H v Police HC Auckland CRI 2006-463-77
[2006] NZHC 1035
•14 September 2006
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2006-463-77
BETWEEN H
Appellant
AND NEW ZEALAND POLICE Respondent
Hearing: 14 September 2006
Counsel: DJR Malcolm for Appellant
T Bayley and C Macklin for Respondent
Judgment: 14 September 2006
ORAL JUDGMENT OF RODNEY HANSEN J
Solicitors: HS Edward, P O Box 738, Rotorua for Appellant
Gordon Pilditch, P O Box 1124, Rotor for Respondent
H V POLICE HC AK CRI 2006-463-77 14 September 2006
Introduction
[1] The appellant pleaded guilty in the Rotorua District Court to one charge of driving while disqualified pursuant to s 32(1)(a) of the Land Transport Act 1998. He was sentenced to 60 hours community work and disqualified from holding or obtaining a driver’s licence for a period of six months. Judge JP Geoghegan also made an order under s 129 of the Sentencing Act 2002 (the Act) confiscating his Toyota Hilux Surf motor vehicle.
[2] The appellant appeals against sentence on the grounds that the confiscation order resulted from an unlawful condition of his bail which prevented him selling the vehicle. In Boggs v Police [2006] NZAR 193, Ellen France J ruled that such a condition of bail was contrary to the lawful purposes for imposing conditions of bail set out in s 31(3) of the Bail Act 2000.
Background
[3] The appellant appeared before the Registrar of the District Court on
14 August. He was remanded without plea on bail to 28 August. There was no intimation of a guilty plea. A condition of his bail, as required by the police, was that he not dispose of his motor vehicle. In light of Boggs, this condition of bail was opposed by defence counsel but unsuccessfully. I am informed that it has been the standard practice of the Rotorua Police to request such a condition of bail where confiscation is sought under to s 129 of the Act and the practice has continued, notwithstanding the decision on 3 February 2006 in Boggs.
[4] On 28 August the matter came before Judge Geoghegan. Mr Malcolm, who was also counsel in the District Court, raised his concerns about the condition of bail with the Judge. He suggested that the Court adjourn sentencing to give the appellant an opportunity to sell his vehicle or at least to defer making the order for confiscation. The Judge, however, proceeded to pass sentence.
Grounds of appeal
[5] The first ground of appeal is that the imposition of the unlawful bail condition resulted in procedural unfairness and prejudice to the appellant amounting to extreme hardship for the purpose of s 129(4) of the Act. Where extreme hardship exists an order may not be made. Alternatively, it is submitted that the unlawful bail condition was an abuse of process which should have been rectified before sentence was finally completed.
[6] Mr Malcolm submits that the clear intention of the legislature is that a person who is liable to have his or her vehicle confiscated should have the opportunity to sell the vehicle. The appellant has been prejudiced by the failure to give him that opportunity. Confiscation is likely to mean that the vehicle will not sell at market value and the appellant will be saddled with the costs of sale. It is submitted that the Judge should either have declined to make a confiscation order or adjourned sentencing.
Crown response
[7] Ms Bayley for the Crown acknowledges that the bail condition was unlawful but submits that does not affect the lawfulness of the confiscation order itself. While frankly acknowledging that an adjournment of sentencing to enable a sale to take place would have been an appropriate response, she submits that the Judge was obliged by law to order confiscation.
The legislation
[8] Section 129 of the Act applies if a person commits one of the offences specified in subs (1) within four years of committing one of the specified offences. Subsections (3) and (4) relevantly provide:
(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.
[9] It is clear, however, that the legislation contemplates that a defendant should be able to dispose of his or her motor vehicle before sentence. Section 131 of the Act provides:
If motor vehicle has been disposed of, court may prohibit offender from acquiring another motor vehicle
(1) This section applies if, in any case to which section 128 or section
129 would otherwise apply, the offender has, before the date of his or her conviction, ceased to be the owner of the motor vehicle or to have any interest in it.
(2) The court may—
(a) make an order prohibiting the offender from acquiring any interest in any motor vehicle within 12 months after the date of the order; and
(b) if the offender has, at any time after the commission of the offence but before the date of his or her conviction, become the owner of any motor vehicle or acquired any interest in any motor vehicle, order that that motor vehicle be confiscated.
(3) If the court is not satisfied that the disposition of the motor vehicle was made by the offender with a bona fide intention to dispose permanently of his or her ownership or interest in the vehicle,—
(a) the court may, if it thinks fit, set the disposition aside; and
(b) section 128 or section 129, as the case may be, applies as if the disposition by the offender had not occurred.
(4) Before making an order under subsection (3), the court must give any person to whom the disposition of the motor vehicle was made an opportunity to be heard.
