IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CRI-2015-485-17 [2015] NZHC 2235 BETWEEN AND DINH TU DO Appellant NEW ZEALAND POLICE Respondent Hearing: 23 June 2015 Counsel: A Shaw for Appellant S W P Woods for Respondent Judgment: 16 September 2015 JUDGMENT OF CLIFFORD J Introduction [1] The appellant, Dinh Tu Do, challenges a zero alcohol licence order made against him by Judge Tuohy in the District Court as part of his sentence for driving with excess blood alcohol. 1 Mr Do says that, in the circumstances of his case, the imposition of that part of his sentence breached fundamental principles of criminal law relating to retrospectivity and double jeopardy. Facts [2] Mr Do was stopped by the police in the early hours of Sunday 29 December 2013 whilst driving along the Wellington/Porirua Motorway. Mr Do was breathalysed. Mr Do subsequently elected to have a sample of his blood taken. That sample showed that Mr Do s blood contained 111 milligrams, +/- five, of alcohol per 100 millilitres of blood. Mr Do was charged under s 56(2) of the Land Transport Act 1998 with driving with excess blood alcohol (106 milligrams of alcohol per 100 1 New Zealand Police v Dinh Tu Do [2015] NZDC 7581. DO v NEW ZEALAND POLICE [2015] NZHC 2235 [16 September 2015]
millilitres of blood). Mr Do pleaded guilty to that charge and was convicted on 11 April 2014. He was remanded for sentence to 10 June 2014. [3] Mr Do has a previous conviction of driving with excess blood alcohol, entered on 16 December 2011. [4] Section 65B of the Land Transport Act provides for the imposition of what are known as zero alcohol requirements. Where a person convicted of a drink driving offence 2 has within the previous five years been convicted of a like offence, the Court must make a zero alcohol licence order. Such an order requires the convicted person to apply for a zero alcohol licence when his or her mandatory period of disqualification expires. Such a licence permits that person to drive only when they have no alcohol in their blood. If that person does not obtain such a licence, they are treated as not having a licence. [5] On Mr Do s sentence remand date his lawyer, Mr Shaw, raised with the District Court the applicability of s 65B. Mr Shaw s submission was that s 65B could not apply to Mr Do because Mr Do s previous conviction pre-dated s 65B coming into effect. To apply s 65B to Mr Do, and make him subject to the mandatory requirement to obtain a zero alcohol licence, would Mr Shaw suggested be to give s 65B unlawful retrospective effect. [6] Mr Do s sentencing was therefore deferred. That question of unlawful retrospectivity was ultimately argued before Judge Broadmore on 28 July 2014. The Judge found that the application of s 65B to Mr Do would not infringe against principles concerning retrospectivity. 3 The Judge put it this way: [11] The punishment in prospect in this case is the punishment prescribed by the Act for repeat drink driving. Mr Do is not facing punishment for drink driving in October 2011, but for drink driving in December 2013. Not for drink driving in the first instance, but for doing it again. The 2011 offence does no more than satisfy the qualifying criteria for sentencing Mr Do for his December 2013 offence. At the time he committed this 2 3 That is, under any of ss 56(1), 56(2), 57(1), 57(2), 57AA, 58(1)(a), 60(1)(a)-(c), 61(1), 61(2) and 62(1)(a). New Zealand Police v Dinh Do DC Wellington CRI-2014-085-2689, 13 November 2014.
