Wiseman v Police
[2014] NZHC 2327
•24 September 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-000218 [2014] NZHC 2327
UNDER The Criminal Procedure Act 2011 IN THE MATTER OF
An appeal pursuant to s 244 of that Act
BETWEEN
RONALD JAMES WISEMAN Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 23 September 2014 Appearances:
A J Beach for Appellant
S P H Elliott for RespondentJudgment:
24 September 2014
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 24 September 2014 at 1.00 pm
pursuant to R 11.5 of the High Court Rules
Registrar / Deputy Registrar
Date………………………..
WISEMAN v NZ POLICE [2014] NZHC 2327 [24 September 2014]
Introduction
[1] Ronald Wiseman pleaded guilty in the District Court at Waitakere to one charge of driving with excess breath alcohol (third or subsequent). Judge Glubb sentenced him1 to four months’ community detention and 12 months’ supervision and disqualified him indefinitely under s 65 of the Land Transport Act 1998.2 The Judge refused Mr Wiseman’s request for an interlock order under s 65A. Mr
Wiseman appeals that decision on the grounds that the Judge erred in failing to give any reason for this aspect of his decision and that such an order would be appropriate. There is no challenge to any other aspect of the sentence.
[2] Mr Elliott, for the Crown, accepted that the Judge had erred in not giving reasons for refusing the interlock order and that it was open to this Court to consider the matter afresh. The Crown abides the decision of the Court as to whether an interlock order is appropriate but does not seek to cross-appeal any other aspect of the sentence in the event that such an order is made.
[3] Mr Beach sought to adduce further evidence for the purposes of the appeal in the form of an affidavit by Mr Wiseman and one by his employer, Mr Hick. There was no objection. The affidavits are clearly relevant to the issues arising on the appeal and leave is granted to adduce the further evidence.
The offending and sentencing in the District Court
[4] On 25 October 2013 Mr Wiseman had been to a bar and was driving on State Highway 16 in Kumeu. He showed signs of alcohol intake. His breath was found to contain 685 micrograms of alcohol per litre of breath.
[5] Mr Wiseman has a significant history of alcohol-related driving offences dating back more than 30 years. In February 1977 he was charged with driving with an excess blood alcohol level (no level was recorded), fined and disqualified for 18 months. In April 1993 he was convicted of driving with excess breath alcohol, fined
and disqualified for seven months. In 1996 he was convicted of driving under the
1 NZ Police v Wiseman DC Waitakere CRI-2013-090-006361, 19 June 2013.
2 Section 65 imposes a minimum period of disqualification of 12 months.
influence of alcohol and disqualified indefinitely with special conditions. He was convicted in 2004 and 2005 of driving while disqualified. In January 2010 he was convicted for driving with excess breath alcohol (a reading of 1083), sentenced to community work and disqualified from driving for 13 months.
[6] The pre-sentence report suggested a lack of insight and a lack of willingness to accept responsibility for his offending. However, he subsequently sought assistance from Community Alcohol and Drug Services and completed an initial programme, though has declined further support from that source.
[7] In sentencing Judge Glubb referred to Mr Wiseman’s “troubling history of drinking and driving” and the need for deterrence, denunciation, holding Mr Wiseman accountable for his offending and protecting the public. However, he also recognised the need to impose the least restrictive sentence and one that would assist in meeting Mr Wiseman’s rehabilitative needs. After imposing the sentence of community detention, supervision and indefinite disqualification he also required Mr Wiseman to undertake the courses suggested in the probation report and added:
[12] I also order you to be subject to, pursuant to s 68(b), a zero alcohol licence and I also order that your vehicle is confiscated pursuant to s 129. Your counsel sought that I impose an interlock device pursuant to s 65A. I have declined to do so in the circumstances of this matter.
The statutory context
[8] Under s 56(1) it is an offence to drive or attempt to drive while the proportion
of alcohol in a person’s breath exceeds 400 micrograms per litre of breath. Section
56(4) provides that a person convicted of a third or subsequent offence against s 56(1) must be disqualified from holding or obtaining a driver’s licence for more than one year.
