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