SMITH v NEW ZEALAND POLICE [2017] NZHC 679

SMITH v NEW ZEALAND POLICE [2017] NZHC 679 [7 April 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2017-409-000002[2017] NZHC 679BETWEEN DAVID ALEXANDER SMITHAppellantAND NEW ZEALAND POLICERespondentHearing: 28 March 2017Appearances: S J Forrester for AppellantS J Mallett for RespondentJudgment: 7 April 2017JUDGMENT OF GENDALL JIntroduction[1] The appellant faced two charges of driving with excess breath alcohol in the District Court and after guilty pleas he was convicted on 20 October 2016. On 25 November 2016, he was sentenced by Judge Strettell to five months' community detention, 12 months' intensive supervision, and disqualified from driving for 18 months.1 In a reserved judgment Judge Strettell later issued a confiscation orderwith respect to the vehicle involved in the appellant's offending (a Subaru,Registration No. JUE567) (the vehicle), pursuant to s 129 Sentencing Act 2002.[2] The appellant appeals now but solely against the s 129 confiscation order.Principles on appeal[3] Appeals of this type akin to a sentence appeal are brought under s 244 of the Criminal Procedure Act 2011. Such appeals must be determined in accordance with s 250 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.2[4] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentenceis "manifestly excessive" that the Court should interfere with the exercise of the Judge's discretion. As Toogood J said (citing Ripia v R3) in Larkin v Ministry of Development:4[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.1 Police v Smith [2016] NZDC 23980.2 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Ripia v R [2011] NZCA 101 at [15].4 Larkin v Ministry of Development [2015] NZHC 680.[5] The focus on most appeals is thus on the end sentence. In Tutakangahau v R,5 the Court of Appeal held that:6the focus is on the sentence imposed rather than the process by which thesentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.[6] The appellant's primary argument is that there was an error in the sentenceimposed so far as the confiscation order was concerned, and the Judge should havefound that the exceptions of either "extreme" or "undue" hardship applied.Accordingly, it is claimed the confiscation order should not have been made.Appeal out of time?[7] Section 248(2) of the Criminal Procedure Act 2011 requires a notice of appeal against sentence to be filed within 20 working days of the decision. However, the Court may grant leave to appeal out of time.7 The touchstone for granting leave to appeal out of time is the interests of justice in the particular case.8Normally this will hinge on two factors: the extent and reasons for the delay, and the merits of the appeal.9[8] In this case the appellant was sentenced on 2 December 2016. The notice of appeal was filed on 12 January 2017, only a few working days over the stipulated time. Counsel have not addressed the delay in written submissions, but the notice of appeal records that they received the decision only on 6 December 2016. On 21 December 2016 counsel say they attempted to contact Mr Smith regarding the appeal, but (somewhat understandably) it was not until 11 January 2017 that formal instructions were given to file an appeal, which they promptly did.[9] For reasons advanced before me, it is suggested the merits of the proposed appeal are comparatively weak. There is, however, no identifiable prejudice to the respondent in allowing the appeal to be heard. The delay is minor, and there appears5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.6 At [36].7 Criminal Procedure Act 2011, s 248(4).8 R v Knight [1998] 1 NZLR (CA); R v Lee [2006] 3 NZLR 42 (CA).9 R v Slavich [2008] NZCA 116 at [14].to be at least some possible merit in the appeal and a reasonable explanation for that delay.[10] Accordingly, in these circumstances leave to appeal out of time is granted.The substantive appeal[11] The Notice of Appeal records two grounds of appeal against Judge Strettell'sdecision. The first is that the Judge "failed to take into account" some $5,873.75which was then owing, by way purchase finance, to Turners Auctions in respect of the vehicle.[12] The starting point, in considering s 129 of the Sentencing Act 2002, is that if the relevant circumstances are present an order must be made. It is mandatory. 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), 36AA, 36A(1)(a) or (c), 39(1), 56(1) or (2), 57A(1), 58(1), 60(1), 61(1) or (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.[13] The second ground of appeal outlined in the appellant's Notice of Appealrecords that the order would cause "undue hardship" to Mr Smith. Mr Smith submits that the vehicle is set up and used for his business and that, with a nominated driver, he can continue to work and pay off debt which he has. The main point to note here however is that "undue hardship" is not the relevant test. That qualifier of "undue"hardship applies only to persons other than the offender. Again, s 129(4) Sentencing Act 2002, which outlines the circumstances in which an order must not be made, provides:(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. (Emphasis added)[14] Counsel for the appellant appears to have since recognised this mistaken approach. Counsel's written submissions before me argued that the confiscationorder would cause "extreme" hardship to Mr Smith, and "undue hardship" to TurnersFinance with regard to money which remains owing on the vehicle. For the purposes of s 129(4), it is the appellant who must demonstrate, on the balance of probabilities,either "extreme" hardship to himself, or "undue" hardship to some other person.10[15] The question whether a confiscation order would cause extreme hardship calls for an objective assessment.11 The relevant hardship must be something exceptional or out of the ordinary. Financial and professional consequences which would ordinarily follow and which could reasonably be anticipated by an offender, will not suffice. The concept of extreme hardship requires hardship to bedemonstrated to a "very high" level.1210 Police v McGlinchey [1997] DCR 898 (DC).11 Browne v Police HC Palmerston North CRI-2004-454-97, 7 December 2004.12 Police v Rihari HC Whangarei AP10/98, 23 July 1998 at [28].[16] Finally, the appellant in written submissions from his counsel, raises a third ground of appeal not previously recorded in the Notice of Appeal. This is to the effect that in the District Court no reasonable opportunity was afforded to him to make submissions on the question of the confiscation order. Before me this ground was not developed in any detail, however, and in my view there is nothing before this Court to suggest there is any real substance in this claim.Extreme hardship to Mr Smith[17] The appellant's main argument before me on this appeal is that confiscation would cause him extreme hardship. The appellant is aged 68. He lives in Christchurch, drawing superannuation. He runs a small part-time handyman business for which he says the vehicle has been a necessary component. This is because he says it has been modified to support his work requirements and carry his equipment, and under all these circumstances the appellant effectively contends that no other vehicle will suffice in assisting him to run the business.