Falaniko v Police

[2019] NZHC 2235

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-000072

[2019] NZHC 2235

BETWEEN

VENASIO FALANIKO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

5 September 2019

Appearances:

Appellant in person

S Bicknell for Respondent

Judgment:

6 September 2019

JUDGMENT OF DUNNINGHAM J

Introduction

[1]    On 24 January 2019 Venasio Falaniko was convicted of driving with excess breath alcohol, third or subsequent.1 On 7 May 2019 Mr Falaniko was sentenced to three months’ community detention and 12 months’ supervision to give oversight for his use of alcohol. He was also disqualified pursuant to s 65AC Land Transport Act 1998 with the alcohol interlock applying. He takes no issue with those aspects of sentencing.

[2]    However, in addition, the District Court ordered that Mr Falaniko’s vehicle, a 2007 Suzuki SX4, be confiscated pursuant to s 129 of the Sentencing Act 2002. That section makes confiscation mandatory on a subsequent offence of the type listed in the section unless:2

1      Land Transport Act 1998, s 56(1) and (4).

2      Sentencing Act 2002, s 129(4).

FALANIKO v NEW ZEALAND POLICE [2019] NZHC 2235 [6 September 2019]

(a)it will result in extreme hardship to the offender or undue hardship to any other person; or

(b)an interlock is or is to be fitted to the motor vehicle.

Mr Falaniko appeals the order for clarification of his motor vehicle.

Principles on appeal

[3]    Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.3

Submissions

[4]    There was some difficulty in preparing for this appeal because Mr Falaniko did not file written submissions. The only indication of his grounds of appeal was that given in his notice of appeal where he said:

Since I have a very young child. He is 5 months old I am having difficulties in discharging my duty as a father and also a husband. I appeal court (sic) on compassionate grounds.

[5]    From that, it was assumed the appeal was against the order for confiscation and was advanced on the grounds of extreme hardship to Mr Falaniko himself or (more likely), undue hardship to his wife and child.4

[6]    In response to questions from me, Mr Falaniko explained that his brother-in-law was using Mr Falaniko’s car to drive Mr Falaniko and family members when needed, for example, to go to hospital if the baby was unwell. While his brother-in-law has his own car, that car was often needed by other members of his brother-in-law’s family, and was not always available to use.

3      Criminal Procedure Act 2011, ss 250(2) and 250(3).

4      Sentencing Act 2002, s 129(4)(a).

[7]    I did not need to explore this issue further as Ms Bicknell helpfully pointed out that the second mandatory barrier to an order for confiscation being made is where “an interlock is or is to be fitted to the motor vehicle”.5

Analysis

[8]    Section 129 Sentencing Act states that a court must order a vehicle be confiscated where a person commits a relevant driving offence under the Land Transport Act within four years after the date of committing an earlier relevant driving offence. It is clear that s 129 applies to Mr Falaniko.

[9]    However, subs  (4)  prevents  the  court  from  making  such  an  order  in  two circumstances. Although Mr Falaniko’s appeal is ostensibly advanced on the grounds in subs 4(a), the information supplied to support his exception is threadbare. While it is clearly inconvenient to Mr Falaniko and his family to have to turn to his brother-in-law for driving assistance, I am not satisfied that it reaches the threshold of undue hardship to his family or extreme hardship to him. As Venning J said in Turua v Police: “[u]ndue hardship is clearly less than extreme hardship but is more than hardship, hardship itself must be more than inconvenience”.6

[10]   However, I am satisfied that the circumstances in s 129(4)(b) arise. That is, because an alcohol interlock is or is to be fitted to the motor vehicle, an order for confiscation cannot be made.

[11]   In this regard, I consider it telling that the order for confiscation was not made by the  District  Court  Judge.  Rather,  it  appears  to  have  been  made  by  a Deputy Registrar in the Court on the same day as Mr Falaniko was sentenced, but without regard to the Judge’s decision to make an order allowing the fitting of alcohol interlock.

[12]   It is clearly an error in sentencing to have overlooked s 129(4)(b) when the order for confiscation was made. Furthermore, it is clear that a different sentence should apply.

5      Sentencing Act, s 129(4)(b).

6      Turua v Police [2013] NZHC 2913 at [9].

Result

[13]   Accordingly, as advised in my oral judgment, the appeal is allowed and the order for confiscation of the Suzuki motor vehicle registration LHT650 made by the District Court on 7 May 2019 is quashed.

Solicitors:

Raymond Donnelly & Co., Christchurch Copy To: Appellant