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”)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Komene v Police

Details

AGLC: Komene v Police [2016] NZHC 2120
Case: [2016] NZHC 2120
Decision Date: 7 September 2016

CaseChat Overview and Summary

Komene appealed against the confiscation of his motor vehicle imposed by Judge Parsons. The confiscation was ordered as part of a sentence imposed for driving with excess blood alcohol on the third or subsequent time. The appeal court found that the confiscation of the vehicle would cause undue hardship to Ms Matthews, the appellant's partner, mainly because of the difficulty she would have in seeing her son who lives in Waimana. The confiscation would cause hardship as she would not be able to make a day trip to see her son or make a return trip in the weekend, as the bus journey was restrictive. The appeal court quashed the order confiscating the Honda Station Wagon and any order seizing the vehicle.

The appeal court considered the issue of undue hardship in this case, which was whether the Judge made an error in finding that confiscation of the vehicle will not cause undue hardship to Ms Matthews. Ms Matthews' affidavit raised three particular causes of hardship, namely, she resides on the outskirts of Te Puke township and has no alternative transport available to take her to and from Te Puke in order to attend to day-to-day tasks; her son and mother both reside in Waimana, which is approximately 90 kilometres from her home in the outskirts of Te Puke; and she is looking for work in Te Puke and requires a vehicle to take her to and from the place of employment. Ms Matthews holds a full drivers’ licence, and it is claimed that there is no regular bus service to and from where she resides.

In relation to the effect on the ability of Ms Matthews to visit her son who lives in Waimana, the appeal court found that the bus journey was so difficult and restrictive as to constitute undue hardship. 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. The appeal court found that the bus journey was so difficult and restrictive as to constitute undue hardship.

Orders