R v Police HC Whangarei CRI 2009-488-6

[2009] NZHC 1918

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2009-488-6

R

Appellant

v

THE POLICE

Respondent

Hearing:         17 July 2009

Appearances: J Day for appellant

D Coleman for respondent

Judgment:      17 July 2009

JUDGMENT OF ALLAN J

Solicitors:

J S Day, Whangarei

Crown Solicitor Whangarei

R V THE POLICE HC WHA CRI 2009-488-6  17 July 2009

[1]      This is an appeal by Mr R   against an order made in the District Court at Kaikohe on 19 February 2009, confiscating the appellant’s motor vehicle pursuant to s 129 of the Sentencing Act 2002.

[2]      The brief background to that order is that on 16 December 2008 the appellant had been disqualified from holding or obtaining a driver’s licence, and was apprehended driving his motor car on 8 January 2009.

[3]      The  appellant  had  earlier  been  convicted  for  dangerous  driving,  and accordingly, the provisions of s 129 of the Sentencing Act were engaged.   That section provides that where, as here, there has been a conviction for driving while disqualified within four years of a conviction for dangerous driving, the Court must confiscate the offender’s motor vehicle unless to do so would result in extreme hardship to the offender, or undue hardship to any other person.

[4]      Since filing the appeal, Mr R   instructed Mr Day, who appears on the appeal.  He advises the Court, after taking detailed instructions and considering the appellant’s position, that he cannot responsibly advance an argument that the order for confiscation would result in such hardship.   For that reason, although he has no instructions to withdraw the appeal, he advises the Court he is not in a position to make submissions in support of it.

[5]      I should mention that before Mr Day was instructed, Mr R   filed a memorandum in which he set out a number of factors which were thought to be relevant to the appeal.  Some of those factors are relevant to the circumstances in which this offence occurred, and to the appellant’s offending history.  While certain of the points in the memorandum are well made, they do not directly bear on the issue before the Court.  In particular, there is nothing in the memorandum that goes to the question of extreme hardship to the offender, or undue hardship to any other person.

[6]      In light of Mr Day’s advice to the Court, and the position responsibly taken by the appellant, the appeal must be dismissed.

[7]      In the further responsible discharge of his functions, Mr Day has pointed out to the Court that the order for disqualification made in the Kaikohe District Court on

19 February 2009 is defective, in that it purports to take effect from the date of the hearing.   However, at that time the appellant was still disqualified from driving, pursuant to an order to that effect made on 16 December 2008 disqualifying him from driving for a period of six months, which expired on 16 June 2009.

[8]      The order having been invalidly made, it is open to this Court to substitute a valid sentence.  As has been mentioned by counsel, the six month disqualification period might be thought to be on the lenient side, but it seems to me the appellant’s youth was properly taken into account by Judge Harvey, and it would not be proper to alter the period of disqualification.  The appropriate course is to quash the order for disqualification imposed on 19 February, and substitute an order disqualifying the appellant from driving for six months from 16 June 2009.  There will be an order accordingly.

[9]      It remains to deal with the question of the surrender of the vehicle to the Registrar of the Court.   Mr Day has taken instructions.   There are difficulties in rendering the vehicle roadworthy, but the Court is advised it can be placed in a condition in which it can at least be towed, by Friday 24 July 2009.

[10]     There will be a direction that the appellant surrender the vehicle concerned to the Registrar of the District Court at Kaikohe, by 4 pm on Friday 24 July 2009.

C J Allan J