C v R HC Auckland CRI-2006-404-234

[2006] NZHC 1259

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2006-404-234

C

Appellants

v

THE QUEEN

Respondent

Hearing:         19 October 2006

Appearances: Ms A C   in person

Ms C Parkhill for respondent

Judgment:      19 October 2006

(ORAL) JUDGMENT OF LANG J

[on appeal against order for confiscation of motor vehicle]

Solicitors:

Crown Solicitor, P O Box 2213, Auckland

Copy to:

Ms A C  , 27 Centorian Drive, Mairangi Bay, Auckland

C V R HC AK CRI-2006-404-234  19 October 2006

[1]      On 12 June 2006 Ms C   pleaded guilty in the North Shore District Court to one charge of driving with excess breath alcohol under s 58(1) of the Land Transport Act 1998.   She was sentenced on that date by His Honour Judge Perkins to a fine of $800 together with Court costs of $130.   She was also disqualified from holding  or  obtaining  any  driver’s  licence  for  six  months  from  12  June  2006. Because this was Ms C  ’s second conviction for driving with excess breath alcohol, the Judge made an order for the confiscation of her motor vehicle, namely a

1998 Honda Integra, registration number CFU 533.   Ms C   appeals only against

the order for confiscation of the vehicle.

[2]      The appeal arises out of the fact that the beneficial ownership of the motor vehicle probably rests with Ms C  ’s sister, Cheryl.    During the hearing today Ms C   confirmed that her sister had paid completely for the car and that she herself has only met the running expenses of the car.     Her sister is currently a student in Australia, and had allowed Ms C   to drive the motor vehicle during her absence.   It is in those circumstances that Ms C   came to be in possession of the motor vehicle at the time that she was apprehended in the circumstances that led to the present charge.

[3]      Ms C   asks me on appeal to make an order revoking the order for confiscation of her vehicle.   As Ms C   is now aware, however, the sentencing Court was obliged to make an order that the vehicle be confiscated by virtue of the provisions of s  129(3)  of  the  Sentencing  Act  2002.     That  section  provides  as follows:

…

(3)     If the court by or before which the offender is convicted of the second offence is satisfied that any motor vehicle owned by the offender or in which the offender has any interest was being driven by, or in the charge of, the offender at the material time, the court must order that the motor vehicle be confiscated.

[4]      Section 129(4) enjoins the Court from making an order  for confiscation, however, if “it will result in extreme hardship to the offender or undue hardship to any other person”.

[5]      Ms C   does not contend that the confiscation order that was made in the present case will result in extreme hardship to herself.   She argues, however, that it will result in undue hardship for her sister who will suffer the financial loss occasioned by the sale of the motor vehicle.   In saying that, she recognises that the net proceeds of sale after repayment of a charge owing to UDC Finance will ultimately be repaid to her.

[6]      There  is  in  fact  no  evidence  before  the  Court  as  to  the  effect  that  the confiscation order will have on Ms C  ’s sister.   I accept that the sale of a motor vehicle by the Registrar will usually occasion loss to the owner of a vehicle.   This is because the vehicle may be sold in circumstances where its optimal value may not be obtained.   The Act contemplates, however, that hardship is a likely consequence of the confiscation process.   It is only in cases involving undue hardship to third parties that the Act permits the Court not to make a confiscation order.

[7]      In those circumstances the onus is always on the applicant to show that a confiscation order will result in undue hardship:   see Hunt v  Police  HC  WGN AP232/99 29 September 1999 Penlington J.

[8]      In the present case I am quite satisfied that Ms C   had no grounds that she could advance to the District Court, or to this Court on appeal, that would justify the Court in refusing to make the order that it was otherwise required to make under s 129(3).   For that reason the appeal cannot succeed.

[9]      In saying that, however, I note that s 141 of the Sentencing Act 2002 permits a person who holds an interest in the vehicle under an encumbrance to apply to the District Court for an order that the vehicle be transferred to him or her.   The holder of the encumbrance is then required to sell the motor vehicle and to account to the Registrar for the proceeds of sale.     The proceeds of sale are then applied in accordance with s 137(3) of the Act.

[10]    Section 127 of the Act defines “encumbrance” as meaning inter alia an agreement between the offender and another person under which the other person obtains or retains any interest in the vehicle.   Given the fact that Ms C  ’s sister

appears to have paid for the vehicle using her own monies, she may well come within the definition of a person holding an encumbrance over the vehicle.   This is because she is likely to be able to establish that it was always agreed between the two sisters that Ms Alana C   would hold no beneficial interest in the vehicle. Instead, it was to be beneficially owned by her.    It may therefore be open for Ms C  , or more correctly her sister, to apply to the District Court under s 141 for an order that the motor vehicle be transferred to her to be sold.    That is, however, a matter that Ms C  ’s sister will need to attend to promptly.   Any such application must be made within the time limits referred to in s 141.

[11]     The appeal is accordingly dismissed.

Lang J