Brand v Police
[2014] NZHC 81
•7 February 2014
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI-2013-442-18 [2014] NZHC 81
BETWEEN TYLER LESLIE BRAND
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 4 February 2014 Counsel:
A J D Bamford for Appellant
E J Riddell and A L Mills for RespondentJudgment:
7 February 2014
JUDGMENT OF GODDARD J
This judgment was delivered by me on 7 February 2014 at 3.30 pm, pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Bamford Law, Nelson for Appellant
Crown Solicitor, Nelson
BRAND v NEW ZEALAND POLICE [2014] NZHC 81 [7 February 2014]
Introduction
[1] Mr Brand pleaded guilty to a charge of driving while disqualified on
16 December 2013 and was sentenced by Judge Zohrab to 50 hours’ community work. An order was made confiscating his vehicle. Mr Brand now appeals against the order for confiscation on the ground that he had no financial interest in the subject car and was not the registered owner at the time of the offence or at the time of his conviction. In a Declaration of Ownership filed with his Notice of Appeal, Mr Brand’s explanation was that he had given the vehicle to a friend as a “present/gift”.
Background facts
[2] On 26 November 2013 Constable McDougall noticed a white Nissan Skyline parked at a petrol station. The vehicle did not have a rear registration plate. Upon inspection, the officer discovered that the registration plate was attached to the car using a spring and hinge system. This system allowed the plate to be retracted from view.
[3] Constable McDougall spoke with Mr Brand, who confirmed he was the driver of the vehicle. He said that he had recently purchased it in Christchurch. This was his first statement in relation to ownership of the vehicle. Mr Brand has subsequently disputed he told the officer he was the owner of the vehicle at the time.
[4] The Police sought confiscation of the vehicle pursuant to s 129 of the Sentencing Act 2002. Section 129 applies where a person commits a second specified driving offence within four years after the date of the commission of a first specified driving offence. If the Court is satisfied that any motor vehicle owned by the offender or in which the offender has any interest was being driven by, or in charge of, the offender at the material time, the Court must order that the motor vehicle be confiscated. However, the Court must not make such an order if it will result in extreme hardship to the offender or undue hardship to any other person. “Interest” is defined in s 127 of the Sentencing Act 2002 as “any proprietary interest, whether legal or equitable, and whether vested or contingent”.
[5] Police records confirmed that Mr Brand is not the registered owner of the vehicle.
The appeal
[6] The two grounds of appeal advanced are that:
(a) the car was never registered in Mr Brand’s name as owner;
(b)at the time of the confiscation he had no financial interest in the vehicle because he had already gifted it to his landlady in lieu of payment for board.
[7] Amplifying these grounds, Mr Bamford, on behalf of Mr Brand, advised the Court that Mr Brand denies having told the police officer in Murchison that the vehicle he was driving was owned by him and that he accepts he had an interest in the vehicle until around mid-November 2013, at which time he says he disposed of this by way of an informal arrangement with his landlady, Ms Katy Innes.
[8] At the time of the offence, Mr Brand’s case is that he was unemployed and unable to pay for board or food. In lieu of any cash payment to Ms Innes, he had given her his vehicle to cover her expenses, particularly as the boarding arrangement was continuing.
[9] The issues on appeal were therefore amplified as follows, either:
(a) Mr Brand had divested himself of any “interest” in the vehicle on or about 20 November when he entered into this alleged arrangement with Ms Innes to settle his current and future obligations to pay for board, so that as at the date of commission of the driving offence (26 November) he was not caught by the provisions of s 129(3) of the Sentencing Act 2002; or
(b)if he still had a residual beneficial interest in the vehicle, the confiscation would result in undue hardship to Ms Innes who would
have received nothing for the provision of board and food to
Mr Brand over a period in excess of three months.
[10] Both Mr Brand and Ms Innes swore affidavits attesting to the above grounds of appeal. Both were required by the Crown to appear and be cross-examined on their affidavits at the hearing before me.
The evidence
[11] Mr Brand and Ms Innes both gave consistent evidence about the ownership arrangements as between them, in relation to the subject vehicle.
[12] Mr Brand’s evidence was that he purchased the vehicle on 20 November
2013, paying $2,300 in cash plus car parts, to a total value of around $5,000. At the time, he was living in between his mother’s house and Ms Innes’s house. He had no further cash and could not continue paying board either to his mother or to Ms Innes.
[13] On 26 November, being the date of the offence, Mr Brand had driven the vehicle to the West Coast to pick up his friend, Ms Innes’s son, Nathan. Following the impounding of the car by police, he had reached an agreement with Ms Innes that she would pay to get the vehicle out of the pound and she would have it. The value of the vehicle would cover both past and future payment for board and lodging owed to Ms Innes by Mr Brand.
