Watts v Police HC Rotorua CRI 2006-463-48

[2006] NZHC 756

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2006-463-000048

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         30 June 2006

Appearances: Ms P V McGuire for Appellant

Ms T Bayley for Crown

Judgment:      30 June 2006

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Rotorua

Davys Burton, Rotorua

W V NEW ZEALAND POLICE HC ROT CRI 2006-463-000048  30 June 2006

Appeal

[1]      The appellant  appeals against  an order for the confiscation of his  motor vehicle imposed when he was sentenced on 12 April 2006.

Background

[2]      On  15  February  2006  the  appellant  was  driving  his  motor  vehicle,  a Mitsubishi stationwagon, registration number WU9691 in Rotorua.  He had no lights on even though it was 9.45 p.m. at night. He was stopped and failed an evidentiary breath test.  He gave a reading of 605 micrograms of alcohol per litre of breath.  The appellant is a 61 year old, unemployed man.   The appellant’s conviction was his third conviction for offences related to driving with excess blood or excess breath alcohol.   The first related to offending in 1979.   Significantly for the purposes of s 129 of the Sentencing Act, the second offence was on 12 March 2004 some less than two years prior to this offending.

[3]      In addition to disqualifying the appellant from driving and fining him, the Judge ordered confiscation of the appellant’s motor vehicle.   The order was made under s 129 of the Sentencing Act.  Section 129 provides:

129    Confiscation of motor vehicle after second offence

(1)      This section applies if,—

(a)       on or after 26 July 1996, a person commits an offence (the first offence) against any of sections 32(1)(a) or (b), 35(1)(a) or (b),

36(1), [36A(1)(a) or (c),] [39(1),] 56(1) or (2), 58(1), 60(1), 61(1),

[61(2)] or 62(1) of the Land Transport Act 1998 (which relate to driving offences) [or section 171 of the Crimes Act 1961 (but only where the manslaughter involved the use of a motor vehicle)]; and

(b)       within  4  years  after  the  date  of  the  commission  of  that offence, the person commits a further offence (the second offence) against any of those provisions of the Land Transport Act 1998.

(2)      For the purpose of subsection (1), it does not matter whether or not the second offence is of the same kind as the first offence, but it must be an

offence that arises from a different incident from the one that gave rise to the first offence.

(3)       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.

(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.

(5)       For the purposes of this section, a conviction for an offence against a provision of the Transport Act 1962 that corresponds to an offence specified in subsection (1) must be treated as a conviction for an offence specified in that subsection.

[4]      Relevantly the Court is directed by s 129(3) that if satisfied the motor vehicle in which the appellant had an interest was being driven by him at the time of the offending the Court must order the vehicle be confiscated.   Section 129(3) is only subject to s 129(4) that the Court must not make such a confiscation order if it will result in extreme hardship to the offender or undue hardship to any other person.

[5]      The summary the appellant pleaded guilty to confirms that the appellant was driving the vehicle in question.  The record of ownership at the time of sentencing confirms the appellant  as the owner.    Because of his previous offending s 129 applied to the appellant.   Section 129(3) prima facie applies.

[6]      This appeal is pursued on the basis that there will be extreme hardship to the appellant in the confiscation of his vehicle.

[7]      The appellant, Mr W   has sworn an affidavit in support of the appeal.  He confirms that he is unable to work.  He is a sickness beneficiary.   In 1990 he was involved in a car accident and has been unable to work and been on ACC ever since then.  He says that he is permanently disabled and his mobility is limited

[8]      At para 8 of his affidavit Mr W   says:

Losing my motor vehicle will cause me enormous difficulties as I will not be able to  get  around  when  I  need  to.    I  cannot  walk  long  distances  and anything more than short distances cause me extreme pain.  My wife works during the day and I have no access to any public transport.  Having a motor

vehicle is crucial to enable me to attend physiotherapy and medical appointments, and other appointments such as with my ACC case manager and work trials.

I also need my vehicle to do various chores such as shopping and picking up my prescriptions.  My wife is unable to help as she works 5am to 5pm 6 or 7 days per week.

[9]      The appellant also says that while his son might be available to drive him the vehicle his son has is currently off the road and not able to be driven.  The appellant says his wife has a vehicle but she uses that for work.

