IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY CRI-2015 · PDF fileIN THE HIGH COURT OF NEW...
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HEFFERNAN v NEW ZEALAND POLICE [2015] NZHC 947 [6 May 2015]
IN THE HIGH COURT OF NEW ZEALAND
NAPIER REGISTRY
CRI-2015-441-00003
[2015] NZHC 947
BETWEEN
DYLAN JOHN HEFFERNAN
Plaintiff
AND
NEW ZEALAND POLICE
Defendant
Hearing:
6 May 2012
Appearances:
P Ross for the Appellant
M Mitchell for Respondent
Judgment:
6 May 2015
ORAL JUDGMENT OF TOOGOOD J
Summary
[1] This is an appeal against the imposition of an indefinite period of
disqualification from driving under s 65 of the Land Transport Act 1998 (LTA),
following a plea of guilty to a charge under s 56(2) of the LTA of driving a motor
vehicle with a blood-alcohol level of more than 80 milligrams of alcohol per 100
millilitres of blood. It is submitted that the District Court Judge was wrong to refuse
to make orders for an alcohol interlock licence disqualification under s 65A of the
LTA. The appellant argues that the Judge did not consider his counsel’s written
submissions and further, that the Judge incorrectly considered that an interlock
licence would “ease the immediate effects of disqualification”. He submits that the
Judge’s approach demonstrated a misunderstanding of the purpose and effect of
s 65A and was wrong.
Factual background
[2] At about 11:15 pm on 22 November 2014, the appellant was driving a motor
vehicle on Taradale Road, Napier, when Police observed the vehicle had no
headlights on. The appellant’s vehicle continued for about 50 metres, half on the
footpath and half on the road. The appellant then swerved the vehicle onto the
roadway and pulled the handbrake on to slide the rear of the vehicle to the right, to
line the vehicle up with a driveway on the east side of the road.
[3] Police pulled up beside the appellant with flashing blue and red lights but he
ignored them and drove up the driveway. A Police officer went to the driver’s door
of the vehicle where the appellant was attempting to get out of the locked vehicle.
[4] The appellant’s speech was slurred, his eyes glazed and he smelt of alcohol;
the Police asked him to undertake a roadside breath screening test which he refused,
and he was taken to the Police station for a breath/blood test. He failed to take an
evidential breath test when directed. A blood test was then requested and taken by a
registered medical officer. That test returned a reading of 156 milligrams of alcohol
per 100 millilitres of blood; just short of double the permitted limit.
Pre-sentence report
[5] The pre-sentence report recommended a sentence of supervision and
community detention. The writer identified alcohol abuse and poor-decision making
as being the key factors contributing to the appellant’s offending. The writer noted
that the appellant was fearful of losing his fulltime employment as an apprentice
mechanic if he was unable to have a driver’s licence as his job required him to travel
occasionally for work.
Criminal history
[6] Despite being aged only 21 at the time of the offending, the appellant has
four previous driving-related convictions:
(a) Failing to stop when followed by Red/Blue flashing lights –
21 August 2014.
(b) Operating a vehicle carelessly – 21 August 2014.
(c) Driving with a breath/alcohol level over 400 micrograms of alcohol
per litre of breath – 20 September 2013.
(d) Being a person under 20, driving with a breath/alcohol level over
150 micrograms of alcohol per litre of blood – 24 April 2012.
[7] Section 65(4) of the LTA applies to the offending because the appellant had
committed two previous offences against ss 56–62 of the Act within five years of the
commission of the current offence. Accordingly, the Court was directed by the Act
to make an order that required the appellant to attend an assessment centre and
disqualify him from holding or obtaining a licence until the New Zealand Transport
Agency removed the disqualification.1
1 Under s 100, the Agency must remove the disqualification if satisfied that the applicant is a fit
person to hold a driver licence having regard to a report from a medical centre and any other
evidence submitted by the applicant or otherwise available to the Agency relating to the
medical condition of the person disqualified.
[8] Under s 65A of the LTA, however, the Court may impose a sentence for an
alcohol interlock licence disqualification as an alternative to the mandatory
disqualification under s 65. The operation of this section is discussed in more detail
further in this judgment.