[14] In her evidence, Ms Innes said that around 20 November she and Mr Brand had discussions about him giving her the car in lieu of rent and board if he was not able to obtain any employment or income and had not been able to sort out some other living arrangement for himself. She said the car was not driven anywhere by Mr Brand except on the occasion when it was driven down to the West Coast to pick up her son, Nathan. She did not question the legality of Mr Brand’s status as a driver.
[15] Ms Innes was prepared to pay the impound fee of $400.00 in order to obtain the vehicle.
[16] Of particular annoyance to her was the fact that, unbeknown to her, tools belonging to her had been removed from her shed and placed into the boot of the now impounded car, presumably by Mr Brand prior to his journey to the West Coast. Although she has requested the police for the return of these tools, that has been denied.
[17] There seems no doubt that these tools are the lawful possessions of Ms Innes. Nor did I doubt her sincerity in allowing Mr Brand to stay at her home because she feels he is a lost soul; nor doubt that she is someone for whom life is a financial struggle.
The legal situation
[18] Mr Bamford in submissions conceded that the evidence established that Mr Brand had an interest in the vehicle as owner at the time of his offending, so that the District Court clearly had jurisdiction to make the confiscation order on
16 December 2013.
[19] That being so, the only issue for the Court is whether Ms Innes falls into the category of “any other person” who would suffer “undue hardship” by the confiscation of the car in terms of s 127(4) of the Sentencing Act 2002. In this regard, reference was made to the decision in Alty v Police.1
[20] Alty v Police was an appeal against a confiscation order of a motorbike pursuant to s 129 of the Sentencing Act. The question of whether the appellant in that case held an interest in the motorbike was confused by contradictory statements. Declarations were made by both the appellant and the owner of the motorbike, who had informally sold the motorbike to the appellant. However, the appellant had not paid the current owner for the motorbike.
[21] The High Court held that, due to the contradictory statutory declarations, there was no basis upon which to decide that the order made in the District Court
was inappropriate.
1 Alty v Police High Court Christchurch CRI-2006-409-150, 10 October 2006.
[22] As a result, the appellant and the current owner gave evidence on oath at the appeal. After hearing the evidence, Panckhurst J upheld the appeal and quashed the confiscation order, based on the undue hardship that confiscation would cause to the current owner of the motorbike.
[23] In the present case, and distinguishable from the situation in Alty v Police, Ms Innes cannot be described as having anything more than a future contingent interest in the subject vehicle at the time of the offence. Her situation is therefore not analogous to the situation of the owner of the motorbike in Alty v Police. Her situation is as a landlady who, out of the kindness of her heart, has incurred expenses which seem to have little prospect of being met, otherwise than out of the proceeds of the sale of Mr Brand’s car.
[24] I have perused a number of decisions concerning pleas of undue hardship to any other person in s 127(4) of the Sentencing Act and Ms Innes’s situation cannot be said to meet the test. The following decisions are instructive.
[25] In Dalton v Auckland City: Porter v Auckland City,2 Henry J construed the words “undue hardship” as meaning “excessive or greater hardship than the circumstances warranted”.
[26] In Turua v New Zealand Police,3 Mr Turua appealed a confiscation order on the basis that it would cause his partner undue hardship. Mr Turua’s partner had an interest in the car as his de facto partner. She provided a medical certificate to show that she suffered from chronic bronchitis and other conditions and the car was her only means of transport to travel to medical appointments. It transpired at the hearing, however, that Mr Turua’s partner had access to another car. The appeal was dismissed in light of that, and in light of s 137(3) of the Sentencing Act, which provides that the net proceeds of the sale of the car are to be returned.
[27] Inter alia Venning J observed:4
2 Dalton v Auckland City: Porter v Auckland City [1971] NZLR 548.
3 Turua v New Zealand Police [2013] NZHC 2913.
4 At [9].
I have to say that, in any event on the bare information before the Court, even accepting that Ms Hosking suffers from chronic bronchitis, there was insufficient to support a finding of undue hardship. Section 129 involves concepts of extreme hardship to an appellant, or undue hardship to another person. Undue hardship is clearly less than extreme hardship but is more than hardship. Hardship itself must be more than inconvenience. I accept that it might be said to have been a hardship to Ms Hosking if the car was no longer available to her, even if it was the only car, but the information put forward on her behalf was very brief. There was no information as to how regularly she requires emergency attendances at the doctor, what other efforts she had made to obtain other members of the extended family to help in terms of driving her with vehicles, no information about taxi fares or the practicality of obtaining taxis or anything of that kind. So that, even on the information before the Court, before the further information Mr Kidd advanced, it would have been the Court’s view that the information disclosed no more than hardship and would have fallen short of undue hardship. However, in light of the further information, it is clear there can be no question of undue hardship on Ms Hosking.
[28] In Nathan v New Zealand Police,5 the appellant challenged a confiscation order on appeal. His estranged partner swore an affidavit in which she stated that she has “an event booking role in the hospitality industry” but gave no details of what her job responsibilities were and her hours of work. She claimed that she used the confiscated car because her own motor vehicle is unroadworthy; that if she were to receive the net sale proceeds of the vehicle this would be insufficient for her to repair her own vehicle or purchase another vehicle; and that she does not have, because of her limited means, the ability to replace her husband’s vehicle.
