Nathan v Police

[2013] NZHC 2270

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-128 [2013] NZHC 2270

BETWEEN

RANDALL THOMAS NATHAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

2 September 2013

Appearances:

J Hudson for the Appellant

H Musgrave for the Respondent

Judgment:

2 September 2013

ORAL JUDGMENT OF PRIESTLEY J

(Appeal against confiscation order)

Counsel/Solicitors:

J Hudson, Barrister, Manukau

H Musgrave, Crown Solicitor, Auckland

NATHAN v NEW ZEALAND POLICE [2013] NZHC 2270 [2 September 2013]

[1]   This appeal challenges a confiscation order made by Judge Andrée Wiltens in the Manukau District Court on 18 March 2013. The order in question was made under s 129 of the Sentencing Act 2002.

[2]   There was no doubt that the convictions which the appellant incurred brought the section into play. The relevant provisions are:

129      Confiscation of motor vehicle after second 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.

[3] The appellant is only challenging the confiscation order.  He faced much more serious charges relating to driving whilst under the influence of liquor and clearly, in that regard, was a recidivist offender.

[4] At the time of his offending the appellant was driving a 1964 Holden SSV8 motor vehicle.  Prior to being sentenced he made what appears to be a common form declaration relating to ownership or interest in a motor vehicle. He stated that his estranged wife, Ms M McFarlane, was effectively the owner of the vehicle despite the fact that it was registered in his name.

[5] It appears to be common ground that the vehicle, because of its antiquity, was worth approximately $2,000.

[6]      The Judge dealt with the confiscation issue thus:

[15] Under s 129 Land Transport Act 1998 I am not satisfied that the grounds that have been laid (sic) out for hardship, either by you or your former partner, therefore the car is confiscated.

[7]     The first appeal point was that the Judge referred to the wrong statute.  That is clearly correct. However, in the course of a busy list court I do not think anything hangs on a verbal lapse of this type where the Judge confused the Land Transport Act, with which he was clearly dealing, with the Sentencing Act.

[8] The clear difficulty with [15] of the  Judge’s  Sentencing  Notes  is  that although he states he is not satisfied grounds have been made out to resist confiscation, he gives no reasons.  This is of some importance because, under the s 129(4) of the statute a court is prohibited from making a confiscation order if it would result in extreme hardship to the offender or undue hardship to any other person. The Judge, with respect, has not differentiated between these two degrees of hardship. Nor has he articulated a brief reason why he considered grounds had not been made out.

[9]     Realistically on appeal (and whether or not this was made clear to the Judge is uncertain) counsel accepts that the appellant himself is not in a position to make out a case for extreme hardship. It is submitted, however, that Ms McFarlane is in a position of undue hardship.

[10] In that regard Ms McFarlane has sworn an affidavit.  She states that she and her husband are estranged; that she has “an event booking role in the hospitality industry” but gives no details of what her job responsibilities are and her hours of work; that she drives the Holden because her own motor vehicle is unroadworthy; that if she were  to receive the net sale proceeds  of the vehicle this would be insufficient for her to repair her own vehicle or purchase another vehicle; and that she does not have, because of her limited means, the ability to replace her husband’s vehicle which she is currently using.

[11] There is absolutely no basis on which any court could properly make a finding of undue hardship in Ms McFarlane’s favour. The absence of details of her finances, the availability to her of public transport, and her hours of work are clear gaps.

[12] Ms Musgrave is correct when she points out in her submissions that, on the undue hardship topic, there must be some requirement to show hardship beyond the normal. Something akin to serious hardship is required.[1]

[1] See Rahui v Police HC Napier AP28/01, 26 October 2001; and Browne v Police HC Palmerston North, CRI 2004-454-97, 7 December 2004.

[13] Certainly the confiscation of a motor vehicle which was central to employment from a person who has limited means could meet the test. However, for whatever reason, Ms McFarlane has not given that information. There is a certain procedural paradox here, given that the appellant is not contesting the confiscation for himself and is not, so it would seem, the owner of the vehicle involved.

[14] I have given some consideration to whether it could be argued that Ms McFarlane has an inchoate interest under the Property (Relationships) Act 1976 in respect of what is arguably a family chattel. But there is no history of the marriage of this estranged couple for me to make any finding as to the proper status of the motor vehicle.

[15]   In those circumstances, by consent, the appellant is given leave to appeal out of time. But the appeal is dismissed.

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Priestley J