IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000395 [2013] NZHC 155

BETWEEN	MORGAN LAVE NANAI Appellant

AND	NEW ZEALAND POLICE Respondent

Hearing:	5 February 2013

Appearances: N Silich for Appellant
J M Pridgeon for Respondent

Judgment:	11 February 2013

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on
11 February 2013 at 12.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Nicholas Silich, PO Box 33379, Takapuna, North Shore City 0740
Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

NANAI V NEW ZEALAND POLICE HC AK CRI-2012-404-000395 [11 February 2013]

[1]       The appellant, Mr Nanai, pleaded guilty to two charges in the Waitakere District Court, one of refusing to permit blood to be taken  and one of resisting a constable.    The offending occurred on 19 June 2012 and he was sentenced in the Waitakere District Court on 26 October 2012.

[2]       On  the  first  charge,  Judge  Cunningham  sentenced  him  to  200  hours’ community work and 12 months’ intensive supervision.   Due to Mr Nanai’s poor record of offending under the Land Transport Act 1998 (“the Act”), he was also permanently disqualified from holding or obtaining a driver’s licence.  On the charge of resisting a constable, he was convicted and sentenced to 60 hours’ community work,  to  be  served  concurrently with  the  200  hours  imposed  on  the  charge  of refusing to permit blood to be taken.

[3]       Mr Nanai now appeals against the permanent disqualification order, alleging that the learned District Court Judge erred in holding that a sentence could not be imposed under s 65A of the Act,  which provides for the sentence of an “alcohol interlock licence disqualification”.

[4]       The Judge’s reasoning appears at [9]-[11] of her sentencing remarks:

[9]        There has been an application today, essentially supported by your lawyer, for an interlock device to be fitted to your car to stop you driving. That  legislation,  s 65B,  came  into  effect  on  10  September  2012.    This offence was committed approximately three months earlier in June 2012. The provision says that it can be applied on conviction.  No conviction has yet been entered.

[10]      Essentially it comes down to an argument about whether or not this legislation should be applied to an offence that was committed before the provision came into effect.  I am of the view that it should not.  The primary reason for that is that generally-speaking, legislation is not applied retrospectively;  that means it should only relate to offences committed after
10 September 2012.

[11]      If it is to apply retrospectively, in my view the legislature should have made that clear.  It is punitive in nature and can be seen as an additional penalty on conviction for a charge like this, and in my view, that emphasises the  need  for  legislation  not  to  be  applied  retrospectively  without  the

provision making it clear that it is to apply retrospectively.  So I decline the application for an interlock device.

[5]       The reference in [9] to s 65B was clearly an error, and should have been to s 65A.

[6]       On the approach, the Judge did not consider imposing an alcohol interlock licence disqualification.   The appellant contends that she should have, relying on s 6(1) of the Sentencing Act 2002 which provides that:

An offender has the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the “lesser penalty”.

[7]       Section 6(2) provides that subs (1) applies “despite any other enactment or rule of law”.

[8]       The issue raised is of some significance for those who are to be sentenced for offences committed prior to the coming into force of the relevant provisions of the Land  Transport  (Road  Safety  and  Other  Matters)  Amendment  Act  2011  on
10 September 2012.  There are District Court decisions which go both ways and I am advised by counsel that there is no relevant High Court authority.

The appellant’s offending

[9]       Mr  Nanai  has  offended  against  the  relevant  blood  and  breath  alcohol provisions in the Act on a number of occasions since 1999.  He has three previous convictions  for  driving  whilst  the  level  of  alcohol  in  his  breath  exceeded  the statutory maximum, dating from 1999, 2001 and 2008.  Further, in 2005 he drove with an excess level of alcohol in his blood, and in 2006 he was convicted of refusing a police request that he provide a blood sample.

[10]     On the present occasion, the appellant refused to undergo a breath screening test and was required by police to accompany them back to the Henderson Police
Station for the purposes of an evidential breath test.  He refused to accompany the

police, and had to be restrained and handcuffed.  He refused to co-operate with the breath testing procedures and refused a request to give a blood sample.

[11]     Given the appellant’s history of offending there is no doubt that s 65 of the Act applied, requiring an order disqualifying Mr Nanai unless or until the disqualification  might  be  removed  on  application  under  s 100  of  the Act.    The question is whether the Judge was also obliged to consider whether or not to impose a sentence for an alcohol interlock licence disqualification under s 65A of the Act.

