Henderson v Police [2014] NZHC 1513 (2 July 2014)

Last Updated: 18 July 2014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-419-11 [2014] NZHC 1513

BETWEEN	BENJAMIN LESLIE HENDERSON Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	1 July 2014
Counsel:	M B J Curran for Appellant J E Tarrant for Respondent
Judgment:	2 July 2014

_{JUDGMENT OF GODDARD J}

This judgment was delivered by me on 2 July 2014

at 11.00 am, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitors Office, Hamilton

HENDERSON v NEW ZEALAND POLICE [2014] NZHC 1513 [2 July 2014]

Introduction

[1] This is an appeal against an order for confiscation pursuant to s 129 of the Sentencing Act 2002. The order was imposed in the District Court on 7 March 2014 by Judge Thomas when the appellant was sentenced in respect of one charge of driving with excess blood alcohol, third and subsequent. The appellant’s blood sample contained 184 milligrams of alcohol per 100 millilitres of blood (the legal limit is 80 milligrams of alcohol per 100 millilitres of blood).

[2] The appellant has three previous relevant convictions. In 2010 he was convicted of excess blood alcohol. In 1998 and 1993 he was convicted of refusing to provide a blood sample.

[3] The appellant received a sentence indication from the Judge on 7 January

2014. The Judge indicated that, subject to the contents of the pre-sentence report and any arrangements that could be made with the appellant’s employer, the sentence would involve some element of electronic monitoring (home detention or community detention) and community work.

District Court decision

[4] The Judge sentenced the appellant to six months’ community detention, nine months’ supervision, disqualified him from holding or obtaining a drivers licence for one year and one day and authorised him under s 65B to apply for a zero alcohol licence at the end of the disqualification period. That zero alcohol licence will apply for three years. The appellant filed an affidavit in support of his opposition to the confiscation of his motor vehicle. He said that he purchased the vehicle for

$29,607.00 pursuant to a credit sale agreement under which he is obliged to repay the debt at $191.28 per week for 208 weeks. The total amount borrowed, including interest, was $39,522.49. As at 14 February 2014, $33,065.22 of the debt remained. The market value of the vehicle is between $22,000 and $24,000.

[5] The Judge noted that the vehicle is worth $10,000 less than what is currently the outstanding debt in relation to it but observed that in itself does not constitute

extreme hardship. The Judge also noted the appellant is meeting his obligations to the finance company and will be able to do so in the future.

[6] The Judge took into account that the appellant was going to suffer a bigger loss than the average person and would be left paying off the debt for some time. In those circumstances, the Judge did not sentence the appellant to community work.

Approach on appeal

[7] Section 250 of the Criminal Procedure Act 2011 applies. The appeal must be allowed if the Court is satisfied that for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.

[8] Not every error in a sentence will provide the foundation for a successful appeal. The types of error contemplated by s 250(2)(a) include, but are not limited to errors of law; failing to take account of or not giving sufficient weight to relevant factors; taking account of irrelevant factors; and committing an error of principle, such as adopting a starting point that is disproportionately high.

[9] A different sentence should be imposed when the appellate Court believes a different sentence should be imposed, or the length of the sentence should be altered, but not in a way that amounts to a minor adjustment.

Submissions of the appellant

[10] Mr Curran, for the appellant, submits that the sentencing Judge failed to take into account the impact of the loss of the vehicle on his partner and her two children. The vehicle is the only family vehicle.

Discussion

[11] Section 129 of the Sentencing Act 2002 applies where a second offence is committed under s 56 of the Land Transport Act 1998 within four years of the first offence. The section imposes a presumption of confiscation. Where the requirements of the section are met, the Court “must” order that the vehicle be

confiscated, unless the offender can satisfy the Court that an order will result in extreme hardship to the offender or undue hardship to any other person.

[12] The matters to be taken into account in determining whether the legal test for extreme hardship has been met were summarised by Laurenson J in Police v Rihari.¹

Laurenson J dealt with s 84(2A) of the Criminal Justice Act 1985, which precedes s

129.

(a) The term is used in a section of the Transport Act 1962 which is concerned with preventing drivers with a proved disposition towards driving with excess blood alcohol limits from having access to vehicles.

(b) The legislation was enacted as a measure to prevent a grave social problem which is directly related to the high incidence of accidents and injuries on the road.

(c) By prescribing a standard in terms of "extreme hardship", the Legislature clearly indicated that a very high level of hardship had to be demonstrated by a qualifying offender

(d) The determination of what amounts to "extreme hardship" must be determined in a common-sense way and in relation to the facts of a particular case. It is to be determined objectively and not on the basis of how the particular offender may perceive the extent of the hardship.

(e) 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 s 84.

[13] Laurenson J stated that two factors that could be indicative as to whether or

not “extreme hardship” is likely to arise are:

(a) If the hardship is 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

(b) If the consequence 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}

¹ Police v Rihari HC Whangarei AP10/98, 23 July 1998.

that it could eventuate, then it could be said that an element of volenti arises. Hence, in my view, it is more difficult for the offender to claim "extreme hardship".

[14] Evidently the “extreme hardship” threshold envisages circumstances where the hardship resulting from the confiscation order is excessive even when viewed in the context of the legislative intention to reduce the danger posed by persistent alcohol-impaired or disqualified driving and to provide an effective deterrent to others. For example, in Cameron v Police, Heath J concluded that the fact that the appellant was a pensioner who owned no real estate and that the motor vehicle was

his principal asset, was not a circumstance sufficient to establish extreme hardship.²

[15] By way of contrast, in McFarlane-Nathan v Police a confiscation order was quashed on appeal primarily because it would cause extreme hardship to the appellant.³ The appellant was a clinical psychologist. He was contracted with ACC. Confiscation was likely to result in bankruptcy and the end of his ACC contract. A significant factor in the decision was the negative impact on the appellant’s partner, his children, his staff and contracted workers and the part of the community that was reliant upon his services.⁴

[16] Similarly, in Hughes v Police the real possibility of bankruptcy as a result of confiscation was held to be sufficient to meet the threshold.⁵

[17] In the present case the appellant has not put forward any evidence to suggest that the confiscation of his car would cause extreme hardship of the kind envisaged by the legislation. He has, for instance, not produced any evidence to show hardship to his partner or his children. Indeed, Mr Curran advised that he had not emphasised in submissions before the District Court Judge that this was the only family vehicle and that it would be impossible for the family to purchase another. Therefore, the

_{Judge was not required to consider the impact of loss of the vehicle on the family. In}

² _{Cameron v Police HC Hamilton AP32/02, 3 July 2002.}

³ _{McFarlane-Nathan v Police HC Whangarei CRI-2008-488-7, 19 June 2008.}

⁴ _{At [27].}

⁵ Hughes v Police HC Nelson AP8/03, 29 August 2003.

any event, that aspect is now largely redundant, as Mr Curran advises that the

appellant’s partner has left him and taken the children with her to live in Australia.

[18] Confiscation of the vehicle has undoubtedly resulted in inconvenience to the appellant and a substantial financial loss. But he will retain his current employment and income. The appellant was deemed to know and ought to have known that his vehicle would be subject to a confiscation order if he were convicted of a further drink driving offence. He was aware of the finance arrangements in relation to the vehicle. It was his choice to drink and drive.

Conclusion

[19] The appeal is dismissed.

Goddard J