A v Police HC Palmerston North CRI-2009-454-23

[2009] NZHC 2254

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2009-454-23

A

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         15 December 2009

Counsel:         M B Ryan for Appellant

ASA Hall for Respondent

Judgment:      15 December 2009

ORAL JUDGMENT OF MACKENZIE J

[1]      This is an appeal against an order made pursuant to s 129 of the Sentencing Act 2002 for the confiscation of a motor vehicle.   The circumstances are that the appellant was charged with a count of driving while disqualified on 1 June 2009.  He pleaded guilty and was sentenced on 16 June 2009.  He was sentenced to a term of community work of 80 hours, an extension of the disqualification for a further six months, and because of the timing of this and previous convictions there was an order for the confiscation of the vehicle being driven at the time;   a BMW motor

vehicle registered number ACS219.

A V NEW ZEALAND POLICE HC PMN CRI-2009-454-23  15 December 2009

[2]      The grounds of the appeal are that the appellant does not have ownership, or or any interest in the vehicle.  The vehicle was, at the relevant time, registered in the name of a company called ‘Unique Promotions Limited’.   It was registered in the name of that company on 1 May 2009 and when the issue of its ownership first arose Gendall J issued a minute recording that there needed to be some evidence rather than submissions on the crucial issue;  namely whether the vehicle was owned by the offender or was one in which the offender had any interest.  He adopted the more convenient course, rather than remitting the matter back to the District Court for rehearing, of allowing the appeal to proceed on the basis that the appellant should provide affidavit evidence or declarations to support the matters contended for in the submission.  The appellant subsequently filed a declaration annexing a copy of the registration certificate stating that he did not own the motor vehicle and he had never owned it and does not have any interest in it.   He says that the company was incorporated on 15 January 2009 and owns the vehicle.  He is the sole director and shareholder of the company.

[3]      On receipt of that declaration Gendall J issued a further minute in which he noted that the appeal was to be disposed of today, indicating that if counsel for the respondent wished to cross-examine on the declaration, an opportunity would be available for that.   No such application has been made and I must deal with the appeal on the basis of the material currently before me.  That includes, in addition to the declaration which annexes a copy of the certificate of registration, more recent vehicle  details  as  at  11 August  2009,  indicating  that  the  vehicle  was  then  still registered in the name of the company.

[4]      It is a requirement of s 129 that an order may only be made if the person concerned is the owner of the vehicle or has an interest in the vehicle at the time of conviction.  That is clear from the case of Shaw v Ministry of Transport (1990) 5

CRNZ 644.   In the light of the evidence I have no option but to accept that the appellant has no interest in the vehicle.  The difficulties for the enforcement of the legislation of the so called ‘one man company’ are obvious.  Nonetheless company law clearly recognises the existence of such companies, as a separate legal entity from the sole director and shareholder of such a company.  That is a matter which if

it is to be addressed would have to be a matter of legislative concern and is not something which the Court is able to address in a case such as this.

[5]      Accordingly, the order for confiscation must be cancelled.

[6]      Counsel for the respondent submits that the cancellation of the order for confiscation should cause the Court to revisit the other aspects of the sentence.  The provisions as to confiscation and the purposes that those serve are not necessarily the same as those which are covered by other aspects of the sentence.   I would not consider it appropriate to assume that the sentence imposed on other aspects might have been different if the opportunity for confiscation had been known not to be available.

[7]      In the circumstances I do not consider that it is appropriate to interfere with the other aspects of the sentence.  The notice of appeal is against that order alone. There is no cross-appeal by the Police, and in the circumstances I consider that the appropriate course is to allow the appeal by cancelling the order for confiscation, but making no other alteration to the sentence imposed.

“A D MacKenzie J”

Solicitors:         M B Ryan, Palmerston North for Appellant

Crown Solicitor, Palmerston North for Respondent