Smith v Police

[2022] NZHC 1496

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-59

[2022] NZHC 1496

BETWEEN

JACOB ALLAN SMITH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	15 June 2022
Appearances:	A L Hollingworth and K E Bucher for Appellant G E R Alloway for Respondent
Judgment:	27 June 2022
Reissued:	1 August 2022

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 27 June 2022 at 2.15 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

SMITH v NEW ZEALAND POLICE [2022] NZHC 1496 [27 June 2022]

Introduction

[1]    Jacob Smith was sentenced  in  the  District  Court  by  Judge  Couch1  on  one charge of driving while disqualified.2 At sentencing Mr Smith applied under s 94 of the Land Transport Act 1998 (the Act) for the Court to substitute the mandatory six month disqualification period with a community-based sentence. The Judge found Mr Smith’s traffic conviction history prohibited the application and fined Mr Smith

$300, ordered him to pay court costs of $130, and disqualified him from driving for the minimum period of six months.

[2]    Mr Smith appeals. He says the Judge erred in concluding his traffic history prohibited the s 94 application from being considered on its merits.

The facts

[3]    The offending for which Mr Smith was sentenced was unremarkable. He had been disqualified from driving on 24 January 2022 for a period of six months. However, at approximately 8:20 pm on 14 February 2022, he was seen driving into the Christchurch Hospital public carpark before parking and walking into Hagley Park.

[4]    Mr Smith’s prior convictions are also relevant to the current appeal as they were held to preclude him from applying under s 94 for a community-based sentence instead of a further disqualification.

[5]    On 30 September 2020, Mr Smith committed the offence of carelessly operating a motor vehicle causing injury. On 24 February 2021, he was sentenced to pay reparation of $900 and was disqualified from driving for seven months.   On    11 November 2021, Mr Smith drove with excess breath alcohol. He was sentenced on 24 January 2022 to a fine of $350 plus court costs and was disqualified from driving for six months.

1      Police v Smith [2022] NZDC 5464.

2      Land Transport Act 1998, ss 32(1)(a) and 32(2).

The legislation

[6]    Section 94 of the Act permits a sentencing judge to impose a community-based sentence instead of a mandatory period of disqualification. Such a decision is made having regard to:3

(i)the circumstances of the case and of the offender; and

(ii)the effectiveness or otherwise of a previous order of 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 …

[7]    An offender will only be eligible for such a sentence if he or she has previously been the subject of an order for disqualification.4 However, s 94(4) also provides:

(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).

[8]    Section 103(2)(d) (which is the relevant subsection in this case) provides as follows:

(2)The following persons may not apply under this section for an order under section 105 authorising the grant of a limited licence:

…

(d)a person who is disqualified by an order made on his or her conviction—

(i)for an offence against any of sections 35, 36, 38, and 39 (which relate to reckless or dangerous driving, careless or inconsiderate driving causing injury or death, and failing to stop after an accident); or

3      Land Transport Act, s 94(1)(b)(i)–(iv).

4      Section 94(1)(a).

(ii)for an offence against any of sections 56, 57A, 58, 50, 61, and 62 (which relate to offences involving alcohol or drugs); or

(iii)for an offence against section 33(1) (which relates to applying for or obtaining a driver licence while disqualified from doing so); or

(iv)for an offence against a provision of the Transport Act 1962 that corresponds to an offence specified in any of subparagraphs (i) to (iii)—

committed within 5 years after the commission of any other offence specified in this paragraph and arising from a different incident (whether or not both offences are of the same kind, regardless of when convictions were entered for those offences):

…

[9]    At issue on this appeal is whether, as the appellant submits, s 94(4)(b) should be interpreted pre-emptively, applying s 103(2)(d) to the proposed disqualification period which would result from the active charge or whether, as the respondent submits, the reference to s 103(2)(d) in s 94(4)(b) applies to the circumstances which exist at the time of sentencing.

