Singh v Police
[2013] NZHC 3065
•19 November 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-000281 [2013] NZHC 3065
BETWEEN JAYRAJ SINGH Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 11 November 2013
Appearances: T M Saseve for Appellant
J B Hamlin for Respondent
Judgment: 19 November 2013
REASONS JUDGMENT OF ELLIS J
This judgment was delivered by Justice Ellis on 19 November 2013 at 4.30 pm
pursuant to R 11.5 of the High Court Rules
Registrar / Deputy Registrar
Date……………………….
SINGH v NZ POLICE [2013] NZHC 3065 [19 November 2013]
[1] On 12 November 2013 I allowed Mr Singh’s appeal against a sentence of indefinite disqualification imposed upon him by Judge Andree Wiltens for his second drink driving offence.1
[2] In effect, I substituted a sentence of alcohol interlock licence disqualification under s 65A of the Land Transport Act 1998 (the Act). I said my reasons would follow. These are my reasons.
Background
[3] By way of background it is relevant to note that:
(a) Mr Singh’s first drink driving conviction was less than 5 years ago;
(b)His breath alcohol level on the first occasion was 899 micrograms of alcohol per litre of breath;
(c) His blood alcohol level on the second occasion was 165 milligrams per 100 milligrams of blood.
[4] In his sentencing notes the learned District Court Judge said:2
Because you have these two convictions within a five year period, s 65(b) applies which means I need to disqualify you indefinitely as from today, which I do. Secondly, I need to invite you to apply for a zero alcohol licence once you have the right to apply again for a driver’s licence, if you manage to persuade the authorities within the next three years that you should be able to drive again on the roads, then you can ask for a licence and that would be a zero alcohol licence which would mean that you would be allowed to drive with no alcohol in the system. If there is any alcohol then you could not drive. That is the only licence you will be able to apply for.
Reasons for quashing sentence of indefinite disqualification
[5] Mr Saseve and Mr Hamlin were agreed that the learned District Court Judge erred in disqualifying Mr Singh indefinitely under s 65. That is because the prerequisites in s 65(3) were not met; the breath or blood alcohol levels were not
high enough on either of the occasions giving rise to Mr Singh’s
1 Singh v NZ Police [2013] NZHC 2969.
2 NZ Police v Singh DC Manukau CRI 2013-092-004976, 18 June 2013 at [2].
convictions to meet the thresholds stipulated there.3
Reasons for substituting sentence of alcohol interlock licence disqualification
[6] It was also agreed that, because s 65 did not apply to Mr Singh, the disqualification aspect of his sentence fell to be determined under either s 56 and/or s
65A of the Act.
[7] Section 56 relevantly states:
Contravention of specified breath or blood-alcohol limit
(1) A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person's breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, exceeds 400 micrograms of alcohol per litre of breath.
(2) A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person's blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or section 73, exceeds
80 milligrams of alcohol per 100 millilitres of blood.
(3) If a person is convicted of a first or second offence against subsection (1) or subsection (2), –
(a) the maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500; and
(b) the court must order the person to be disqualified from holding or obtaining a driver licence for 6 months or more.
...
(6) The imposition of a mandatory disqualification under this section is subject to section 81.
3 Section 65(3) provides that a court may not impose indefinite disqualification under s 65(2)
unless at least one of the two relevant offences was -
(a) An offence to which this section applies where either
(i) The proportion of alcohol in the person's breath, as ascertained by an evidential breath test, exceeded 1,000 micrograms of alcohol per litre of breath; or
(ii) The proportion of alcohol in the person's blood, as ascertained from an analysis of a blood specimen, exceeded 200 milligrams of alcohol per 100 millilitres of blood; or
(b) An offence against section 59 or section 60 (which relate to failing to remain or to accompany or to permit a blood specimen to be taken for the purposes of the administration of breath tests and blood tests).
[emphasis added]
[8] Section 65A provides:
Alcohol interlock requirements for repeat offences or certain first time offences involving use of alcohol
(1) This section applies if -
(a) a court convicts a person of an offence involving the use of alcohol against any of sections 56(1), 56(2), 57(1), 57(2),
58(1)(a), 60(1)(a) to (c), 61(1), 61(2), and 62(1)(a); and
(b) either –
(i) the person convicted has previously been convicted of such an offence committed within 5 years of the date of the commission of the offence being dealt with by the court; or
(ii) the offence for which the person is convicted under paragraph (a) involves either or both of the following:
(A) the proportion of alcohol in the person’s breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, is 800 micrograms of alcohol per litre of breath or higher:
(B) the proportion of alcohol in the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or 73, is 160 milligrams of alcohol per 100 millilitres of blood or higher.
