Verryt v Police

[2024] NZHC 1284

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2023-488-90

[2024] NZHC 1284

BETWEEN

GRAEME VERRYT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

1 and 5 February 2024

Further evidence received on 17 May 2024

Counsel:

D Foster for Appellant

D Soich and B M O’Connor for Respondent

Judgment:

22 May 2024

JUDGMENT OF MUIR J

This judgment was delivered by me on 22 May 2024 at 4 pm.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Thomson Wilson, Whangarei

Marsden Woods Inskip & Smith

VERRYT v POLICE [2024] NZHC 1284 [22 May 2024]

Introduction

[1]    Graeme Verryt appeals a decision of Judge G L Davis in the District Court declining an application under s 100B of the Land Transport Act 1998 (LTA) to cancel Mr Verryt’s alcohol interlock sentence and substitute it for a disqualification.1

[2]    The appeal is apparently the first occasion on which the High Court has been required to consider the alcohol interlock regime. Nevertheless, I intend to confine myself to the issues strictly necessary for its disposal.

Background

[3]    Mr Verryt has a very extensive history of motor vehicle related offending with its genesis in alcoholism from which he is currently recovering – having been sober for over six years.

[4]    I annex as a schedule to this judgment a list of offences and sentences since 10 June 2016, both to provide context to the appeal and to identify relevant date(s) in terms of imposition of the alcohol interlock sentences and from which any substituted period of disqualification may run.2

[5]    Although Mr Verryt obtained a full Class 1 motor vehicle licence in 1996 and a Class 2 licence in 2011, his complex history of offending and disqualification meant that he was required to undertake a requalification process which he commenced by passing a theory test on 31 March 2018. He was then reissued his Class 1 and 2 licence but with a condition requiring him to be accompanied by a supervisor pending successful completion of the practical test. However, he never undertook the practical test and therefore the supervisory condition remained in place. Subsequently, he was disqualified again for more than a year.3

1      New Zealand Police v Verryt [2023] NZDC 26251.

2      The Schedule was provided by counsel.

3      Disqualifications on 15 December 2020 for six months from 5 February 2021, and on 9 June 2021 for six months from 4 August 2021. Upon the conclusion of these disqualifications, he was, as Ms Soich advises, required to “go through the requalification process (both the theory and practical test) from the start.”

[6]    On his most recent appearance (that at which the application under s 100B was also advanced) the defendant was sentenced to six months’ supervision and three months’ community detention. This followed an application under s 94 of the LTA to substitute a community-based sentence for disqualification.4

Basis of the application before the District Court

[7]    Before the District Court, Mr Verryt argued that the alcohol interlock sentences imposed on him on either 5 March 2019 or 6 August 2020 should be cancelled on the basis that his personal circumstances had changed, to the extent that he no longer owned a motor vehicle so was unable to effectively participate in the interlock regime.

As a result, he submitted that he was unable to exit the regime.5

[8]    He said that during the course of his work as a self-employed bricklayer and subcontractor to Peter Mayne Masonry Ltd, he “would be in a position where [he] could occasionally borrow motor vehicles from friends or [his] employer for very short periods of time provided that [he] was appropriately licenced”. He envisaged being “able to borrow those vehicles for such purposes as grocery shopping, moving tools of [his] trade from one site to another and travelling to work sites during inclement weather, or helping out [his] employer”. In a supporting affidavit, Mr Mayne said it would be “a great help if [Mr Verryt] was able to drive the business work vehicles periodically to transport work gear to building sites and also collect materials from ITM and Placemakers”.

[9]    Submissions were advanced on the basis that Mr Mayne would not permit an alcohol interlock device to be installed in his company’s work vehicles.

4      The sentencing judgment inadvertently refers to disqualification instead of community detention. In a Minute dated 16 January 2024, this was corrected.

5      Alcohol interlocks (NZ Transport Agency NZTAWK, Factsheet 58, October 2023). To apply to exit the programme you must have had an alcohol interlock licence for at least 12 months. While you had the alcohol interlock licence you must have driven the vehicle (“so we can assess whether you are eligible to leave the interlock stage”), have only driven vehicles with approved alcohol interlock devices installed, and have met one or other of the following criteria:

Option 1 – “You haven’t committed any violations in the 6-month period before your request to exit the alcohol interlock programme.”

Option 2 – “You haven’t committed any violations in the 3-month period before your request to exit the alcohol interlock programme AND You’ve successfully completed a drug and alcohol assessment at a Ministry of Health-approved assessment centre.”