The District Court decision

[10]   Judge Couch noted Mr Smith had two convictions within the last five years that fell within the scope of s 103(2)(d).5 The Judge found the plain wording of that section appeared to be that if any of the offences specified in that section (a specified offence) were committed within five years of any other specified offences, the offender would not be permitted to apply for a limited licence.6

[11]   The Judge considered the decisions in Trainor v Police and Governor v Police.7 He did not consider they arose out of circumstances directly comparable to Mr Smith’s situation. The Judge first distinguished Trainor. In that case, Nation J rejected the submission that because s 103(2)(d) referred to “is disqualified” in the present tense,

5      I note the Judge referred to the dates Mr Smith was convicted for these offences despite the Act stating it is the date of the offending that is relevant. However, regardless of which date is taken, both offences were within the five-year period.

6 At [4].

7      Trainor v Police [2019] NZHC 209; and Governor v Police [2021] NZCA 403.

it did not include offences for which the period of disqualification had ended. In any event, Nation J decided the appeal very much on the merits. Similarly, the Judge considered Governor related to a distinctly different fact situation, where the primary issue was whether the offender could apply under s 94 when she was subject to an alcohol interlock licence.

[12]   Instead, the Judge relied on Lang J’s decision in Admore v Police, a case not referred to by counsel.8 The Judge referred to the following excerpt from that case:

[43]These factors lead me to conclude that the sentencing Judges in the present case correctly interpreted the manner in which s 94(4) is to be applied. I consider that Parliament intended that the benefit of s 94 should not be available to offenders who have been convicted of the offences specified in s 103(2)(a) , (b) and (d) within the previous five years, regardless of whether or not they were still disqualified from driving when sentenced for later offending. The fact that Parliament has seen fit to include recidivist offenders who drive whilst disqualified within the category of persons who are eligible to receive the benefit of s 94 means only that it views such offenders in a different light and deserving of a different approach to sentencing.

[44]I therefore consider that s 94(4)(b) must be interpreted as meaning that an offender will not be eligible to receive a community-based sentence under s 94 if he or she would not, if an order for disqualification was imposed in relation to current offending, be eligible to apply for a limited licence by virtue of s 103(2)(a), (b) or (d) of the Act.

The Judge concluded, applying Admore, if Mr Smith were disqualified on the current charge he would not be able to apply for a limited licence because of his two specified offence convictions in the last five years. For that reason, the Judge held it was not open to him to consider an application under s 94.

Principles on appeal

[13]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.9

8      Admore v Police HC Auckland CRI-2008-404-245, 3 December 2009.

9      Criminal Procedure Act 2011, ss 250(2) and 250(3).

[14]   In this case the question is whether the Judge erred in finding he had no jurisdiction to apply s 94. Although the material supporting the substantive application under s 94 was before me, I explained that if I found the Judge erred on the jurisdictional issue, I would remit the substantive application back to the District Court for consideration.

Submissions on the jurisdictional issue

Appellant’s submissions

[15]   Ms Hollingworth submitted the issue on appeal was whether s 94(4)(b) applies to Mr Smith, making him an offender who is prevented from applying for a limited licence by the operation of s 103(2)(d) of the Act. She accepted Mr Smith had relevant convictions for offending on 11 November 2021 and 30 September 2020. However, she emphasised that his s 94 application (and therefore the appeal) was directed at the period of disqualification which was to be imposed by the Judge on the active charge, rather than the existing disqualification running from 24 January 2022 to 23 July 2022.

[16]   She submitted it was important that s 103(2)(c), which prevented defendants who are disqualified on conviction for driving while disqualified from applying for a limited licence, was specifically excluded from s 94(4). She argued such exclusion illustrated Parliament’s intention that defendants who breached a court-ordered disqualification could utilise s 94, but those repeatedly committing offences which posed risks to public safety, could not. She submitted this was logical because disqualifications are normally about road safety,10 with the exception of disqualifications following conviction for driving while disqualified, which are usually punitive.11

[17]   Ms Hollingworth’s key contention was that s 103(2)(d) only applies if one of the offender’s active charges is a specified offence committed within five years of another specified offence. She submitted s 94(4) requires pre-emptive application, as was accepted in Admore v Police, with a focus on whether, if a disqualification were

10     Leaupepe v Police [2015] NZHC 1766 at [8].

11     Lambert v Police HC Rotorua AP62/90, 11 October 1990 at [7].

imposed in relation to the current offending, the offender would be prevented from applying for a limited licence by s 103(2)(a), (b) or (d).