[9] Section 65 applies to offences under any of ss 56 – 62. In relation to a person convicted of a third or subsequent offence s 65(4) requires that person to be disqualified from holding or obtaining a driver’s licence until the Land Transport Agency removes the disqualification under s 100.
[10] There is, however, an alternative to the mandatory disqualification provision in s 65(4); an interlock order under s 65A.3 Section 65A targets both recidivist drink drivers and those convicted of drink driving with particularly high breath or blood alcohol levels. It applies where a person has been convicted of one of the specified offences (which include s 56(1)) within five years preceding the offence in question or where the proportion of alcohol in the person’s breath or blood exceeds the
specified level.
[11] Section 65A(2) provides that:
(2) If this section applies, the Court must, if the Court imposes a sentence for an alcohol interlock licence disqualification –
(a) Disqualify the person from holding any driver licence for a period of three months; and
(b) Make an order that –
(i) authorises the person to apply for an alcohol interlock licence at the end of the three month disqualification period; and
(ii) requires the person, while holding an alcohol interlock licence, to –
(a) Drive only a vehicle or vehicles to which an alcohol interlock device is fitted; and
(b) apply for a zero alcohol licence, which the Agency may issue only on successful completion of the criteria specified in subparagraph (iv); and
(iii) provides that the person may apply for any other driver licence (including, but not limited to, a limited licence) only if the person has obtained, and has satisfied the requirements of, the alcohol interlock licence; and
(iv) provides that the alcohol interlock device in the
person’s vehicle may be removed only if the person
–
(a) has held the alcohol interlock licence for at east 12 months; and
(b) has not violated any of the requirements of the alcohol interlock licence during the six
3 Lose v R [2014] NZCA 368 at [16] – [17].
month period preceding the date on which the alcohol interlock device is removed, or has completed an assessment and has not violated any of the requirements of the alcohol interlock licence during the three month period preceding the date on which the alcohol interlock device is removed; and
(v) Ends the person’s disqualification under s 65, if the person was disqualified under s 65.
(3) The imposition of a mandatory disqualification under this section is subject to s 81.
(4) A person who is subject to an order under subsection (2) and does not apply for an interlock licence is to be treated as a person with a licence of no effect.
[12] If, for some reason, an offender fails to apply for an interlock licence having been authorised to do so under s 65A the effect of s 65A(4) and s 82A means that the mandatory disqualification already in effect under s 65 would simply continue.
[13] The final relevant provision is s 65B which provides that:
Mandatory zero alcohol requirements for repeat offences involving use of alcohol
(1) This section applies if—
(a) a court convicts a person of an offence against any of sections 56(1),
56(2), 57(1), 57(2), 57AA, 58(1)(a), 60(1)(a) to (c), 61(1), 61(2) and
62(1)(a); and
(b) 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.
(2) If this section applies, the court must make an order authorising the person to apply for a zero alcohol licence that has effect for a period of 3 years from the issue of the licence.
(3) A person authorised under subsection (2) may apply for a zero alcohol licence,—
(a) in the case of a person who is subject to 1 or more orders of disqualification, no earlier than the day after the end of the last period of disqualification to which the person is subject; or
(b) in the case of a person who is subject to an order made under section
65A(2)(b), when the Agency makes an order under section 100A(1).
(4) A person who is subject to an order under subsection (2) and does not apply for a zero alcohol licence is to be treated as a person with a licence of no effect under section 29(1).
[14] In the event of an interlock order being made, s 65A(2)(b) requires the Court to make an order that the offender apply for a zero alcohol licence after the three month disqualification period which, by virtue of the criteria in s 65A(2)(b)(iv) must be while the interlock licence is still in force. That criteria relates to the offender’s observance of the requirements of the alcohol interlock licence.