(2) If this section applies, the court must, if the court imposes a sentence for an alcohol interlock licence disqualification,—
(a) disqualify the person from holding any driver licence for a period of 3 months; and
(b) make an order that—
(i) authorises the person to apply for an alcohol interlock licence at the end of the 3-month disqualification period; and
(ii) requires the person, while holding an alcohol interlock licence, to –
(A) drive only a vehicle or vehicles to which an alcohol interlock device is fitted; and
(B) apply for a zero alcohol licence, which the Agency may issue only on successful completion of the criteria specified in subparagraph (iv); and
(iii) provides that the person may apply for any other driver licence (including, but not limited to, a limited licence) only if the person has obtained, and has satisfied the requirements of, the alcohol interlock licence; and
(iv) provides that the alcohol interlock device in the person’s vehicle may be removed only if the person
–
(A) has held the alcohol interlock licence for at least 12 months; and
(B has not violated any of the requirements of the alcohol interlock licence during the 6-month period preceding the date on which the alcohol interlock device is removed, or has completed an assessment and has not violated any of the requirements of the alcohol interlock licence during the 3-month period preceding the date on which the alcohol interlock device is removed; and
(v) ends the person's disqualification under section 65, if the person was disqualified under section 65.
(3) The imposition of a mandatory disqualification under this section is subject to section 81.
(4) A person who is subject to an order under subsection (2) and does not apply for an interlock licence is to be treated as a person with a licence of no effect.
(emphasis added)
[9] It may be observed at this point that s 56(3) provides that disqualification for a period of greater than 6 months seems to be mandatory in a case such as Mr Singh’s. At the same time, however, s 65A expressly contemplates that a sentence of alcohol interlock licence disqualification may be imposed when s 56(3) is engaged. In the event that the s 65A course is followed, subsection (2)(a) makes it clear that the disqualification imposed is limited to a lesser, 3 month, period. I will return to the apparent inconsistency between the two provisions shortly.
[10] Because of the lesser three month disqualification period in s 65A, Mr Singh asked that his substituted sentence be one of alcohol interlock licence
disqualification. That is because Mr Singh’s ability to drive is vital to his continued employment. Moreover, although the cost of fitting an alcohol interlock device may sometimes prove to be a practical impediment to the imposition of a sentence under s 65A, that is not so in his case.4
[11] Mr Hamlin for the Police did not oppose the substitution of an alcohol interlock licence disqualification but also did not have instructions to consent to it. I needed nonetheless to be satisfied that the statute permits such a sentence (which requires resolving the apparent inconsistency to which I have referred above) and that it is appropriate in Mr Singh’s case.
Is an alcohol interlock licence disqualification sentence available in this case?
[12] As I have said, there is in my view an interpretive issue arising from the different and apparently equally mandatory periods of disqualification stipulated in s 56(3) and s 65A. The problem is arguably compounded by the fact that s 65A(2) expressly recognises and resolves the similar inconsistency that arises in a case in which the mandatory indefinite period of disqualification stipulated in s 65 would otherwise apply. Section 65A(2)(b)(v) makes it clear that if the Court wishes to impose an alcohol interlock sentence it may do so, notwithstanding the apparently
obligatory terms of s 65.5 There is no equivalent provision dealing with the conflict
with s 56.
[13] Notwithstanding this, however, I am confident that in an appropriate case it is open to the Court to apply s 65A according to its terms.
[14] First, s 56(6) (like s 65A(3)) states that the imposition of a mandatory disqualification under this section is subject to section 81.
4 The costs associated with an alcohol interlock licence were noted by Woodhouse J in Collier v
Police [2013] NZHC 2273 where at [25] he said:
... However, there are possible financial barriers to completing an application, or at least to maintaining the licence. There is an application fee of $200 and an installation fee of $150 to $175. More significantly, there is a rental fee for the mandatory 12 month period of between $1,800 and $2,100.
5 Paragraph (v) provides that if an alcohol interlock licence disqualification is imposed, the order
“ends the person’s disqualification under s 65, if the person was disqualified under s 65.”