offence, the penalty for repeat drink driving was clear: it included the discretionary prospect 4 of an order being made for a zero alcohol licence. [15] It is therefore my opinion that s 65B does not infringe s 7 of the Interpretation Act or any legal principle governing retrospectivity cited to me by Mr Shaw. [7] Mr Do was subsequently sentenced by Judge Tuohy on 11 March 2015 to pay a fine of $750, Court costs of $130 and medical expenses totalling $348.78. Mr Do was also disqualified from driving for eight months and the mandatory order under s 65B, authorising him (as the statute puts it 5 ) to apply for a zero alcohol licence that would have effect for a period of three years from the issue of that licence, was made. [8] Mr Do now appeals against that zero alcohol order, on the grounds that as Mr Shaw had argued before Judge Broadmore it amounts to applying a penalty with an unlawful retrospective effect. Mr Do does not otherwise challenge the sentence imposed on him by Judge Tuohy. Law [9] This appeal engages principles relating to the retrospective application of statute law 6 and, in the criminal context, of double jeopardy. Those principles are closely related, but not the same. They have deep and strong common law roots, and are important ongoing constituents of the common law of New Zealand. In New Zealand they are all now expressed in statute. They are also expressed in international conventions which New Zealand has ratified. [10] The authors of The Law of Human Rights write of the common law position regarding retrospective statute law in the following terms: 7 4 5 6 7 The prospect is not discretionary. Under s 65B, the order is mandatory. Section 65B(2). At common law, the legal fiction is that judges declare but do not make the law. Hence, even when new law is being made, for example in tort law in Donoghue v Stevenson [1932] AC 562, it is applied in effect retrospectively the first time it is declared. Richard Clayton and Hugh Tomlinson (eds) The Law of Human Rights (2nd ed, Oxford University Press, Oxford, 2009) at ch 11: Fair Trial Rights (footnotes omitted).
11.306 The common law presumes that statutes are not intended to have retrospective effect. As Blackstone observed, if: after an action (indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law: he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust. All laws should be therefore made to commence in futuro, and be notified before their commencement; which is implied in the term prescribed. It has therefore been said that: It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary or distinct implication. This principle is often said to rest on the idea of fairness. As Staughton LJ stressed in a case involving recovery of overpaid social security benefits: the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. It has been suggested that the presumption against retrospectivity is an aspect of the principle against doubtful penalization : a person should not be penalised except under clear law. [11] The most general expression of these principles in New Zealand statute law is found in s 7 of the Interpretation Act: 7 Enactments do not have retrospective effect. An enactment does not have retrospective effect. [12] The New Zealand Bill of Rights Act 1990 (NZBORA) provides, in more specific terms and in the criminal law context: 25 Minimum standards of criminal procedure Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
(g) 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: 26 Retroactive penalties and double jeopardy (1) No one shall be liable to conviction of any offence on account of any act or omission which did not constitute an offence by such person under the law of New Zealand at the time it occurred. (2) No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again. [13] The principle reflected in s 25(g) of NZBORA finds specific and strong expression in s 6 of the Sentencing Act 2002: 6 Penal enactments not to have retrospective effect to disadvantage of offender (1) 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. (2) Subsection (1) applies despite any other enactment or rule of law. [14] The International Covenant on Civil and Political Rights expresses these principles in arts 14 and 15 in the following terms: Article 14... 7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. Article 15 1. No one shall be held guilty of any criminal offence on account of any act of omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. 2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was
committed, was criminal according to the general principles of law recognized by the community of nations. [15] The commentary in Adams on Criminal Law at SA6.01 and 6.02 reflects the strength of these principles. It does so in the context of s 6 of the Sentencing Act and the principle of retrospectivity, rather than of the principle of double jeopardy. Issues on appeal [16] Mr Shaw submitted that the issues raised by this appeal were: (a) whether s 65B had prospective effect only, making the imposition of the zero alcohol licence order on Mr Do unlawful; and (b) whether the application of s 65B to Mr Do as part of his sentence for his December 2013 offending involved the imposition of a heavier penalty than was available at the time of that offending, in breach of s 6 of the Sentencing Act specifically and the relevant provisions of s 7 of the Interpretation Act, NZBORA and the ICCPR more generally. [17] I acknowledge that is one way of putting those issues. In terms of the principles of retrospectivity and double jeopardy I think, however, that those issues are better put in terms of whether the imposition on Mr Do of the zero alcohol licence condition as part of his sentence for his December 2013 offending: (a) infringed any of the various proscriptions against the retrospective increase of penalties for offences; or (b) exposed Mr Do to double jeopardy in respect of his December 2011 offending. [18] That expression of the issues reflects my conclusion that no issue arises here in terms of the retrospective creation of an offence. That is, there is no issue under either s 26(1) of NZBORA or the first sentence of art 15 of the ICCPR.
