H v Police HC Auckland CRI 2007-404-98

[2007] NZHC 528

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-98

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         21 May 2007

Appearances: Appellant in person

Ms Gatland for respondent

Judgment:      23 May 2007 at 4.00 pm

JUDGMENT OF WINKELMANN J

This judgment was delivered by me on 23 May 2007 at 4.00 pm pursuant to Rule540(4) of the High Court Rules.

Registrar/ Deputy Registrar

Mr H  , 2 Seaspray Drive, Bucklands Beach

Crown Solicitor, Auckland

H V POLICE HC AK CRI 2007-404-98  23 May 2007

[1]      Mr H   appeals against  an order  for  forfeiture of his  motor  vehicle following his conviction on 23 March 2007 on a charge of driving with excess breath alcohol.   The car he was driving at the time of the offence is the subject of the confiscation order.   This was Mr H  ’ second conviction within a four year period.   In terms of s 129 of the Sentencing Act 2002, the Court was therefore required to order the confiscation of the motor vehicle in question unless satisfied that  such an order would  “result  in  extreme  hardship  to  the  offender  or  undue hardship to any other person”.

[2]      Mr H   appeals on the ground that a confiscation order will cause him extreme hardship.   In support of this he says that he is currently employed by an Australian company involved in industrial and farm buildings in New Zealand, and the car is required to enable his sister to drive him to business meetings.  Secondly, he says that the car is his only asset.

Factual background

[3]      In the summary of facts in relation to the second offence it is recorded that at

10.06 pm on Friday, 23  July 2006,  Mr  H   was driving  his Nissan  motor vehicle registration ZX6206 travelling south on state highway one from the direction of Hobson Street, Auckland.   He was stopped by police.   Evidential breath testing procedures were commenced and his breath was found to contain 627 micrograms of alcohol per litre of breath.   Mr H   said that he had been drinking during a business meeting.   He pleaded guilty to  a charge  of driving  with excess  breath alcohol (s 56(1) Land Transport Act 1998).

[4]      Mr H   had also been convicted  in respect of excess breath alcohol offending committed on 12 December 2005, for which he was sentenced to a fine of

$600,  $130  costs  and  disqualified  from  driving  for  six  months  commencing  9

February 2006.  On this basis Mr H   still would have been subject to an order of disqualification when stopped on the evening of 23 July 2006.  However, I note that  the  summary  of  facts  makes  no  reference  to  Mr Holland’s  driving  whilst

disqualified,  and  the  sentencing  Judge  likewise  makes  no  reference  to  that. Mr H   says he understood that his disqualification period had expired.   In those circumstances I give Mr H   the benefit of the doubt on that issue and proceed on the basis that he was not subject to a disqualification order in July 2006.

Statutory provisions

[5]      Section 129 of the Sentencing Act 2002 applies where a second offence is committed under s 56 of the Land  Transport  Act  within  four  years of the  first offence.  Section 129 clearly applied to Mr H  .

[6]      Section 129 provides in material part as follows:

(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), [36A(1)(a) or (c),] [39(1),] 56(1) or (2), 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.

Extreme hardship

[7]      Mr  H    did  not  raise  an  argument  of  extreme  hardship  before  the District Court Judge but seeks to argue the matter before this Court.   Mr H   has not filed any evidence in support of his contention that the confiscation order will cause him extreme hardship but has provided detail of the circumstances relied upon by him in his notice of appeal.  I discussed with the Crown whether they would take the issue that this was not provided in affidavit form, but Ms Gatland for the Crown confirmed that she is content to proceed on the basis that the description of circumstances as set out in the notice of appeal is evidence for the purposes of this appeal.   Mr H   also is prepared to proceed on the basis that the evidence before the Court is the material attached to the notice of appeal.

[8]      As there is new factual material before me, not available to the sentencing Judge, I propose to consider afresh the issue of whether the order of confiscation will result in extreme hardship.

