Mitchell-Kuru v Police

[2018] NZHC 1350

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2018-412-4

[2018] NZHC 1350

BETWEEN

BLAIR ANDREW MITCHELL-KURU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	6 June 2018
Appearances:	A Blecher for Appellant C Ure for Respondent
Judgment:	8 June 2018

JUDGMENT OF MANDER J

[1]                   The appellant, Blair Mitchell-Kuru, pleaded guilty to charges of driving with excess blood alcohol and careless driving in relation to an incident that occurred on  3 December last year. He was sentenced by Judge Turner on 23 January this year. As part of that sentence, the Judge made an order confiscating Mr Mitchell-Kuru’s Mazda motor vehicle which he had used in the offending.1 The Judge was obliged to do so because Mr Mitchell-Kuru had, in 2015, acquired a previous conviction for driving with excess breath alcohol.

[2]                   Mr Mitchell-Kuru appeals the confiscation order on the basis the Judge erroneously understood the vehicle was owned by him rather than by his grandfather, Mr Mitchell. Initially, the appeal was also based upon the contention the confiscation had resulted in undue hardship for the grandfather. However, Mr Belcher, who appeared on behalf of Mr Mitchell-Kuru, responsibly acknowledged the threshold for

1      Sentencing Act 2002, s 129(3).

MITCHELL-KURU v NEW ZEALAND POLICE [2018] NZHC 1350 [8 June 2018]

undue hardship could not be established in the circumstances of this case and that aspect of the appeal was abandoned.

[3]                   In support of the appeal, Mr Belcher sought leave to adduce evidence from the grandfather by way of an affidavit. Unfortunately, the affidavit is irregular. While the signature of the Justice of the Peace who took Mr Mitchell’s oath in Ashburton appears on the document, it has not been signed by Mr Mitchell himself. Notwithstanding that difficulty, the appeal proceeded on the basis of the factual background provided by Mr Mitchell. The essential details of this are, at least as matters are presently known, unchallenged.

[4]                   Sentencing before Judge Turner was based on the Court’s understanding that Mr Mitchell-Kuru was the registered owner of the vehicle. He certainly was at the time of the offending on 3 December 2017 and at the time of his first appearance the following week in the Dunedin District Court. However, on 11 December 2017, the motor vehicle was transferred into the name of Mr Mitchell. The circumstances as to how that came about have been provided by the grandfather.

[5]                   Mr Mitchell states that when the vehicle was purchased by Mr Mitchell-Kuru, he paid for the vehicle on the basis his grandson would repay him. The initial purchase price of the car was $6000, and it was agreed that Mr Mitchell-Kuru would make repayments by instalments. Mr Mitchell sought to depose that he was motivated to finance the purchase of the vehicle because his grandson had been doing well and had got himself a job. The vehicle was to be put into Mr Mitchell-Kuru’s name in order that any fines that he may incur through the use of the vehicle would be his liability as the registered owner.

[6]                   When Mr Mitchell discovered that the vehicle had been involved in an accident caused by his grandson while driving under the influence of alcohol, he repossessed the car. Mr Mitchell candidly stated that the reason for him repossessing the vehicle was so that he could sell it and get some of his money back. By the time he repossessed the vehicle, Mr Mitchell-Kuru had only paid back around $1000. Mr Mitchell stated that he then took steps to have the ownership transferred into his name, and that he spent about $1000 on the car in order to make it saleable. That is perhaps unsurprising

given the damage done to the vehicle as a result of Mr Mitchell-Kuru having crashed it into a parked vehicle. Mr Mitchell was unhappy when he found out that a confiscation order had been made because he wished to sell the vehicle and, in his words, “not be out of pocket”.

[7]                   The Crown has undertaken its own inquiries and confirms from particulars obtained from the New Zealand Transport Agency that the Mazda motor vehicle was initially registered in Mr Mitchell-Kuru’s name on 22 November 2016 and was transferred into the grandfather’s name on  11  December  2017,  three  days  after Mr Mitchell-Kuru’s first appearance in the Dunedin District Court.

