), (b), or (d).
Submissions for Mr Scadden
[17] Mr Hill submits that the Court should adopt a purposive interpretation of s 94(4)(aa). He accepts that, on a strict reading of the provision, it would appear that Mr Scadden is barred from the application of s 94 because he has previously received and is even now currently subject to an alcohol interlock sentence. However, Mr Hill submits that such a strict interpretation runs contrary to the overall purpose of s 94 and could not have been Parliament’s intention. He says the consequence of such a strict interpretation would be to preclude any driver who had, at any stage in his or her life, been subject to an alcohol interlock sentence from making a s 94 application. He submits that such an interpretation would be inconsistent with the legislative history of s 94 and out of balance with other aspects of s 94.
[18] Mr Hill notes that the amendments made to the LTA in 2018 greatly increased the number of drivers who are now subject to an alcohol interlock licence and that it would be inconsistent with that development to interpret s 94(4)(aa) to exclude that increasing number of drivers from the possibility of applying for community work in substitution for yet another period of disqualification from driving. Mr Hill notes that, to the contrary, Parliament’s intention was to make s 94 available to a wider range of drivers in appropriate circumstances in recognition of the fact that endless disqualifications are not an effective deterrent.
[19] For these reasons, Mr Hill submits that s 94(4)(aa) should be interpreted to exclude only drivers who are being sentenced to an alcohol interlock licence at the time of any application for consideration of s 94, and that s 94 should be available for drivers who have been sentenced to an interlock licence in the past. In Mr Scadden’s case, that would mean Mr Scadden could get back on the road under his current interlock licence and progress to a zero alcohol and then a full licence. The alternative is that Mr Scadden would have to wait for another year for the period of disqualification ordered by Judge Snell to run before that process could begin. Mr Hill submits that such an extended wait runs contrary to the purpose of the alcohol interlock licence regime and s 94.
[20] Mr Scadden has also filed a personal statement in accordance with s 82 of the Criminal Procedure Act. In his statement, Mr Scadden explains the circumstances of his most recent offending, acknowledges that he made a lot of mistakes in the past and did not take his driving responsibilities seriously, but says he has grown since and that it would make a huge difference to his life if he could be kept on the road.
[21] I put to one side the fact that such statements are only for use in jury trials.7 I recognise the genuineness of the sentiments expressed but also observe that Mr Scadden should not have been on the road for at least the last 18 months without an alcohol interlock licence.
Submissions for the Crown
[22] Ms Banuelos submits that Judge Snell interpreted s 94(4)(aa) correctly. She notes, by reference to ss 32(3A) and 65AH(3)(b) of the LTA, that the Act does not create a presumption that disqualifications should be avoided where interlock licences are ordered. She also refers to observations made in decisions of the High Court and the Court of Appeal where the courts have recognised that alcohol interlock licences have not completely replaced or obviated the need for periods of disqualification.8
7 Section 81-82 of the Criminal Procedure Act 2011.
8 Perry v Police [2018] NZHC 3246 at [46]; Lally v NZ Police [2019] NZCA 286 at [13].
[23] Further, Ms Banuelos submits that the period of exclusion from the application of s 94 continues to apply until the defendant replaces the alcohol interlock licence with a zero alcohol licence in accordance with the requirements of s 65AC.
[24] Ms Banuelos also says Mr Hill has misinterpreted Judge Snell who, she says, did not say that s 94 cannot apply to any person who has been subject to an interlock licence sentence. Rather Judge Snell held that Mr Scadden was precluded from the application of s 94 because he had not completed his interlock licence sentence so that sentence was still active. Ms Banuelos also says that the reason the sentence was still active is because Mr Scadden did not comply with its terms. It is Mr Scadden’s failure to complete his interlock sentence that has resulted in his being excluded from the operation of s 94 and subject to the mandatory period of further disqualification ordered by Judge Snell.
Discussion
[25] I am grateful to both counsel for their submissions and their helpful analyses of the history behind and language of s 94(4) as it relates to interlock licences and the availability of community detention. I agree with Mr Hill that the provision should be interpreted consistently with Parliament’s intention and that the recent history of amendments to the LTA shows that Parliament has seen greater scope both for the application of alcohol interlock licences and for community detention as a means of breaking the cycle of continued disqualification of recidivist drivers.
[26] Having considered the language of section 94(4)(aa) and related sections, however, I am not persuaded that it is possible to import a particular Parliamentary intention regarding the interplay of the imposition of interlock licence sentences and greater use of community detention in place of periods of disqualification other than that which can be deduced from the language of the relevant sections. As noted in the cases to which Ms Banuelos refers, both the High Court and the Court of Appeal have observed that interlock licences have not completely replaced or obviated the need for periods of disqualification.