[15] Section 81(1) provides that the mandatory disqualification periods prescribed in the Act are (indeed) mandatory, unless “for special reasons relating to the offence [the court] thinks fit to order otherwise”. This provision is of no direct assistance in the present case, although it does indicate that apparently mandatory disqualification may not always be mandatory. Of more relevance, though, is subsection (2) which states that:
(2) Nothing in any provision referred to in subsection (1)6 ... restricts any other ... power of the court to disqualify a person from holding or obtaining a driver licence ... or to impose any other penalty.
[16] In circumstances where there are two conflicting but equally mandatory applicable disqualification periods, therefore, s 81(2) permits the Court to choose between them. While, on that analysis, there would have been no need for s
65A(2)(b)(v) to have been included, equally, the inclusion of that provision suggests that Parliament intended give the court a discretion not to apply the former mandatory disqualification periods in circumstances where interlock disqualification is more appropriate. Furthermore, s 65A(1) expressly states that the section appliesif a person is convicted for an offence against (inter alia) s 56.
[17] All these factors, in my view, mean that, in appropriate cases, s 65A can be interpreted to enable the Court to impose a sentence of disqualification under s 65A rather than under s 56. There is probably no need to resort to other rules of statutory
interpretation which might also assist.7
6 The provisions “referred to in subsection (1)” are simply “any provision of this Act (other than s
63)” which “requires a court to disqualify a person from holding or obtaining a driver licence or transport service licence for a period not less than the specified minimum period …”. They would therefore include s 56(3).
7 Rules such as generalia specialibus non derogant. Here it might, for example, be said that in cases where it is appropriate to impose the more detailed and prescriptive sentence of an interlock licence disqualification under s 65A, then the specific terms of s 65A should override
the general (6 month minimum disqualification period) contained in s 56(3). That would be
consistent with Parliament’s intention in introducing s 65A (and its companion provision s 65B) which was to address the problem of repeat drink driving by giving the courts “a new tool in the toolbox” (Hon Steven Joyce, Minister of Transport, Third Reading (5 May 2011) 666 NZPD at
18424). For similar reasons, the principles discussed in cases such as R v Hudson [2007] NZCA
363 might assist.
Is an alcohol interlock licence disqualification sentence appropriate here?
[18] In terms of the appropriateness of a sentence of alcohol interlock licence disqualification, I have already noted that Mr Singh’s ability to drive is critical to his continued employment and that he is able to meet the cost associated with such a sentence. In that respect it is relevant to note that although the Court’s power is limited to “authorising” an offender to apply for such a licence, the reality is that the Land Transport Agency has no meaningful power to refuse to grant one. That is made clear by s 30 of the Act, which is (rather oddly) entitled “Driver licences are property of Agency and are to be surrendered in certain circumstances”. But s 30(5) provides that:
(5) The Agency must, subject to sections 82A, 83, and 105(6A)8 and as soon as practicable after being satisfied that a person is entitled to apply for and be granted a driver licence, -
...
(b) in the case where a court authorises the issue of an alcohol interlock licence, issue an alcohol interlock licence to the person; or
(c) in the case where a court authorises the issue of a zero alcohol l icence, issue a zero alcohol licence to the person; ...
(emphasis added)
[19] Other than the Court’s prior authorisation, the only other prerequisites for the
grant of such a licence are found in Regulations promulgated under the Act, namely:
(a) Regulation 4 of the Land Transport (Alcohol Interlock) Regulations
2012, which provides that a person who applies for a licence under the authority of an order made under section 65A(2)(b)(i) must:
(a) make an agreement with a provider to lease from the provider a device for the vehicle that the driver drives; and
(b) ensure that the provider gives the driver a written or electronic statement that the device was in good working order when it was installed.
8 Sections 82A, 83 and 105(6A) appear to me to have no relevance where alcohol interlock licences or zero alcohol licences are concerned.
(b)Regulation 7 of the Land Transport (Driver Licensing and Driver Testing Fees) Regulations 1999, which provides that if an order is made authorising a person to apply for an alcohol interlock licence under section 65A(2), the person to whom the licence is issued must pay the appropriate fee specified in Part 7 of the Schedule to those Regulations.
[20] Lastly, it is relevant to note that failure to apply for such a licence in accordance with the Court’s authorisation simply means that the offender’s disqualification would continue. That is made clear by both s 65A(4) and also by s 82A, which provides that where a person is disqualified for less than 12 months the person’s driver licence remains of no effect when the period of disqualification ends until:
(a) the person applies to the Agency to have the licence reinstated; and
(b) the Agency reinstates, if permitted by the regulations or the rules, the
person’s licence in accordance with the regulations and the rules.