Discussion

[8]                   It is not disputed that the Judge proceeded on the erroneous understanding that Mr Mitchell-Kuru was the owner of the vehicle at the time he was convicted and sentenced. No one had told Judge Turner otherwise.2

[9]                   Mr Belcher submitted that, in light of the misunderstanding as to who owned the vehicle at the time Mr Mitchell-Kuru was convicted, I should allow the appeal and remit the matter back to the District Court for rehearing. Mr Belcher submitted this would be an appropriate course because it would allow his client to make a declaration of ownership under s 130 of the Act. Depending upon the District Court’s view of the situation, it could then make an order under s 131 prohibiting Mr Mitchell-Kuru from acquiring any interest in any motor vehicle within the next 12 months. Mr Belcher submitted that, in the circumstances, that was the more appropriate order. The vehicle was going to be sold, whether by Mr Mitchell or pursuant to the existing order, but by allowing the grandfather to do so “privately” some of the costs associated with the confiscation process could be avoided. He submitted this was the usual practice adopted in situations such as these.

2      There is some  confusion as to when  Mr Mitchell-Kuru was convicted.  He pleaded guilty on   19 December 2017 and was sentenced on 23 January 2018. The available Court record does not record on which date the conviction was entered. Nothing turns on this because, even if the earlier date was taken as the date of conviction, the vehicle was transferred into the grandfather’s name on 11 December 2017.

[10]               Ms Ure on behalf of the Crown submitted that while Judge Turner may have been under a misapprehension as to the ownership of the vehicle at the time he made the confiscation order, he had not as a matter of law erred in ordering the vehicle’s confiscation. Ms Ure referred to s 129(3) of the Sentencing Act 2002, which provides as follows:

(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.

[11]               Ms Ure emphasised that the issue of ownership in the present circumstances was irrelevant to the application of s 129(3) because, even on the information provided by the grandfather, at the time the order was made Mr Mitchell-Kuru still had an interest in the vehicle. An interest is defined in the Act as meaning any proprietary interest, whether legal or equitable, and whether vested or contingent.3 Mr Mitchell- Kuru, by paying $1000 back to his grandfather, at least had an equitable share in the vehicle he had been driving at the time of committing the offence.

Decision

[12]               I consider Ms Ure’s analysis is strictly correct, but it does not remove the fact that Judge Turner proceeded to make the order confiscating the vehicle on the basis of a misapprehension as to who owned it. The grandfather’s involvement was not known to him. While the $1000 paid by Mr Mitchell-Kuru to his grandfather in repayment of his financing of the vehicle would on its face represent a vested equitable interest in the car, an issue arises as to whether the money spent by Mr Mitchell on the vehicle in order to prepare it for sale and, indeed, the expenditure required to repair the damaged vehicle may have extinguished that interest by the time Mr Mitchell-Kuru was sentenced.

[13]               In the circumstances, I am prepared to recognise that the order was made on the basis of an erroneous understanding of the ownership of the vehicle. However, in order for the appeal to be allowed, it is necessary that I be satisfied a different order

3      Sentencing Act 2002, s 127(1).

should be imposed.4 There are some obstacles in allowing me to come to that determination. Firstly, the evidence that is relied upon is in an inadmissible form and, secondly, there are a number of pieces of information that I have mentioned which would need to be confirmed in a formal way before a Court could with confidence conclude the course proposed by Mr Belcher is appropriate.

[14]               However, I am satisfied on the face of the information that is available on the appeal that the alternative course, involving Mr Mitchell-Kuru making a declaration under s 130 of the Act and an order prohibiting him from acquiring another motor vehicle under s 131 should at  least  be  given  the  opportunity  to  be  considered. Mr Belcher informed me that, in situations such as these, this is the preferred practice of the District Court.

[15]               Because of my reservations, I consider the best course is to remit the order back to the District Court with a direction that it be set aside and the issue examined afresh. Pursuant to s 251(3) of the Criminal Procedure Act, I direct the District Court to consider itself unencumbered in terms of the order it considers appropriate and decide depending on the evidence provided to it for its assessment. In particular, it should consider itself free to make another order under s 129(3) if it considers that is the best course in the circumstances.

[16]               Accordingly, the appeal is allowed and the order remitted back to the District Court for its reconsideration.

Solicitors:

Andrew Belcher Barrister, Dunedin RPB Law, Dunedin

4      Criminal Procedure Act 2011, s 250(2)(b).