Stevenson v Police

[2015] NZHC 1256

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2015-441-000001 [2015] NZHC 1256

DONNA JOY STEVENSON

v

NEW ZEALAND POLICE

Hearing:	2 June 2015
Appearances:	EJ Forster and E Lynch for the Appellant M Mitchell for the Crown
Judgment:	24 June 2015

JUDGMENT OF THOMAS J

This judgment was delivered by me on 24 June 2015 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

STEVENSON v NEW ZEALAND POLICE [2015] NZHC 1256 [24 June 2015]

Introduction

[1]      Ms Stevenson was indefinitely disqualified from driving under s 65 of the

Land  Transport  Act  1998  (the Act)  by  a  District  Court  Judge  in  Hastings  on

15 January 2015. This is an appeal against that decision.

Background

[2]      At the time of the offending Ms Stevenson was subject to a zero alcohol licence.   At approximately 4.00 am on 2 November 2014, she was stopped for a random breath test.   The result of the breath testing procedures was a reading of

132 micrograms of alcohol per litre of breath.

[3]      Ms Stevenson said that she had been drinking earlier in the evening but had fallen asleep.  She said, having had a nap, she thought she was all right to drive.

[4]      A contravention of a zero alcohol licence is proscribed by s 57AA of the Act. Ms Stevenson had been convicted in April 2012 and in February 2013 under s 56 of the Act for driving with excess breath alcohol.

[5]        The issue for the District  Court Judge was  whether  Ms  Stevenson  was caught by s65 of the Act.   The consequences of coming under s65  are that an offender must attend an assessment centre and is disqualified from holding or obtaining a driver licence until the New Zealand Transport Agency removes the disqualification.  The disqualification must be removed if the Agency is satisfied that the offender is fit to hold a driver licence having regard to a report on the medical condition of the offender.   Such an order cannot be made until the driving disqualification has been of effect for one year and one day.

Relevant law

[6]      Section 65(1) and (4), of the Land Transport Act provides:

65 Mandatory penalties for repeat offences involving use of alcohol or drugs

(1) This section applies to offences against any of sections 56 to 62.

[…]

(4) The  court  must  make  an  order  that  requires  a  person  to  attend  an assessment centre and that disqualifies that person from holding or obtaining a driver licence until the Agency removes that disqualification under section

100 if—

(a) the court convicts that person of a third or subsequent offence to which this section applies; and

(b) the 2 or more previous offences were committed within 5 years of the date of the commission of the offence being dealt with by the court.

[7]      The question in Ms Stevenson’s case was whether the words in s65(4) “a third or subsequent offence to which this section applies” mean a third or subsequent of any of the offences under ss 56 to 62 or whether they apply only to a third or subsequence offence of the same kind.

District Court decision

[8]      The Judge summarised the submissions for both sides.   For the Police, the submission  was  that  if  two  or  more  previous  offences  under  ss  56  to  62  are committed within five years of the date of the commission of the current offence, then s 65(4) applies.   The plain and ordinary construction of s 65(1) and s 65(4) means that the offence does not have to be the same as the previous offence as long as they are offences under “any” of those listed in ss 56 to 62.  Such an approach

would be consistent with the High Court decision McGee, the Police said.1   For Ms

Stevenson, the submission was that the realms of s 65 must not be extended too far such that it goes beyond what Parliament actually intended.  The purpose of 65 was to catch people who commit offences of an aggravated kind, that is, people who commit the same offence over and over again.   In addition, it would be unfair or disproportionate indefinitely to disqualify a person for having a low level of alcohol

in their blood.

1      New Zealand Police v McGee HC Invercargill CRI-2011-425-34, 25 October 2011.

[9]      The Judge preferred the view that, since an offence under s 57AA is caught by s 65(1), it is one of the offences to which s65 applies and must therefore be treated as a “third or subsequence” offence against any of ss 56 to 62, to which ss

65(2) and (4) apply.

[10]     The Judge noted that the application of s 65 was limited because only those who commit a third offence within the five year window of the first offence will be indefinitely disqualified.  The Judge identified policy reasons in favour of the Police submissions:2

If people are offending in this way within five years and are drinking and driving despite their zero alcohol licence that is evidence of a problem that requires resolution.   The risk of indefinite disqualification may mean they receive appropriate help and assistance so that they satisfy the LTSA that they are safe to drive.

[11]     On a plain and ordinary reading of s 65(1), the Judge agreed that the section must be of application to offences against “any” of those listed in ss 56 to 62.   It follows that s 65(4) must apply when the court convicts a defendant of a third and subsequent offence of “any” under ss 56 to 62.  That is a logical interpretation, the Judge said, because a different approach would mean that a person could commit offences under ss 56 to 62, over a five year period, but escape the protective provisions of s 65 on the basis that they were all different offences.