[18]   Ms Hollingworth accepted a literal reading of s 94(4) and s 103(2)(d) may suggest a defendant is ineligible to make a s 94 application until the disqualification period imposed on earlier specified offending had expired and this was the interpretation adopted in Trainor. However, Ms Hollingworth argued the Court of Appeal’s approach to the interpretation of s 94(4)(aa) in Governor should be applied to s 94(4)(b). While acknowledging the Court of Appeal had not expressly considered Trainor, she submitted the Court had effectively rejected Nation J’s reasoning in that decision and preferred an enabling approach to s 94.

[19]   Ms Hollingworth also submitted the Judge erred in finding Admore was a directly comparable case. She distinguished it on the basis the offenders there were charged with specified offences under s 103(2)(d) and so their circumstances were different from Mr Smith’s. Ms Hollingworth also referred to and analysed the very recent authority in Cadle v Department of Corrections, saying it supported the interpretation of s 94 she was advancing.12

[20]   Ms Hollingworth also observed that, if the availability of a s 94 application rests on whether or not a previous disqualification period had been served, defendants could tactically delay their guilty plea on a non-specified charge until the previous disqualification order had been served, then plead guilty and mount a s 94 application. They would then be eligible despite no change in the actual offending that brought them before the Court.

Respondent’s submissions

[21]   Mr Alloway, for the Crown, submitted the issue was whether Mr Smith falls within s 103(2)(d) because he is still subject to a disqualification order resulting from the commission of a second specified offence.13 Mr Alloway submitted that issue

12     Cadle v Department of Corrections [2022] NZHC 1222.

13     This was not the District Court Judge’s reasoning.

turns on the meaning of “a person who is disqualified” in s 103(2)(d). He observed three interpretations were available, essentially representing past, present and future:

(a)a person who has been disqualified for a second specified offence;

(b)a person who is currently disqualified for a second specified offence; or

(c)a person who is liable to be disqualified for a second specified offence.

[22]   Mr Alloway submitted Mr Smith would be prohibited under either (a) or (b) but not (c) because Mr Smith was not liable to be disqualified for a specified offence. Mr Alloway submitted the correct interpretation was s 103(2)(d) prohibits defendants falling into both categories (b) and (c) above.

[23]   Mr Alloway submitted this appeal involved the same issue that was determined by Nation J in Trainor. He submitted the interpretation advanced on Mr Smith’s behalf departed from the plain meaning of the words “is disqualified” in s 103(2)(d). He maintained this is temporal language, ordinarily meaning “is presently/currently disqualified”, and Cadle only rejected the proposition that “is disqualified” means “has been disqualified”.

[24]   Mr Alloway accepted, in accordance with Governor, that limited weight can be placed on the plain meaning of the Act due to drafting deficiencies, with more weight instead placed on policy. However, he submitted the intention and policy behind s 94, as articulated in Admore, is to rehabilitate recidivist disqualified drivers who do not have recent serious road safety offences.14

[25]   Mr Alloway submitted the different interpretations can be analysed under the question: how recent do the serious road safety offences need to be for the prohibition to apply? He submitted if the prohibition extended to persons who have been disqualified for a second specified offence within five years of a first specified offence, then those offences might not be recent at all. If the prohibition extended to persons

14     Admore v Police, above n 6, at [40] and [41].

who are currently disqualified for a specified offence or are to be disqualified for a specified offence having just been convicted, then the offence is likely to be recent. On that basis Mr Alloway submitted policy justifies the prohibition extending to offenders who are, at the time of sentencing, subject to disqualification for a second specified offence. He argued Parliament’s intention is clearly that drivers who are convicted of a second specified offence should not be on the road, even for a limited purpose, that being the justification for the disqualification and for them being prohibited from applying for a limited licence. He also distinguished the decision in Governor, submitting it engages different policy considerations as it involved an offender who was subject to an alcohol interlock sentence.

[26]   Mr Alloway submitted there is a good reason to prevent Mr Smith from driving as he has recently committed two serious road safety offences and the plain wording of s 103(2)(d) indicates Parliament has deemed people who have committed two recent specified offences under s 103(2)(d) are too unsafe to be on the road.