The relevant statutory provisions

[12]	It is appropriate at this point to set out the relevant statutory provisions. [13]	Section 65 of the Act provides as follows:

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 breath, 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 breath 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  of  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).

[14]     Both ss 65(2) and 65(4) speak of disqualification “until the Agency removes that disqualification under s 100”.   It follows that, unless the Agency removes the disqualification, it applies.  Section 100 provides for the Agency to make an order removing the disqualification, if satisfied that the applicant is a fit person to hold a driver licence on the basis of medical reports.

[15]     Section 65A 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.

(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.

[16]     There are two  aspects  of s 65A(2) which  stand  out.    First,  where s 65A applies, the Court is directed to take certain action “if” it imposes a sentence for an alcohol interlock licence disqualification.  The language used in subs (2) might be thought to imply that there is another statutory provision which directly authorises the imposition of such a sentence.  However, counsel advised that they have not been able to find such a provision, and neither have I.  It appears that the power to impose such a sentence is to be inferred from the wording of subs (2) itself, in the context of s 65A as a whole.

[17]     Second, the absence of any direct power to impose such a sentence means that there are no explicit statutory criteria which are to govern the exercise of what on the face of it, is a discretionary power.   This is odd bearing in mind that, for reasons that will later emerge, it appears that Parliament’s intention is that orders made  under  s 65A(2),  will,  when  made,  have  effect  instead  of  the  “mandatory penalties” provided for by s 65.  Put simply, the question that sentencing Judges will have to confront is what circumstances will make an order of a kind contemplated by s 65A(2) appropriate in a case where, as here, the defendant plainly qualifies for a mandatory penalty under s 65.   In the absence of any specific guidance in s 65A itself, that is an issue which will have to be resolved by resort to the general purposes and principles of sentencing set out in Part 1 of the Sentencing Act.

[18]     The two sections do work together because s 65A(2)(b)(v), as set out above, provides that a sentence for an alcohol interlock licence disqualification must include an order that ends the person’s disqualification under s 65 “if the person was disqualified under s 65”.   This means that if a person has been disqualified under

s 65, an alcohol interlock licence disqualification can be imposed with the effect of bringing the s 65 disqualification to an end.  Further, it seems that if an order is made under s 65A(2), the Court would not be required to impose a mandatory penalty under s 65.  Use of the word “if” here would be inconsistent with any suggestion that orders should be made under both s 65 and s 65A at the same time.  I note that the parliamentary record shows that s 65A was amended following its consideration by the Transport  and  Industrial Relations  Committee in order to remedy what was regarded as a drafting error which could have led to a person being indefinitely disqualified under s 65 and being given an order for an alcohol interlock licence
under the new s 65A simultaneously.

[19]     Consequently, in procedural terms, the sections can be harmonised and when somebody appears for sentence, a choice made as to whether the sentence is to be imposed under s 65 or s 65A.

This case

[20]     The Judge in the present case proceeded on the basis that s 65A did not apply because of the date of the offending.  Mr Silich argued that approach was incorrect because of the provisions of s 6 of the Sentencing Act, and because a sentence under s 65A would be a “lesser penalty”.

[21]     As has been seen, that was not the view taken by the learned District Court Judge.   She described s 65A as “punitive in nature”, and thought that it could be “seen as an additional penalty on conviction for a charge like this”.     In the circumstances, she thought that the legislation should not be applied retrospectively without express statutory provision.

[22]     Ms Pridgeon, who appeared for the respondent on appeal, endeavoured to support that approach.  In her written submissions, she contended that ss 65 and 65A
were not  alternative provisions,  and  that an  order can  be made under s 65A in

addition to mandatory orders under s 65.  In these circumstances, s 65A was not to

be seen as the “lesser sentence”.

[23]     In my view, s 65A is appropriately described as the “lesser sentence”.  The crucial distinction between the two provisions is that where a sentence is imposed under s 65, the period of disqualification is, on the face of it, open-ended, applying unless or until the Agency forms the view that the offender is a fit person to hold a driver licence under s 100 of the Act.  On the other hand, if a sentence is imposed under s 65A of the Act, the period of disqualification lasts for three months only. After that, a person may be authorised pursuant to an alcohol interlock licence to drive a vehicle to which an alcohol interlock device is fitted.

