C v Police HC Christchurch CRI 2008-409-35

[2008] NZHC 354

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008-409-35

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         13 March 2008

Counsel:         S Poore for respondent

AND Garrett for appellant

Judgment:      19 March 2008 at 11 am

In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 11.00am on the 19th day of March 2008.

RESERVE JUDGMENT OF MACKENZIE J

[1]      When this appeal was called on 13 March, I indicated that the appeal would be dismissed and that my reason would follow.  I now set out my reasons.

[2]      The appellant was convicted on one charge of driving with excess breath alcohol under s 56(1) of the Land Transport Act 1998 and a sentence of 100 hours community work was imposed, with eight months disqualification.  The appellant’s

motor vehicle was also confiscated under s 129 of the Sentencing Act 2002 as this

C V NZ POLICE HC CHCH CRI 2008-409-35  19 March 2008

was the appellant’s second conviction within four years for driving with excess breath alcohol.  The grounds of appeal were that the confiscation of the vehicle had occurred on an erroneous basis in that the vehicle was registered to the appellant’s mother and subject to a third party interest, and that the sentence having regard to the appellant’s personal circumstances was manifestly excessive.  Mr Garrett indicated that he did not wish to make submissions in support of the proposition that the sentence was manifestly excessive.  I consider that the sentence was well within the available range.  The breath alcohol reading was 724 micrograms of alcohol per litre of breath.  This aspect of the appeal could not succeed.

[3]      As far as the confiscation of the vehicle is concerned, that is a mandatory consequence unless the making of the order will result in extreme hardship to the offender or undue hardship to any other person.  Mr Garrett did not seek to advance any basis for extreme hardship to the appellant.   The third party interest in the vehicle is apparently a security interest, which will need to be dealt with in the way in which the order is enforced, and does not call for any consideration under the terms of s 129.

[4]      It was for these reasons that the appeal was dismissed.

“A D MacKenzie J”

Solicitors:         AND Garrett, Christchurch for Appellant

Raymond Donnelly & Co., Christchurch for Respondent