[9]      In the notice of appeal Mr H   describes himself as a 66 year old man who has overcome significant health problems over the last 10 years, including knee and shoulder surgery, and a stroke.   He has also experienced serious employment problems, including losing three jobs in 2006.  He says that this was through no fault of his own.  As a result of these difficulties he now has no assets at all except his vehicle.  He does, however, have a good job with an Australian company introducing a range of industrial and farm buildings to New Zealand, but needs to be able to drive to attend meetings for his job.   His sister is prepared to be his driver and to drive him to important meetings in the role that he has as New Zealand manager, and he will pay her a wage to do this.   The difficulty is that she has no presentable vehicle of her own.  He says “without the vehicle, I will definitely lose my job”.  If he loses his job he says his chances of finding employment again are negligible given his age and health.  In his present position he is earning well and is able to pay outstanding debts to his family and credit card debts that have accrued during this difficult period of his life.

[10]     Mr H   explains that both convictions were as a result of his employers asking him to attend functions in the city and that he tried to keep within the limit of drinking.  He says that now he does not drink as he does not believe that it serves any purpose, and with his health issues it is important that he does not drink.   He accepts full responsibility for his offending, and is remorseful.

Relevant principles

[11]     The onus of satisfying the Court as to any hardship is on the offender.  The relevant burden is the civil standard of the balance of probabilities: Hunt v Police HC WG AP232/99 29 September 1999, Penlington J, following Police v McGlinchey [1997] DCR 898.

[12]     In Police v Rihari HC WHA AP10/98, 23 July 1998, Laurenson J synthesised many of the relevant principles in relation to the legal test for exceptional hardship in relation to the predecessor section to s 129, s 84(2A) of the Criminal Justice Act

1985.  He said:

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.

[13]     The potential financial loss that may arise through the forced sale of a vehicle does not amount to extreme hardship: Rahui v Police HC NAP AP28/01 26 October

2001, Durie J; Browne v Police HC PMN CRI 2004-454-97 7 December 2004, MacKenzie J.

[14]     In  Cameron  v  Police  (No  2)  HC  HAM  AP32/02  3  July  2002,  Heath  J concluded that the fact that the appellant was a pensioner who owned no real estate, and that the motor vehicle in question was his principal asset, was not a circumstance sufficient to establish extreme hardship by reason of the confiscation of his vehicle.

[15]     Cases where extreme hardship has been found tend to be cases where the consequences relied upon fall outside what would normally be contemplated to flow from a confiscation of a motor vehicle.  Thus in Hughes v Police HC NEL AP8/03

29 August 2003, Ellen France J, the appellant’s income was derived from payments received under insurance policies taken out to insure against the risk of disability. Continuation of those payments was dependent upon the appellant owning a vehicle, and loss of those payments could result in bankruptcy.  Ellen France J was satisfied that the real possibility of bankruptcy was sufficient to meet the threshold.

[16]     In this case I  am not  satisfied  that  the  appellant  has  met  the  very  high threshold he must meet to satisfy the Court that the confiscation will cause him extreme hardship.  Although he says he needs the car to attend important business meetings, on his own account he is able to be driven to the meetings by his sister. He is concerned as to the quality of her car, but any embarrassment he will be caused by that  can be avoided by arranging to be dropped off some distance  from the meeting venue.  Alternatively, he can attend the meetings by taxi or public transport. There is no evidence before me as to the frequency of those meetings, nor is there any evidence as to his inability to pay for alternative methods of transportation.

[17]     I accept that as the Crown submits, this is not a case where extreme hardship results, it is simply a case of inconvenience rather than impossibility.  Mr H   says that without his car he will definitely lose his job, but he has not adequately explained why that is so, if he has an alternative means of transport available to him.

He has not provided any supporting material from his new employer.   I find this statement implausible and do not accept that evidence.

[18]     Nor does the fact that the vehicle is his Mr H  ’ only asset mean that loss of it will amount to extreme hardship.  It will often be the case that the vehicle the subject of the confiscation order will be the offender’s primary if not only asset but it is relevant that a confiscation order does not have the effect of forfeiting the value of the vehicle.   Once the vehicle is sold, the proceeds of sale are applied to defraying the expenses of sale and payment of any amount owing by the offender and then the balance is paid to the offender.

[19]     The appeal is therefore dismissed.

Winkelmann J