Walker v R
[2016] NZHC 1963
•22 August 2016
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2016-441-000011 [2016] NZHC 1963
BETWEEN TYLER JAMES WALKER
Appellant
AND
THE QUEEN Respondent
Hearing: 3 August 2016 Counsel:
E J Forster for appellant
S B Manning for respondentJudgment:
22 August 2016
Reissued:
25 August 2016
RESERVED JUDGMENT OF CULL J
[1] Mr Walker appeals against his sentence of three years and nine months’ imprisonment and his disqualification from driving for seven years following conviction on charges of driving with excess blood alcohol (EBA) causing death,1
two charges of driving with excess blood alcohol causing injury2 and dangerous
driving.3
[2] Mr Walker was sentenced by Judge Mackintosh on 5 April 2016.4
[3] Mr Walker appeals against the sentence as being manifestly excessive on the following grounds:
(a) the starting point was too high;
1 Land Transport Act 1998, s 61(1)(b)
2 Section 61(1)(b).
3 Section 35(1)(b).
4 R v Walker [2016] NZDC 5624.
(b) the uplift for Mr Walker’s previous conviction was excessive;
(c) there ought to have been a discount for Mr Walker’s remorse; and
(d) the period of disqualification ought to have been indefinite.
The facts
[4] On 8 August 2015 Mr Walker was driving his car with three others: Jayden French, Stephen Palmer and Jesse Uncles. At approximately 11.30 pm the car was observed to accelerate hard in an attempt to lose traction and nearly collided with the concrete kerb. The car then passed a speed camera travelling well over the 50 kph speed limit. The manner of driving at that time was described as accelerating full speed, and as jerky and reckless. In an 80 kph area the car was observed to be travelling at an estimated 120 kph. Mr Walker then lost control at a moderate right- hand bend and the car slid off the road, down an embankment before colliding with a solid wood strainer post and a line of trees.
[5] The consequences of the accident were horrific: Jesse Uncles died after sustaining significant head injuries, Jayden French suffered life threatening and long-term injuries and Stephen Palmer suffered a fractured vertebra along with other injuries. Mr Walker suffered only a minor “knock to the head”.
[6] Following the accident Mr Walker’s blood alcohol reading revealed he had
218 mg of alcohol per 100 ml of blood, which is more than four times the then legal limit of 50 mg per 100 ml. Mr Walker admitted to drinking approximately seven cans of beer as well as further beer from a beer bong and some Kahlua.
The sentencing decision
[7] Judge Mackintosh recounted the facts of the offending and referred to the victim impact statements, noting that they made “quite harrowing reading”.
[8] The Judge considered a range of Court of Appeal authorities in establishing the aggravating features of the offending.5 She identified that the offending was aggravated by the fact that death and serious injury were caused, the level of intoxication of Mr Walker and the reckless nature of his driving leading up to the crash. It was described as “a disaster waiting to happen.” The Judge also recognised that the sentence needed to meet the purposes and principles of the Sentencing Act
2002, including that the sentence imposed should be the least restrictive outcome.
[9] Judge Mackintosh then considered a number of similar cases referred to her by counsel for both parties. In particular, she considered Boey v Police6 and McCullough v Police.7 The Judge adopted a starting point of five years’ imprisonment, in line with the submissions made for the prosecution. From that initial starting point, an uplift of six months was made to take into account
Mr Walker’s previous conviction for drink-driving and his attitude towards driving
and speeding, which the Judge noted that she “simply cannot ignore”.
[10] The Judge then took into account mitigating features. First, Mr Walker gave a full statement to the police and cooperated when interviewed, and then made an early guilty plea. Counsel for Mr Walker sought a reduction on account of his youth, which the Judge accepted on the basis that there is research to support a diminished level of culpability for young people in terms of their brain development and decision-making capabilities. From the starting point of five and a half years, the Judge deducted 10 per cent for youth and 25 per cent for the guilty plea. The end sentence was therefore three years and nine months’ imprisonment.
[11] The Judge then disqualified Mr Walker from driving for seven years, given the seriousness of the offending. In addition, the Judge ordered that any licence held by Mr Walker in the future would be subject to a zero-alcohol restriction for three
years.
5 R v Fallowfield [1996] 3 NZLR 657 (CA); R v Skerrett CA 236/86, 9 December 1986;
R v Cooksley [2003] 3 All ER 60 (CA); Gacitua v R [2013] NZCA 234.