[27]   Mr Alloway accepted some defendants may be motivated to adjourn sentencing or seek to delay conviction until their disqualification period is over so they may apply under s 94. He accepted there will be examples of defendants who are precluded from applying because they are, at the time of sentencing, completing the last week of their disqualification. However, he submitted that was true of any temporal limit imposed by the law. In this case Mr Alloway submitted the underlying policy is about the recency of serious driving offences and it is inevitable that a line will be drawn in the sand.

Analysis

Does the commission of two specified offences within the last five years preclude an application under s 94?

[28]   The Judge determined Mr Smith could not apply for substitution of a community-based sentence for a sentence of disqualification because he had committed two specified offences within the last five years (and within five years of each other). He did not address the argument for Mr Smith, which was that s 94(4)(b) should be interpreted in a forward-looking way and thus s 103(2)(d) should be read as

applying to the sentence of disqualification which would be imposed on the current charge (unless the application under s 94 was successful).

[29]   I first consider whether the commission of two specified offences within the preceding five years would preclude an application under s 94. This issue was addressed by Gwyn J in Cadle v Department of Corrections.15 She considered whether an offender would be ineligible to apply under s 94 if they had twice been disqualified for a specified offence in the preceding five years.16 Gwyn J accepted the deficiencies in the drafting of the Act meant limited weight could be placed on the precise wording of its provisions. She followed the approach of the Court of Appeal in Governor, which emphasised the construction of the legislation must be consistent with its purpose. She found that that approach shifts the focus of the mandatory disqualification scheme to the purpose of s 94 rather than its precise wording.17

[30]   Considering the purpose of s 94, which was to enable repeat offenders to get off a never-ending cycle of disqualification and the fact Mr Cadle would be an appropriate candidate for the exercise of the s 94 discretion, Gwyn J did not consider denying Mr Cadle the benefit of an application under s 94 was consistent with Parliament’s  intention  in  enacting  the   provision.   The   fact   Mr   Cadle   had two disqualifications for specified offences in the previous five years did not preclude an application under s 94 on a charge of driving while disqualified.

[31]   Gwyn J was, however, careful to restrict that finding to offenders in Mr Cadle’s position. She referred to Trainor, where the offender was being sentenced for driving while disqualified while still subject to disqualification for dangerous driving.18 It was relevant to her decision that Mr Cadle was not subject to a disqualification for a specified offence at the time of sentencing.19

[32]   Accordingly, I consider Cadle confirms that the commission of two specified offences in the previous five years is not, of itself, an impediment to an application

15     Cadle v Department of Corrections, above n 10.

16 At [25].

17     At [26] citing Governor v Police, above n 5, at [47].

18     Trainor v Police, above n 5.

19 At [32].

under s 94, as the Judge assumed. The real issue is that addressed in submissions, which is whether an applicant serving a current disqualification for a second specified offence, should be excluded from applying under s 94 to avoid a further disqualification on a non-specified offence.

When should s 103(2)(d) be applied when considering whether there is jurisdiction to grant a s 94 application?

[33]   The first significant case on the issue of how s 94(4) and s 103(2)(d) should be interpreted was Trainor v Police. In that case, Nation J noted Mr Trainor was subject to a disqualification for a charge of dangerous driving committed within five years of another charge of dangerous driving. Mr Trainor was before the Court on a charge of driving while disqualified. The District Court Judge had imposed a further period of disqualification on the driving while disqualified offence that was to begin after the existing disqualification had ended, and Mr Trainor appealed that decision.

[34]   Nation J applied what he considered was the plain meaning of the legislation. He determined the appropriate time for considering whether s 94 applied is at sentencing, when the Court is considering whether there should or had to be a further period of disqualification. He found it was clear from ss 94(1)(c) and 94(3) that s 94 is about what the Court might do when sentencing an offender. Nation J determined the fact the further period of disqualification was not to begin until after the existing period had ended did not change the fact that, at the time the Judge had to consider whether s 94 was available, Mr Trainor was subject to the existing period of disqualification.

[35]   Nation J found the appellant’s submission required him to interpret the words “a person who is disqualified” in s 103(2)(d) as “a person who is liable to be disqualified”.20 He did not consider such an interpretation was available.