[10] The purpose of the legislation is to prevent a recidivist offender from owning a motor vehicle, not to impose an additional penalty. If there is a prior sale, the purpose of the legislature is achieved by the provisions of subs (2)(a) and, if a sale is not a bona fide disposition, by the provisions of subs (3). The overall intention of the legislation is confirmed by a report from the Parliamentary Transport Committee
in relation to the Criminal Justice Amendment Bill (No 2) which introduced the provisions now to be found in ss 127-142 of the Sentencing Act. The report of the Committee notes in part:
We do not consider that the bill should go further in instituting a general rule prohibiting the sale of motor vehicles between the date of an offence and the date of conviction. Such an amendment would infringe the legal principle of the presumption of innocence and may infringe the New Zealand Bill of Rights Act 1990. Further, given that the primary objective of confiscation is the removal of a vehicle, a general rule prohibiting any vehicle sales may be seen as counter productive.
[11] In referring to a possible infringement of the New Zealand Bill of Rights Act
1990 (NZBORA), the Committee presumably had in mind s 25(c) which provides:
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:
…
(c) The right to be presumed innocent until proved guilty to law.
Of relevance also is s 24(b) of NZBORA which provides:
Rights of Persons charged
Everyone who is charged with an offence –
…
(b) Shall be released on reasonable terms and conditions unless there is just cause for continued detention.
Discussion
[12] In my view, a bail condition which prohibits disposition of a vehicle is not only unlawful as outside the powers conferred by the Bail Act, but is also a breach of NZBORA. Such a condition of bail may also lead to an unjustified financial penalty on conviction. Section 137 of the Act provides for the sale of confiscated vehicles. A sale must be by public auction unless directed otherwise by the Court and is likely to yield less than a sale by private treaty. Costs must be deducted before the proceeds are paid to the offender. An offender who is denied the opportunity to
dispose of his or her vehicle is accordingly further penalised on conviction unless s
129(4) of the Act applies. The result is that, on the assumption the appellant would have availed himself of the opportunity to sell his vehicle, the overall sentence imposed on him was too high.
[13] Mr Malcolm argues that the unlawful bail condition has produced extreme hardship which would have justified a refusal to make an order under s 129(4). He submits this followed from the procedural unfairness to the appellant. However, I cannot see how the mere possibility of monetary loss can amount to extreme hardship and there was no evidence of circumstances particular to the appellant which might make it so – see the discussion of what constitutes extreme hardship in Allen v Police HC PMN AP2/99 17 February 1999 Gendall J; Police v Rihari HC WHA AP10/98 25 June 1998 Laurenson J; and Browne v Police HC PMN CRI2004-
454-97, 7 December 2004.
[14] I am satisfied, nevertheless, that there is jurisdiction to review the order. Section 121(3) of the Summary Proceedings Act 1957 provides:
In the case of an appeal against sentence, the High Court may— (a) Confirm the sentence; or
(b) If the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—
(i) Quash the sentence and either pass such other sentence warranted in law (whether more or less severe) in substitution therefor as the High Court thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence could have dealt with him on the conviction; or
(ii) Quash any invalid part of the sentence that is severable from the residue; or
(iii) Vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.
[15] In terms of s 121(3)(b), the sentence is clearly one which the Court had jurisdiction to impose and was not clearly excessive. In my view, however, it was inappropriate in that the failure to give the appellant the opportunity to sell the vehicle may have resulted in an unwarranted, if indeterminate, financial penalty.
[16] Were there no statutory jurisdiction to interfere with the sentence, I would, in any event, have invoked the inherent jurisdiction to interfere with sentence: see Wells v Police [1987] 2 NZLR 560 at 566 where Smellie J said:
I am prepared to hold, as a matter of principle, that if the judicial process is shown to have gone wrong in areas other than those specifically referred to in the section, then the High Court has jurisdiction to interfere and reconsider. It cannot possibly have been the intention of Parliament when enacting s 121 that in a case where a statutory right has been denied to an appellant and/or the sentencing Judge’s conduct has been such that either justice has not been done, or has not been seen to be done, that the appellant is to have no remedy in this Court.
Disposal
[17] I have given anxious consideration to the appropriate means of disposing of the appeal. Plainly, the sentence of disqualification and of community work should stand while the order for confiscation should pro tem be quashed. The question is whether I should make orders which would permit a sale of the vehicle and for a confiscation order to be made if that does not take place. That could be achieved, as Ms Bayley submits, by quashing the sentence in its entirety and remitting the matter back to the District Court. That would put the appellant in the position he would have been if the unlawful condition had not been imposed in the first place.
[18] However, I have decided that such a response would not adequately recognise the wrong that has been done to the appellant. There was serious interference with his rights as a result of police insistence on terms of bail which they knew or should have known were unlawful. Some tangible expression of disapprobation is called for.
Result
[19] The appeal is allowed. The confiscation order is quashed. The balance of the sentence remains.
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