6 Boey v Police [2012] NZHC 2159.
7 McCullough v Police [2013] NZHC 279.
Approach on appeal
[12] Section 250 of the Criminal Procedure Act 2011 governs appeals against sentence from the District Court to the High Court. Section 250(2) provides:
(2) The first appeal court must allow the appeal if satisfied that—
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[13] The Court may only interfere where the sentencing court has erred. The correct approach was set out in Tutakangahau v R, where the Court of Appeal reinforced that the appellate court does not just start afresh nor substitute its own opinion for that of the original sentence. Only if there is an error of the requisite character, the Court will then form its own view of the appropriate sentence.8
The starting point
[14] Mr Walker submits that the starting point adopted by the Judge of five years was too high. This submission was advanced by comparing the present case with the two cases considered by the Judge, namely Boey v Police and McCullough v Police.
[15] In Boey the lead charge was driving with EBA causing death where the reading was 174 mg alcohol per 100 ml blood and the defendant had methamphetamine in her system. She crashed into a fence post, which killed the passenger in her car. At sentencing, she was also being sentenced for earlier drink- driving offending and driving while disqualified and her offending was while on bail. There, the starting point of five years “on the lead offence of EBA causing death” and the uplift of one year for previous convictions were described as being within
range.9
[16] In McCullough the appellant was driving with three friends in the car. She lost control of her car and crashed into a power pole killing one passenger and injuring the other two. She was not allowed passengers and was not allowed to drive
a car with manual transmission, but did both. She had an alcohol reading of 162 mg per 100 ml blood, and there was no evidence of reckless or dangerous driving. The starting point in that case was three and a half years.
[17] Mr Walker submits that the present case is more similar to McCullough and should be treated similarly in setting a starting point because:
(a) In Boey there were was methamphetamine in the appellant’s system as well as alcohol and therefore the level of intoxication was no less serious than in the present case. Judge Mackintosh described the appellant in this case as being more intoxicated.
(b)In Boey there were multiple instances of offending for which the appellant was being sentenced.
(c) In McCullough the offending was very similar to in the present case.
[18] The Crown submits the reverse. In Boey, the Judge adopted a starting point of five years on the lead offence of excess blood alcohol causing death. By comparison with Mr Walker’s offending, the factors in Boey were:
(a) the charge involved careless driving not dangerous driving; (b) there was not erratic or dangerous driving prior to the crash; (c) Boey lost control of the vehicle;
(d) there was one death of the passenger with her; (e) Boey was badly injured;
(f) her blood alcohol level was 174 mg of alcohol per 100 ml of blood compared to Mr Walker’s 218 mg;
(g) traces of methamphetamine were detected; and
(h)the accident occurred when she was on bail for driving with excess breath alcohol.
[19] The Crown submits that the seriousness of the offending in this case is far more aligned with Boey than McCullough. Mr Walker’s blood alcohol level was significantly higher than both Boey and McCullough; there were two surviving passengers with serious injuries; Mr Walker’s car had an expired warrant of fitness and registration; and there was a period of dangerous driving immediately prior to the crash. Although Boey involved two previous charges of driving while disqualified before the accident and a third or subsequent charge of driving with excess breath alcohol after the accident while on bail, the five year starting point in Boey was considered “well within range after 2011 in cases of this nature.”
[20] To assess whether the starting point in this case was too high, resulting in a manifestly excessive sentence, it is appropriate to have regard to the sentencing decisions and appellate decisions in cases where death has been caused by dangerous or reckless driving, or driving when under the influence of alcohol or drugs.
Discussion
[21] In Gacitua v R the Court of Appeal highlighted the package of reforms, which Parliament passed to promote road safety on 10 May 2011, increasing the maximum sentence for dangerous or reckless driving causing death from five years imprisonment to 10 years.10 The Court endorsed the sentencing remarks of Venning J, who said the amendment sent a message to the courts that tougher sanctions are required for drunk, drugged, dangerous or reckless drivers who caused death.11
[22] In his appeal against the sentence of three years’ imprisonment, Mr Gacitua asserted that the starting point of five years’ imprisonment adopted by the sentencing Judge was excessive and outside the available range. The Court of Appeal canvassed a range of decisions, both prior to and after the increase in the maximum sentence. The Court warned that sentencing in these cases is highly fact-specific and so much
depends on the particular circumstances of the offending. Of the starting point range, the Court said:12
Prior to the increase in the maximum sentence for dangerous or reckless driving causing death, a starting point range of between two and five years prevailed with a general sentencing range of 18 months to three years for cases without significant aggravating or mitigating factors.13 However, higher starting points and end sentences could be and were imposed in more serious cases when a charge of manslaughter was brought. Indeed, this Court has said that the only purpose for charging manslaughter in driving cases is because the appropriate penalty should exceed the maximum provided for Land Transport Act offences.14 A consequence of the increase in the maximum sentence for serious charges under the Land Transport Act is to permit the Court to impose sentences in cases which would not previously have been possible without a charge of manslaughter.