[27] As far as the language of s 94(4)(aa) itself is concerned, I agree with Ms Banuelos that Judge Snell did not interpret the provision as meaning that anyone
who has been subject to an interlock licence sentence is precluded from the application of s 94. As noted above, Judge Snell interpreted the section as meaning “while an alcohol interlock order is currently applying to the defendant, then s 94 is statute barred and cannot apply”.9
[28] On the face of the language used in the section, such an interpretation appears correct. The language is s 94(4)(aa) is in the present tense: “has been ordered”. This connotes that there an active order in existence. It excludes orders that have been spent and are no longer active.
[29] Nonetheless, I have considered carefully whether I should adopt the more refined interpretation advanced by Mr Hill under which s 94(4)(aa) would be interpreted to mean, in effect “is ordered” at the time of considering whether s 94 should apply.
[30] An argument against such an interpretation is that if had been intended that s 94 should be limited to that situation, Parliament could have used the words “is ordered” as it did in ss 56(3A) and 56(4A). Those provisions, which together with s 94(4)(aa), were part of the package of amendments made to the LTA in 2017, and which came into force on 1 July 2018, and which made the interlock regime mandatory in the circumstances set out ss 65AB and 65AC.
[31] On the other hand, an argument in support of Mr Hill’s interpretation is that if Parliament had intended to exclude from the application of s 94 any person who is currently subject to an alcohol interlock sentence, it could have done so more clearly by including in s 94(4)(b) a reference to s 103(2)(e), alongside the other references to other categories of persons who, under s 103(2), may apply for a limited licence but, by virtue of s 94(4)(b), are excluded from the application of s 94.
[32] Further support for such an interpretation is gained by considering s 94 in conjunction with s 65AC, which sets out when a Court must impose an alcohol interlock sentence and what that sentence must comprise.
9 Police v Scadden, above n 1, at [11] (emphasis added).
[33]Section 65AC provides:
(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.
[34] Under s 65AC(3), the Court is granted a discretion not to impose what would otherwise be a mandatory alcohol interlock sentence if there are special reasons relating to the qualifying offence. Under paragraph (a), in a case where there are such special reasons, s 94 may apply. Paragraph (b) then provides that in no other case may an alcohol interlock sentence be substituted by a community-based sentence.
[35] Paragraph (a) of s 65AC(3) only makes sense in a context when s 94 is being considered at the time the alcohol interlock sentence is first applied or being considered for application. It does not readily apply to a situation such as the present where someone who has had an alcohol interlock sentence imposed, has failed to comply with the terms of the sentence and is then being sentenced for further driving offences while the alcohol interlock sentence remains active. It is also important to bear in mind that the disqualification that Mr Scadden seeks to avoid by the application of s 94 is not disqualification arising from an alcohol interlock sentence but one for driving while disqualified under s 32.
[36] Perhaps it is not surprising that Parliament did not turn its mind to such a situation. Its expectation would have been that persons who are subject to an alcohol interlock sentence will comply with its terms at least for the period of its application. As noted by Duffy J in Bull v Police:10
… persons in the grip of an alcohol addiction have little real control over their actions from time to time. This is where an alcohol interlock sentence is ideal. The insertion of these devices in an offender's vehicle effectively stops him or her from driving the vehicle after the consumption of alcohol
[37] However, if a person with a predilection, if not an addiction, to driving while disqualified fails to have an interlock device installed when ordered to do so and continues driving regardless, the purpose of the interlock regime is undermined.
[38] It is this last factor that persuades me that it would not be appropriate to interpret s 94(4)(aa) in the narrow sense advanced by Mr Hill. It would be an odd result if a person who has continued to drive without complying with the terms of an alcohol interlock licence could avoid further disqualification for such driving because he or she has now decided belatedly to comply with the terms of the alcohol interlock sentence. As Gordon J said in Perry v Police, periods of disqualification still have an important function under the new regime, operating as both a harm reduction measure and having a punitive element.11
[39] As Ms Banuelos submits, Mr Scadden is in this predicament because of his own actions. The reason he is precluded from avoiding a further period of disqualification is because he has not completed his alcohol interlock sentence. The effect of driving while failing to comply with that sentence has been to extend the period of disqualification that would otherwise apply by virtue of s 65AE. It is also relevant that under that section the period of disqualification is “the greatest of” the periods described in that section and includes periods of disqualification ordered under the new mandatory interlock regime that came into force on 1 July 2018. I note that that regime was in place when Mr Scadden offended in circumstances that required the imposition of the alcohol interlock sentence.
10 Bull v Police [2019] NZHC 899 at [21].
11 Above n 8.
[40] For all these reasons, I have concluded that Judge Snell interpreted s 94(4)(aa) correctly.
Result
[41]Mr Scadden’s appeal is dismissed.
Mr Scadden’s sentence of disqualification from driving
[42] After I had delivered my judgment, Mr Hill advised that Mr Scadden’s sentence of 12 months’ disqualification had stayed by order of a District Court Judge pending the outcome of this appeal after Mr Scadden had served one week of the sentence.
[43] That stay is now lifted as a consequence of my decision. Accordingly, Mr Scadden has 11 months and three weeks of disqualification to serve as from today’s date.
G J van Bohemen J
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