Komene v Police

[2016] NZHC 2120

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2016-470-16 [2016] NZHC 2120

BETWEEN

ANDREW JAMES KOMENE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	7 September 2016
Counsel:	JM Owers for appellant A Pollett and AZM Shore for respondent
Judgment:	7 September 2016

(ORAL) JUDGMENT OF FAIRE J

This judgment was delivered by me on 7 September 2016 pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Public Defence Service, Tauranga

Crown Solicitor, Tauranga

Komene v New Zealand Police [2016] NZHC 2120 [7 September 2016]

The appeal

[1]      The appellant appeals that part of a sentence imposed on him by her Honour Judge Parsons on 11 May 2016 pursuant to which the confiscation of a Honda station-wagon was ordered.1

The sentence

[2]      The appellant was convicted of driving with excess blood alcohol on the third or subsequent time.   He was sentenced in the Tauranga District Court on 11 May

2016 when the following orders were made:

(a)       He was imprisoned for 18 months;2

(b)      A zero alcohol licence order was made pursuant to s 65B of the Land

Transport Act 1998;3

(c)       An indefinite disqualification was ordered pursuant to s 65(2) of the

Land Transport Act 1998;4

(d)      He was disqualified from driving for one year and one day;5 and

(e)       The motor vehicle he was driving was confiscated pursuant to s 129 of the Sentencing Act 2002.6

[3]      The appellant filed a letter from his partner, Ms Matthews, for the court’s consideration on 23 May 2016.  The issue of an order of confiscation of the motor vehicle was considered by Judge Parsons.  In minutes dated 24 and 26 May 2016, the

Judge ruled that the order was to be made and a warrant issued.

1      New Zealand Police v Komene [2016] NZDC 8338.

2 At [13].

3 At [16].

4 At [16].

5 At [11].

6 At [16].

The grounds for the appeal

[4]      The appellant  appeals  the confiscation  order  and  advances  the following grounds:

(a)       He was not aware that the vehicle was subject to confiscation at the time of sentencing;

(b)He,  therefore,  did  not  have  the  opportunity  to  present  his  case challenging the confiscation;

(c)       The  confiscation  of  the  vehicle  will  result  in  undue  hardship  to another person, namely his partner, Rachel Puhi Matthews; and

(d)      It is in the interests of justice that his appeal is allowed.

[5]      This appeal against sentence is brought pursuant to the Criminal Procedure Act 2011 which provides that the appeal court must allow the appeal if satisfied that:7

(a)       for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      a different sentence should be imposed.

[6]      In any other case, the court must dismiss the appeal.8

The law

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

129     Confiscation of motor vehicle after second offence

(1)      This section applies if,—

7      Section 250(2).

8      Section 250(3).

(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, 6A(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.

[8]      The appellant accepts that the provisions of s 129 of the Sentencing Act 2002 apply.   The current charge is a qualifying offence, as is the appellant’s 2014 conviction for refusing blood being a third or subsequent offence.

Undue hardship

[9]      The issue in this case is whether the Judge made an error in finding that confiscation of the vehicle will not cause undue hardship to Ms Matthews.

[10]     Ms Matthews has provided an affidavit in support of this appeal.  Its contents were not available to the District Court Judge at the time of sentencing.

[11]     Ms Matthews’ affidavit raises three particular causes of hardship, namely:

(a)      She  resides  on  the  outskirts  of  Te  Puke  township.    She  has  no alternative transport available to take her to and from Te Puke in order to attend to day-to-day tasks;

(b)      Her son and mother both reside in Waimana, which is approximately

90 kilometres from her home in the outskirts of Te Puke.  Her mother has had a stroke and is immobile.  Her son is too young to drive; and

(c)      She is looking for work in Te Puke.  Before she can obtain work she will  require  a  vehicle  to  take  her  to  and  from  the  place  of employment.

[12]     Ms Matthews holds a full drivers’ licence.  She is now the registered owner of the motor vehicle which has always been shared between her and the appellant. It is claimed that there is no regular bus service to and from where she resides.  She has health issues, including depression.  No medical evidence has been produced.  She is currently receiving a benefit.  She is not in a position to purchase another vehicle.

[13]     The  respondent  submits  that  Ms  Matthews  lives  in  walking  or  cycling distance to Te Puke and that this does not equate to undue hardship. Further, it is argued that the submission that Ms Matthews may need a car for a potential job is speculation without any supporting evidence.

