Cawood v Police

[2013] NZHC 218

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2012-409-000104 [2013] NZHC 218

NICOLE CAROL CAWOOD

Appellant

v

POLICE

Respondent

Hearing:         14 February 2013

Counsel:         Appellant (In Person)

C E Butchard for Respondent

Judgment:      14 February 2013

JUDGMENT OF WHATA J

[1]      Ms Cawood admitted driving with excess breath alcohol of 552 micrograms which is in the mid range.  She had a prior conviction for drink driving as recently as February 2011 and she has outstanding fines of nearly $3,000.

[2]      Judge G S MacAskill disqualified Ms Cawood from holding or obtaining a driver’s licence for eight months and made an order for confiscation of her motor vehicle.

[3]      Ms Cawood appeals against the order to confiscate her car.   Ms Cawood claims that she was represented by a duty solicitor who did not make any comments to the Judge about what she says are key matters and that she did not get a chance to

say anything in the Courtroom.

CAWOOD V POLICE HC CHCH CRI 2012-409-000104 [14 February 2013]

[4]      In a letter supporting the notice of appeal she states that her car has always had a current warrant of fitness and registration.  She has just put a new clutch into it and she is still paying off the bill for it.  She has a low paid job in a rest home as a caregiver and that she is a hard worker and well liked by the residents.  At the time of her offending she had just found out that her mother had broken up with her husband and also that she had to move out of her flat and had nowhere to live.  She says that she has suffered from anxiety attacks since the age of 11 and that she is on medication for depression.  She has the support of her family but states that:

The  impounding  of  my  car  was  like  a  final  straw  for  me  and  on  11th

November 2012 I took an overdose of codeine in a fit of depression.

[5]      A medical report was attached as proof of this.  She also says she is trying to turn her life around in that she is hoping to replace alcohol with other activities, like the horses.

Jurisdiction

[6]      I am  going to  approach  the appeal  on  the basis  that  the appellant  must convince me that the District Court Judge was plainly wrong to order confiscation of her motor vehicle.

[7]      Section 129 of the Sentencing Act 2002 provides:

129     Confiscation of motor vehicle after second offence

(1)      This section applies if,—

(a)       on or after 26 July 1996, a person commits an offence (the “first offence”) against any of sections 32(1)(a) or (b), 35(1)(a) or (b), 36(1), 36AA, 36A(1)(a) or (c), [39(1),]56(1) or (2), 57A(1),

58(1), 60(1), 61(1), 61(2) or 62(1) of the Land Transport Act 1998 (which relate to driving offences) or section 171 of the Crimes Act

1961 (but only where the manslaughter involved the use of a motor

vehicle); and

(b)       within  4  years  after  the  date  of  the  commission  of  that offence, the person commits a further offence (the second offence) against any of those provisions of the Land Transport Act 1998.

(2)      For the purpose of subsection (1), it does not matter whether or not the second offence is of the same kind as the first offence, but it

must be an offence that arises from a different incident from the one that gave rise to the first offence.

(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)       Despite subsection (3), the court must not make an order under that subsection if it will result in extreme hardship to the offender or undue hardship to any other person.

(5)       For the purposes of this section, a conviction for an offence against a provision of the Transport Act 1962 that corresponds to an offence specified in subsection (1) must be treated as a conviction for an offence specified in that subsection.

(Emphasis in Sentencing Act)

[8]      The critical issue I must determine therefore is whether or not the Judge was wrong to confiscate the car on the basis that it will result in extreme hardship to Ms Cawood.

[9]      The Crown acknowledges that it is appropriate for me to hear Ms Cawood given that it may have been that she was not afforded a full opportunity to submit to the Judge.  I note for completeness, however, that it has not been demonstrated that the  Court  acted  knowingly  of  these  circumstances,  but  given  the  Crown’s concessions I am prepared to proceed on that basis.

[10]     The Crown also usefully refers me to MacFarlane-Nathan v Police[1]  where

[1] MacFarlane-Nathan v Police (HC Whangarei CRI 2008-488-7, 9 July 2008).

Allan J summarised the relevant principles as follows:

[13]     The judgment of Laurenson J in Police v Rihari HC WHA AP10/98

23 July 1998 is often cited for its helpful summary of matters to be taken into account in determining whether the legal test for extreme hardship has

been  met  in  the  relevant  case.  Laurenson  J  dealt  with  s  84(2A)  of  the

Criminal Justice Act 1985, the predecessor section of s 129 of the Sentencing

Act.