[36]   Mr Smith was disqualified for a second specified offence at the time of sentencing so, applying Trainor, s 94 would be unavailable. While Trainor is plainly not favourable to Mr Smith, it is the closest case to his circumstances. The question

20 At [24].

is whether the approach to the interpretation of the Act emerging in more recent case law affects Nation J’s analysis and ought to change the position.

[37]   At the outset I reject the respondent’s submission that the focus should be on the interpretation of the words “is disqualified” in s 103(2)(d). Ms Hollingworth made it clear that she was focusing on the interpretation of s 94(4)(b) not on s 103(2)(d). Section 103 is drafted for a specific purpose, which is the grant of a limited licence. It assumes a disqualification is already in place. What is at issue is whether, when applying s 94(4)(b), the disqualification referred to in s 103(2)(d) should be read as referring to the proposed disqualification on the active charge, or to an existing disqualification.

[38]   The Judge in Admore did not place weight on the wording used in s 103(2)(d) because he considered it was plainly not drafted with s 94(4)(b) in mind.21 He concluded s 94(4)(b) needed to be interpreted (and s 103(2)(d) read) in the hypothetical situation of an order being made for disqualification on the current offending. The fact s 103(2)(d) has been subsequently amended to include driving with excess breath alcohol offending (thereby forming an arguably less serious class of specified offences than existed previously) further supports this proposition. In my view, the language of s 103(2)(d) would not justify s 94 being read down if that would be inconsistent with s 94’s purpose.

[39]   In Governor, the Court of Appeal made the following general comments about the purpose of s 94:22

[40]   Section 94 is an enabling provision. It was enacted to permit the Court to impose a community-based sentence, which might be advantageous and in the public interest for any number of reasons. However, the Court is not required to impose such a sentence. It must be satisfied that a further period of disqualification is inappropriate having regard to the matters in s 94(1)(b), and that a community-based sentence would be appropriate. The nature of the offending for which the offender is before the Court, and his or her driving record, will be relevant to whether a community-based sentence is an appropriate substitute for disqualification. Section 94(1)(b)(i) expressly requires the Court to have regard to the circumstances of the case and of the

21 At [26].

22     Governor v Police, above n 5.

offender and, as this Court said in Lally v Police, disqualification periods still have an important function under the new regime.²³

[41]   That an offender is subject to an interlock sentence does not in itself seem to provide good reason to preclude a community-based sentence under s 94 if it would otherwise be appropriate. By way of example, on the broad construction, a driver subject to an interlock sentence subsequently convicted of, say, careless driving (whether the offence was committed before or after the qualifying offence) could not be ordered to serve a community-based sentence in lieu of disqualification. We do not consider that result consistent with Parliament’s intention in enacting s 94.

[40]   The Court of Appeal also considered submissions to the effect the broad construction (being that anyone who had already been required to serve an alcohol interlock sentence would be precluded from applying under s 94), cannot have been intended because of apparent inconsistencies in the legislation. While acknowledging those inconsistencies, the Court instead relied on the fact the broad construction was inconsistent with the purpose of s 94.24  Although the lower Courts had found the broad interpretation was the “most natural meaning” of the words “has been ordered” in     s 94(4)(aa), the Court considered the purpose of s 94 supported a narrow construction of the exceptions under s 94(4). Consequently, s 94(4)(aa) did not preclude a community-based sentence being imposed in lieu of a period of disqualification arising under another provision of the Act.

[41]   The purpose of ss 94(4)(b) and 103(2)(d) was also considered in Admore. As Lang J noted, when enacted, s 94 did not contain a reference to s 103(2)(d).25 It was amended to include the reference to s 103(2)(d) in 2005 by the Land Transport Amendment Act 2005. Importantly the 2005 Amendment Act also relaxed a requirement that applicants have at least one year of an existing disqualification left to serve. Lang J referred to the Select Committee report on the 2005 amendments, where the Select Committee said it was appropriate to extend the scope of the provision to include disqualified drivers who are caught in a cycle of disqualified driving but have no other recent convictions for serious road safety offences (although without limiting its application to a wider group).