[19] As for s 7 of the Interpretation Act 1999, the legislation in question is functionally prospective: it concerns the effect of actions that occur after its enactment. The existence of Mr Do s previous offending is necessary for the penalty presently in question to be available in respect of the proscribed conduct. In that respect the legislation has affected Mr Do s expectations as to the significance of his past offending. That effect does not, however, constitute legislation with retrospective effect. Mr Do can be taken to have known of the varied significance of his earlier offending at the time, after the enactment of s 65B, when he reoffended. [20] I address each of the remaining issues in turn. Retrospectivity [21] The appellate courts have, in cases such as R v Poumako, 8 R v Pora 9 and R v Mist, 10 considered retrospectivity in criminal statutes where the available penalty for an offence has been varied between the time the offence was committed and the time the offender was convicted or sentenced. Whilst important for their discussion of the principles involved, those cases are not therefore of direct assistance here. Nor is the Court of Appeal decision in Belcher v Chief Executive of the Department of Corrections. 11 The issue there was the imposition of what was in effect a penalty (an extended supervision order) on a previously punished offender, without the offender having committed any subsequent offence. [22] Mr Shaw also referred me to the decision of the House of Lords in R (Uttley) v Secretary of State for the Home Department, 12 and its discussion of the earlier judgment of the European Court of Human Rights in Welch v United Kingdom. 13 Again, both those cases concerned a question of the retrospective imposition of a penalty where the penalty had changed from the time of the relevant offending to the time of its imposition. Moreover, an important issue in both cases was whether the relevant sanction was a criminal penalty. 8 9 10 11 12 13 R v Poumako [2000] 2 NZLR 695 (CA). R v Pora [2001] 2 NZLR 37 (CA). R v Mist [2005] NZSC 77, [2006] 3 NZLR 145. Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507, (2006) 22 CRNZ 787 (CA). R (Uttley) v Secretary of State for the Home Department [2004] UKHL 38, [2004] 1 WLR 2278. Welch v United Kingdom (1995) 20 EHRR 247 (ECHR).
[23] It was not argued before me that the imposition of the mandatory zero alcohol licence order did not constitute a punishment, that is a criminal penalty, whether as regards the earlier or the later drink driving offending. That point is, I think, arguable. 14 But, given the way this appeal was argued, I will assume such an order is a punishment. [24] Mr Shaw placed some reliance on what he argued were explicit provisions in the Land Transport Act providing for retrospective effect. He referred me to ss 32(5), 56(5), 57A(5), 58(4), 60(4), 61(3C), 65(5), 91A and 103(2)(d)(iv). Mr Shaw s submission was that the absence of such an explicit provision giving, what he described as, retrospective effect to s 65B, was evidence of Parliament s intention that it should have prospective effect only. [25] Those provisions do not, in my view, support that proposition. All of them, other than s 91A, simply reflect the change over time in the statutory provisions relating to land transport. They make equivalent offences under earlier legislation offences for the purposes of the current legislation, the Land Transport Act 1998. Section 91A defines the term traffic offence where it appears in the definition of the term traffic fine, by reference to offences against various statutes dealing with land transport. It does so in the context of the scheme found in s 91A and following whereby what are called driver licence stop orders may be made where holders of driver licences have not paid traffic fines. [26] During the hearing of Mr Do s appeal I discussed with counsel the relevance of the fact that the so-called three strikes regime specifically provides that qualifying earlier offences are limited to those which were committed after the introduction of that regime. That Parliament chose to legislate in that way does not, in my view, mean that s 65B must be interpreted in a similar way. The scheme of the three strikes regime is different, and involves a formal categorisation of qualifying offences as such, a feature which is not present here. It may have been for that reason that Parliament chose the approach it did. 14 See Belcher v Chief Executive of the Department of Corrections, above n 11, at [35], and A Butler and P Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [24.3.22] [24.3.24].