District Court decision
[9] The appellant was sentenced by Judge AJ Adeane on 27 January 2015 on the
blood/alcohol charge and a charge of careless driving.2 After setting out the facts of
the offending the Judge noted:
[5] The first bone of contention in the case concerns an interlock licence
which would ease the immediate effects of disqualification, provided the
appellant had a nil breath alcohol reading. Given the combination of factors
in his present offending, together with the nature of his immediate past
offending, I am not satisfied that the Court should exercise its discretion in
the defendant’s favour on that particular topic.
[10] The Judge found the appellant liable to disqualification simpliciter, noting
that the appellant needed to appreciate that if he committed any further drink-driving
offences he would be liable to imprisonment. The Judge also noted that the
disqualification would impact on the appellant’s work, but said that that was an adult
consequence of adult offending. The Judge said, in relation to the appellant:3
… He is, I suspect, not entitled to apply for a work licence, so he will need
to take counsel’s advice if he so desires on that topic.
[11] The Judge then sentenced the appellant to four months’ community detention;
nine months’ supervision with counselling and education programmes as directed;
and indefinite disqualification under s 65.
Appellant’s submissions
[12] The appellant appeals only against the District Court Judge’s refusal to order
an alcohol interlock licence disqualification instead of the disqualification under
s 65.
2 Police v Heffernan [2015] NZDC 1081.
3 At [7].
[13] The first ground of appeal raised is that the District Court Judge failed to
consider the written material provided by counsel in support of the application for
the alcohol interlock licence. This is argued on the basis that, during oral
submissions, the Judge asked who paid the costs of installation and maintenance of
the device. The answer to this question was set out in the defendant’s written
submissions. Accordingly, the appellant argues that the Judge could not have
considered this material.
[14] Second, the appellant submits that the Judge’s comment that an interlock
licence would ease the immediate effect of disqualification was incorrect because a
person has to be disqualified for three months before they may apply for the
interlock licence. The appellant argues that this means there was a breach of natural
justice, a fundamental error of law which allows this Court to consider the matter
afresh.
[15] The appellant says that the reason for applying for an interlock licence was to
preserve his employment and enable him to continue working and paying his
mortgage. Permitting an interlock application would be the least restrictive sentence
appropriate in the circumstances, as required by s 8(g) of the Sentencing Act 2002,
but it would also satisfy public safety concerns as it would physically prevent the
appellant from driving while drunk.
[16] The appellant’s notice of appeal raised several other arguments not pursued at
the hearing and I do not need to address them.4
Respondent’s submissions
[17] In respect of the appellant’s argument that the District Court Judge had not
read his submissions, the respondent submits that counsel are entitled to presume
that the Judge will read the written material before the Court. The implications of
accepting the appellant’s argument would be absurd, in Ms Mitchell’s submission.
4 These were that the Judge noted that the appellant should consult counsel about seeking a
limited licence, when he was in fact ineligible for a limited licence. Additionally, the notice of
appeal states that the disqualification was manifestly excessive and the Judge placed insufficient
weight on the appellant’s employment.
[18] In relation to the Judge’s comments about the interlock licence, the
respondent submits that the word “immediate” was not intended as a temporal
reference, but as a reference to the direct effect of disqualification – that of not being
able to drive.
[19] In addressing whether the District Court Judge’s decision was plainly wrong,
the respondent argues that the nature of this offending was serious and that it called
for strong denunciation and deterrence, particularly in the context of the appellant’s
history of driving offences. Further, the respondent pointed to an allegedly
misleading statement by the appellant that his car had been destroyed, when the pre-
sentence report states that the car was still in his possession, as evidence that the
appellant does not appreciate the gravity of his offending. The Judge did not refer to
that matter, however, and I accept from Mr Ross’s explanation from the Bar that
what was said in the report may have misrepresented the position. I put that issue to
one side.
