P v Police HC Christchurch Cri-2005-476-1

[2005] NZHC 173

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2005-476-01

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 November 2005

Counsel:        A N D Garrett for Appellant

K T Dalziel for Respondent

Judgment:      3 November 2005

ORAL JUDGMENT OF RANDERSON J

Solicitors:           Crown Solicitors Office, PO Box 533, Christchurch

Counsel:             A N D Garrett, PO Box 2889, Christchurch

P V POLICE HC CHCH CRI-2005-476-01  3 November 2005

Introduction

[1]      The appellant has brought this appeal against sentence having pleaded guilty in the District Court at Timaru on 17 January 2005 to one charge of refusing to permit a blood specimen to be taken contrary to s 60 of the Land Transport Act

1998.

[2]      In brief sentencing remarks Her Honour Judge J J Moran imposed a sentence of 180 hours community work, disqualified the appellant for 12 months and made an order under s 128 Sentencing Act 2002 confiscating the appellant’s motor vehicle.

[3]      Following the sentencing the vehicle has been taken into storage but the vehicle has not as yet been sold pursuant to s 137 Sentencing Act..  The appellant has not sought any suspension of his disqualification.

[4]      The appellant lodged this appeal some time ago but it was adjourned while he made an application to the District Court for a rehearing of his conviction.   That matter  was  dealt  with  in  detail  by  Judge  Moran  who  issued  a  decision  on

22 August 2005 upholding the conviction and declining to order a rehearing.   The Judge had affidavit evidence before her and also heard oral evidence from witnesses including the police and the appellant.  Essentially she accepted the police evidence as to the circumstances of the appellant’s apprehension and arrest.

The Facts

[5]      According to the summary of facts the appellant was driving a V8 SS Holden Commodore and was observed by police leaving a tavern at Rakaia.   When the appellant noticed the police he stopped his vehicle and reversed it before entering the carpark at some speed.  The police pursued the appellant.  He got out of the driver’s seat and ignored the police requests to stop.  According to the summary of facts, the appellant  was grossly  intoxicated.    After  going  through  the  usual drink  driving procedures he was taken to  the Ashburton Police Station.    After  an  incomplete

evidential breath test, he was formally requested to supply a sample of his blood but refused to do so.

[6]      The appellant’s conviction is his third conviction for alcohol and driving related offences.  In those circumstances he was facing a maximum penalty of two years imprisonment or a $6000 fine and up to one years disqualification.   But the two previous convictions were historical.  The first in time related to an offence in October 1976 nearly thirty years ago.  The second related to an offence in May 1983 which, at the time of the hearing before the Judge, was some 22 years earlier.

The Confiscation Issue

[7]      The appellant’s present counsel was not counsel at the time of the hearing before the Judge  in  January and  there  has  been  some  difficulty  in  ascertaining exactly what took place at the sentencing.  The appellant says he was unaware of the possibility of confiscation until after  the  hearing.    This  is disputed  by  his  then counsel in an affidavit filed in the District Court.

[8]      Whatever the position may be in that respect, the Judge did not articulate in her decision any reason for confiscation of the motor vehicle nor deal with any of the considerations which must be considered under s 128(5) Sentencing Act.   These include whether any undue hardship would be caused to the offender in relation to his or her business, occupation or employment; any undue hardship to any other person who would otherwise have the use or benefit of the vehicle; the nature and the extent of the offender’s interest in the vehicle and the nature and extent of any other person’s interest in it; and any other circumstances that the Court thinks fit.

[9]      Under s 129 Sentencing Act, where there is a second offence of the kind described in s 129(1) within four years after the date of the commission of another, then confiscation under the section is mandatory unless the Court is of the view that confiscation would result in extreme hardship to the offender or undue hardship to any other person.

[10]     It is clear from this provision that Parliament intended the more strict regime under s 129 to apply where there is a second relevant offence within a period of four years.  It follows in my view, that when considering confiscation under s 128 (where a  confiscation  order  may  be  made  as  a  matter  of  discretion),  one  of  the considerations the Court should take into account is the length of time between the offence in question and any earlier relevant offences.

Conclusions

[11]     Here, although the Judge noted that the earlier offending was historical in nature, she did not expressly link that remark to the confiscation order.  Even if the Judge had it in mind I am satisfied that the length of time which has elapsed since the earlier offending was so long that in the circumstances there was no warrant to make the confiscation order bearing in mind the lengthy period of community work also imposed.   That was particularly the case since the appellant’s work as a self- employed electrician requires him to be on call at all times in case his services are required.  He resides in an area where he is required to travel substantial distances to undertake his work.

[12]     During the course of the hearing I was minded to impose a substantial fine, remove the confiscation order and reduce, to some extent, the community work sentence.  However, it is one of the unfortunate features of the Sentencing Act that a fine and community work cannot both be imposed when sentencing an offender. This is regrettable and the legislature should look at amending s 20(2) so that the Court is given appropriate flexibility.   This is a case where the appellant is in a position to pay a substantial fine and if I had power to do so, I would have.

[13]     There was no discussion in the Judge’s sentencing notes about the availability of community work but enquiries made by Ms Dalziel over lunch today have confirmed that there is community work available either in the Rakaia area or nearby in Ashburton.

[14]     In the circumstances I am satisfied that the sentence overall was manifestly excessive and that Judge failed to give sufficient weight to the historical nature of the

previous offences when considering the issue of confiscation.  The confiscation order is itself a substantial penalty.  The effect of the Act is that the vehicle must be taken into the Registrar’s custody under s 137 and sold by public auction or any other manner that the Court may direct.  The proceeds of sale must be applied to the costs of sale, including all costs incurred in seizing the motor vehicle, towing and storing the vehicle and complying with the provision of the Act preliminary to sale. Thereafter any encumbrances must be satisfied, any fines or reparation owed must be met and the balance is then available to the offender.

[15]     Although there is no direct evidence before the Court, counsel has submitted that according to his instructions, the 2002 Holden Commodore V8 motor vehicle was  valued  at  the  time  of  confiscation,  at  approximately  $60,000.     Counsel submitted, with some justification, that it was likely in the course of a public auction that there would be a significant reduction from full market value upon the sale.

[16]     As  well  as  the  confiscation  of course there  was  a  period  of  12  months disqualification which for this appellant, given the nature of his work, is also  a penalty of some significance.

[17]     For those reasons, I propose to allow the appeal and it is so allowed.   In substitution for the sentence of 180 hours community work there will be a sentence of  130  hours  of  community  work.    The  disqualification  for  12  months  from

17 January 2005 will remain in place.  The confiscation order will be revoked and the appellant may recover his motor vehicle as soon as practicable from storage, but subject  to  payment  by him  in  full of any proper  costs incurred  to  date  by the Registrar under s 137 Sentencing Act 2002.  The amount of these costs is not clear but I am satisfied that they are not so great as to impose a further inappropriate penalty on a man of the appellant’s means (which have been proved by a statement

of means lodged with the Court at my request).

A P Randerson, J Chief High Court Judge