[29] Priestley J held:6
There is absolutely no basis on which any court could properly make a finding of undue hardship in Ms McFarlane’s favour. The absence of details of her finances, the availability to her of public transport, and her hours of work are clear gaps.
Ms Musgrave is correct when she points out in her submissions that, on the undue hardship topic, there must be some requirement to show hardship beyond the normal. Something akin to serious hardship is required.7
Certainly the confiscation of a motor vehicle which was central to employment from a person who has limited means could meet the test. However, for whatever reason, Ms McFarlane has not given that information.
5 Nathan v New Zealand Police [2012] NZHC 2270.
6 At [11]-[13].
7 See Rahui v Police HC Napier AP28/01, 26 October 2001; and Browne v Police HC Palmerston
North, CRI 2004-454-97, 7 December 2004.
[30] In McFarlane-Nathan v Police,8 a confiscation order was quashed on appeal, primarily because it would cause extreme hardship to the appellant, who was a clinical psychologist, who was contracted to the Accident Compensation Corporation. Confiscation was likely to result in his bankruptcy and the end of his Accident Compensation Corporation contract.
[31] Inter alia Allan J held:9
Moreover, in my opinion, this is a case in which other persons will suffer undue hardship. They include, obviously, the appellant’s partner (also employed full time in the appellant’s business) and his children, but more particularly his staff and contracted workers, and that part of the community which is reliant upon his services. The termination of the appellant’s contract must inevitably result in hardship to those financially dependent on him for their livelihood, and must also result in a degree of dislocation for those who use his services.
[32] Having determined that Ms Innes cannot be categorised as meeting the test of undue hardship in s 127(4) of the Sentencing Act, the application of the proceeds of sale of Mr Brand’s vehicle will fall for distribution under s 137 of the Act.
Application of proceeds of the sale of a confiscated motor vehicle
[33] Section 137 of the Sentencing Act provides:
137 Sale of confiscated motor vehicles
(1) Subject to section 138, as soon as practicable after a motor vehicle is delivered into a Registrar's custody under section 132, the Registrar must arrange for the sale of the motor vehicle by public auction or in any other manner that the Registrar, subject to any direction by the court, thinks fit.
...
(3) Subject to subsection (4), the proceeds of the sale must be applied in the following manner and order of priority:
(a) if the motor vehicle has been impounded under the Land
Transport Act 1998, in paying any impoundment costs:
(b) in payment of the costs of the sale (including all costs incurred in seizing the motor vehicle, towing and storing the
8 McFarlane-Nathan v Police HC Whangarei CRI-2008-488-7, 19 June 2008.
9 At [27].
vehicle, and complying with the provisions of this subpart preliminary to sale):
(c) if 1 or more security agreements have been brought to the notice of the Registrar before the proceeds of sale are fully applied, and have been established to the Registrar's satisfaction, in payment to each secured party of the amount to which the secured party would, but for the extinguishment of the security interest concerned, have been entitled under that agreement:
(d) in payment of any sentence or order of reparation payable by the offender:
(e) in payment of any levy payable by the offender under section 105B of this Act:
(f) in payment of any fine or court costs payable by the offender:
(fa) in payment of any fees and accident insurance levies prescribed under section 242(2)(b) of the Land Transport Act
1998 that are outstanding in respect of the vehicle:
(fb) in payment of any road user charges under the Road User Charges Act 2012 that are outstanding in respect of the vehicle:
(g) to the offender or, as the case requires, the substitute for the offender.
[34] Thus it can be seen that the proceeds of sale of a confiscated vehicle must be returned to the offender after payment of costs of sale and all other prior charges. The legislative purpose of confiscation is not to impose an additional financial penalty by way of forfeiture, but rather to mark the seriousness of recidivist offending by putting offenders to the cost and inconvenience of the loss of the vehicle being used by the offender at the time of the offending.10
Conclusion
[35] In conclusion, I do not find that Ms Innes can be categorised as a person suffering from undue hardship as a result of the confiscation order, given any interest she had in the vehicle was on a future contingent basis only and derived from a
voluntary good deed.
10 Police v Rihari HC Whangarei AP10/98, 23 July 1998.
[36] However, in view of Mr Brand’s acknowledgement in evidence that he owes Ms Innes a sum of money for board over a period of time, it will be for him and Ms Innes to quantify what that sum is at the time Mr Brand receives any surplus proceeds from the sale of his vehicle. The Court cannot order Mr Brand to pay that sum of money to Ms Innes but, as I have recorded, the debt was acknowledged by him in Court and will be a matter of moral obligation at the very least.
[37] The tools belonging to Ms Innes and located in the boot of the vehicle are to be returned to her by police forthwith.
Result
[38] The appeal is dismissed.
Goddard J
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