Analysis
Relevant law
[20] Section 65A provides an alternative to mandatory disqualification under s 65,
to which the appellant would otherwise be subjected. The section applies to
recidivist drink drivers who have committed a specified offence within the previous
five years and those convicted of drink driving with particularly high breath or blood
alcohol levels. It provides:
65A Alcohol 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), 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 the
following:
(A) the proportion of alcohol in the person’s
breath, as ascertained by an evidential breath
test subsequently undergone by the person
under section 69, is 800 micrograms of
alcohol per litre of breath or higher:
(B) the proportion of alcohol in the person’s
blood, as ascertained from an analysis of a
blood specimen subsequently taken from the
person under section 72 or 73, is 160
milligrams of alcohol per 100 millilitres of
blood or higher.
(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 3 months; and
(b) make an order that—
(i) authorises the person to apply for an alcohol
interlock licence at the end of the 3-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
least 12 months; and
(B) has not violated any of the requirements of
the alcohol interlock licence during the 6-
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 3-month
period preceding the date on which the
alcohol interlock device is removed; and
(v) ends the person's disqualification under section 65, if
the person was disqualified under section 65.
(3) The imposition of a mandatory disqualification under this section is
subject to section 81.5
(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.
[21] Where a court decides to use this section, it must make an order disqualifying
the person from driving for three months and order that the person apply for a zero
alcohol licence after the three month disqualification period. Although the court may
only order the offender to apply for a licence, the Land Transport Agency has no
meaningful power to refuse a licence where the application is authorised under this
section.6
[22] The section itself gives no specific guidance on the criteria to be applied for
such an order. However, this Court has approached the issue on the basis of the
general purposes and principles of sentencing in the Sentencing Act.7
Approach on appeal
[23] Section 244 of the Criminal Procedure Act 2011 gives a person convicted of
an offence the right to appeal against the sentence imposed for that offence, unless
the sentence is one fixed by law.
5 Land Transport Act 1998, s 81(1) provides that if any provision of the Act (other than section 63)
requires a court to disqualify a person from holding or obtaining a driver 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. 6 See for example Wiseman v New Zealand Police [2014] NZHC 2327 at [15].
7 Wiseman v New Zealand Police, above n 6, at [16].
[24] Section 250(2) provides that the court must allow the appeal if it is satisfied
that there is an error in the sentence imposed on conviction and a different sentence
should be imposed. The approach taken under the section is the same as that taken
under the former Summary Proceedings Act 1957:8
(a) There must be an error vitiating the lower court’s original sentencing
discretion: the appeal must proceed on an “error principle.”
(b) To establish an error in sentencing it must be shown that the Judge in
the lower court made an error whether intrinsically or as a result of
additional material submitted to the appeal court.
(c) It is only if an error of that character is involved that the appeal court
should re-exercise the sentencing discretion.
[25] The High Court will not intervene where the sentence is within the range that
can properly be justified by accepted sentencing principles.9
First ground of appeal: failure to consider submissions
[26] The first ground of appeal raised is that the Judge failed to have regard to the
appellant’s written submissions. In order for this submission to succeed, the
appellant must show that there has been “a material error in the sentencing process
which requires a re-assessment of the sentence” or that the sentence was manifestly
excessive or wrong in principle.10
This Court must “examine the significance of the
error to decide whether a different sentence should be imposed.”11
[27] In Lin v New Zealand Customs Service a sentence appeal was allowed
because the Judge had sentenced the appellant without hearing sentencing
submissions from his counsel and therefore in breach of natural justice.12
Sentencing
8 R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[140]; applied in Tutakangahau v R [2014]
NZCA 279, [2014] 3 NZLR 482 at [26]–[27]. 9 Ripia v R [2011] NZCA 101 at [15].
10 Te Aho v R [2013] NZCA 47 at [30] cited with approval in Tutakangahau v R, above n 8, at [30].
11 Tutakangahau v R, above n 8, at [32].
12 Lin v New Zealand Customs Service [2013] NZHC 3499 at [6] and [28].
on such a basis would be wrong in principle and allow the Court to consider whether
a different sentence should be imposed.13
[28] I do not accept, however, that it is necessary to infer that Judge Adeane had
not read counsel’s written submissions because the answer to the Judge’s question
about the cost of installing and maintaining the interlock device was set out in them.