[10]     In  support  of  the  appeal  Ms  McGuire  submitted  that  the  penalty  of confiscation was out of proportion to the nature of the offence when combined with the remainder of the sentence of 14 months’ disqualification and a $600 fine.   In relation to the sentence of 14 months’ disqualification I note that the recent amendment to the Act meant the Judge was directed to impose a sentence of at least

12 months’ disqualification.  In support of that submission Ms McGuire referred to the  decision  of  Alatupe  v  Police  (HC  Auckland,  AP90/03,  26  August  2003, Hammond J) where Hammond J had said:

The underlying principle to establish hardship is that of a lack of proportionality.   The total deprivation of the vehicle may be excessive in relation to the particular fault in the particular case.

[11]     She  submitted  that  the  confiscation  would  severely  limit  the  appellant’s ability to operate on a day to day basis in his life and referred to the fundamental difficulty the appellant has in leaving his home if the vehicle is confiscated and not available to his son to assist him.  For those reasons and the other reasons that she set out  in  written  submissions  she  submitted  the  appellant  would  suffer  extreme hardship if his vehicle was confiscated.

[12]     I note that a number of the matters counsel refers to as relevant in support of the appeal are factors relating to the sentencing level generally and the fact that the appellant was not aware when he was before the District Court that his vehicle was subject to confiscation or likely to be subject to confiscation.  However it seems to me that the first  matters raised  were dealt  with  by the  Judge  in the  sentencing exercise overall and the second matter, that of the lack of understanding at the first

hearing in the District Court is addressed by the appeal before this Court.   The appellant has obviously had an opportunity to put before the Court such evidence as he wished to put in support of his submission that there is excessive hardship in this case.

[13]     The   principles   as   to   what   constitutes   excessive   hardship   have   been considered in a number of cases.   In Hedge v Police (unreported, HC Rotorua, AP61/92, 31 July 1992, Penlington J) the Court referred with approval to the statement of Grahams law of Transportation that:

Extreme hardship could be described as hardship which is so excessive that it could not be foreseen as a natural consequence of a conviction of drinking and driving.

[14]     In Police v Rihari (HC Whangarei, AP10/98, 23 July 1998) Laurenson J

noted that:

To constitute “extreme hardship”, the hardship  must  be such that  in the particular circumstances it is excessive, even when viewed in relation to the concerns underlying the enactment of section 84.

And that two factors which may be indicative as to whether or not extreme hardship is  likely  to  arise  were  first  that  the  hardship  was  such  that  it  arises  from  a consequence which goes beyond those normally attendant on the loss of the ability to drive a  motor  vehicle,  and second,  that the consequences relied on  to  establish “extreme hardship” is such that a particular offender would have known that it would be a peril to which he was subjecting himself if he chose to drive in contravention of the section.   If the consequence was such that the offender  knew that  it  would eventuate then it could be said an element  of volenti arises.   It would be more difficult for the offender to claim “extreme hardship”.

Decision

[15]     In the present case despite the submissions of Ms McGuire for the appellant I am satisfied this appeal must fail. What the appellant describes is inconvenience and possibly some minimal hardship.  It falls well short of any objective test of extreme hardship in relation to the appellant’s circumstances.

[16]     The lack of mobility the appellant has described in his affidavit is obviously not such as to prevent him from driving.  I infer from that that he is able to get about from carparks to do the shopping and other chores that he says he needs to do.  The appellant says that he needs access to a vehicle in order for him to carry out those chores and attend to the other matters he described.  He is in receipt of a benefit. His wife on his evidence works six or seven days a week, 5.00 a.m. to 5.00 p.m.  There should be a reasonable income coming into the household.  If the appellant is unable to use public transport for medical appointments and the like then he could arrange for a taxi to take him to the various appointments.  I observe that confiscation is not forfeiture.  Once the vehicle is sold the appellant will be paid the net proceeds of the sale:  s 137(3).

[17]     The appellant also says he needs access to a vehicle to go shopping.  Again if the appellant is unable to use public transport then a taxi would be available to him. If for any reason that was not available then frankly the burden for shopping would have to fall on his wife when she had finished work.   That regrettably would be a consequence of the appellant’s actions.

[18]     I see no reason why the appellant would not be able to use a taxi for such appointments he may have with his ACC case manager and work trials as well

[19]     This appeal has been advanced on the basis of a lack of mobility.  Essentially, however, it is the lack of ready access to a vehicle for the appellant to be driven about in.  That can be addressed by the use of taxis.  I accept that may create some financial difficulty or hardship for the appellant but it falls significantly short of excessive hardship.  It is certainly not a consequence that is out of proportion to the offending and the consequences of that offending.

[20]   On the evidence before the Court there is no extreme hardship in this confiscation.  The appellant has put himself in the position where his vehicle was at

risk of confiscation.  The order stands and the appeal is dismissed.

Venning J