[23] The Court referred to the sentencing bands based on aggravating and mitigating factors in R v Cooksley,15 and canvassed a number of recent decisions including McCullough,16 with the starting points ranging from three years17 to seven years six months’ imprisonment. The Court noted that it had also considered other manslaughter cases in which alcohol was an aggravating factor which indicate a starting point of between six years and six years six months. Cases in which two
deaths ensued adopted starting points of eight years and eight years six months respectively.18
[24] In reviewing the aggravating factors in Mr Gacitua’s driving in terms of the Cooksley aggravating factors, the Court took into account relevantly the sustained bout of high speed competitive driving (factor (b)), the prolonged, persistent and deliberate cause of bad driving (factor (d)), which the Court assessed as being characterised as aggressive in terms of factor (e). The Court held that having regard to Parliament’s clearly expressed intention to increase sentences for reckless and
dangerous driving causing death, a starting point in the four to five year range would
12 Gacitua v R¸ above n 5, at [22].
13 Hancy v R [2009] NZCA 469.
14 R v Fallowfield, above n 5.
15 R v Cooksley, above n 5, at [5].
16 McCullough v Police, above n 7.
17 Ko v Police [2012] NZHC 3312; McCullough v Police, above n 7 (starting point of three and a half years); R v Barclay HC Nelson CRI-2006-042-4085, 31 May 2007, (starting point of five and a half to six years); R v Hoskins HC Wanganui CRI-2010-083-2713, 9 May 2011 (five and a half years); R v Te Maari HC Nelson CRI-2011-042-1451, 22 June 2011 (seven years and six months).
18 R v Tu HC Gisborne S3/2001, 21 February 2001 and R v Reihana [2013] NZHC 1273.
have been appropriate and the starting point adopted by Venning J of five years was within the available range.
[25] In her sentencing notes, Judge Mackintosh referred to the appellate authorities as providing assistance to the Court, highlighting what needs to be taken into account in a sentencing exercise such as this and specifying the aggravating features of those cases.19
[26] The aggravating factors identified by the Judge can be aligned with the aggravating factors identified in Gacitua and Cooksley as justifying a starting point of five years’ imprisonment. Referencing the aggravating factors characterised in Cooksley, those factors are:
(a) an excess blood alcohol reading of 218 mg of alcohol per 100 ml of blood, being more than four times the legal limit of 50 mg;
(b)the dangerous driving in a built up residential area to an estimated speed of 120 kph, with driving being described as jerky and reckless with little care for other road users;
(c) driving involving “showing off” behaviour, doing “skids”, and
attempting a “heli” and “donuts”;
(d) one person killed as a result of the accident; and
(e) serious injury to the two other passengers.
[27] In assessing those aggravating factors, the Judge described the manner of driving preceding the incident as reckless and dangerous. Mr Walker’s admissions that he was doing “skids” and trying to attempt a heli and donuts, was showing off exhibitionist-type behaviour. He was also driving at speed immediately preceding the incident.
[28] In referring to the two cases of Boey and McCullough, and others referred to her,20 the Judge took the starting point of five years’ imprisonment, similar to the starting point in Boey and Gacitua, and lower than McMillan, where the starting point was six years imprisonment. In that case, the driver’s excess blood alcohol was 163 mg per 100 ml of blood. There were also no relevant previous convictions and the accident had caused the death of passengers in the other vehicle in the
collision and seriously injured two of the other vehicles’ passengers.
[29] The Judge compared the differences in McCulloch with this case, noting that the offender sustained serious head injuries herself and there was no evidence in that case of any reckless or dangerous driving for a prolonged period. Her reading was
162 mg of alcohol per 100 ml of blood, which was substantially less than Mr Walker’s. The starting point in that case was three and a half years’ imprisonment.
