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…

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.

Continue reading Devi v Police

Details

AGLC: Devi v Police [2014] NZHC 53
Case: [2014] NZHC 53
Decision Date: 4 February 2014

CaseChat Overview and Summary

In the case of Devi v Police, the appellant, Ms Aradhana Devi, appealed against a confiscation order made by Judge Andree Wiltens in the District Court. Ms Devi was convicted of refusing to supply a blood specimen when requested, a charge under the Land Transport Act 1998. This was her third conviction for drink driving-related offences. The District Court imposed a sentence of six months' home detention and ordered the confiscation of the car she was driving at the time of the offence. Ms Devi appealed the confiscation order on the grounds that she was no longer the owner of the car at the time of sentencing as she had transferred it to another individual prior to sentencing.

The key legal issue in the case was whether the confiscation order could be upheld under Section 129(3) of the Sentencing Act. Section 129(3) allows for the confiscation of a motor vehicle if it was being driven by an offender convicted of a second offence under the relevant legislation. The court needed to determine if the confiscation order was valid despite the change in ownership of the vehicle before sentencing. The respondent argued that the literal interpretation of Section 129(3) supported the confiscation order, while the appellant argued that the vehicle was no longer owned by her at the time of sentencing, rendering the confiscation order invalid.

The court held that the confiscation order could not be upheld as the appellant had legitimately transferred the vehicle to a third party before sentencing. The court found that the natural and ordinary interpretation of Section 129(3) required that the offender must be the owner of the vehicle at the time of sentencing. Since the vehicle had been transferred, there was no longer a vehicle "owned by the offender" within the meaning of the statute. The court quashed the confiscation order and allowed the appeal, ruling that the confiscation order imposed in the District Court relating to the Mazda Axela hatchback registration number GBE 979 was invalid.

Orders