Devi v Police

[2014] NZHC 53

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-294 [2014] NZHC 53

IN THE MATTER             of an appeal against confiscation order

BETWEEN  ARADHANA DEVI Appellant

ANDPOLICE Respondent

Hearing:                   4 February 2014

Appearances:           M Kan for Appellant

R Thompson for Respondent

Judgment:                4 February 2014

JUDGMENT OF COOPER J

Solicitors:

M Kan, Auckland

Meredith Connell, Crown Solicitors, Auckland

DEVI v POLICE [2014] NZHC 53 [4 February 2014]

[1]      The appellant, Ms Aradhana Devi, appeals against a confiscation order made by Judge Andree Wiltens in the District Court in the context of a conviction of one charge of refusing to supply a blood specimen when requested to do so contrary to s 60(1)(a) of the Land Transport Act 1998.  This was the third time that she had been convicted of drink driving related offending.

[2]      The Judge took a starting point of 12 months’ imprisonment for the charge, having regard to the erratic nature of the appellant’s driving prior to her refusal to provide  blood.    The  Judge  decided  to  impose  a  sentence  of  six  months’ home detention taking account of her immediate plea of  guilty.   He also ordered  the confiscation of the car that the appellant was driving at the time.

[3]      The Judge’s sentencing notes do not explicitly refer to the issue of hardship arising for the appellant as a consequence of that confiscation.  The Judge did state that   he   did   not   consider   any   hardship   would   result   from   her   indefinite disqualification.

[4]      The confiscation order is the only part of the sentence imposed which is subject to challenge in this Court.

[5]      As part of the argument advanced on the appeal, the appellant has sought to rely on further evidence in the form of an affirmation that she has made, dated

10 January 2014, and a further affirmation by one Rajnesh Prakash, dated 9 January.

[6]      Without setting out the contents of those affirmations, the burden of them is that at the time of her conviction and sentence on 10 September 2013, the appellant was no longer the driver of the car which she had been driving when the offence was committed on 13 May 2013.  The car was, according to the affirmations, transferred to Mr Prakash pursuant to a contractual arrangement entered into on about 18 August

2013.  It is said that on that day Mr Prakash provided the appellant with a form for the transfer of the vehicle into his name, having earlier agreed and paid a purchase price of $3,000 for the vehicle.  For a reason that is not explained the registration form  was  not  acted  on,  apparently  in  the  relevant  office  of  the  New  Zealand

Transport Agency with the consequence that as at the date of sentencing the car

remained registered in the appellant’s ownership.

[7]      Ms  Thompson  has  not  sought  to  oppose  the  introduction  of  this  further evidence and it is appropriate that I receive it pursuant to the Court’s broad powers under s 119(3) of the Summary Proceedings Act 1957.  I have read the affirmations accordingly.

[8]      Mr Kan did not appear at sentencing in the District Court and has not really been in a position to advise this Court as to what was said in relation to ownership of the vehicle in that forum. The sentencing notes are silent on the issue and the written submissions that would have been the basis of what counsel for the appellant said in the  District  Court,  also  made  no  mention  of  the  issue.    In  her  affirmation  the appellant simply says that she was “made aware by police prosecution during [her] sentencing hearing that the vehicle was still registered under [her] name”.  She says that immediately following the sentencing hearing she made inquiries in relation to her original transfer request to the New Zealand Transport Agency to be advised that there were no records of the documentation that she had sent by post.   She then urgently arranged for the transfer of the vehicle to be registered and that occurred later on 10 September following her sentencing.

[9]      Although what transpired in the District Court cannot be described with any

certainty it does appear likely that the issue was not drawn to the Judge’s attention.

[10]   In her written submissions Ms Thompson endeavoured to support the confiscation order on the basis that s 129(3) of the Sentencing Act empowers a sentencing Judge to order the confiscation of any motor vehicle that was being driven by an offender convicted of a second offence under the relevant legislation. Section 129(3) reads:

If the Court by or before which the offender is convicted of the second 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.

[11]     As I understand it, Ms Thompson submits that the fact that the appellant may no longer have owned or had an interest in the vehicle at the sentencing date was irrelevant because s 129(3) concerns ownership, or the holding of an interest, by the offender at the time the vehicle was being driven.  Although that is a possible literal interpretation of the words used in the subsection, I am satisfied that it is not the correct interpretation.  While the latter part of the provision does refer to the vehicle having been driven by the offender at the material time, the first part of the provision simply refers “any motor vehicle owned by the offender”.

[12]     I consider that the natural and ordinary interpretation of those words connotes a motor vehicle owned by the offender at the time of sentencing.   It is then that motor vehicle that must have been driven at the time that the offence had been committed.  But if, prior to sentencing, the vehicle has been legitimately transferred to a third party there would no longer be a motor vehicle “owned by the offender” within the meaning of s 129(3).

[13]     It seems to me that the contrary view would result in the absurd outcome that an innocent third party who had had no role in, nor knowledge of the commission of the offence which was the occasion for the making of the confiscation order, could have the vehicle confiscated and be left to a civil remedy which may or may not be of any value in the circumstances. It seems to me most unlikely that that was the outcome which the legislature intended when s 129(3) was enacted.

[14]     The view I take is consistent with the view taken by MacKenzie J in Antcliff v

New Zealand Police1 when he observed at paragraph [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.

[15]     That  statement  of  the  law  was  supported  by  reference  to Williamson J’s decision in Shaw v Ministry of Transport.2   That case was decided under s 84(2) of the Criminal Justice Act 1985 which arguably provided for the outcome which, in

my view, is still the law, in a more explicit fashion.  Nevertheless, both on the plain

1      Antcliff v New Zealand Police HC Palmerston North CRI-2009-454-23, 15 December 2009.

2      Shaw v Ministry of Transport (1990) 5 CRNZ 644 (HC).

meaning of the language used and the context in which such orders are made, I am in no doubt that a confiscation order under s 129(3) can only be made if the offender remains the owner of the vehicle driven by the offender at the time when the offence was committed.

[16]     Ms  Thompson  has  not  sought  the  opportunity  to  challenge  the  further evidence on which the appellant has relied in support of this appeal and which I have earlier admitted.  It follows in the circumstances that the only course to follow is to quash that part of the sentence imposing the confiscation order in the District Court and to allow the appeal accordingly.

[17]     The appeal is allowed and the confiscation order imposed in the District Court  relating  to  the  Mazda Axela  hatchback  registration  number  GBE  979  is quashed.