Turua v Police

[2013] NZHC 2913

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000280 [2013] NZHC 2913

BETWEEN  FELIX TURUA Appellant

ANDNEW ZEALAND POLICE Defendant

Hearing:                   5 November 2013

Appearances:           M J Kidd for Appellant

J Roach for Defendant

Judgment:                5 November 2013

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            Dr M J Kidd, Auckland

TURUA v NZ POLICE [2013] NZHC 2913 [5 November 2013]

[1]      Having pleaded guilty to two charges of driving with excess breath alcohol and two charges of driving whilst disqualified, all of them being third or subsequent offences, the appellant was sentenced by Judge Tremewan in the District Court at Waitakere to one year’s imprisonment.1     In addition to the disqualifications and special conditions the Judge directed that Mr Turua’s car be confiscated under s 129 of the Sentencing Act 2002.

[2]      Mr Turua appealed against sentence.  At the outset of the appeal Mr Kidd conceded that in light of the matters outlined in the Crown submissions and the further information that he now had, it was difficult for him to pursue the appeal with any particular vigour.

[3]      In terms of the sentence of imprisonment, frankly, given the sequence of the offending  and  the  appellant’s  background,  a  sentence  of  imprisonment  was inevitable. As the Judge noted the first offence of driving with excess breath alcohol occurred on 28 February this year.  The level of 745 micrograms per litre of breath was almost twice the legal limit.

[4]      The appellant was then caught with an excess breath alcohol about a month later on 29 March.  On that occasion his level was 656 micrograms.  He was also at the time driving whilst disqualified.  The last offence occurred when the appellant drove again on 24 June this year.  In terms of the offence committed on 28 February that was the sixth time the appellant had driven while affected by alcohol.   The offences in relation to driving whilst disqualified were the appellant’s seventh and eighth offences.

[5]      The starting point of 18 months’ imprisonment was clearly open to the Judge. It could be said the Judge was generous in the reduction from that starting point for the appellant’s guilty pleas and for the credit she gave him for the efforts he had

made with CADS.  In cases of this nature the police case will often be overwhelming

1      Police v Turua DC Waitakere CRI-2013-004-3464, 3 September 2013.

or at least a strong case so that the substantial discount of six months overall was generous.

[6]      The only matter of particular moment was the issue of the confiscation of the appellant’s car.  In support of the appeal in relation to that point information was put before the Court confirming that the appellant’s partner, Ms Hosking, had an interest in the car and that the appellant had misled the Probation Service when he had said she was only his landlady.  Ms Hosking claimed an interest in the car as his de facto partner but also in addition stated she suffered from chronic bronchitis and other conditions and had no way of getting to medical appointments.   On that basis a submission was to be advanced that the confiscation of the car would cause her undue hardship. A medical certificate was supplied in support.

[7]      At the outset of the appeal Mr Kidd properly advised the Court that after obtaining that declaration from Ms Hosking further information had been disclosed to him.  In fact there is another car available to the family so that to the extent the appellant’s partner requires the car to make medical appointments or to respond to any medical emergencies she may have, a car is available.

[8]      In light of that and also the fact that, as Mr Roach noted, s 137(3) of the Sentencing Act provides the net proceeds of the sale of the car are to be returned, (which would protect any financial interest Ms Hosking may have in the car) there is no basis to support the appeal on the ground of undue hardship to Ms Hosking.

[9]      I have to say that, in any event on the bare information before the Court, even accepting that Ms Hosking suffers from chronic bronchitis, there was insufficient to support a finding of undue hardship.   Section 129 involves concepts of extreme hardship to an appellant, or undue hardship to another person.   Undue hardship is clearly less than extreme hardship but is more than hardship.  Hardship itself must be more than inconvenience.  I accept that it might be said to have been a hardship to Ms Hosking if the car was no longer available to her, even if it was the only car, but the information put forward on her behalf was very brief.  There was no information as to how regularly she requires emergency attendances at the doctor, what other efforts she had made to obtain other members of the extended family to help in terms

of driving her with vehicles, no information about taxi fares or the practicality of obtaining taxis or anything of that kind.  So that, even on the information before the Court, before the further information Mr Kidd advanced, it would have been the Court’s view that the information disclosed no more than hardship and would have fallen short of undue hardship.   However, in light of the further information, it is clear there can be no question of undue hardship on Ms Hosking.

Result

[10]     The grounds of appeal  as filed are not made out.   There are no further grounds to support the appeal. The appeal is dismissed.

[11]     I thank Mr Kidd for the responsible approach he has taken towards the matter in terms of advising the Court of the further information.

Venning J