Cleverly v Police

[2019] NZHC 321

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI 2019-463-13

[2019] NZHC 321

BETWEEN

JOSHUA CLEVERLY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

25 February 2019

Counsel:

T Braithwaite for Appellant

C H R Harvey for the Respondent

Judgment:

1 March 2019

JUDGMENT OF DUFFY J

This judgment was delivered by me on 1 March 2019 at 4.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

Crown Solicitor, Rotorua

Braithwaite Law Ltd, Rotorua

CLEVERLY v NEW ZEALAND POLICE [2019] NZHC 321 [1 March 2019]

[1]        This is an appeal against sentence. The sole focus of the appeal is in an order made as part of the sentencing for the confiscation of a motor vehicle.

Facts

[2]        The appellant, Alison Mary Cleverly, asserts that at all material times she was the owner of the subject motor vehicle.

[3]        On 25 May 2018 the appellant’s son, Mr Cleverly, drove the vehicle in a way that resulted in him being charged with two charges of driving with excess blood alcohol and one charge of driving whilst suspended.

[4]        Following his conviction on the above charges Mr Cleverly was sentenced on 20 December 2018. The relevant part of his sentence for the purpose of the appeal is an order made by Judge Snell pursuant to s 129 of the Sentencing Act 2006 (the Act) ordering that the vehicle Mr Cleverly was driving at the time of the offence be confiscated by the Crown.

[5]Section 129 relevantly provides:

(3) If the court by or before which the offender is convicted of the subsequent offence is satisfied that any motor vehicle owned by the offender or in which the offender has any interest was being driven by, or in the charge of, the offender at the material time, the court must order that the motor vehicle be confiscated.

[6]        The appellant essentially contends that Mr Cleverly had no interest in the motor vehicle at any material time. She has provided an affidavit in which she asserts that the motor vehicle was going to be sold by her to Mr Cleverly. The affidavit does not make it clear when in terms of the oral contractual arrangement between them property in the motor vehicle would pass from the appellant to Mr Cleverly.

[7]        Judge Snell’s sentencing notes make no reference to whether there was any consideration as to who owned the motor vehicle at the material time. At [25] of the sentencing notes the Judge simply records that s 129 of the Act applies to the motor vehicle and then he directed that the motor vehicle be confiscated by the Crown under that provision. It is not clear to me whether the Judge was ever advised that there may be doubts as to whether Mr Cleverly was ever the owner of the motor vehicle.

[8]        There is a legal question as to whether the “material time” referred to in s 129 of the Act is the time of conviction or sentencing as opposed to the time when the offending occurred.

[9]        The Crown wanted to pursue an argument that the “material time” referred to in s 129 of the Act is the time when the offending occurred. On the other hand the appellant contended the “material time” was the sentencing date, by which time the appellant owned the motor vehicle. The difficulty with this case is that the facts concerning the oral contractual arrangement for the sale of the motor vehicle from the appellant to Mr Cleverly were never traversed in the District Court. It was not clear to me from the evidence before me when the parties intended under this arrangement for the property in the motor vehicle to pass to Mr Cleverly.

[10]      Under s 144 of the Contract and Commercial Law Act 2017 for the sale of specific or ascertained goods (which is what the motor vehicle is) property in the goods is transferred to the buyer at the time the parties to the contract intend for it to be transferred. Accordingly, before the subject motor vehicle can be confiscated under s 129 of the Act a decision has to be made as to whether Mr Cleverly had at the material time acquired ownership of that vehicle.

[11]      The matter was stood down while Mr Braithwaite made enquires of his client. Mr Braithwaite then informed me his client was adamant that property in the motor vehicle would not pass until she had received the full purchase price from Mr Cleverly, which never happened. If that is the case, it would mean that Mr Cleverly was not the owner of the vehicle or had an interest in the vehicle at the time of the offending. Nor could he have acquired an interest in the motor vehicle at any later time. In short, at no time was he owner of, or someone with an interest in the motor vehicle. At best he would have a right in personam to enforce the contract against the appellant, provided he had performed his part of the bargain. She says he never did so.

[12]      I raised with counsel the fact there was not a clear evidential foundation to establish Mr Cleverly was the owner of the motor vehicle at any of the possible material times. Further, raised in their respective arguments this was an issue that

needed to be explored before the legal questions on the correct interpretation of s 129 could be determined in this appeal.

[13]      It seemed to me that this was one of those cases where the issue of ownership hinges on whether the appellant’s evidence is accepted or not. This Court hearing an appeal is in no position to determine that question, as it entails an assessment of the appellant’s credibility.

[14]      It seemed to me the appropriate step to take in the interests of justice was to allow the appeal on the grounds that the sentence had miscarried because the Judge did not have a sufficiently firm evidential foundation before him to make the order under s 129. I reached this conclusion because the way the question of ownership is dealt with in the sentencing notes implicitly assumes that Mr Cleverly was the owner at all times. Nothing is said about the appellant and any claim she may have to the motor vehicle at all. For this reason I considered it in the interests of justice to allow the appeal and refer the matter back to the District Court for reconsideration of whether s 129 should be applied in this case.1 To do that will require a disputed facts hearing to determine the terms of the oral contractual arrangement the appellant entered into with Mr Cleverly for the sale of the motor vehicle. The Crown did not oppose this outcome.

Result

[15]      Appeal allowed in relation to the s 129 order. Matter referred back to the District Court for reconsideration whether confiscation of the motor vehicle under s 129 of the Sentencing Act 2006 is available.

Duffy J

1      Criminal Procedure Act 2011, s 251.