Wilson v Police - [2014] NZHC 2474

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-000061
CRI-2014-463-000060

CRI-2014-463-000066 [2014] NZHC 2474

ROBIN JAMES WILSON SHONTELLE MOKA

ANNE-MAREE LORRAINE COWEN Appellants

v

NEW ZEALAND POLICE Respondent

Hearing: 30 September 2014

Appearances:

Cate Andersen for Wilson and Moka
Viv Winiata for Cowen
Richard Jenson for the Respondent

Judgment:

8 October 2014

RESERVED JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by on 8 October 2014 at 2:30pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

WILSON & ORS v NEW ZEALAND POLICE [2014] NZHC 2474 [8 October 2014]

[1] These appeals were heard together because the principle in issue is common to all, although the consequences of this Court’s determination will vary for each appellant. The appeals relate to the imposition (in the case of Ms Moka and Ms Cowen) and non-imposition (in the case of Mr Wilson) of an alcohol interlock licence disqualification made under s 65A of the Land Transport Act 1998 (“the LTA”).

[2] The issue common to each appeal is whether the imposition of an alcohol interlock licence disqualification is mandatory or discretionary.

[3] Counsel advised me that in this region at least, there are conflicting judicial approaches to the interpretation of s 65A and, in particular, whether the provision is mandatory or discretionary. The Cowen and Moka appeals arise from the conclusion that s 65A is mandatory in the sense that if the qualifying criteria of s 65A are met the sentencing Judge has no discretion other than to invoke the section with the consequences set out in s 65A(2). The consequences under s 65A(2) are that the person is disqualified from holding or obtaining a driver’s licence for a period of three months at the end of which they are authorised to apply for an alcohol interlock licence. While holding the alcohol interlock licence they may only drive a vehicle to which such a device is fitted and they must apply for a zero alcohol licence following the successful completion of the criteria specified later in the section.

Section 65A of the LTA

[4] Section 65A was inserted by s 30 of the Land Transport (Road Safety and Other Matters) Amendment Act 2013 on 10 September 2012.1 Section 65A provides as follows:

65AAlcohol interlock requirements for repeat offences or certain first time offences involving use of alcohol

(1) This section applies if—

(a) a court convicts a person of an offence involving the use of alcohol against any of sections 56(1), 56(2),

1 Section 65B, mandatory zero alcohol requirements for repeat offences involving use of alcohol was inserted by the same provision.

57(1), 57(2), 58(1)(a), 60(1)(a) to (c), 61(1), 61(2), and 62(1)(a); and

(b) either—

(i) the person convicted has previously been convicted of such an offence committed within 5 years of the date of the commission of the offence being dealt with by the court; or

(ii) the offence for which the person is convicted under paragraph (a) involves either or both of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 2474
Decision Date: 8 October 2014

CaseChat Overview and Summary

The case of Wilson v Police involved appeals against sentence brought by three appellants: Robin James Wilson, Shontelle Moka, and Anne-Maree Lorraine Cowen. The central issue was whether the imposition of an alcohol interlock licence disqualification under section 65A of the Land Transport Act 1998 (the LTA) is mandatory or discretionary. The District Court had imposed alcohol interlock licence disqualifications on Ms Moka and Ms Cowen, while Mr Wilson's request for such a sentence was declined. They appealed against their sentences, arguing that section 65A is discretionary. The court considered the statutory language, relevant authorities, and Hansard to determine whether the imposition of an alcohol interlock licence disqualification is mandatory or discretionary. The court found that section 65A is discretionary, as it only applies if the court decides to impose a sentence for an alcohol interlock licence disqualification. The court quashed the alcohol interlock licence disqualifications imposed on Ms Cowen and Ms Moka and allowed Mr Wilson's appeal in part, substituting an alcohol interlock licence disqualification for his indefinite disqualification sentence. The court emphasized the importance of considering the least restrictive sentencing option appropriate in the circumstances and the views of the defendant regarding the sentencing option.

Orders