[30] The following is a table, setting out five analogous cases since the legislative amendments in 2011, showing the comparative starting points and sentences for excess blood alcohol cases, causing injury and/or death:
Case Circumstances
Charge
Injury or death
Starting point
Sentence
Leaupepe v Police [2015] NZHC 1766
Blood alcohol reading of
126mg/blood.
Third drink-driving. Speeds of 136–164
kph.
s 61(1)(b) of
LTA
Death of passenger
3 years’
imprisonment
2 years’ imprisonment, disqualified
5 years
Boey v Police [2012] NZHC 2159
Blood alcohol reading of
174mg/blood.
Methamphetamine in system.
ss 61(1)(b),
56(1)–(2),
32(1)(a) x 2, and
52(1)(c).
Death of passenger
5 years’
imprisonment
4 years,
6 months’
imprisonment
McCullough v Police [2013] NZHC 279 Blood alcohol reading of
162mg/blood.
s 61(2)(a) x
2.
EBA causing death and injury.
Death of one passenger
Another passenger sustained moderate head injuries.
Appellant had serious head injuries.
3.5 years’
imprisonment
2 years’
imprisonment
McMillan v Police [2014] NZHC 150
Blood alcohol reading of
163mg/blood.
No relevant past convictions.
s 61(1)(b) x
3
Death of other
vehicle’s driver.
Injuries to two other passengers
6 years’ imprisonment. Discount for remorse (exceptional) and offer of reparation,
and 25%
discount for guilty plea.
4 years’ imprisonment and disqualified for 3 years
R v Gacitua [2013] NZCA 234
ss 36AA
and 36
Passenger died.
5 years’
imprisonment
3 years’ imprisonment and disqualified for 4 years
[31] I have reached the view that on a consideration of the aggravating factors in this case as set out above, the starting point of five years was consistent with the sentencing levels in relevant cases and reflects the gravity of the offending, including the degree of culpability of the offender. It was also half of the maximum penalty in this offence.
The uplift for the appellant’s previous conviction
[32] Mr Walker submits that the uplift for his previous conviction of six months’ imprisonment was too high, given that it was Mr Walker’s only previous conviction, the alcohol reading was 642 mg of alcohol per litre of breath, when the legal limit was 400 mg and he received a fine and disqualification for it.
[33] In support of his submissions, Mr Forster, counsel for Mr Walker, referred to three decisions where the uplift of six months for previous convictions was outside the available range. In Te Hau v R, the Court of Appeal held the uplift for the appellant’s previous convictions was outside the available range because the 2002 aggravated robbery conviction, whilst relevant, occurred seven years earlier and at a
time when he was 18 years old.21 Mr Te Hau had not reoffended in this way for a reasonably significant period of time. An uplift of six months, being 16.7 per cent of the sentence, was wrong and not proportionate to the starting point of three years and no uplift was given for the appellant’s previous conviction.
[34] In Tiplady-Koroheke v R,22 a six month uplift for the appellant’s two previous sets of convictions for violent offending in 2006 was considered by the Court of Appeal as justification for an uplift. The Court noted the appellant had committed two serious groups of assault, but an uplift of no more than three months imprisonment for his previous convictions was appropriate. In making that variation, the Court warned that it is important there be some proportionality between the starting sentence and any uplift. The proposed uplift of six months’ imprisonment was on a starting point of two years, representing a 25 per cent increase in the start sentence.
[35] At the hearing, Mr Forster submitted that in adopting the starting point of five years’ imprisonment, the Judge had taken into account that Mr Walker had one previous conviction for drink-driving. Having reached the view that the starting point would have to be five years, the Judge then imposed “a modest uplift because
of your previous drink-driving conviction”.23 Mr Forster submitted that there is a
risk of over, or double, punishment, in that there is either a higher starting point or no uplift for previous conviction. There cannot be both.
[36] In reply, the Crown submitted that the uplift for the earlier conviction was appropriate and highly relevant. This accident occurred nine months after Mr Walker’s first conviction; Mr Walker had accumulated 70 demerit points, 35 of which were for speeding in a 80 kph zone, and 35 for having an unauthorised passenger while on a restricted licence; Mr Walker admitted to having done skids and donuts; and the uplift of 10 per cent was modest in the circumstances. Mr Walker had a sticker on his car, which read:
If one day speed kills me, don’t cry because I was smiling.
