Joseph v Police

[2012] NZHC 813

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-011 [2012] NZHC 813

BETWEEN  INA NGAHINA JOSEPH Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         27 April 2012

Counsel:         J Hannam for Appellant

S A Law for Respondent

Judgment:      27 April 2012

JUDGMENT OF BREWER J

SOLICITORS/COUNSEL

Julian Hannam (New Plymouth) for Appellant

C & M Legal (New Plymouth) for Respondent

JOSEPH V POLICE HC NWP CRI-2012-443-011 [27 April 2012]

[1]      On 29 March 2012 in the District Court at New Plymouth, Judge GM Ross made an order confiscating a vehicle belonging to the appellant.  Ms Joseph seeks to have that decision overturned.

[2]      The District Court Judge made the confiscation order pursuant to s 129 of the Sentencing Act 2002.   This section applies if a person has been convicted of a relevant offence and then, within four years after the date of the commission of that offence, commits a further relevant offence.  In such a case, the section provides:[1]

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.

[1] Sentencing Act 2002, s 129(3).

[3]      The only discretion that a Judge has if the prerequisite circumstances exist is if the making of the confiscation order will result in extreme hardship to the offender or undue hardship to any other person.  If a Judge is satisfied as to either of those results, the Court must not make the confiscation order.

[4]      In this case the appellant, on 13 October 2011, was disqualified from driving for a period of six months.  This was due to end on 13 April 2012.  On 15 March

2012 the appellant was caught driving her Nissan motor vehicle when she was stopped by a Police breath testing checkpoint.  I add that there was no question of alcohol impairment at that time.  In the appellant’s first affidavit filed in support of the appeal sworn in March 2012, the appellant explained that the reason she was driving was to deliver a gas bottle and pick up a prescription from a local pharmacy for her asthma medication.

[5]      As a result, the appellant now has two qualifying convictions, the first (being for driving with excess breath alcohol) entered on 13 October 2011 and the second (for driving whilst disqualified) being entered on 29 March 2012.

[6]      Mr Hannam for the appellant submits that the District Court Judge should have found that extreme hardship would exist for the appellant if her vehicle was

on 24 April 2012 has been referred to me.  In it, the appellant deposes that she lives in New Plymouth and works in Eltham.   To travel to work from her home she requires transportation.  From the time of her first disqualification that transportation has been provided by a fellow worker.   That arrangement will not continue indefinitely.   The fellow worker is looking for employment in New Plymouth. However, there is another worker at the appellant’s place of employment who lives in New Plymouth and she could drive the appellant so long as the appellant’s car was available to her for that purpose.  Put shortly, the extreme hardship pointed to is the inevitable loss of the appellant’s employment in Eltham because at some point in the future she will not be able to get to it.   Compounding that hardship will be the ongoing requirement to pay the loan secured by the vehicle.  Obviously, with loss of employment comes loss of ability to service the loan, or what is left of it after the car is sold.

[7]      Ms Law for the respondent has referred me to several decisions of Judges of this Court.   One decision upon which Ms Law places some emphasis is that of Laurenson J in Police v Rihari.[2]   In it, His Honour observed that “extreme hardship” has been used by Parliament to indicate that a very high level of hardship has to be demonstrated by a qualifying offender.   It is a test that has to be determined objectively and not on the basis of the perception of the particular offender.   I respectfully agree with those observations.

[2] Police v Rihari HC Whangarei AP10/98, 23 July 1998.

[8]      I note that the District Court Judge took into account the fact that confiscation of the appellant’s vehicle would take away her ability to drive to and from her place of work.   However, he felt that that would be the natural effect of the cumulative disqualifications from driving in any event.  It does not appear to have been put to him that without the car no other person would be able to drive the appellant to and from work.

[9]      I preface my further remarks by saying that I have every sympathy for the appellant.  Although her first qualifying offence was related to drinking and driving,

the second qualifying offence was not.  However, I have to construe the legislation

hardship must be looked at objectively.

[10]     As has been said in other decisions, when a car is confiscated there will commonly be a number of hardships which will follow for its owner.  If the vehicle is required to transport the owner to work and back, its loss will commonly mean the loss of employment unless alternative transport can be arranged.  If the vehicle has been charged with a debt, its confiscation and sale might very well leave the owner with a portion of the debt still to pay.   It might well be in many cases that the owner’s ability to pay the debt will be compromised by a loss of employment where that loss is linked to the confiscation of the vehicle.

[11]     If  such  consequences  can  be  readily  anticipated  upon  confiscation  of  a vehicle, then their occurrence cannot easily be termed “extreme hardship”.  I do not say that they can never be.  There might well be circumstances where those factors compound with other factors in the background of the offender to objectively result in extreme hardship.

[12]     Reluctantly I have decided that this is not one of those cases.  The situation put to me is that the appellant has a good job in Eltham.  She lives in New Plymouth. To this point, through her period of disqualification, she has been able to keep her employment in Eltham through getting rides with a fellow worker.   The fellow worker is now looking for work in New Plymouth.  She might get it tomorrow or she might not get it until a considerable period in the future.  There is a fellow worker who might drive the appellant to her place of work so long as she can use the appellant’s vehicle.

[13]     The options for the appellant if all else fails have not really been canvassed before me, but I accept that they would include giving up the job in Eltham.  I also accept that without employment it would be difficult for the appellant  to make residual payments on the loan secured against the vehicle.  But what I am left with is a circumstance which cannot be said to be unusual.  Neither do I have any elevated form of hardship which could take a fairly usual occurrence and make it one of extreme hardship.

Brewer J