[18] The appellant says now that he has just employed a young apprentice for his business who would act now as the driver of the vehicle to transport him between jobs.13 He says this would allow him to carry on his business, which is vital to his meeting various business and personal debts the appellant says he has. In addition to the amount still owing to Turners Finance in respect of the vehicle, these includedebts for GST liability, unpaid accountants' fees, debts to Q-Card and Sky, and an unpaid overdraft on the ANZ business trading account. Together these debts, he says, total some $21,344.69. The appellant in addition obviously has ongoing standard living costs associated with the rental of the property he lives in and general living expenses.[19] The appellant's business apparently runs at a loss (although presumably the appellant does pay himself a wage sufficient to service the pleaded debts). His central contention is that without the vehicle, he will be unable to meet those debts,13 Although I might have thought, with the appellant's contention that he was not given theopportunity to address the question of a confiscation order, that he would provide an affidavit of that person to that effect, since one of the concerns with the appellant retaining the vehicle is that he will in fact drive it, contrary to the disqualification order. That is part of the rationale behind such an order.some of which he says have been outstanding for a reasonable time. There is the"real risk" he says of bankruptcy proceedings being issued against him.[20] On these aspects, counsel for the appellant referred me to the decision inHughes v Police.14 It is said this case provides an example of a situation where an imminent threat of bankruptcy tipped the balance in favour of a finding of "extreme hardship" such that the Court determined a confiscation order should not be made. In that case, the appellant's retention of the vehicle was directly tied to his eligibility for insurance payments relating to the appellant's disability. All those insurance payments were being utilised to offset the equity owing on the vehicle. Without them, there was a perceived risk of bankruptcy proceedings being brought. In those circumstances, France J considered that:15the real possibility of bankruptcyis sufficient to meet the threshold. I admit to having some reservations based on whether staving off of bankruptcy in any event is an option. However, taking into account thepossibility of bankruptcy together with the appellant's personalcircumstances and, in particular the disability which has triggered the insurance policies, I am satisfied that the test is met. (Emphasis added)[21] It is clear there were a number of factors of importance in France J's decisionin that case. The threat of bankruptcy itself was not the only consideration. The same reservations of which France J was mindful are present to a degree in the present case, given the significant amount of debt which the appellant says he has. It may be that the appellant in any event would not be able to stave off bankruptcy, but that is a matter I place on one side. In any case, the appellant did not provide any evidence that bankruptcy is likely or a real risk. He has merely asserted this in submissions from his counsel that that is the case.[22] Additionally, the respondent submits, and I agree, that this is a case more likeAllen v Police,16 where the hardship following from the loss of a vehicle was reasonably foreseeable by the offender before the offending took place. The effectthat confiscation would have on the appellant's business here in my view was an ordinary and logical consequence.14 Hughes v Police HC Nelson AP8/03, 29 August 2003.15 At [12] (emphasis added).16 Allen v Police HC Palmerston North AP2/99, 17 February 1999.[23] In these circumstances, and whilst some degree of hardship to the appellant is inevitable, I do not consider that the appellant has done enough to show here that he would suffer "extreme hardship" if his vehicle is confiscated, such that the mandatory application of s 129 is ousted. It follows that the appeal on this ground must be dismissed.Undue hardship to another person[24] Under this second ground of appeal noted at [14] above, the appellant submits that confiscation of the vehicle would cause undue hardship to another party, in this case Turners Finance. Of course, Turners Finance is involved here only as a creditor of the appellant. Counsel says there is still $5,393.75 owing to Turners in respect of the vehicle finance (after a recent repayment of $480). It is submitted, without specific evidence being before the Court, that a forced sale would not, after all expenses, achieve a full repayment of this $5393.75. In fact it is suggested it would result in a shortfall of approximately $2,000, taking into account depreciation on the vehicle. Again, however, there is no evidence before the Court as to any of this. I accept that a forced sale of the vehicle may fail to meet the balance debt owing by way of security. That is often the case with a forced sale of an asset. The appellant contends that Turners Finance would be likely to be put to further expense attempting to recover any balance debt, either through a debt collection agency or bankruptcy proceedings.[25] The question here however is whether this constitutes "undue hardship". In the event that bankruptcy proceedings were to be issued against the appellant, Turners Finance, after discharge of its interest in the vehicle following a sale, as I see it, would be in no better position than any of the appellant's other creditors. Any shortfall following sale of the vehicle would amount to an unsecured debt and constitute a hardship common to all other unsecured creditors, and not especially so for Turners Finance. Additionally, from the perspective of the appellant, as I see the position, this was a foreseeable financial consequence which would ordinarily follow offending of this kind. There is nothing exceptional or out of the ordinary about anypossible "hardship" which Turners Finance, a corporate entity in the specific business of financing vehicle transactions, might suffer.[26] Accordingly, I do not think that the appellant has made out "undue hardship"to "any other person", in the circumstances prevailing in this case.Conclusion[27] For all the reasons outlined above, I am satisfied there was no error made by Judge Strettell in the confiscation order he imposed. Accordingly, this appeal is dismissed....................................................Gendall JSolicitors:Geddes Maciaszek, ChristchurchRaymond Donnelly & Co, Christchurch