The Judge may simply have overlooked that point, or forgotten it. In any event, it
seems counsel answered the question so that the Judge approached the sentence
knowing that the cost of the interlock device would be borne by the appellant. No
miscarriage of justice is evident and this point fails.
Second ground of appeal: Judge’s characterisation of the interlock licence
[29] Second, the appellant argues that the Judge’s comments that an interlock
licence would “ease the immediate effect of disqualification” amounted to an error of
law.
[30] It is correct, as Mr Ross submits, that a person must be disqualified for three
months before applying for an interlock licence and that the interlock licence does
not “immediately” ease the disqualification. But, I do not consider that that is what
the Judge meant by that comment. I understand the Judge to have meant that an
interlock licence would have the direct effect of allowing the appellant to drive a
vehicle. This is in keeping with the legislative provisions and with existing authority
that characterises an interlock order as less restrictive than disqualification under
s 65.14
Was there any other error in the District Court Judge’s decision rendering it wrong?
[31] In a case such as this, disqualification from driving is mandatory. It cannot
be argued that a sentence was manifestly excessive when the Court declines to apply
s 65A and the offender is disqualified under s 65. But the discretion to apply s 65A
13
See for example Harris v Police HC Christchurch CRI 2011-409-92, 6 December 2011 where
the Court held that sentencing the appellant in chambers without him present was a breach of
natural justice and wrong in principle. 14
See for example Wilson v Police [2014] NZHC 2474 at [67]; and Lose v R [2014] NZCA 368 at
[21].
or simply disqualify under s 65 is analogous to the decision whether to impose home
detention instead of short-term imprisonment, and is susceptible to appellate review.
In this context, the Court of Appeal has held that the choice “is the exercise of a
fettered discretion, with appellate review focusing … on the identification of error, if
any, in the court below”. In exercising the discretion, a sentencing judge must
consider the purposes and principles of sentencing relevant to the particular case.15
[32] In Wilson v Police, an appeal against a District Court Judge’s refusal to make
s 65A orders was allowed. The High Court noted that the Judge’s view that
indefinite disqualification was a more appropriate sentence was contrary to the
sentencing principles contained in s 8(g) of the Sentencing Act which requires the
least restrictive outcome appropriate in the circumstances. Section 65A is intended
to serve the dual purposes of being appropriate for the offender and protecting the
community.16
[33] Where both s 65 and s 65A apply, there is no presumption in favour of the
harsher outcome; the starting point is that the discretion whether to apply s 65A is to
be exercised in accordance with sentencing purposes and principles.17
[34] In declining to order an interlock device, in the present case, Judge Adeane
said that given the combination of factors in the appellant’s present offending,
together with the nature of his immediate past offending, he was not satisfied that the
Court should exercise its discretion in the appellant’s favour.
[35] With due respect to the Judge, those observations miss the point, which is
that the appellant’s current and past offending was of a type in respect of which the
section is intended to apply. It is in the very nature of the section that the factors
referred to by the Judge engage its operation when a specified offence is committed
and either the offender has committed one of those offences in the previous five
years, or the offending involves an extremely high blood/breath alcohol level. The
specified offences include contravening the blood/breath alcohol limit, the offence
for which the appellant was sentenced, but also include driving a motor vehicle on a
15
Manikpersadh v R [2011] NZCA 452 at [12] and [14]. 16
Wilson v Police, above n 14, at [67]. 17
Rao v Police [2014] NZHC 3348 at [21].
road while under the influence of drink or a drug to such an extent that they are
incapable of having proper control of the vehicle, and being in charge of a motor
vehicle and causing bodily injury or death while under the influence of drink or a
drug. In the scheme of these offences, the factors involved in the appellant’s current
offending and his four previous driving convictions are of such a character as to
accommodate the imposition of this sentence.
[36] The purposes of denunciation and deterrence are clearly important
considerations in the case of recidivist drink driving. However, as Courtney J found
in Wiseman v Police, “the considerations of deterrence and denunciation and
protection of the public can still be addressed by a suitable combination of sentences
… in conjunction with an interlock order.”18
[37] Here, as in Rao v Police, it is significant that the appellant was charged with
careless driving,19
meaning that denunciation and deterrence were important
considerations in sentencing for that offending. They are relevant as well to the
offence of driving with an excess blood/alcohol level and were properly recognised
in the sentences of community service and supervision which were imposed for that
offending and are not challenged. However, those purposes assume much less
relevance, if any, in a consideration of whether s 65A should be applied.