The District Court decision

[10]The Judge described the basis for the application as being that:

[8]        … Mr Verryt does not himself own a motor vehicle. He deposes, however, that during the course of his work, he is required to occasionally drive work motor vehicles, and I infer from that on the road, and those work motor vehicles are not able to be fitted with alcohol interlock devices.

[9]        There is nothing that I have heard today that suggests there is a technical barrier to those work vehicles being fitted with alcohol interlock devices, it is more that I understand the employer does not consent. Therefore, I am being asked to exercise a discretion and to remove the alcohol interlock disqualification. I do not see that that is the mischief behind which the alcohol interlock regime was designed to cure.

[11]   It appears therefore that the Judge may have misunderstood Mr Verryt’s evidence to the extent that Mr Verryt did not depose to existing use of work vehicles but rather to intended use.6

[12]The Judge was not persuaded by the application. He said that:7

… Mr Verryt has access to a motor vehicle and will on occasion drive that on a road. That is the very mischief that the alcohol interlock regime was designed to cure…

And, subsequently, that:8

… my concern is that one who borrows vehicles and has access to vehicles is the very person that I would have thought the alcohol interlock regime is designed to ensure that their alcohol consuming and driving behaviour is rehabilitated.

[13]   It is unclear from the decision whether the Judge considered that the statutory threshold for an order under s 100B (a significant change in personal circumstances) had been satisfied. If so, then declinature must be assumed to have been on the basis that the Judge did not consider the discretion invested by s 100B to be appropriately exercised in Mr Verryt’s favour.

6      Confirmed by the Judge’s observation at [8] that “he is required to occasionally drive work motor vehicles, and I infer from that on the road, and those work motor vehicles are not able to be fitted with alcohol interlock devices”.

7 Above n 1, at [11].

8 At [14].

The law

[14]Section 100B of the LTA provides:

100BCourt may cancel alcohol interlock sentence and disqualify driver instead

(1)A person may apply to a court seeking the cancellation of an alcohol interlock sentence if the person’s personal circumstances have changed significantly.

(2)The court may cancel an alcohol interlock sentence, and if it does so, the court must—

(a)disqualify the person from holding or obtaining a driver

licence for the period that is appropriate under the provision relating to the qualifying offence that would have applied under section 65AI if an exception described in section 65AB(2) had applied to the person; and

(b)authorise the person to apply for a zero alcohol licence at the end of the period of disqualification.

(3)The court may set the length of the disqualification imposed under subsection (2)(a) after having regard to—

(a)the length of time that has elapsed since the alcohol interlock sentence was imposed; and

(b)the person’s compliance with section 65AG.

[15]   There appears to be very limited discussion of the section in the authorities. I have, however, been referred to an oral decision of Judge Edwards in the District Court in which the Judge was satisfied that the applicant’s circumstances had changed to an extent sufficient to warrant cancellation of the interlock licence.9 The Judge noted that:10

… It is clear from his application that his part-time work as a contract painter not only affects his ability to fund the device but also it makes it difficult for him to be restricted to only driving a vehicle which has an interlock device fitted to it, as there are work vehicles which he would otherwise be able to drive. I note that Mr Cox has completed his Intensive Supervision sentence, which included an 8-week rehabilitation programme, and says he is “celebrating” 10 months of sobriety.

9      New Zealand Police v Cox [2020] NZDC 25788.

10 At [7].

[16]   In that case, the Judge substituted the mandatory minimum period of disqualification (one year and one day) but did so from the date of the offending   (25 September 2019). The Judge noted that:11

… The practical effect of this is that the disqualification period has now ended, and Mr Cox is authorised to apply for a zero alcohol licence.

Developments after first call

[17]   When the appeal was first called before me, I expressed reservations about whether either the District Court or this Court had been provided with a sufficiently clear picture of how Mr Verryt’s previous disqualifications interfaced with the interlock regime and, in particular, whether it was even realistic to suggest that he might be using work vehicles if he was, in fact, required to undertake the licensing qualification process again (and thus, for example, be supervised at all times by the holder of a full New Zealand photographic driver’s licence).12

[18]   The appeal was adjourned to enable further inquiry. That resulted in various supplementary submissions and affidavits, including from Mr Mayne to say that if Mr Verryt was required to go through a requalification process, he would not be permitted to drive work vehicles until a point when he was again fully qualified.

