Wade v Wade - [2017] NZHC 450

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-409-000010 [2017] NZHC 450

BETWEEN
DOUGLAS WINSTON WADE

Appellant

AND

SAMUEL WINSTON WADE Defendant

AND

NEW ZEALAND POLICE Respondent

Hearing: 14 March 2017

Appearances:

Appellant in person
C Nolan for Defendant
S J Mallett for Crown

Judgment:

15 March 2017

JUDGMENT OF DUNNINGHAM J

[1] On 23 November 2016 Samuel Wade, the defendant, was sentenced in the District Court on charges of theft, driving while suspended (3rd or subsequent offence) and driving while impaired. As part of the sentence imposed, Judge MacAskill ordered confiscation of the motor vehicle used in the offending.

[2] The appellant, Mr Wade, who is the defendant’s father (Mr Wade senior) appeals against the confiscation order on the basis that the vehicle was not owned by the defendant, as it had been sold to the appellant on 24 June 2016. He also asserts that it would cause “financial hardship to me if the car is seized”, presumably
invoking the ground of undue hardship.

WADE v WADE AND NEW ZEALAND POLICE [2017] NZHC 450 [15 March 2017]

Leave to appeal

[3] Section 129EA Sentencing Act 2002 allows a third party to appeal against the confiscation of a motor vehicle. Subsection (1) requires the appeal to be made within 20 working days after the date of the order. This appeal was lodged after this date. The appellant explains that he was not aware that an order for confiscation had been made until after the expiry of the 20 day period.

[4] Leave to appeal is not opposed and I am satisfied that it is in interests of justice to grant leave to appeal out of time.

The District Court decision

[5] When Judge MacAskill sentenced the defendant, he ordered that the vehicle be confiscated under s 129 Sentencing Act. There is no contention that s 129 applies because the defendant has committed 2 relevant offences within a 4 year period.1 In such circumstances, under s 129(3), the Court must order the confiscation the vehicle used in the offending if it is owned by the defendant. That section provides:

If the court by or before which the offender is convicted of the second offence is satisfied that any motor vehicle owned by the offender or in which the offender has any interest was being driven by, or in the charge of, the offender at the material time, the court must order that the motor vehicle be confiscated.

[6] This is subject to a proviso in subsection (4) that:

Despite subsection (3), the court must not make an order under that subsection if it will result in extreme hardship to the offender or undue hardship to any other person.

[7] The issues on appeal are:

(a) whether the defendant owned or had an interest in the vehicle because the disposition to Mr Wade senior was not bona fide in the sense described in s 131(3); or

(b) whether undue hardship would be suffered by Mr Wade senior.

1 As required by…

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 Wade v Wade

Details

AGLC: Wade v Wade [2017] NZHC 450
Case: [2017] NZHC 450
Decision Date: 15 March 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, Douglas Winston Wade, the appellant, appeals against a confiscation order imposed on his son, Samuel Winston Wade, the defendant, by the District Court on charges of theft, driving while suspended, and driving while impaired. The appeal pertains to the confiscation of the motor vehicle used in the offending, with the appellant arguing that the vehicle was sold to him prior to sentencing, and thus, it should not have been subject to confiscation. Additionally, the appellant claims that confiscating the vehicle would cause him financial hardship.

The central legal issues in this appeal revolve around whether the defendant owned or had an interest in the vehicle at the time of sentencing, and whether the confiscation would cause undue hardship to the appellant. Under Section 129(3) of the Sentencing Act 2002, if a person is convicted of two relevant offences within a four-year period, the court must order the confiscation of the vehicle used in the offending if it is owned by the offender. However, this requirement is subject to Section 129(4), which mandates that the court must not make such an order if it will result in extreme hardship to the offender or undue hardship to any other person.

The court examined whether the transfer of the vehicle from the defendant to the appellant was bona fide. The appellant claimed that he paid $6,000 for the vehicle, but he provided no evidence to substantiate this claim, leading to inconsistencies in his statements. The court found that the transfer was not bona fide, as it occurred shortly after the offence but before sentencing, and there was no monetary transaction involved. The court concluded that the appellant likely registered the vehicle in his name to prevent its confiscation, intending to retain it for his son's future use. Therefore, the court held that the confiscation could still be ordered under Section 131(3)(b). Furthermore, the court found that the appellant would not suffer undue hardship, as he did not provide sufficient evidence of financial hardship resulting from the confiscation. The appeal was dismissed, and the order for confiscation was upheld.

Orders