Appellant’s submissions

[12]     Mr Forster appears for the appellant.   He reiterates the submissions made before  the District  Court  Judge.    He  emphasises  what  in  his  submission  is  the purpose of the legislation, that is, to prohibit people with a drinking problem from driving.   He says that Ms Stevenson’s alcohol reading was well below the infringement level and significantly below the criminal level.  It could not possibly be intended, in his submission, that a person who had not driven with excess breath alcohol would be subject to indefinite disqualification.  He says the difficulties with the District Court interpretation are demonstrated by considering a person who might have two relevant prior convictions but has a reading of one microgram of alcohol

per litre of breath.  That such a person would then be caught by s 65 and indefinitely

2      New Zealand Police v Stevenson [2015] NZDC 2205 at [34].

disqualified cannot be right, he says.   Such a result would be a disproportionate response  with  unintended  downstream  consequences,  for  example,  the  costs  of putting someone in that position through the indefinite disqualification procedures. Breaching the zero licence condition does not mean that a person is in need of treatment and such a person is not a recidivist drink driver who poses a risk on the roads and towards whom s 65 is directed, in his submission.

[13]     Mr Forster says that the expression “third or subsequent” has a particular and well understood meaning, that is, the third such offence of that nature.   In his submission, s 65(4)(b) by its reference to the two or more previous offences within five years indicates that the words “third or subsequent” in subsection (a) must be intended to apply to someone who had committed the same type of offence.

Respondent’s submissions

[14]     Ms Mitchell, for the Police, submits that the Judge was correct to adopt the plain interpretation of the section.  Her submission reiterates the submission made at first instance; namely, that the phrase “third or subsequence offence to which this section applies” means that any three offences from the range contained in ss 56 to

62,  when  committed within  a five  year  window,  will  render  a person  liable to indefinite disqualification under s 65(4).

[15]     The relevant purpose, in Ms Mitchell’s submission, is to alleviate the risk intoxicated drivers pose to the public.  Sections 56 to 62 are all directed at this type of offending.  Two offences are required before an offender is made subject to a zero alcohol licence.  Section 65, therefore, is intended to catch an offender who breaches that licence, even if the alcohol reading is less than the limits set out in s 56 for either infringement or criminal offending.

Analysis

[16]     I entirely agree with the reasoning and conclusion of the Judge.

[17]     I start with the decision of McGee to which both counsel refer.   That case concerned the interrelationship between s 56(4), s 57(2) and s 65.   However the

comments are of assistance to the present case.  The Judge noted the purpose of s 65 is to “try to take serious repetitive drink drivers off the road by banning them from driving indefinitely until they can establish they are safe to return to driving.”3    Mr Forster’s submission echoes that approach to support the proposition that s 65 is intended to capture people who commit offences of an “aggravated” kind.

[18]     However,  I  do  not  consider  that  what  makes  a  “serious  repetitive  drink driver”  is  necessarily  linked  to  the  qualification  that  the  offending  must  be  a repetitive offence of the same kind.   By the wording of s 65, Parliament makes it clear that a person is not considered safe to drive if he or she, for the third or subsequent time within a five year window, commits an offence under ss 56 to 62. The Judge correctly alluded to this point in her recognition that if a person drinks and drives despite being subject to a zero alcohol licence, there is evidence of a

problem which requires a resolution.4

[19]     Mr Forster submits that there are problems with the wording of s 65(4) and that supports his position.  He says that the words “third or subsequent” in s 65(4)(a) are  redundant.    However,  the  deletion  of  the  words  “third  or  subsequent”  in  s

65(4)(a) would require the rewording of s 65(4)(b) to make it clear that the offender had two or more prior convictions and that they were committed within five years. That s 65(4) would need to be redrafted to achieve the result which Mr Forster says must have been intended, demonstrates the fallacy of the submission.

[20]     An offender who breaches a zero alcohol licence will not automatically come within s 65(4), as Mr Forster suggests.  It is only those who commit the third offence within five years of the first who are caught.

[21]     Mr Forster  says  that  the  words  “third  or  subsequent”  have  a  particular

meaning.  It may well be that the phrase is often used as a shorthand to refer to s

56(4).    That  does  not,  however,  constrain  the  correct  interpretation  of  s  65. Mr Forster’s submission that the words “third or subsequent” must have the same

3 Above n 1 at [15].

4 At [34].

meaning as under s 56(4) is undermined by the fact that the wording in s 56(4) is different from that of s 65(4) and must be taken to be so deliberately.

[22]     Parliament stipulated particular sections in s 56(4) when referring to a third or subsequent offence and clarified that the offences did not have to be the same kind as the first or second offence against any of those provisions.  There was no need for the same wording in s 65 because s 65(1) makes it clear that the section applies to offences against any of ss 56 to 62.  Section 65(4) applies to any person convicted of a third or subsequent offence to which this section applies where at least two of them were committed within five years.

[23]     As the decision of McGee makes clear, it is a combination of reoffending, within particular time limits, which triggers the application of s 65.5

I  consider,  therefore,  there  is  no  reason  to  read  the  words  “third  or subsequent offence” in s 65(4)(a) as having the same  meaning as those words in s 56(4).  There is no reason not to read s 65(1) literally.  Section 65 applies to any offending governed by ss 56 to 62 and sub (4) specifically relates to a third or subsequent conviction of any offences within ss 56-62.

[24]     The Judge rightly concluded that the plain and ordinary meaning of s 65(1) is that s 65(4) applies to a third or subsequent offence of any offences listed under ss 56 to 62.  Section 57AA falls within that category.

Result

[25]     For the reasons given, the appeal is dismissed.

Thomas J

5 Above n 1 at [17].