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…

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.

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Details

Case: [2013] NZHC 2913
Decision Date: 5 November 2013

CaseChat Overview and Summary

Felix Turua appealed against a sentence imposed by Judge Tremewan in the District Court at Waitakere. Turua had pleaded guilty to two charges of driving with excess breath alcohol and two charges of driving while disqualified, all being third or subsequent offences. Judge Tremewan sentenced Turua to one year’s imprisonment and ordered the confiscation of his car under section 129 of the Sentencing Act 2002. Turua's appeal was primarily focused on the confiscation of his car, which was claimed to cause undue hardship to his partner, Ms. Hosking. However, it was revealed during the appeal that Ms. Hosking had another car available for her use, which negated the argument of undue hardship. Additionally, section 137(3) of the Sentencing Act provided that the net proceeds of the sale of the car would be returned, protecting any financial interest Ms. Hosking may have had in the car.

The court needed to determine whether the confiscation of Turua's car constituted undue hardship to Ms. Hosking. The court considered the definition of undue hardship under section 129 of the Sentencing Act, which involves more than mere inconvenience but less than extreme hardship. The court found that even without the additional information about another available car, the information provided by Ms. Hosking was insufficient to support a finding of undue hardship. The information lacked specifics about the frequency of medical appointments, efforts to seek alternative transport, or the practicality of obtaining taxis. Given that Ms. Hosking had another car available, it was clear that there was no undue hardship.

The court dismissed the appeal, concluding that the grounds as filed were not made out and that there were no further grounds to support the appeal. The court acknowledged the responsible approach taken by Turua's solicitor, Mr. Kidd, in advising the court of the further information. The appeal was ultimately dismissed, and the original sentence and confiscation order were upheld.

Orders