Smith v Police - [2017] NZHC 679

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-409-000002 [2017] NZHC 679

BETWEEN
DAVID ALEXANDER SMITH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 28 March 2017

Appearances:

S J Forrester for Appellant
S J Mallett for Respondent

Judgment:

7 April 2017

JUDGMENT OF GENDALL J

SMITH v NEW ZEALAND POLICE [2017] NZHC 679 [7 April 2017]

Introduction

[1] The appellant faced two charges of driving with excess breath alcohol in the

District Court and after guilty pleas he was convicted on 20 October 2016. On

25 November 2016, he was sentenced by Judge Strettell to five months’ community detention, 12 months’ intensive supervision, and disqualified from driving for
18 months.1 In a reserved judgment Judge Strettell later issued a confiscation order

with respect to the vehicle involved in the appellant’s offending (a Subaru,

Registration No. JUE567) (the vehicle), pursuant to s 129 Sentencing Act 2002. [2] The appellant appeals now but solely against the s 129 confiscation order.
Principles on appeal

[3] Appeals of this type akin to a sentence appeal are brought under s 244 of the Criminal Procedure Act 2011. Such appeals must be determined in accordance with s 250 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.2

[4] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the Judge’s discretion. As Toogood J said (citing Ripia v R3) in Larkin v Ministry of
Development:4

[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

1      Police v Smith [2016] NZDC 23980.
2      Criminal Procedure Act 2011, ss 250(2) and 250(3).
3      Ripia v R [2011] NZCA 101 at [15].
4      Larkin v Ministry of Development [2015] NZHC 680.

[5] The focus on most appeals is thus on the end sentence. In Tutakangahau v

R,5 the Court of Appeal held that:6

…the focus is on the sentence imposed rather than the process by which the sentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.

[6] The appellant’s primary argument is that there was an error in the sentence imposed so far as the confiscation order was concerned, and the Judge should have found that the exceptions of either “extreme” or “undue” hardship applied. Accordingly, it is claimed the confiscation order should not have been made.

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 Smith v Police

Details

AGLC: Smith v Police [2017] NZHC 679
Case: [2017] NZHC 679
Decision Date: 7 April 2017

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, David Alexander Smith, appealed a decision made by Judge Strettell in the District Court regarding the confiscation of a vehicle under Section 129 of the Sentencing Act 2002. Smith had been found guilty of driving with excess breath alcohol and was sentenced to community detention, intensive supervision, and a driving disqualification. The confiscation order applied to the vehicle used in the offending, a Subaru, Registration No. JUE567. Smith appealed solely against the confiscation order.

The legal issues to be decided by the court were whether the confiscation order should be considered an error in sentencing and if the exceptions of "extreme" or "undue" hardship applied, thereby negating the confiscation order. The court had to examine whether the sentence was "manifestly excessive" and if it was justified by accepted sentencing principles.

The court granted leave to appeal out of time, considering the minor delay and possible merit in the appeal. The substantive appeal grounds were assessed based on whether the confiscation order would cause "extreme" hardship to Smith or "undue" hardship to another party, in this case, Turners Finance. Smith argued that the confiscation would cause him extreme hardship due to his reliance on the vehicle for his business, but the court found that the hardship was foreseeable and not exceptional. Furthermore, the court determined that the potential hardship to Turners Finance was not "undue" as it was a common consequence for creditors in such situations. The appeal was dismissed as the confiscation order was found to be properly justified under the relevant sentencing principles.

The final orders of the court were that the appeal against the confiscation order was dismissed, and the confiscation order imposed by Judge Strettell was upheld.

Orders