K v Police HC Dunedin CRI-2007-412-58
[2007] NZHC 1339
•28 November 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2007-412-58
K
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 1 November 2007
Counsel: S Vidal and K Beal for Appellant
R P Bates for Respondent
Judgment: 28 November 2007 at 4.45 p.m.
JUDGMENT OF SIMON FRANCE J
[1] Mr K has twice had his car confiscated as a result of driving offences. The first time was in June 2003, and the second was in September 2007. Mr K says on the second occasion the Court erred because he was not eligible to have his car confiscated. The correctness of that proposition turns on the meaning of “first”
and “second” offence in s129 of the Sentencing Act 2002.
K V NEW ZEALAND POLICE HC DUN CRI-2007-412-58 28 November 2007
1. The issue explained
[2] Section 129 nominates certain driving offences as creating eligibility for car confiscation. What triggers confiscation is committing two of these offences within a four year span. Mr K committed such offences on:
• 14 February 2003;
• 12 June 2003; and
• 9 June 2007.
[3] His car was confiscated at sentencing in relation to both the 12 June 2003 and
9 June 2007 offending. That means that the same 12 June 2003 offending was the “second” offence for the purposes of the initial confiscation, and the “first” offence for the purposes of the subsequent confiscation.
[4] Mr K submits that once the 12 June 2003 offending was used as part of the initial confiscation process, two new offences are required to enable a second confiscation to occur.
[5] Section 129 of the Sentencing Act 2002 provides:
Confiscation of motor vehicle after second offence
(1) This section applies if,-
(a) on or after 26 July 1996, a person commits an offence (the
“first offence”) against any of sections 32(1)(a) or (b),
35(1)(a) or (b), 36(1), [36A(1)(a) or (c),] [39(1),] 56(1) or
(2), 58(1), 60(1), 61(1), [61(2)] or 62(1) of the Land Transport Act 1998 (which relate to driving offences) [or section 171 of the Crimes Act 1961 (but only where the manslaughter involved the used of a motor vehicle)]; and
(b)within 4 years after the date of the commission of that offence, the person commits a further offence (the second offence) against any of those provisions of the land Transport Act 1998.
(2)For the purposes of subsection (1), it does not matter whether or not the second offence is of the same kind as the first offence, but it
must be an offence that arises from a different incident from the one that gave rise to the first offence.
(3)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.
(4)Despite subsection (3), the court must not make an order under that subsection if it will result in extreme hardship to the offender or undue hardship to any other person.
(5)For the purposes of this section, a conviction for an offence against a provision of the Transport Act 1962 that corresponds to an offence specified in subsection (1) must be treated as a conviction for an offence specified in that subsection.
2. Competing submissions
[6] Ms Beal presented the argument for the appellant. She submitted first that the same offence could not be both a first offence and a second offence because if Parliament had intended that it could have said so. The use of “first” and “second” was consistent with the idea that any given offence could only be one or the other; not both. An example of alternative wording that might have supported the present decision was:
“two specified offences committed within a four year period.”
[7] Ms Beal identified examples of where Parliament had made its intention plain. She referred to s65 of the Land Transport Act 1998, which uses the terms “third or subsequent” and then “2 or more previous offences were committed within
5 years…”. By contrast, s91(2) of the Land Transport Act 1998, the demerit points system, specifically says that once points have been used as the basis of a suspension:
“the Director must cancel all demerit points for the time being recorded in respect of that person”.
[8] That is interpreted as meaning that once a person crosses the 100 point threshold, and is suspended, all points are cancelled, even if the total be 142.
[9] Ms Beal also submitted that to use the same offence twice in relation to separate confiscation infringed the double jeopardy provisions of the New Zealand Bill of Rights Act 1990. Finally it was noted that there was no need to strain the legislation; s128 of the Sentencing Act 2002 provides for discretionary confiscation in circumstances such as the present.
[10] For the Police, Mr Bates submitted the provision was intended to operate in a cumulative way so as to provide maximum disincentives to offenders such as “boy racers”. In the submission nothing in the wording precludes an offence being both the second offence in one chain, and the first offence in the next chain. The other provisions identified by Ms Beal were submitted to the unhelpful; their wording made clear Parliament’s intent, and was not replicated in s129.
3. Decision
[11] I am satisfied the appeal should be allowed. In my view the same driving incident cannot be both a first offence and a second offence. It is one or the other.
[12] Subsection (2) emphasises that there must be two separate driving incidents; the second offence must arise from a different incident than the one that gave rise to the first offence. It is consistent with this to require two fresh offences to have occurred before a second confiscation result. Although the legislation might have made it plain by enacting a provision such as the demerit points section, equally it could have made the more draconian interpretation plain if that was what was intended.
[13] I did not find the other examples of particular assistance. They are context specific. There are many places in the Land Transport Act 1998 where the concept of first, second and indeed third or subsequent offences is used but, unlike s129 of the Sentencing Act 2002, they do not require the offending to occur within a set period.
[14] The section under consideration is not plain in its effect either way. The interpretation I prefer narrows the impact of the scheme, but not significantly so.
The original two offences will have led already to a confiscation. The third offence can lead to a confiscation, pursuant to s128. There is no need to interpret s129 to give it a stronger deterrent effect when an equivalent discretionary power exists.
