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 s 129(1).

Did the defendant own or have an interest in the vehicle?

[8]      The appellant submits that the Court should not have ordered confiscation because the vehicle was his, not the defendant’s.   He has provided a copy of the Certificate of Registration for the vehicle from the New Zealand Transport Agency. This indicates that the appellant became the registered owner of the vehicle on the

24 June 2016.  The defendant committed the offence in the vehicle on 24 May 2016, one month before the transfer.

[9]      The Court has made it clear that a vehicle will only be confiscated if the defendant “is the owner of the vehicle or has an interest in the vehicle at the time of conviction”.2   In Devi v Police the Court confirmed that a vehicle must be owned by the offender at the time of sentencing for it to be confiscated.3   If it were otherwise, and a vehicle which had been transferred before sentencing could be confiscated, this:4

…would result in the absurd outcome that an innocent third party who had no role in, nor knowledge of the commission of the offence…, could have the vehicle confiscated and be left to a civil remedy which may or may not be of any value in the circumstances.

[10]     The question in this case is whether the appellant is “an innocent third party”

as envisioned in Devi. Section 131 provides that:

(1)       This section applies if, in any case to which any of section 128, 129, or 129A would otherwise apply, the offender or any substitute for the offender has, before the date of the offender’s conviction, ceased to be the owner of the motor vehicle or to have any interest in it.

…

(3)       If the court is not satisfied that the disposition of the motor vehicle was made by the offender or the substitute for the offender with a bona fide intention to dispose permanently of his or her ownership or interest in the vehicle,—

(a)      the court may, if it thinks fit, set the disposition aside; and

(b)       section 128, 129, or 129A, as the case may be, applies as if the disposition by the offender or by the substitute for the offender had not occurred.

2      Antcliff v Police HC Palmerston North CRI-2009-454-23, 15 December 2009 at [4].

3      Devi v Police [2014] NZHC 53.

4      Devi v Police, above n 3, at [13].

…

[11]     Mr Nolan, who represented Mr Wade at sentencing, appeared at the hearing to assist the Court.  He explained that the transfer occurred before sentencing and before Mr Wade had received a notice warning him not to dispose of the vehicle.

[12]     The respondent submits that subs (3), once triggered by the circumstances set out in subs (1), puts an evidential onus on the appellant to satisfy the Court that, on the balance of probabilities, the disposition of the vehicle was bona fide.   The respondent submits that it was not in this case because:

(a)      The transaction took place after the offence was committed but before sentence.

(b)The appellant was aware, at the time of the transaction, that his son had a significant history of driving related offending and an inference can be made that he was also aware of the charge of driving while impaired which forms the basis of this proceeding; and

(c)      The  appellant  has  provided  no  evidence,  beyond  mere  unsworn assertion, that he paid $6000 for the vehicle.

[13]     Mr Wade filed no submissions or evidence in support of his position, other than what was filed with the notice of appeal.  In his handwritten note accompanying the appeal he asserted that he paid $6,000 to his son on 24 June 2016.  When asked at  the  hearing  whether  he could  supply evidence of the  payment,  for  example, whether he could provide bank statements showing a withdrawal or a transfer of funds, he said he could not.  Instead, he provided the explanation that his son owed him money, being two amounts of $400 which Mr Wade senior paid to recover the vehicle, plus some other money, and that the car was transferred in satisfaction of these debts.   When asked how much this was, he ventured the figure of $5,000. When it was pointed out that his note accompanying the notice of appeal had stated that $6,000 was the purchase price, he reverted to that figure.  He also asserted that he had no knowledge that his son’s vehicle was at risk of confiscation.

[14]     When  asked  to  explain  what  his  motivation  was  for  purchasing  the  car, Mr Wade senior said that he did that so his son would not drive it any more, as he knew that his licence had been cancelled.

Discussion

[15]     Having heard from Mr Wade senior, I am not satisfied that this was a bona fide disposition.   The transfer occurred shortly after the offence, but before sentencing, and without money changing hands.   Furthermore, Mr Wade senior’s account was inconsistent, both as to whether a payment was made, and as to what the alleged purchase price was.  There also seemed no plausible reason why, if avoiding further offending was the aim of the exercise, that the car would not be sold to a third party, rather than to  the defendant’s  father.   There was  also  no  suggestion  that Mr Wade senior needed the vehicle because he did not own his own car.

[16]     I consider it more likely than not that Mr Wade senior had the car registered in his name to avoid it being confiscated, but retaining it within the family for his son’s future use once he was released from prison and permitted to drive.  That being the case, I am satisfied the transaction was not bona fide and confiscation can still be ordered under s 131(3)(b) “as if the disposition by the offender … had not occurred”.

Did the confiscation cause the appellant undue hardship?

[17]     Alternatively, Mr Wade senior appears to suggest that if the Court finds that the disposition was ineffective, then the confiscation causes him undue hardship. Therefore  the  confiscation  should  have  been  prevented  under  s  129(4)  which provides that:

(4)       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.

[18]     Undue hardship means “excessive or greater hardship than the circumstances warranted” and “must be more than an inconvenience.5   The appellant has an onus to

5      Komene v Police [2016] NZHC 2120 at [16] – [17].

show, on the balance of probabilities, that the confiscation results in undue hardship for him.6  What constitutes undue hardship is to be determined objectively. 7

[19]     The threshold is high with Gendall J stating:8

It is an inevitable consequence of an order of confiscation that an offender’s family or partner will suffer but that is no more than a normal or usual consequence of the offending. The considerations of specific deterrence to the offender, as well as general deterrence to other offenders, together with vital considerations of public safety has to be weighed and placed in balance with the untoward effects that will flow to an offender’s family upon confiscation. It is only when the hardship or the suffering of others is excessive or unreasonable in all the circumstances that relief can be given.

[20]     The  only  reference  to  being  hardship  is  that  it  would  cause  “financial hardship” to Mr Wade senior.  That was not apparent from the circumstances as he described.  The asset was not acquired, if Mr Wade senior’s subsequent account is accepted, for a monetary payment, but rather would have satisfied debts already accrued and where Mr Wade senior was already relying on his son to repay those debts.  However, as I have already said, I find that explanation not credible.  I am satisfied that Mr Wade senior is in no worse a position financially than he was prior to the car being registered in his name.   Accordingly, I am also not satisfied that Mr Wade senior will suffer undue hardship.

[21]     As a consequence, the appeal is dismissed and the order for confiscation can be implemented.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co., Christchurch

6      Hunt v Police HC, Wellington AP 232/99, 29 September 1999 at 5.

7      Hunt v Police, above n 6 at 8.

8      Allen v Police HC Palmerston North AP 2/99, 17 February 1999 at 7.