[14]     In respect of travel to Waimana, the respondent submits that there are public bus routes which travel from Tauranga to Whakatāne, stopping in Te Puke, as well as buses  from  Whakatāne  to  Ōpōtiki,  via  Waimana.  Accordingly,  the  respondent submits that confiscation will not prevent Ms Matthews from visiting her son or her mother.

[15]     In relation to mental health, the respondent submits that medical evidence will normally be required before the court will find that there are justifiable grounds for a finding of undue hardship on medical grounds.

Analysis

[16]     “Undue  hardship”  has  been  described  as  meaning  “excessive  or  greater

hardship than the circumstances warranted”.9

[17]     In  Turua  v  Police, Venning J  stated  “[s]ection  129  involves  concepts  of extreme hardship to an appellant, or undue hardship to another person. Undue hardship is clearly less than extreme hardship but is more than hardship. Hardship itself must be more than inconvenience.”10

[18]     In this case, the fact that Ms Matthews lives outside Te Puke township may result in hardship as she would then need to walk several kilometres  to access services such as the supermarket or medical centre. While the distance is able to be walked it is a substantial distance to walk with, for example, groceries. While this would be more than an inconvenience I am not convinced that the resulting impact in this regard, when considered alone, could truly be considered ‘undue hardship’.

[19]     Similarly, Ms Matthews is currently looking for work in Te Puke. She is hoping to get a job as a cleaner. Te Puke is within walking distance but the lack of transport either by car or bus is likely to limit Ms Matthews’ employment options, especially as cleaning jobs often involve working early in the morning or late at night.

[20]     Most compelling, in my view, is the effect on the ability of Ms Matthews to visit her son who lives in Waimana, as neither her son nor her mother are able to drive. The distance between the two homes is substantial. The respondent has filed evidence showing the availability of bus routes between Te Puke and Waimana. The journey is in two legs, first a bus from Te Puke to Whakatāne and a second bus from Whakatāne to Waimana. The bus from Te Puke to Whakatāne only runs once a day in each direction. The bus travelling from Te Puke to Whakatāne is in the afternoon and the bus travelling from Whakatāne to Te Puke is in the morning. The bus does

not run on Sundays.

9      Dalton v Auckland City: Porter v Auckland City [1971] NZLR 548 (SC) at 550.

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

[21]   The bus between Whakatāne and Waimana runs only on Mondays and Wednesdays. The bus from Te Puke arrives in Whakatāne at 4.00pm. The bus to Waimana leaves Whakatāne at 4.00pm. This may make the connection difficult. Ms Matthews would not be able to make a day trip to see her son or make a return trip in the weekend. She would only be able to travel on Mondays and Wednesdays and only in one direction on each day.

[22]     It must also be remembered that Ms Matthews does not live in Te Puke itself and that the walk to catch the bus would also add to the journey. It may not be impossible for her to visit her son if the vehicle were to be confiscated, but in my view, the bus journey is so difficult and restrictive as to constitute undue hardship.

[23]     I agree with the respondent that Ms Matthews’ indication that she has health issues, without further evidence or confirmation would not be sufficient to establish undue hardship on medical grounds.11 However, the health issues in this case are not held out to be, in my understanding, the main reason for the undue hardship.

[24]     In my view, the confiscation of the vehicle would cause undue hardship to Ms Matthews arising mainly, but not solely, from the difficultly that she would then have in seeing her son.

[25]     I have the benefit of the precise position in relation to the travel options, which was not available to the learned District Court Judge.  That additional material has been essential to my conclusion that the confiscation will cause undue hardship to Ms Matthews.

[26]     Although it was not appealed, I note that the District Court Judge imposed a finite disqualification and an indefinite disqualification. Justice Keane recently held that s 56(4A) of the Land Transport Act relieves the Judge of the duty to disqualify finitely when an indefinite disqualification is ordered.12  His Honour held that in doing so, the Judge had exceeded his jurisdiction and the finite disqualification was

quashed.13 .

11     Gray v New Zealand Police [2015] NZHC 81 at [55].

12     Paranihi v New Zealand Police [2016] NZHC 69.

13 At [6].

Result

[27]     The appeal is allowed. The order confiscating the Honda Station Wagon is quashed. For the avoidance of doubt any order seizing the vehicle is also quashed

JA Faire J