Brand v Police - [2014] NZHC 81

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 Respondent

Judgment:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 81
Decision Date: 7 February 2014

CaseChat Overview and Summary

Tyler Leslie Brand appealed against the confiscation of his vehicle under s 129 of the Sentencing Act 2002 on the basis that he had no financial interest in the vehicle at the time of the offence or conviction and had gifted it to his landlady, Ms Katy Innes, as a gift in lieu of payment for board. The appeal was dismissed by Goddard J. The court had to decide whether Ms Innes would suffer undue hardship if the vehicle was confiscated and, if so, whether this was sufficient to quash the confiscation order. The court held that Ms Innes did not meet the test of undue hardship because she had only a future contingent interest in the vehicle and derived from a voluntary good deed. The legislative purpose of confiscation is to mark the seriousness of re-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, not to impose an additional financial penalty by way of forfeiture.

The appeal was dismissed. Goddard J ordered that the tools belonging to Ms Innes and located in the boot of the vehicle be returned to her by police forthwith. The Court could not order Mr Brand to pay the sum of money he owed Ms Innes for board, but it was a matter of moral obligation at the very least.

Orders