[19]   When the hearing of the appeal resumed, I indicated to counsel that, having regard to the new evidence and police confirmation that Mr Verryt is now required to go through a requalification process (both theory and practical) “from the start”, I doubted whether the significant change in circumstances advanced in the District Court in fact existed.

[20]   I indicated, however, that I provisionally regarded an extended period of sobriety as possibly in itself a sufficient change of circumstance to engage the discretion. I pointed out, however, that the existing evidence as to sobriety was limited to that of Mr Verryt and Mr Mayne – the latter observing that Mr Verryt was now a “changed man”. The District Court Judge acknowledged this evidence but commented

11 At [9].

12     Land Transport (Driver Licensing) Rule 1999, r 16.

that what he had was “at best an affidavit from his employer”. Clearly, the Judge anticipated some medical verification if expected to rely on this aspect alone.

[21]   Against this background, I discussed with counsel how the appeal might be resolved, suggesting the possibility of a health assessor’s report confirming sobriety, and an application that I receive additional evidence on the appeal. All counsel agreed with me that this was a sensible course. I saw it as a practical means by which the current revolving door of disqualifications and restrictions might be resolved in a way which best supported Mr Verryt in both his rehabilitation and in his trade, Mr Mayne having identified him as “a great tradesman and very good at what he does and those qualities are the reason I have continued to use him”.

[22]   The appeal was again adjourned to facilitate this additional evidence which is now at hand. Constructively, in my view, the police do not oppose admission of the evidence.

Discussion

[23]The appellant’s original submissions in this Court proceeded on the basis that:

(a)the District Court Judge had acknowledged threshold jurisdiction under s 100B;

(b)he had declined the order in exercise of his discretion; and

(c)that such discretion had been unnecessarily fettered “by applying policy considerations and [requiring] an undefined evidential process”.

[24]    In response, the police originally enjoined me not to interfere with what was purely a discretionary assessment. However, notwithstanding those factors, the evidential landscape has now changed to an extent where I am effectively required to look at the matter afresh. I do so with the agreement of the parties.

[25]   Focusing first on the threshold requirement of a significant change in personal circumstances, I make the following comments:

(a)I would not consider it a sufficient change in personal circumstances, simply that a person subject to an alcohol interlock sentence has disposed of their vehicle, cannot afford to replace it, and therefore considers they are incapable of proceeding through the various steps identified by NZ Transport Agency Waka Kotahi (NZTAWK) as necessary before a driver can exit the regime. To adopt any alternative approach would invite “gaming” of the system whereby vehicles were disposed of simply to avoid interlock sentences, contrary to the public policy that underscores such sentences.

(b)Since the purpose of the regime is to prevent persons with a proven history of driving under the influence from being able to use a motor vehicle if they have been drinking, a relevant change of circumstances could, in my view, include a demonstrated history of extended abstinence from alcohol. Although the NZTAWK exit procedures provide the usual method by which “reformed” drivers can move on from an interlock sentence, a successful application under that regime does not, of course, require total abstinence, rather that the person subject to the regime does not violate the interlock restriction by attempting to drive while under the influence or fails to retest when the device requires it. If a person can otherwise establish that the purpose of the interlock restriction is spent (having regard to the public policy considerations which underpin the regime) then that will, in my view, be sufficient to satisfy the jurisdictional threshold in s 100B(1). Reliable evidence of extended and complete abstinence would, I consider, satisfy this requirement.

[26]   In this case, Mr Verryt deposes that for most of his life he has battled alcoholism. However, in 2018 when he was last charged with drink driving, he recognised that major changes in his life were necessary. For two years he underwent rehabilitation (in respect of which I have sighted various reports and certificates).13

13     I note that he was exited from the Higher Ground Programme but not on account of alcohol consumption.

He says that he has remained sober “and [has] not had a drink” since 2018. This is confirmed by Mr Mayne, who notes in an affidavit provided to the Court that:14

When he came out of rehab, I wanted to see if it had worked. I admit I was sceptical but as the months and years passed, I have never seen Graeme touch alcohol again and he has never reverted back to that old lifestyle.

From my first hand observations of Grame (sic), he is a changed man. Rehab has worked and a substantial period of time has passed and there has not been one relapse. I have not seen him drink any alcohol at all.

I would love to see Graeme out of the disqualification cycle that was caused by his old behaviour and be able to drive again.

[27]   However, mindful of the precedent value of any decision of this Court and my assessment that, ordinarily, a Court could expect medical evidence of extended sobriety if that were to be the basis of a s 100B application, I have (with admitted encouragement on my part) now been provided with a report by Dr Karam Tukapua confirming both urine ethanol and carbohydrate deficiency transferrin (CDT) blood tests (the latter typically identifying alcohol consumption within three months) and a hair follicle test (with a similar three month perspective). All tests were negative.

[28]   I am satisfied that in its totality the evidence adequately  establishes that     Mr Verryt is now, and has been for an extended period, entirely abstinent from alcohol and that he fully understands the destructive impact it has previously had on his life and the potential danger he has been to others while driving under the influence. He is an alcoholic who is fully committed to his continuing recovery. I consider this a powerful example of a significant change in personal circumstances when assessed against the circumstances at the time of his sentence.

[29]   In terms of the discretion identified in s 100B(2), I consider this appropriately exercised in Mr Verryt’s favour. I rely on the evidence previously noted and its relationship to the policy considerations underpinning the interlock regime.

14     Mr Mayne is a former police officer who has known Mr Verryt for over ten years and engaged him as a subcontractor during that period.

[30]   Pursuant to s 100B(2)(a), if I cancel Mr Verryt’s interlock sentence, I must disqualify him for the period that is appropriate under the provisions relating to the qualifying offence. The police say that the relevant offence is that of 17 August 2018—driving with over 250 micrograms of alcohol in his breath in contravention of a zero alcohol licence—for which he was sentenced on 5 March 2019.

[31]   The relevant minimum period of disqualification for this offence is one year.15 Section 100B(3) allows the Court to set the length of disqualification having regard to the length of time that has elapsed since the alcohol interlock sentence was imposed and the person’s compliance with the requirements of the alcohol interlock licence.16 Although it does not specifically address the date from which the disqualification is to run, there is no prohibition on this being from the date in which the offender was originally sentenced to imposition of the interlock device. As indicated, that was the approach adopted in Police v Cox.17

[32]   I consider the appropriate approach is to disqualify Mr Verryt from driving for 18 months from 5 March 2019. The practical effect is that he is now authorised to apply for a zero alcohol licence.18 How the zero alcohol regime interfaces with his requirements to be relicensed has not been developed in argument before me.

Result

[33]I allow the appeal and cancel the appellant’s interlock licence.

[34]I substitute a period of 18 months’ disqualification from 5 March 2019.

15     Land Transport Act 1998, s 57AA(4) and (6)(b). In practice, sentences of one year and one day appear to be typical where the minimum period of disqualification is imposed.

16     Land Transport Act, ss 100B(3) and 65AG.

17     Above n 8.

18     Section 100B(2)(b).

[35]   I authorise Mr Verryt to apply for a zero alcohol licence at the point he is qualified to do so.

Muir J

SCHEDULE A

10 June2016  Defendant drove with excess breath alcohol (3rd or subsequent).

1March 2017  Sentenced for above offending. Sentence included a zero alcohol licence and the defendant was disqualified from driving for 1 year and 1 day as from 1 March 2017.

17August 2018  Defendant drove with over 250 mcgs of alcohol in his breath, in contravention of his zero alcohol licence.

5March 2019  Convicted of above offending. Alcohol interlock sentence imposed.

22February 2020  Defendant drove contrary to an alcohol interlock licence. Police prosecutions advise there is nothing in the records they were able to check which indicated he has ever applied for an alcohol interlock licence. However, his conviction for this charge would indicate that he had. A Summary of Facts was not provided by Police, but a record of the facts of the offending was.

6August 2020  Convicted of above offending. A further alcohol interlock sentence was imposed. The defendant was disqualified from driving for 6 months as from 6 August 2020.

17 November 2020  Defendant drove whilst disqualified. The disqualification on 6 August 2020 would have continued to 6 February 2021.

15December 2020  Defendant sentenced for above offending. He was disqualified for driving for 6 months from 5 February 2021.

28 March 2021  Defendant drove whilst disqualified.

9 June2021  Defendant sentenced for above offending. He was disqualified from driving for 6 months from 4 August 2021.

28 July 2021  Defendant drove whilst disqualified (3rd  or subsequent).

3 August 2023  Defendant drove whilst disqualified (3rd  or subsequent).

22 November 2023  Defendant sentenced to 6 months supervision and 3 months community detention. An application under s 94 Land Transport Act was granted with the result that no further period of disqualification was imposed and a community-based sentence was instead substituted (in this case, an additional month of community detention). An application under s 100B for cancellation of the alcohol interlock sentence was refused.