[27] For the police, Mr Woods referred me to several cases where issues of retrospectivity have been addressed in the context of s 65A of the Land Transport Act, which introduced the alcohol interlock device order regime. In those cases the issue related to the applicability of s 6 of the Sentencing Act, and whether an alcohol interlock device order was a lesser penalty than mandatory disqualification under s 65. Thus, in Lose v R the Court of Appeal, 15 and in Nanai v Police the High Court, 16 concluded that an alcohol interlock licence disqualification was, in the statutory scheme, a lesser penalty. It was therefore able to be imposed where relevant drink driving offending had been committed, but not sentenced, prior to s 65A coming into force. That is not the issue here. Such cases, therefore, also do not assist. [28] The question of the retrospective application of s 65B is addressed in Becroft and Hall s Transport Law. There the following view is expressed: 17 LTA65B.4 Retrospective application The Act is silent as to this. The inserted provisions commenced on 10 September 2012. Recourse needs to be had to s 6 of the Sentencing Act, which provides that where penalty is varied between the time of the commission of the offence and sentencing, the offender is entitled to the benefit of the lesser penalty. Although the provisions of s 65B are mandatory, it is suggested that best practice would be to comply with s 6 and refrain from imposing the mandatory zero alcohol requirements where offending is before 10 September 2012. [29] It is clear, however, that there the offending before 10 September 2012 is being referred to is the later offending which is being sentenced, rather than the earlier offending which affects the sentence available. That expression of the principle does not therefore go beyond the reasoning in the case law discussed above. [30] In the absence of any authority directly on point, I consider the question by reference to the principles involved. 15 16 17 Lose v R [2014] NZCA 368. Nanai v Police [2013] NZHC 155. Andrew J Becroft and Geoffrey G Hall Becroft and Hall s Transport Law (looseleaf ed, LexisNexis, Wellington).
[31] In my view the mandatory imposition of the zero alcohol licence order on Mr Do was not contrary to s 6 of the Sentencing Act, s 25(g) of NZBORA or the second and third sentences of art 15(1) of the ICCPR. 18 The penalty for the offence Mr Do committed on Sunday 29 December 2013 had not been varied in any way between that date and the date of his sentencing by Judge Tuohy on 11 March 2015. [32] It had not been increased, the effect of which s 6 would have protected Mr Do from. Nor had it been decreased, the benefit of which s 6 would have entitled Mr Do to. At the time at which Mr Do s conduct gave rise to liability for the offence and attendant consequences the law mandated the imposition of a zero alcohol licence. In terms of Blackstone s expression of the general principle cited at [10], Mr Do could have foreseen the imposition of the zero alcohol licence. Those provisions are not, therefore, engaged by this appeal. Double jeopardy [33] The doctrines of autrefois acquit and autrefois convict prevent, subject to their terms, trial and conviction for an offence where, put simply, the person charged has previously been tried for, and acquitted or convicted of that offence as the case may be. That is not the assertion here. It is not argued that Mr Do was tried or convicted again for his 2011 offending. [34] The issue here is the potential for double jeopardy in the fundamental sense: punishment again for an offence that has already been punished, which is the fundamental concern underpinning those doctrines. In other words, did the mandatory imposition of the zero alcohol licence order on Mr Do on 15 July punish him again for the offence he had committed in 2011? In answering that question s 26(2) of NZBORA ([12] above) and art 14(7) of the ICCPR ([14] above) are engaged. 18 See above at [12] and [14].