23     Lally v Police [2019] NZCA 286 at [13].

24     Governor v Police, above n 5.

25 At [35].

[42]   Lang J considered the Select Committee did not intend a community-based sentence to be available under s 94 to persons who had recent convictions for serious road safety offences, taking “recent” to refer to persons who have committed those offences in the previous five years.26 That said, he also recognised Parliament saw fit to include recidivist offenders who drive while disqualified within the category of persons who are eligible to apply under s 94, indicating Parliament viewed such offenders in a different light and deserving of a different approach to sentencing.27 However, I note that in Admore, the Judge was considering the issue of whether s 94 was available to offenders liable to be disqualified on a second specified offence, which is not the case here.

[43]   In Cadle, Gwyn J explained the purpose of s 94 was to enable repeat offenders to exit a never-ending cycle of disqualification where a disqualification leads to further offending and further periods of disqualification.28 She considered the Court of Appeal had implicitly rejected the “strict analysis” adopted in Admore.29 In her view, the broad purposive approach in Governor made the case “a readily transferable decision when applying s 94 to contexts other than the alcohol interlock context”.30

[44]   It is apparent that an increasingly liberal approach has been taken to s 94’s application. For example, in Beeston v Police, the High Court determined its scope was not limited to drivers on an endless cycle of offending but was available to any person with at least one previous disqualification unless s 94(4) applied.31 In Timbrell v Police, the Court confirmed s 94 was not to be directed only at recidivist offenders.32 These cases go beyond the express purpose stated by the Select Committee which emphasised the function of s 94 was to assist repeat drink-drivers and disqualified drivers who were caught in a cycle of disqualified driving.  However, even the  Select Committee noted the section was to “facilitate rehabilitation” and could have application “to a wider group.”33

26 At [41].

27 At [43].

28 At [27].

29 At [30].

30 At [30].

31     Beeston v Police [2012] NZHC 1064.

32     Timbrell v Police [2018] NZHC 2397.

33     Land Transport Amendment Bill 2004 (explanatory note) at 10.

[45]   Given the more liberal approach to the interpretation of s 94 taken in the recent authorities, it is appropriate to look more closely at when s 94(4)(b) was intended to exclude an application under that section. Both the Select Committee report and these decisions make it tolerably clear s 94’s interrelationship with s 103(2)(d) was intended to protect public safety by limiting the availability of s 94 to those offenders whose continued disqualification reduced a risk of serious road safety offences. As Nation J observed at the outset of his decision in Trainor, the imposition of disqualification and the length of disqualification is generally to do with road safety.34 However, the purpose of imposing a further period of disqualification where an offender has driven while disqualified is generally punitive, rather than about road safety.35

[46]   In my view, s 94 is intended to be available to someone who is liable to a punitive mandatory disqualification notwithstanding they are subject to an existing disqualification for a specified offence. I acknowledge that is inconsistent with the decision of Nation J in Trainor, which focused on the plain wording of s 103(2)(d). However, an alternate interpretation of s 94(4)(b) is that s 94 is not available where the offender would be prohibited from applying for a limited licence under s 103(2)(a),

(b) or (d) during the period of disqualification which would arise on the active charge. This can be contrasted to the approach in Trainor where Nation J examined whether the offender would be permitted to apply for a limited licence at the time of sentencing. In both cases the new mandatory disqualification was set to begin after the previous disqualification had been served (at a date nearly two months after sentencing here, and over a year after the appeal was heard in Trainor).

[47]   This approach sits naturally alongside the finding in Admore that s 94(4) operates pre-emptively:36

… s 94(4)(b) must be interpreted as meaning that an offender will not be eligible to receive a community-based sentence under s 94 if he or she would not, if an order for disqualification was imposed in relation to current offending, be eligible to apply for a limited licence by virtue of s 103(2)(a),

(b) or (d) of the Act.

34     Trainor v Police, above n 5, at [1], citing Leaupepe v Police, above n 8, at [8].

35     At [1] citing Lambert v Police, above n 9, at 7.

36     Admore v Police, above n 6, at [44].

[48]   Such an interpretation of s 94(4) is supported by Governor where the Court of Appeal found, despite s 94(4)(aa) stating “an alcohol interlock sentence has been ordered”, the fact Ms Governor was currently subject to an existing interlock order on a previous charge did not prevent her application under s 94. On this approach the cross-reference to s 103(2)(d) would achieve its purpose by preventing offenders liable to disqualification on second or subsequent specified offences from applying under   s 94. However, it would allow drivers who are being sentenced for driving while disqualified to demonstrate they are no longer a risk to public safety, despite their past record.