[14]     He said (at p 7):

In my view, if regard is paid to these authorities the issue of what may constitute extreme hardship for the purposes of s.84(2A) can be determined on the basis of the following guidelines:

(a)       The term is used in a section of the Transport Act 1962 which is concerned with preventing drivers with a proved disposition towards driving with excess blood alcohol limits from having access to vehicles.

(b)       The legislation was enacted as a measure to prevent a grave social problem which is directly related to the high incidence of accidents and injuries on the road.

(c)       By prescribing a standard in terms of “extreme hardship”, the Legislature clearly indicated that a very high level of hardship had to be demonstrated by a qualifying offender.

(d)       The determination of what amounts to “extreme hardship” must be determined in a common-sense way and in relation to the facts of a particular case. It is to be determined objectively  and  not  on  the  basis  of  how  the  particular offender may perceive the extent of the hardship.

(e)       To constitute “extreme hardship”, the hardship must be such that  in  the  particular  circumstances  it  is  excessive,  even when viewed in relation to the concerns underlying the enactment of s.84.

[15]     The onus of satisfying the Court as to any hardship is upon the offender,  the  relevant  burden  being the  civil  standard  of  the  balance  of probabilities: Hunt v Police HC WN AP232/99 29 September 1999. The potential financial loss arising by reason of the forced sale of a motor vehicle does not of itself amount to extreme hardship: Rahui v Police HC NAP AP28/01 26 October 2001.

[16]     Cases in which extreme hardship is found to be established often involve consequences beyond those which would normally be contemplated as flowing naturally from the confiscation of a motor vehicle. So in Hughes v Police HC NEL AP8/03 29 August 2003, Ellen France J held that the real possibility of bankruptcy as the consequence of loss of a confiscated vehicle, was sufficient to reach the threshold.

[11]     I adopt Allan J’s approach with the effect that I must be satisfied on the balance of probabilities that there will be extreme hardship to Ms Cawood flowing naturally from the confiscation of her motor vehicle.  I would simply add that while the issue of extreme hardship must be assessed objectively, the individual circumstances  of  each  case  must  be  considered  carefully.    What  might  be  an otherwise innocuous impact on one person, could be a very significant impact on another.  In this case I have the evidence before me that Ms Cawood has a fragile emotional state.  Quite plainly she overdosed on drugs and was treated at a hospital

for that overdose shortly after her sentencing.  I do not think it is available for me to assume that this was a contrivance in order to deal with the confiscation.  Indeed I think it would be dangerous for me to proceed on that basis.  I also factor into the mix that Ms Cawood is otherwise a productive member of society, with a job that requires transport to and from work.  She is currently able to travel with her mother who works at the same location.  But of course that comes at inconvenience to her mother and makes Ms Cawood dependent for such transport.

[12]     It is also plain to me that Ms Cawood is in difficult financial circumstances. She  has  longstanding  fines  that  she  is  endeavouring  to  pay  down,  it  appears diligently.  She also has a current outstanding bill in relation to the work that was done on the car.  While these matters may seem minor, in reality the burden placed on Ms Cawood is significant if she then has to pay for a new car.

[13]     I appreciate that the purpose of the confiscation provisions is to provide a significant deterrence to this type of behaviour.  But the threshold test remains one of extreme  hardship.    When  I  look  at  the  particular  facts  of  Ms  Cawood’s  case, including in particular her emotional fragility and her economic dependency - and I should note she only recently gained employment after a long layoff period due to an injury to her back - I consider that the test of extreme hardship has in fact been met. As these matters were not put to the Judge I am prepared to accept that they should be taken into account now and should be factored into the overall exercise of discretion.

[14]     On that basis the appeal is allowed.  The order for confiscation is quashed.  I think  there  is  little  point  in  placing  still  further  additional  financial  burden  on Ms Cawood but her issues regarding alcohol consumption need to be addressed.  I take some solace from the fact that she has appeared today to speak on her own behalf and that she has also produced a letter from her employer, without objection from the Crown.   That letter certainly supports the fact that Ms Cawood is endeavouring to turn her life round, as she has said to me she is trying to do.

[15]     On that basis, as I say, the appeal is allowed.

Solicitors:

Raymond Donnelly & Co, Christchurch

cc:  N C Cawood