[35] The law has long recognised that past conviction history may be a relevant consideration when sentencing current offending. In Casey v R the Court of Appeal explained matters in the following terms: 19 The Court should always be careful to see that a sentence of a prisoner who has been previously convicted is not increased merely because of those previous convictions. If a sentence were increased merely on that ground it would result in the prisoner being, in effect, sentenced again for an offence which he has already expiated. We agree that the sentence passed ought to bear some relation to the intrinsic nature of the offence and gravity of the crime. But it by no means follows that the previous convictions must be ignored. It is necessary to take them into consideration, because the character of the offender frequently affects the question of the nature and gravity of the crime, and a prisoner s previous convictions are involved in the question of his character. Further, the previous convictions of a prisoner may indicate a predilection to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly. We think that the learned Solicitor-General put the matter fairly and accurately when he submitted that the previous convictions may be looked at for the purpose of establishing the prisoner s character and assisting to determine the punishment that is appropriate to the case of a man of that character for the particular offence for which he is to be sentenced. [36] Adams on Criminal Law, at SA9.15 summarises the position as follows: 20 This principle means that the current offence is the primary consideration in sentencing, but previous convictions are taken into account in three ways: as an indicator of character and culpability; because they show the need for a greater deterrent response; and as an indicator of risk of reoffending. [37] Section 9(1)(j) of the Sentencing Act 2002 gives statutory recognition to that principle. Section 9(1) constitutes a list of aggravating factors that must be taken into account by a sentencing judge to the extent that they are applicable in the case. Section 9(1)(j) refers to: The number, seriousness, date, relevance, and nature of any previous convictions of the offender and of any convictions for which the offender is being sentenced or otherwise dealt with at the same time. [38] In Beckham v R the Court of Appeal put it this way: 21 [84] The rationale for uplifting a prisoner s sentence to take into account prior criminal history has been explained by this Court in R v Casey and in 19 20 21 Casey v R [1931] NZLR 594 at 597. Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) at [SA9.15]. Beckham v R [2012] NZCA 290.
R v Ward. As Sir Michael Myers CJ explained in Casey, the Court must be careful to see that a sentence of a person who has been previously convicted is not increased merely by reason of those previous convictions. If this occurred, it would result in the prisoner being sentenced again for an offence which he had already expiated. Issues of deterrence and, in some cases, protection of the public may require an uplift for previous offending. Similarly, previous convictions may bear on the issue of character. [39] In those terms an uplift for the purpose of deterrence or protection of the public is not a case of punishing a person again for an offence which has already been expiated. In my view, the provisions of s 65B are a reasonably orthodox application of those principles. [40] The explanatory note to the legislation which introduced ss 65A and 65B of the Land Transport (Road Safety and Other Matters) Amendment Act 2011 stated that the purposes of these provisions was to: toughen sanctions for serious or repeat driving offenders by Introducing a zero BAC limit for repeat drink drivers (2 or more convictions within a 5-year period), which will apply for 3 years from the date when the driver s licence disqualification period ends and a new licence is obtained; [41] What is referred to as the zero BAC limit is effected by s 65B s mandatory zero alcohol licence regime. [42] Repeat drink-driving offending clearly engages the proposition that a greater, particular, deterrent response may be called for. More significantly in my view, given the risks to the general public from drink-driving offending, a zero alcohol licence order provides additional protection to the public from the risks of such offending. [43] I am therefore satisfied that the imposition of the zero alcohol licence condition on Mr Do did not breach the prohibition on double punishment found in either the common law or s 26(2) of NZBORA. I am likewise satisfied that an interpretation of s 65B of the type called for by Mr Do was not required by any rule of the common law or by the interpretative mandate found in s 6 of NZBORA.
[44] Mr Do s appeal is, therefore, dismissed. Clifford J Solicitors: Crown Solicitor, Wellington for Respondent