Read v Police

[2020] NZCA 101

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA593/2019
 [2020] NZCA 101

BETWEEN	DAVID OMEGA READ Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	27 February 2020
Court:	Clifford, Simon France and Lang JJ
Counsel:	Applicant in person C A Brook for Respondent
Judgment:	20 April 2020 at 12 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

1. Mr Read applies for leave to bring a second appeal in relation to a sentence imposed on him on a charge of driving with excess breath alcohol.[1]

   [1]Police v Read [2019] NZDC 29900; Read v Police [2019] NZHC 2720; Criminal Procedure Act 2011, s 253(1); and Land Transport Act 1998, s 56(1).

2. At the time of sentencing, Judge Ryan indicated a sentence of seven months’ supervision, 150 hours’ community work and seven months’ disqualification.  Counsel for Mr Read intervened, at his direction, and sought a variation of the last component.  Instead of seven months’ disqualification, a sentence of three months’ disqualification and a direction to install an alcohol interlock device was sought.[2]  At that time, the imposition of an alcohol interlock licence was discretionary.  The Judge reviewed the requirements of those licences, agreed the statutory criteria were met, and imposed the amended sentence.[3]

   [2]Land Transport Act, s 65A. 

   [3]Police v Read, above n 1, at [15]–[19].

3. At the time of the sentencing, seemingly unknown to Mr Read and the Court, Mr Read had separately from this offence acquired more than 100 demerit points, an occurrence which triggers a three-month suspension.  This occurred on 20 May 2017, so about four months before sentencing.  Mr Read had not at that stage been served with the suspension notice, but his liability to a three months’ suspension was in place and awaiting activation.

4. Mr Read served the three months’ disqualification imposed at sentencing and then recommenced driving.  He was not entitled to do so because, although he had an interlock licence, he had not installed the device.  He says his financial circumstances had changed, and he could no longer afford to do so.  However, until he did, or until he had the sentence varied, he was suspended from driving.  As noted, Mr Read did drive and he was stopped.  As well as being suspended from driving because of the interlock device situation, the police became aware of the pending demerit point suspension.  That three months’ suspension was therefore activated at that time. 

5. Since then, Mr Read has again driven unlawfully and he faces further charges for driving while suspended.  Although his demerit point suspension has ended, he has still not applied for an alcohol interlock licence, and is therefore still suspended from driving.  He says he still cannot afford the interlock device.  We are advised he has unsuccessfully sought review of the sentence he presently appeals.

6. Mr Read accepts the current sentence imposed in the District Court was imposed at his request and in the ordinary course of events is not excessive.  However, he believes that if he and the Court had known about the demerit points, he would have sought and the Court would have imposed the original sentence of seven months’ disqualification, with no interlock device requirement.  This would have three advantages:

   (a)section 91(3) of the Land Transport Act 1998 would apply, meaning the demerit points suspension would be overridden;

   (b)there would be no interlock device requirement; and

   (c)his liability for the charges accrued in the interim would disappear.

7. The first proposition is the key to the appeal.  It was identified in the High Court by Powell J as being incorrect.[4]  We agree.

   [4]Read v Police, above n 1, at [11]–[12].

8. Section 91(3) of the Land Transport Act provides:

   The Agency must cancel all demerit points for the time being recorded against a person if a court disqualifies the person from holding or obtaining a driver licence for a period of 6 months or more.

9. It was established by Henderson v Director of Land Transport New Zealand that the three-month demerit point suspension vests automatically on the accrual of 100 points.[5]  The effect of the suspension automatically applying is that the points underlying the demerit suspension are in effect removed by the fact of the suspension. Those points are linked to and for practical purposes cancelled by the suspension. 

   [5]Henderson v Director of Land Transport New Zealand [2006] NZAR 629 (CA) at [51].

10. Section 91(3) does not therefore apply to them.  It does not matter for these purposes that the driver has not yet received notice or commenced serving it.  The obligation on the New Zealand Transport Agency to serve the notice of suspension is in place, and a driver is required to comply with it.[6]  Whichever of the sentencing options was imposed in the District Court four months after the demerit suspension was triggered, Mr Read would need additionally to serve the three-month demerit point suspension.

    [6]Land Transport Act, s 90.

11. The sentence imposed was favourable to Mr Read, as he wished.  It was the best option available at the time to get him back driving as quickly as possible.  On the identified options the non-driving period was going to be either six months plus an interlock licence or 10 months without an interlock.  The fact that the sentencing Judge was unaware of the demerit point situation has not affected matters, nor occasioned a miscarriage.

12. The answer from the start has been, and remains, for Mr Read to install an interlock device.  Other charging complications along the way are a product of his ignoring his legal incapacity to drive.  The consequence of that does not mean the original sentence is in any way flawed.

Conclusion

1. There is no error in the original sentence, nor will a miscarriage occur if leave to bring a second appeal is not granted.

2. The application is declined.

Solicitors:
Crown Law Office, Wellington for Respondent