Application to the present case

[49]   Applying this approach to Mr Smith’s circumstances, it is accepted he was ineligible to apply under s 94 when he appeared for sentencing on the driving with excess blood alcohol charge in January 2022. That disqualification plainly achieved a road safety purpose and Mr Smith would be required to serve the balance of it even if he made a successful s 94 application on his further disqualification. It is more difficult to argue the further mandatory disqualification, occasioned by non-compliance rather than by further offending involving danger to the public, achieves a road safety purpose. It is more appropriately described as punitive.

[50]   The fact s 94(4)(b) was drafted to enable offenders who were prohibited from applying for a limited licence under section 103(2)(c) (disqualification arising from a conviction for driving while disqualified or breaching a limited licence) to make an application under s 94, is supportive of a more liberal interpretation. Parliament recognised s 94 could be a mechanism by which offenders could escape punitive disqualification in certain circumstances.

[51]   There are further practical advantages. As the Court of Appeal found in Governor, s 94 is an enabling provision that allows the courts to consider substitution of a community-based sentence on a case-by-case basis. Where a further mandatory disqualification would serve a road safety protection purpose, the application under  s 94 could be declined and disqualification imposed. Allowing the application to be considered would recognise there may be instances where a further punitive

disqualification is unnecessary or where, for other reasons, the offender is a good candidate for substitution of a community-based sentence.

[52]   In addition, it avoids the problem raised by Ms Hollingworth that offenders may be motivated to delay their guilty pleas on a charge of driving while disqualified until after they have served an existing period of disqualification so that, when they eventually plead guilty and are convicted and sentenced, they would not be barred from making a s 94 application on the new disqualification. Offenders may also be motivated to secure sentencing adjournments for the same purpose. In Mr Smith’s case, if he had delayed sentencing until after 23 July 2022, there would have been no impediment to him applying under s 94.

[53]   Mr Alloway accepted that on his approach there may be instances where a sentencing judge has no option but to sentence an offender to a further mandatory period of disqualification because they have one week left to serve of their previous disqualification. This creates perverse inequity—one offender sentenced one day after their previous disqualification expires could make an application under s 94 but the same offender sentenced a day earlier would be subject to a further six-month disqualification with no recourse.

Conclusion

[54]   In summary, I consider the focus when applying ss 94(4)(b) and 103(2)(d) should be on the charge which the offender is currently facing. Section 94 should be read as applying to the circumstances which will arise if the person is disqualified on that charge, including if they were applying for a limited licence under s 103 at that future point. Taking that approach, s 94 is not available if the offender would be prohibited from applying for a limited licence under s 103(2)(a), (b) or (d) during the period of disqualification the prospective s 94 application relates to.

[55]   Section 94 is intended to be a circuit breaker. It is clearly not available when the current offence is a specified offence and there is a previous specified offence in the last five years. However, it is available when the current offence is not a specified offence, even if the offender has had two or more specified offences in the last

five years and where, as here, they may be completing a period of disqualification on the last specified offence at the time of the s 94 application. Of course, where there is such a history of recent offending, that may mean there is a sufficient ongoing public safety concern to decline the s 94 application.

Result

[56]   I am satisfied that the Judge was wrong to conclude he had no jurisdiction to grant the application under s 94 and the appeal is allowed on that ground. However, that does not mean the application should be granted. While Ms Hollingworth had submitted Mr Smith’s s 94 application to this Court with a view that this Court should determine it, I did not consider that course was appropriate. The proper course is for the District Court to consider the application on its merits which it has not yet done.

[57]   Accordingly, the sentence of disqualification is quashed, and Mr Smith’s case is remitted back to the District Court to reconsider his application under s 94. It will be entirely for the District Court whether a further period of disqualification is considered inappropriate and a community sentence is substituted, having regard to the matters identified in s 94(1).

Solicitors:
Crown Solicitor, Christchurch

Copy To:
A L Hollingworth, Barrister, Christchurch