[15] Although the conclusion I have reached resolves the issue, it is appropriate to give some consideration of the proposition that the interpretation under appeal amounts to double punishment in breach of s26(2) of the New Zealand Bill of Rights Act 1990. The concept of punishment has only had limited consideration to date. In Harder v Director of Land Transport Safety (1998) 5 HRNZ 343, Laurenson J held that a decision by the Director to disqualify Mr Harder from acting as a taxi driver did not engage s26(2). Although the Director’s decision was based on an offence for which Mr Harder had already been convicted and punished, the disqualification was not a punishment arising within the criminal process.
[16] In Daniels v Thompson [1998] 3 NZLR 22 (CA), a full Court had held that s26(2) is concerned with the criminal process and prevents the punishment function of that process from being revisited. Butler and Butler The New Zealand Bill of Rights Act (LexisNexis, 2005) observe this is similar to the approach taken in relation to the equivalent United States provision. However they add that the authorities also establish that:
“However, the legislative labelling of a sanction as “civil” is not determinative of its status for double jeopardy purposes; where a proceeding, although classed as civil, in fact has potential consequences including the stigma inherent in determination of criminal wrongdoing and the deprivation of liberty, it will be regarded as criminal for double jeopardy purposes.” (at para 24.3.20).
[17] In Rodgers v R [2006] 1 SCR 554 the Supreme Court of Canada was considering whether a requirement for a convicted person to provide a DNA sample came within the concept of punishment. In holding that it did not, Charron J observed:
[63] This does not mean, however, that “punishment” under ss.11(h) and
11(i) necessarily encompasses every potential consequence of being convicted of a criminal offence, whether that consequence occurs at the time
of sentencing or not. A number of orders can be made by a sentencing court, for example an order for forfeiture, a firearm prohibition, a driving
prohibition, or an order for restitution. It is beyond the purview of this appeal to determine whether or not any of these consequences constitutes a
punishment. As a general rule, it seems to me that the consequence will constitute a punishment when it forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence and the sanction is one imposed in furtherance of the purpose and principles of sentencing. In this respect, the protection afforded by s.11 must be contrasted with s.12 of the Charter that protects against cruel and unusual “treatment” or punishment. For example, DNA sampling, ordered as a consequence of conviction, would undoubtedly constitute a “treatment” and, if the physical method for obtaining a DNA sample were cruel and unusual, redress could be obtained under s.12.
[18] Given the mandatory nature of s129 of the Sentencing Act 2002, the considerable hardship that can be involved, and given the direct link of confiscation to the commission of a second offence, I am of the view that mandatory confiscation under s129 would fall within “punishment” as used in s26(2) of NZBORA.
[19] The next issue is whether a person is in fact being punished twice for an offence if the second offence is used also as the first offence in a new sequence. It could be argued that it is the 3rd offence in the sequence to which the confiscation is attached, and so there is no repunishment for the middle one. However that analysis is arguably flawed because the punishment is being imposed for committing two offences in a four year period. On that approach the punishment attaches to both offences; it is a punishment imposed in relation to both offences, albeit eligibility
only arises once the second is committed.
[20] The idea of already punished offending informing or influencing the penalty on a new offence is not unique. Indeed sentences often involve a specific uplift in recognition of a person’s previous offending. Plainly such an approach is not regarded as engaging s26(2). If one views the role of the “first” offence as being only to inform the penalty on the second offence, then by parallel reasoning the approach under appeal does not engage s26(2). It is questionable, however, whether the situations are analogous. Here, the first offence does more than inform. It creates a jurisdiction to confiscate.
[21] In the Land Transport Act 1998 there are many situations where the fact that a person has two prior convictions makes them permanently liable to greater penalties. As with the sentencing approach earlier discussed, I doubt these situations are truly analogous because there what has occurred is a change in status. On its
face s129 goes further than that since it imposes a discrete penalty, and only when two discrete offences have occurred. I consider it can be said that the confiscation penalty is a penalty that attaches to both offences. It is therefore arguable that s26(2) is engaged.
[22] If that is the case, the next step in any such breach analysis (see R v Hansen [2007] 3 NZLR 1) would be to determine whether the use of the middle incident in this way is truly a breach of s26(2). Although s129 would be apparently inconsistent with the prohibition on double punishment, it needs to be considered whether it is nevertheless a reasonable limit that can be demonstrably justified in a free and democratic society. I received no submissions or evidence on this aspect, and prefer not to resolve it given my interpretation of s129. Justification for double punishment would need to be found in the concerns that underlie confiscation, which are well known to centre around such phenomena as “boy racers”. However, given there are alternative available responses such as a discretionary confiscation power, whether mandatory confiscation that amounted to double punishment could be demonstrably justified as a reasonable limit is questionable.
[23] In the absence of fuller argument I do not resolve the challenge based on s26(2) NZBORA, but I am of the view that had the District Court’s interpretation been correct, a real issue would have arisen as to whether that interpretation breached s26 NZBORA. If an unjustified breach were ultimately found, the resolution under s6 of NZBORA would have been to interpret the section in the way that the judgment does.
4. Conclusion
[24] I am of the view that the same offence cannot be both a second offence and a first offence for the purposes of s129 of the Sentencing Act 2002. The appeal is
allowed and the confiscation order quashed.
Simon France J
In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of
4.45 p.m. on the 28th day of November 2007.
Solicitors:
S Vidal and K Beal for Appellant
R P Bates for Respondent
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