A v Police HC Christchurch Cri-2006-409-150

[2006] NZHC 1201

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2006-409-000150

A

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 October 2006

Counsel:         G A Hay for Appellant

C J Lange and C E Butchard for Respondent

Judgment:      10 October 2006

JUDGMENT OF PANCKHURST J

A confiscation order

[1]      The appellant appeals against a confiscation order made pursuant to s129 of the Sentencing Act 2002.  On 16 August 2006 he appeared in the District Court at Christchurch for sentence upon a charge of driving while disqualified.   When apprehended in relation to that offence the Honda motorcycle which the appellant was riding, was impounded.

[2]      Judge Noble sentenced the appellant to six months disqualification, a fine of

$200 and ordered that the motorcycle be confiscated.

[3]      This appeal is restricted to the last element of the sentence.

A V NZ POLICE HC CHCH CRI-2006-409-000150  10 October 2006

Three declarations of ownership

[4]      That Judge Noble ordered confiscation was unexceptional.  The only relevant information before him was a statutory declaration dated 16 August 2006 from the appellant.  In it he said that he had a financial interest in the motorcycle, indeed that he had fully paid for it.  However, at another point in the form the appellant said that the vehicle had only been partly paid for.  This assertion was lent further substance by a further answer which was to the effect that the appellant was acquiring the motorcycle on “HP through grandfather (Benjamin A  )”.  Finally the declaration supplied details of the arrangement, namely “$100 per week to grandfather”.

[5]      Hence, in the course of his short sentencing remarks the Judge noted that the penalty he was about to impose took into account confiscation of the motorcycle which “you have declared that you have a financial interest in …”.

[6]      Later that same day the appellant completed a second declaration in which he said:

On the date of the offence, I was not the registered owner of the Honda motorcycle 44URN, but was taking it for a test drive from the owner whose name was Fransisco.  I had not made a decision to buy it at that point.  If a confiscation order had not been made, I would have paid the impound fees and returned the bike to the owner at the end of the 28 days.  I ask the court to remove the confiscation order in the circumstances.

This further declaration was referred to the Judge two days later.

[7]      I infer, that at the same time he saw a declaration completed by Fransisco

Brevoort, dated 18 August 2006.  It said this:

I am the current registered owner of this vehicle on 9/8/06 (the date of the offence).  I gave my motorcycle a Honda 44 URH for a couple of days with the prospect of him buying it.  No money have changed hands and I have not formally sold it.  The ownership whilst partly changed by me so that there would be no problems regarding infringements.   I am a friend of Michael A  , he gave me a firm indication that he was intending to purchase.  I seek to retain ownership of this vehicle as it is still mine.

[8]      The Judge having seen these two further declarations made a note on one of them to the effect that the confiscation order stood, but that the appellant could

exercise his right of appeal and application may be made to the court in relation to the proceeds of sale.

[9]      The first alternative was taken up.  This appeal was filed.

Developments at the appeal hearing

[10]     In light of the ambiguity of, and contradictions contained in, the statutory declarations I indicated to counsel, Mr Hay, that as matters stood there was no basis upon which to decide that the order made in the District Court was inappropriate. The  appellant  and  Mr  Brevoort  were  both  present  in  court.     After  a  short adjournment, Mr Hay indicated that they were prepared to give evidence on oath in an endeavour to clarify the situation.

[11]     This  was  done.     Mr  A    gave  evidence  consistent  with  the  second declaration.   He said that on 9 August he went to Mr Brevoort’s address with a friend.   This was in answer to an internet advertisement by which the motorcycle was advertised for sale at $6,500.  Discussion with Mr Brevoort followed.  Mr A   wished to take the motorcycle for a test ride.   Because it did not have a current warrant of fitness, Mr Brevoort was concerned that an infringement offence would be committed for which he may be liable as the registered owner of the motorcycle. Therefore, Mr Brevoort completed a change of registered owner form, by filling out those particulars required on the part of the existing owner.  The appellant’s evidence continued that in the course of the test drive he was stopped and the motorcycle was impounded.

[12]     Mr  Brevoort  was  not  in  court  while  the  appellant  gave  evidence.    His testimony was to similar effect, at least with reference to the circumstances in which the transaction occurred.  He had advertised his motorcycle for sale on the internet. Mr A   telephoned him and called at his address in the company of a friend.  There was a discussion, in the course of which he formed a favourable impression of the appellant.

[13]  In cross-examination, when confronted with a copy of the internet advertisement, Mr Brevoort said that he was incorrect in saying that the motorcycle was unwarranted.  He said that his concern was with the fact that the motorcycle was unregistered.  His evidence continued that it was for this reason the existing owner’s particulars were completed on a notice of change of registered owner.  This occurred on the day of the test drive.  However, he explained that the test drive occurred two or  three  days  before  the  day  when  the  motorcycle  was  impounded.    Finally, Mr Brevoort said that the appellant was given possession of the motorcycle on the strength of a verbal agreement that he would purchase the motorcycle for $6,000 by way of time payments.