21 Te Hau v R [2013] NZCA 431.
22 Tiplady-Koroheke v R [2012] NZCA 477.
23 At [16].
R.I.P.
Paul Walker, 1973 – 2013
[37] The quote comes from an American actor, who gained international fame for his role in five “The Fast and the Furious” street racing action films and who later died in a high speed car crash in 2013.
[38] The Crown submits that this evidences a young man with an attitude towards speed and drinking and the sentence imposed by the Judge clearly intended to reflect his attitude, particularly in light of this recent previous conviction.
[39] In imposing the “modest uplift” for Mr Walker’s drink-driving conviction, the Judge reinforced that she could not ignore the previous conviction and the other factors that were personal to Mr Walker, which she referred to in terms of his attitude towards driving and speed. For that reason, the Judge took the view that in this case an appropriate uplift to five and a half years’ imprisonment was warranted.
[40] The facts of this case are distinguishable from the two cases above. Here, Mr Walker was convicted for driving with excess breath alcohol, which was 217 mg over the then legal limit. He was convicted and disqualified for six months. Nine months to the day after the completion of his disqualification, this accident occurred.
[41] The most telling factor in relation to Mr Walker’s previous conviction is that it was recent and relevant to the current offending. The proximity of the previous conviction to his subsequent offending reinforces its seriousness. The uplift of six months on a starting point of five years is 10 per cent of the starting point. Given the seriousness of the offending, the uplift in the circumstances was not outside the available range.
Should there have been a discount for remorse?
[42] Mr Walker submits that remorse is a mandatory consideration under s 9(2)(f)
of the Sentencing Act and it should be assessed independently of a guilty plea for a
reduction or discount in sentence.24 On the basis that Mr Walker was remorseful about what had occurred, a discount for remorse should have been considered and made.
[43] In her sentencing notes, the Judge specifically refers to the pre-sentence report, in which the writer recorded that Mr Walker was “now” remorseful about what in fact had occurred.25 The Judge specifically refers to submissions made on behalf of Mr Walker that he was sorry and remorseful; that he kept his distance from the victims because he was subject to charges and had received advice; and he had read the victim impact statements, including seeing the photographs of the victims.26
[44] The Crown submits that there was insufficient remorse on the part of Mr Walker to justify any reduction and reference was made to Mr Walker’s initial statements to the police, the text messages following the incident to his father to say nothing and a holiday which Mr Walker took in Hawaii shortly after the incident and before being charged.
[45] The Judge took into account the victim impact statements as well as the pre- sentence report. It was within the Judge’s discretion to determine whether a reduction for remorse was warranted or to give a reduction for an early guilty plea and a discount for youth. From an overall starting point of five and a half years imprisonment, the Judge gave Mr Walker a 10 per cent discount for youth and a
25 per cent discount for his guilty plea.
[46] I am not persuaded that on the Tutakangahau principles, there has been an error and that a different sentence of imprisonment should be imposed.27 For reasons set out below, however, there has been an error in imposing disqualification, which
does need correction.
24 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
25 R v Walker, above n 4, at [6].
26 At [7].
27 Tutakangahau v R, above n 8, at [27]–[30].
Mandatory indefinite disqualification
[47] The Judge imposed a period of seven years disqualification, observing that there is a minimum disqualification of 12 months, but in the circumstances of this case there needed to be a “a lengthy period of time” that Mr Walker would be off the road, given the nature of his driving, the significantly high reading of alcohol and a previous excess breath alcohol conviction. In addition, the Judge imposed a zero alcohol licence, which will have an effect for a period of three years from the date of any future driver’s licence issued to Mr Walker.
[48] The appellant and the Crown agree that the Judge failed to impose an indefinite period of disqualification as was required pursuant to s 65 of the Land Transport Act (the Act). Mr Walker submits that this ought to be imposed instead of the seven year finite period, whereas the Crown says that both the indefinite and finite disqualifications can co-exist.
Indefinite and finite disqualification orders
[49] After considering counsel’s arguments and reviewing the relevant legislation, I have reached the view that the Court can impose an indefinite period of disqualification, together with a finite disqualification on an analysis of the relevant provisions.
[50] The starting point for the imposition of a mandatory period of disqualification is contained in ss 61(3)–(4) of the Act. Those sections provide:
61 Person in charge of motor vehicle causing injury or death
…
(3) If a person is convicted of an offence against subsection (1) or (2) that causes bodily injury to another person,—
(a) The maximum penalty is imprisonment for a term not exceeding
5 years or a fine not exceeding $20,000; and
(b) the court must order the person to be disqualified from holding or obtaining a driver licence for 1 year or more in the case of a first or second offence against this section or section 56(1) or (2), or section 58(1), or section 60(1).