[21] Accordingly there is my view no impediment to the Court authorising an alcohol interlock licence disqualification in Mr Singh’s case and in my view it would be consistent with (in particular) ss 7(g), 7(h) and 8(g) of the Sentencing Act 2002 and with the purposes of the Land Transport Act, to do so.
Zero Alcohol Licence
[22] I have already noted at [4] above that as well as disqualifying Mr Singh indefinitely under s 65, Judge Andree Wiltens also “invited” him to apply for a zero alcohol licence once he had the “right” to apply again for a driver’s licence.
[23] Zero alcohol licences are governed by s 65B, which provides:
Mandatory zero alcohol requirements for repeat offences involving use of alcohol
(1) This section applies if –
(a) a court convicts a person of an offence against any of sections 56(1),
56(2), 57(1), 57(2), 57AA, 58(1)(a), 60(1)(a) to (c), 61(1), 61(2), and
62(1)(a); and
(b) the person convicted has previously been convicted of such an offence committed within 5 years of the date of the commission of the offence being dealt with by the court.
(2) If this section applies, the court must make an order authorising the person to apply for a zero alcohol licence that has effect for a period of 3 years from the issue of the licence.
(3) A person authorised under subsection (2) may apply for a zero alcohol licence, –
(a) in the case of a person who is subject to 1 or more orders of disqualification, no earlier than the day after the end of the last period of disqualification to which the person is subject; or
(b) in the case of a person who is subject to an order made under section
65A(2)(b), when the Agency makes an order under section 100A(1).9
[24] Because Mr Singh had committed an offence against s 56 and had previously been convicted for such an offence within the last five years, the Court was required to authorise him to apply for a zero alcohol licence under s 65B(2), and that is what Judge Andree Wiltens did. Under s 65B(3)(a), Mr Singh would have been authorised to apply for such a licence once his indefinite disqualification under s 65 was lifted.
[25] For the reasons I have already given, however, the learned Judge was wrong to impose a sentence of indefinite disqualification on Mr Singh. And instead of a sentence involving the apparently mandatory disqualification period stipulated in s
56(3) I have found that Mr Singh’s should receive instead an alcohol interlock licence disqualification.
[26] In alcohol interlock licence cases, s 65A(2)(b) requires the Court to make an order requiring Mr Singh to apply for a zero alcohol licence after the 3 month disqualification period but while the interlock licence remains in force. The section also provides that the Agency may only grant such an application when the offender
has successfully completed “the criteria specified in subparagraph (iv)”. The criteria
9 The grounds for making an order under s 100A(1) in fact replicate the grounds upon which an application for an order can be made specified in s 65A(2)(b).
in subparagraph (iv) relate to the circumstances in which the interlock device may be removed, namely where the offender has held the alcohol interlock licence for at least 12 months; and
(a) has not violated any of the requirements of the alcohol interlock licence during the 6-month period preceding the date on which the alcohol interlock device is removed, or
(b)has completed an assessment and has not violated any of the requirements of the alcohol interlock licence during the 3-month period preceding the date on which the alcohol interlock device is removed.
[27] In my view it is not necessary for the Court to give any further, additional, authority to apply for a zero alcohol licence under s 65B. Moreover there is in my view there is no question that the term of any such licence would be for three years (s 65B(2)) running from the date on which it is granted.
Summary
[28] In the interests (I trust) of clarity, I consider that the statutory effect of the sentence of an alcohol interlock licence disqualification in Mr Singh’s case is that:
(a) he is disqualified from driving for 3 months;
(b)he is authorised to apply for an alcohol interlock licence at the expiry of that period;
(c) if he does not do so, he would be deemed to be a person with a licence of no effect by virtue of s 65A(4) and his disqualification would continue by virtue of s82A;
(d) after he has held the alcohol interlock licence for 12 months
(s 65A(iv)(A)) he is:
(i)able to apply to have the alcohol interlock requirements removed from his licence (and the device removed from his car); and
(ii) authorised to apply for a zero alcohol licence;
(e) once such an application is made, the Agency is required to remove the alcohol interlock requirements and grant the zero alcohol licence provided he:
(i)has not violated any of the requirements of the alcohol interlock licence during the preceding six-month period; or
(ii)has completed an assessment and has not violated any of the requirements of the alcohol interlock licence during the preceding three-month period;
(f) the term of the zero alcohol licence, once granted, is three years
(s 65B(2)).
Rebecca Ellis J
8