Taylor v Police
[2014] NZHC 1330
•13 June 2014
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
CRI-2014-406-000006 [2014] NZHC 1330
BETWEEN BARRY PHILLIP FRANK TAYLOR
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 13 June 2014 Counsel:
Appellant in person
A L Mills for RespondentJudgment:
13 June 2014
JUDGMENT OF COLLINS J
Introduction
[1] The question I have to consider is whether finite sentences of disqualification from driving imposed on Mr Taylor on 1 July 2013 were made in error, and if so, whether different sentences should be imposed.
[2] This question arises because Mr Taylor has appealed out of time a sentence in which he was disqualified indefinitely and at the same time disqualified for a finite period of three years commencing 1 July 2013.
[3] I am satisfied Mr Taylor should be given leave to appeal out of time and that his appeal should be partially allowed.
TAYLOR v NEW ZEALAND POLICE [2014] NZHC 1330 [13 June 2014]
Context
[4] On 1 July 2013 Mr Taylor was sentenced in relation to the following charges:
(1)Driving with excess blood alcohol on 15 February 2013 having been convicted at least twice previously of a qualifying offence.1
(2)Driving with excess blood alcohol on 16 February 2013 having been convicted at least twice previously of a qualifying offence.2
(3) Careless driving on 16 February 2013.
[5] At the time he was sentenced Mr Taylor had five convictions for driving with excess breath or blood alcohol and one conviction for refusing to provide a blood specimen when required to do so by a law enforcement officer. Those convictions were on:
(1) 26 September 1983 – Driving with excess blood alcohol; (2) 5 September 1984 – Driving with excess blood alcohol;
(3)3 May 2001 – Driving with excess blood alcohol on a third or subsequent occasion;
(4)22 April 2004 – Driving with excess blood alcohol on a third or subsequent occasion; and
(5)29 July 2008 – Refusing to provide an enforcement officer with a blood specimen. This offence occurred on 15 March 2008.
[6] Mr Taylor was sentenced to six months’ imprisonment for the 15 February
2013 excess breath alcohol offence and 12 months’ imprisonment for the
16 February 2013 excess blood alcohol offence. These sentences were cumulative.
[7] When sentencing Mr Taylor the District Court Judge said the following about home detention:3
… I do not consider that it is appropriate to release you on home detention. I say that because you received that sort of sentence on the last occasion and here you are again with two consecutive offences of the same nature, so I do not consider at this point in time that it is appropriate to release you on home detention. I will however grant you leave to apply for a substituted sentence during the course of your term of imprisonment, depending on how you perform.
[8] When disqualifying Mr Taylor from driving the District Court Judge said the following about the periods of disqualification that were being imposed:4
In addition, on the two excess breath alcohol charges, you will be disqualified indefinitely pursuant to s 65 Land Transport Act 1998, and a finite term of disqualification for three years commencing from today. That means, Mr Taylor, that you cannot drive again until you have satisfied the Secretary of Transport that you are fit to hold a driver’s licence.
Analysis
[9] Section 65(1), (2) and (3) of the Land Transport Act 1998 (the Act) applied to
Mr Taylor. Those provisions state:
65Mandatory penalties for repeat offences involving use of alcohol or drugs
(1) This section applies to offences against any of sections 56 to 62.
(2) A court must make an order requiring a person to attend an assessment centre and disqualifying the 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 second or subsequent offence against any of sections 56 to 62; and
(b) the previous offence was committed within 5 years of the date of the commission of the offence being dealt with by the court.
(3) Despite subsection (2), the court may not make an order referred to in subsection (2) unless at least 1 of the 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.
[10] In this case, s 65(2)(a) and (b) of the Act were satisfied because Mr Taylor
had committed the offence of refusing an officer’s request for blood on 15 March
2008 which meant the offences on 15 and 16 February 2013 occurred just within five years of his previous offending on 15 March 2008.
[11] Section 65(3) also applied to Mr Taylor. According, the sentencing Judge was required to make an order requiring Mr Taylor to attend an assessment centre and disqualify him from holding or obtaining a driver’s licence until the New Zealand Transport Agency determined that he was fit to hold a driver’s licence.
[12] It is apparent that the District Court Judge made an error of law when he purported to impose a finite period of disqualification on Mr Taylor. Section 65 of the Act does not confer a discretion on sentencing Judges to impose a finite sentence of disqualification. The order which must be made when s 65(2) of the Act is engaged is to require the defendant to attend an assessment centre and disqualify him or her from holding or obtaining a driver’s licence until the New Zealand Transport Agency removes the disqualification.
[13] It is also apparent that the District Court Judge made an error when he failed to direct Mr Taylor attend an assessment centre as required by s 65(2). This was a mandatory requirement. As this was a mandatory requirement I direct that Mr Taylor
do attend an assessment centre as required by s 65(2) of the Act.5
5 See O’Sullivan v Police [2012] NZHC 3421 and Newell v Police HC Christchurch A59/02,
26 July 2002.
Other matters
[14] It also appears that the District Court Judge may have erred when he granted Mr Taylor leave to apply to substitute his sentence of imprisonment for one of home detention. Section 80I of the Sentencing Act 2002 provides:
80ILeave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases
(1) This section applies if—
(a) a court has sentenced an offender to a short-term sentence of imprisonment; and
(b) at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.
(2) At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.
[15] It is apparent from his sentencing notes that the District Court Judge would not have imposed home detention had an address been available.
[16] I have been informed that Mr Taylor did promptly apply to have his prison sentence substituted for one of home detention and that he has now completed his substituted sentence of seven months’ home detention. In those circumstances there is little that I can do other than to note that an error occurred.
Conclusion
[17] Mr Taylor is disqualified from driving until the New Zealand Transport
Agency removes his disqualification.
[18] The order imposing a finite period of disqualification is quashed.
[19] I also order Mr Taylor to attend an assessment centre as required by s 65(2)
of the Act.
D B Collins J
Solicitors:
Crown Solicitor, Nelson for Respondent
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