FALANIKO v NEW ZEALAND POLICE [2019] NZHC 2235

FALANIKO v NEW ZEALAND POLICE [2019] NZHC 2235 [6 September 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-000072[2019] NZHC 2235BETWEEN VENASIO FALANIKOAppellantAND NEW ZEALAND POLICERespondentHearing: 5 September 2019Appearances: Appellant in personS Bicknell for RespondentJudgment: 6 September 2019JUDGMENT OF DUNNINGHAM JIntroduction[1] On 24 January 2019 Venasio Falaniko was convicted of driving with excessbreath alcohol, third or subsequent.1 On 7 May 2019 Mr Falaniko was sentenced tothree months' community detention and 12 months' supervision to give oversight forhis use of alcohol. He was also disqualified pursuant to s 65AC Land Transport Act1998 with the alcohol interlock applying. He takes no issue with those aspects ofsentencing.[2] However, in addition, the District Court ordered that Mr Falaniko's vehicle, a2007 Suzuki SX4, be confiscated pursuant to s 129 of the Sentencing Act 2002. Thatsection makes confiscation mandatory on a subsequent offence of the type listed in thesection unless:21 Land Transport Act 1998, s 56(1) and (4).2 Sentencing Act 2002, s 129(4).(a) it will result in extreme hardship to the offender or undue hardship toany other person; or(b) an interlock is or is to be fitted to the motor vehicle.Mr Falaniko appeals the order for clarification of his motor vehicle.Principles on appeal[3] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.3Submissions[4] There was some difficulty in preparing for this appeal because Mr Falaniko didnot file written submissions. The only indication of his grounds of appeal was thatgiven in his notice of appeal where he said:Since I have a very young child. He is 5 months old I am having difficultiesin discharging my duty as a father and also a husband. I appeal court (sic) oncompassionate grounds.[5] From that, it was assumed the appeal was against the order for confiscation andwas advanced on the grounds of extreme hardship to Mr Falaniko himself or (morelikely), undue hardship to his wife and child.4[6] In response to questions from me, Mr Falaniko explained that hisbrother-in-law was using Mr Falaniko's car to drive Mr Falaniko and family memberswhen needed, for example, to go to hospital if the baby was unwell. While hisbrother-in-law has his own car, that car was often needed by other members of hisbrother-in-law's family, and was not always available to use.3 Criminal Procedure Act 2011, ss 250(2) and 250(3).4 Sentencing Act 2002, s 129(4)(a).[7] I did not need to explore this issue further as Ms Bicknell helpfully pointed outthat the second mandatory barrier to an order for confiscation being made is where "aninterlock is or is to be fitted to the motor vehicle".5Analysis[8] Section 129 Sentencing Act states that a court must order a vehicle beconfiscated where a person commits a relevant driving offence under the LandTransport Act within four years after the date of committing an earlier relevant drivingoffence. It is clear that s 129 applies to Mr Falaniko.[9] However, subs (4) prevents the court from making such an order intwo circumstances. Although Mr Falaniko's appeal is ostensibly advanced on thegrounds in subs 4(a), the information supplied to support his exception is threadbare.While it is clearly inconvenient to Mr Falaniko and his family to have to turn to hisbrother-in-law for driving assistance, I am not satisfied that it reaches the threshold ofundue hardship to his family or extreme hardship to him. As Venning J said in Turuav Police: "[u]ndue hardship is clearly less than extreme hardship but is more thanhardship, hardship itself must be more than inconvenience".6[10] However, I am satisfied that the circumstances in s 129(4)(b) arise. That is,because an alcohol interlock is or is to be fitted to the motor vehicle, an order forconfiscation cannot be made.[11] In this regard, I consider it telling that the order for confiscation was not madeby the District Court Judge. Rather, it appears to have been made by aDeputy Registrar in the Court on the same day as Mr Falaniko was sentenced, butwithout regard to the Judge's decision to make an order allowing the fitting of alcoholinterlock.[12] It is clearly an error in sentencing to have overlooked s 129(4)(b) when theorder for confiscation was made. Furthermore, it is clear that a different sentenceshould apply.5 Sentencing Act, s 129(4)(b).6 Turua v Police [2013] NZHC 2913 at [9].Result[13] Accordingly, as advised in my oral judgment, the appeal is allowed and theorder for confiscation of the Suzuki motor vehicle registration LHT650 made by theDistrict Court on 7 May 2019 is quashed.Solicitors:Raymond Donnelly & Co., ChristchurchCopy To: Appellant