[24]     To  some  extent,  the  offender  can  control  the  interlock  licence  process, because under s 65A(2)(b)(i), the sentence will include an order that “authorises” that person to apply for an alcohol interlock licence.  If he or she does not do so, then s 65(4) applies, and the person is to be treated as one “with a licence of no effect”. The drafting of subs (4) is consistent with the fact that a sentence under s 65A must also include an order which “ends the person’s disqualification under s 65”, where the offender has been disqualified under that section.  Clearly, there would have been a gap in the statutory provisions if a sentence was imposed under s 65A on an offender, with the required order ending that person’s disqualification under s 65, if
the offender did not then go on to apply for an alcohol interlock licence.

[25]     Although s 7 of the Interpretation Act 1999 provides that enactments do not have  retrospective  effect,  s 6(2)  of  the  Sentencing Act  notes  that  s 6(1)  applies “despite any other enactment or rule of law”.  The legislature is not obliged to use specific words on introducing a provision, such as s 65A, because the legislative intent has already been expressed in s 6 of the Sentencing Act and s 25(g) of the New Zealand Bill of Rights Act.  The combination of the features of the s 65A sentence
that I have discussed in the previous two paragraphs satisfies me that a sentence

under s 65A should be regarded as a lesser penalty than one imposed under s 65. Consequently, the provisions of s 6 of the Sentencing Act and s 25(g) of the New Zealand Bill of Rights Act 1990 should be applied.

[26]     In reaching this conclusion I have not overlooked Blanchard J’s observations about  the  language  of  s 6  of  the  Sentencing Act  in  Morgan  v  Superintendent, Rimutaka Prison.   He said:

[57]      Another point should be made about the language of s 6 of the Sentencing Act.   It can only be read as referring to the maximum penalty which the law allowed to be imposed at the relevant time for the generic crime.    So, in the case of  cultivation  of cannabis, it is referring to the maximum penalty of seven years.  It cannot sensibly read as referring to the particular sentence for the offending of a particular offender because that is not something capable of being varied between commission and sentence. Individual sentences are imposed only on sentencing.

[27]     In my view s 65A amounts to a lesser maximum penalty “which the law allowed to be imposed” than was the case prior to its enactment.

[28]   This does not mean that a sentence for an alcohol interlock licence disqualification should be made.   Whether or not that is appropriate will depend upon an assessment made, as I have said earlier, in accordance with the applicable provisions of Part I of the Sentencing Act.

[29]     However, an offender in the position of the present appellant was entitled to have the possibility of a sentence being imposed under s 65A considered by the Judge.  In this case, the District Court Judge specifically declined to do so and in my view, that was an error.

[30]     In her sentencing remarks, the Judge noted that at the time of sentencing, the appellant had completed the Salvation Army Bridge Programme, from which he had graduated a few days before sentence.   She described this as a “significant achievement” that would “not only be of great benefit to the community” in reducing the appellant’s offending, but also to him and his family.  It was, evidently, 126 days
since he had consumed alcohol and he was continuing to attend AA meetings.  The

rehabilitative  steps  that  the  appellant  had  taken  were  such  that  would  make  a sentence under s 65A appropriate.

[31]     Mr Silich submitted that this Court should impose a sentence for an alcohol interlock licence disqualification.  Ms Pridgeon did not submit to the contrary if the Court was of the view that such a sentence was properly available.  I consider orders under s 65A in this case would be in accordance with the rehabilitative purpose set out in s 7(1)(h) of the Sentencing Act, while not being contrary to any of the other provisions of the Sentencing Act.  I am satisfied that it is appropriate to impose such a sentence and quash that part of the sentence in the District Court which ordered permanent disqualification under s 65.

[32]     I invite counsel to confer on the appropriate terms of the order to be made, taking into account the fact that s 65A(2)(a) requires that there be a mandatory disqualification for three months.  Subject to any argument to the contrary from Ms Pridgeon, it would appear the appropriate course will be to make an order as contemplated by s 65A(2)(a), but express it so as to note (as I assume to be the case) that the three month period will have already been served consequent upon the conviction and order made under s 65 in the District Court.  Counsel should file a joint memorandum, or separate memoranda if agreement cannot be reached, within ten days of delivery of this judgment.

Result

[33]     The appeal will be allowed, and a formal order made resolving it, following receipt of the memoranda referred to in [29].