(3AA) If a person is convicted of an offence against subsection (1) or (2)
that causes the death of another person,—
(a) the maximum penalty is imprisonment for a term not exceeding 10 years or a fine not exceeding $20,000; and
(b) the court must order the person to be disqualified from holding or obtaining a driver licence for 1 year or more in the case of a first or second offence against this section or section 56(1) or (2), 58(1), or 60(1).
(3A) If a person is convicted of a third or subsequent offence against this section or section 56(1) or (2), or section 57A(1), or section 58(1), or section 60(1) (whether or not that offence is of the same kind as the person’s first or second offence against any of those provisions), the court must order the person to be disqualified from holding or obtaining a driver licence for more than 1 year.
(3B) Subsection (3A) does not apply if an order is made under section
65.
(3C) For the purposes of this section, a conviction for an offence against a provision of the Transport Act 1962 corresponding to an offence specified in subsection (3A) is to be treated as a conviction for an offence specified in that subsection.
(4) The imposition of a mandatory disqualification under this section is subject to section 81.
[51] Section 61(3AA)(b) requires the Court to impose a mandatory period of disqualification of at least one year. Here the Judge did so, imposing a seven year disqualification.
[52] The period of disqualification, whilst high, was consistent with the Court of Appeal’s variation of a 10 year period of disqualification to seven years in Hitchens v R, where the appellant was driving with an excess breath alcohol level of
157 mg of alcohol per 100 ml of blood.28 He lost control of the vehicle and collided
with a power pole killing the front seat passenger and injuring two rear seat passengers and himself. The appellant was sentenced to three and a half years’ imprisonment, prior to the 2011 legislative amendments, and was disqualified for
10 years. The Court of Appeal, in substituting a disqualification period of seven years, said:
It has been said many times that long periods of disqualification typically leave little hope for offenders. On the other hand, it is incumbent on the
28 Hitchens v R CA380/03, 25 March 2004.
Courts to keep dangerous drivers such as Mr Hitchens off the road for as long as reasonably possible. A disqualification of seven years would amply have met those competing interests.
[53] In this case, seven years’ disqualification was within the appropriate range.
[54] However, both the Judge and counsel overlooked the requirements of s 65(2)
to impose an order of indefinite disqualification. Section 65 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.
(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 breach, 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 breach tests and blood tests).
(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 if 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.
(5) For the purposes of this section, a conviction for an offence against a provision of the Transport Act 1962 corresponding to an offence to which this section applies is to be treated as a conviction for an offence specified in subsection (1).
[55] Section 65 applies to Mr Walker’s offending, as he has two convictions for offences against the relevant sections of the Act and those offences were committed within five years of the date of the latter offences being dealt with by the Court. The area of dispute between the parties is whether this indefinite period should be imposed in addition to, or instead of, the seven year disqualification.
[56] The answer, in respect of a first or second offence against ss 56(1) or (2),
58(1), 60(1) or 61(1) or (2), is found in s 61(4), which provides that the imposition of a mandatory disqualification under s 61 is subject to s 81 of the Act. Section 81 provides:
81 Provisions relating to mandatory disqualification
(1) If any provision of this Act (other than section 63) 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, the court must order that the person be disqualified accordingly unless for special reasons relating to the offence it thinks fit to order otherwise.
(2) Nothing in any provision referred to in subsection (1) or in section 65 restricts any other duty or power of the court to disqualify a person from holding or obtaining a driver licence or transport service licence or to impose any other penalty.
(3) This section is subject to section 94 (which relates to community-based sentences).
[57] Section 81(1) reinforces the mandatory requirement that the Court must order a person to be disqualified, where any provision of the Act requires a Court to disqualify a person from holding or obtaining a driver’s licence for a period not less than the specified minimum period. It also allows the Court to choose not to disqualify a person if “for special reasons relating to the offence it thinks fit to order otherwise”. This restores to the sentencing Judge some discretion in imposing periods of disqualification.
[58] Section 81(2) further provides that nothing referred to in s 81(1) or in s 65 restricts any other duty or power of the Court to disqualify a person from holding or obtaining a driver’s licence. The section thus enables the Court, in addition to imposing an indefinite disqualification under s 65, to impose a finite term of disqualification and any other penalty appropriate to the particular offence and offender.