[15] Although the Court’s power is limited to authorising an offender to apply for an interlock licence, I note the point made by Ellis J in Singh v NZ Police that the terms in which such licences are granted under s 30(5) mean that the LTA has no meaningful power to refuse a licence where the application has been authorised by the Court.4
[16] There are, however, no criteria indicated for such an order. In Nanai v NZ Police Cooper J considered that, in the absence of any specific guidance, determining the basis on which an interlock order ought to be made would have to be resolved by resort to the general purposes and principles of sentencing set out in
Part 1 of the Sentencing Act.5 I respectfully agree that this must be the case.
Cooper J’s approach was implicitly approved by the Court of Appeal in Lose v R.6
[17] Although an interlock order under s 65A is a lesser penalty than the mandatory indefinite disqualification imposed under s 65, the considerations of deterrence and denunciation and protection of the public can still be addressed by the a suitable combination of sentences, including fines, community work and community detention in conjunction with an interlock order.
Should an interlock order be made?
[18] Mr Wiseman’s history of alcohol-related driving offences and his lack of insight into the risk he poses for innocent members of the public are of grave
4 Singh v NZ Police [2013] NZHC 3065.
5 Nanai v NZ Police [2013] NZHC 155.
6 Lose v R above, at n 3.
concern. They warrant a strong message of deterrence and denunciation. On the other hand it is also important to bear in mind the other purposes of sentencing, particularly assisting in rehabilitation and imposing the least restrictive outcome appropriate in the circumstances. Mr Elliott also pointed out that the interlock order was intended to improve public safety by exerting control over offenders who would otherwise be likely to ignore the mandatory disqualification.
[19] Mr Wiseman’s main reason for seeking an alcohol interlock licence is that he lives in a rural area where public transport is not available to get to and from work. He is 66 years old. He has worked as a drainage foreman for the same company for about ten years and wants to keep his job. The hours are 7 am to 7 pm Monday to Saturday (sometimes finishing earlier on Saturday). Mr Wiseman’s employer, Mr Hick, has explained that during the period of Mr Wiseman’s disqualification other employees have been picking him up and taking him home. However, that takes those employees away from their working duties and is putting strain on the business.
[20] There are also signs that Mr Wiseman is now coming to appreciate the gravity of his offending and take steps to address his alcohol problem. He has attached to his affidavit a letter from his probation officer advising that Mr Wiseman has satisfactorily complied with his supervision and community detention sentences and completed his alcohol counselling with CAD.
[21] It is in society’s interests that those with full-time employment be supported in that, all other things being equal. It is in society’s interests that a recidivist offender who finally recognises the error of his ways and takes steps towards rehabilitation be supported in that. It is also in society’s interests that an offender who, realistically, is likely to ignore a mandatory disqualification is otherwise prevented from driving while alcohol impaired. For these reasons, I consider that an interlock order is appropriate in this case.
[22] The Judge ordered Mr Wiseman to be subject to a zero alcohol level which, under the mandatory indefinite disqualification, would apply once that period of disqualification expired.
Result
[23] The appeal is allowed.
[24] The order under s 65 disqualifying Mr Wiseman from driving indefinitely is quashed. Instead, I make orders under s 65A(2):
(a) Disqualifying Mr Wiseman from driving for three months. If disqualification has already started under the sentence imposed in the District Court time under this order will run from that date;
(b)Authorising Mr Wiseman to apply for an alcohol interlock licence immediately; and
(c) Requiring him, while holding an alcohol interlock licence, to:
(i)drive only a vehicle or vehicles to which an alcohol interlock licence is fitted; and
(ii)apply for a zero alcohol licence after he has held the alcohol interlock licence for 12 months, subject to the statutory criteria in s 65A(2)(b)(iv).
[25] Although there is no appeal against the Judge’s order that Mr Wiseman’s car be confiscated, Mr Beach, for Mr Wiseman, advised that the car has not actually been confiscated yet. In these circumstances it is appropriate to quash the confiscation order; if it remains then Mr Wiseman will continue to be subject to s
136 of the Sentencing Act and will be prevented from having an interest in a vehicle.
I quash the confiscation order pursuant to s 251(2) Criminal Procedure Act 2011.
P Courtney J
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