[38] In imposing the indefinite disqualification, Judge Adeane noted that the
disqualification would impact on the appellant’s work but said that that was simply
one of the adult consequences of adult offending. The observation overlooks one of
the primary purposes of s 65A, which is to provide an alternative to s 65
disqualification; the alternative not having the same devastating impact on an
offender’s employment. I note that disqualification is likely to have a profoundly
more punitive effect on someone in the appellant’s position than on someone who
did not need to drive for work purposes.
[39] The potential impact of indefinite disqualification on employment compared
to the impact of an interlock licence has been treated as a very relevant consideration
18
Wiseman v Police, above n 6, at [17]. 19
See Rao v Police, above n 17, at [28].
in the decision whether to grant an interlock licence. As Courtney J noted in
Wiseman:20
[21] It is in society’s interests that those with full-time employment be
supported in that, all things being equal. It is in society’s interest that a
recidivist offender who finally recognises the error in 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.
[40] In this respect, the appellant can be distinguished from the offender in Rao,
who was not dependent on using a car as he used public transport to attend university
and work. An alcohol interlock device was not necessary for the offender in that
case to continue his employment and therefore did not serve the purpose of helping
his rehabilitation and reintegration.
[41] The pre-sentence report recorded the present appellant’s statement that he
was likely to lose his job if he was disqualified. This is supported by the affidavit of
Matthew Durham, the Account Manager of Apprentice Training New Zealand Trust
(AMAT), in which it is said to be a key requirement for all apprentices to hold a
restricted licence for any placement. Mr Durham notes that if the appellant was not
able to drive, AMAT would have to consider the termination of his employment.21
Loss of the appellant’s employment would also affect his ability to finish his
apprenticeship training.
[42] An alcohol interlock licence, therefore, would serve the purpose of assisting
reintegration. It would not do so at the expense of necessary concerns about public
protection because the effect of the licence would be to prevent the appellant from
driving after consuming alcohol. It also weighs in the appellant’s favour, in my
view, that, despite this being his third drink-driving conviction in a short period, he
has no history of non-compliance with sentences of finite disqualification.
20
Wiseman v Police, above n 6. 21
ATNZ employs apprentices and seconds them to companies to complete the on-the-job learning
component of the apprenticeship.
[43] Further, the pre-sentence report notes that the appellant has been attending
Alcoholics Anonymous twice weekly, showing that he has made some steps towards
rehabilitation.
[44] In my view, the District Court Judge erred in failing to apply adequately the
relevant purposes and principles of sentencing in considering whether orders under
s 65A would be appropriate in the circumstances. It was necessary for the District
Court to take into account that it was imposing a mix of sentences, the cumulative
effect of which would need to address the relevant principles. Orders under s 65A
were appropriate and in line with imposing the least restrictive sentence as well as
meeting the purpose of rehabilitation. The purposes of denunciation and deterrence
are addressed adequately through the sentences of community detention and
supervision which were imposed.
Result
[45] Accordingly, I allow the appeal and set aside the order for disqualification
under s 65 of the LTA.
[46] The appellant has already been subject to disqualification from driving for
more than three months but I am required nevertheless to make an order under
s 65A(2)(a) of the LTA. It shall have effect from 27 January 2015, the date of the
original sentencing, and will be treated as having been served. Section 65A(4) of the
LTA means, however, that in the period between the making of these orders today
and the granting of an interlock licence, the appellant will be a person whose current
driver’s licence is of no effect. I have asked Mr Ross to make it very clear to the
appellant that he is not permitted to drive, despite the disqualification period having
ended.
[47] For these reasons I make:
(a) An order under s 65A(2)(a) Land Transport Act 1998 disqualifying
the appellant from driving for a period of three months from
27 January 2015; and
(b) An order in terms of subparagraphs (i)–(v) of s 65A(2)(b) Land
Transport Act 1998.
………………………………
Toogood J