[59] It is of particular significance that in s 81(2) the former reference to s 68 is substituted by s 65 pursuant to s 42(2)(a) of the Land Transport Amendment Act
2005, with effect from 1 October 2007. The legislation expressly enables an indefinite period of disqualification under s 65 to be imposed together with a mandatory finite period of disqualification, which in this case is seven years.
[60] The Court of Appeal’s decision in R v Stone has characterised an indefinite
disqualification as “the drink driving equivalent of preventive detention”.29
Indefinite disqualification orders must be cancelled by the New Zealand Transport Agency when the applicant is considered medically fit to hold a driver’s licence.30 I accept the Crown’s submission that by ordering an indefinite disqualification alongside the seven year disqualification, the latter effectively functions as a minimum period of disqualification.
[61] In Neho v Police, Mander J left a finite disqualification in place alongside an indefinite disqualification under s 65, where no exclusion existed.31 As in this case, the District Court was required to apply s 65 of the Act, making an order for indefinite disqualification, where persons such as Mr Neho are convicted of a third or subsequent offence and the person has two or more previous convictions that were committed within five years of the date of the commission of the offence being dealt
with by the Court. In Neho, the issue was whether the finite disqualification could be backdated. The issue of a contemporaneous finite and indefinite disqualification
was not addressed.
29 R v Stone [2009] NZCA 539.
30 Land Transport Act 1998, s 100.
31 Neho v Police [2016] NZHC 1290.
[62] In this case, Mr Walker was subject to an indefinite order, under ss 65(2)(a) and (b), because he was convicted of a second or subsequent offence against any of ss 56 to 62 and the previous offence was committed within five years of the date of the commission of the offence being dealt with by the Court.
Statutory anomaly
[63] The statutory provisions contain an unfortunate anomaly, applying to third or subsequent offenders. The Act specifically provides that the mandatory finite disqualification period of more than one year for persons with third and subsequent convictions does not apply if an indefinite order is made under s 65. The provision is found in s 61(3B) as well as in ss 56(4A), 57A(4), 58(3A) and 60(3A) of the Act. The High Court has quashed finite disqualifications under these circumstances,
where an order has been made under s 65.32
[64] Thus, a person convicted of a first or second offence against the relevant provisions of the Act can be subject to a finite and an indefinite period of disqualification, but a person with a third or subsequent conviction can be subject only to an indefinite disqualification order under s 65.
[65] It appears that this anomaly may have arisen from a drafting oversight, following the recent amendments to the Act.
Decision
[66] I am satisfied that in this case the mandatory sentence of indefinite disqualification should have been imposed under s 65, because Mr Walker had two relevant convictions within five years of the last offences being dealt with by the Court.33 I am also satisfied that the Court can impose a finite term of disqualification and the term of seven years is consistent with the principles of the
Sentencing Act, the purpose of the amendments to the Land Transport Act and the
32 Taylor v Police [2014] NZHC 1330; Police v McGee HC Invercargill CRI-2011-425-34,
26 October 2011; Loo v Police HC Auckland CRI-2010-404-394, 21 February 2011; Wheeler v Police HC Auckland CRI-2009-404-150, 31 August 2009; Newell v Police HC Christchurch A59/02, 27 June 2002.
33 Section 65(2)(a) and (b).
Court of Appeal’s view that it is incumbent on the Courts to keep dangerous drivers off the road for as long as reasonably possible.34
[67] I note that the Judge made an order under s 65B requiring the imposition of a condition that Mr Walker apply for a zero alcohol licence when he obtains his driver’s licence and that order will still apply.
Result
[68] The appeal is allowed, but only in respect of an additional disqualification order under s 65(2) of the Land Transport Act 1998.
[69] Mr Walker is disqualified from holding or obtaining a driver’s licence under s 65(2). Mr Walker is ordered to attend an assessment centre and remains disqualified from holding or obtaining a driver’s licence until the New Zealand Transport Agency removes the disqualification under s 100 of the Land Transport Act 1998.
[70] In all other respects, the sentence imposed by the District Court on 5 April
2016 is upheld, including the order of disqualification for a period of seven years.
Cull J
Solicitors/Counsel:
E J Forster, Hastings for appellant
Crown Solicitor, Napier for respondent
34 Hitchens v R, above n 28, at [10].
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