Factual conclusions

[14]     I accept the evidence of Mr Brevoort.  One essential difference between his account, and that of the appellant, was as to when the motorcycle was impounded. The appellant maintained that he was stopped by a police officer on the day of the test drive, when he had met the vendor only earlier that day.  Mr Brevoort, however, said that the test drive and the so-called partial change of ownership occurred two or three days before the motorcycle was impounded.

[15]     Mr Brevoort’s account impressed me as the more probable for two reasons. First, I think it most unlikely that a partial change of ownership would be effected for the purposes of a test drive.  On the other hand, once the appellant agreed to acquire the  motorcycle  on  a  time  payment  arrangement,  Mr Brevoort’s  concern  that  he would not be liable for infringements in the meantime, became a more pressing one. I conclude, therefore, that the so-called partial change of ownership occurred at this point, which was two or three days before the appellant was stopped and the motorcycle impounded.

[16]     Second, Mr Brevoort impressed me as an honest witness.  He is of Indonesian descent.  English is his second language.  The transaction itself is odd, in the sense that possession of the motorcycle was given on the strength of a very casual arrangement as to payment.  But having seen and heard Mr Brevoort, I am satisfied that the agreement was as he described it.

Is there a basis for a confiscation order?

[17]     Mr Hay accepted that s129(1) applied in this case.  That is the appellant has committed a specified driving offence in the past (being dangerous driving), and then a further driving offence within a period of four years, being the present offence of driving while disqualified.

[18]     In this respect there was, therefore, jurisdiction to make the confiscation order.

[19]     However, a further requirement of s129(3) is that the Judge must be satisfied that the offender had an interest in the vehicle to be confiscated.   An “interest” is defined in s127(1) as:

any proprietary interest, whether legal or equitable, and whether vested or contingent

I am prepared to assume that the verbal sale agreement into which Mr Brevoort and the appellant entered conferred a proprietary equitable interest of a contingent nature upon the latter.   This assumption is one which probably warrants greater consideration.  There is no evidence that any money changed hands.  Nor, save for the fact that Mr A   took possession of the motorcycle, is there any material upon which to base a conclusion as to the passing of title at some time in the future.

[20]     But even given this assumption it remains to consider whether, although it was competent to make a confiscation order pursuant to s129(3), it was inappropriate to do so in terms of s129(4):

… the court must not make an order under (subsection (3)) if it will result in extreme hardship to the offender or undue hardship to any other person.

Here, the focus is upon the second alternative.  Does the confiscation order result in undue hardship to Mr Brevoort?

[21]     In my view a confiscation order will result in undue hardship to Mr Brevoort. He is an unpaid (and unwise) vendor.  If the order remains in place, the motorcycle will be sold and the proceeds of sale applied to meet the costs of sale, satisfaction of

any encumbrance, payment of any fine or reparation owed by the offender and the balance, if any, will in theory be payable to the offender: s137(3).  In this case the sale would incur costs, and any balance would be payable to Mr Brevoort (since “encumbrance” is widely defined so as to extend to the verbal agreement between the present parties: s127(1)(c)).  No doubt Mr Brevoort would be considerably out of pocket, depending of course upon the sale costs and the sale price.   No doubt he would be entitled to look to the appellant to make good any loss.

[22]   This description of the consequences of a sale, following confiscation, demonstrates to my mind the inappropriateness of a confiscation in this instance.  A confiscation order is intended to have a two-fold effect.  On the one hand an order is designed to have a punitive effect, to be an aspect of the punishment for the subject offence.   This is apparent from s128(4), which provides that confiscation orders under that section may be made “in addition to, or instead of, passing any other sentence or making any other order”.  Second, a confiscation order may also serve a protective function.  A repeat offender is denied the availability of a motor-vehicle, a point which is reinforced by s131, under which, in certain defined circumstances, the Court may prohibit an offender from acquiring an interest in another motor-vehicle for a period up to 12 months.

[23]     Here, the confiscation order would achieve the second objective, albeit at Mr Brevoort’s expense.  But there would be no punitive element, at least in relation to the appellant.  In particular, since he has paid nothing towards the purchase of the motorcycle, its confiscation will occasion him no immediate pain.  But by contrast, Mr Brevoort will face the loss of his motorcycle, recovery of only a diminished amount after its sale and the prospect of needing to sue the appellant, if he is to recoup his loss.  This indicates that the making of a confiscation order in this case would involve undue hardship to Mr Brevoort, while the appellant would escape essentially unscathed with reference to the making of the order itself.

[24]     For these reasons I am of the opinion, based on the evidence given on appeal, that the confiscation order must be quashed.  I order accordingly.

[25]     Counsel for the respondent may wish to give consideration to the truthfulness of the evidence given both in the District Court and in relation to this appeal.  On the face of it there appears to be a basis for concern that false evidence was deliberately

given.

Solicitors:

Gilbert Hay Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent