Police v Te Whangai
[2014] NZHC 1890
•12 August 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2014-409-000038 [2014] NZHC 1890
NEW ZEALAND POLICE
v
DANIELLE JORDYN TU WHANGAI
Hearing: 7 August 2014 Appearances:
S J Jamieson for Appellant
No appearance for RespondentJudgment:
12 August 2014
JUDGMENT OF DUNNINGHAM J
[1] This is an appeal by the Crown on a question of law regarding the circumstances in which the obligation to issue a written caution under s 129B of the Sentencing Act 2002 arises.
[2] The appeal is brought pursuant to s 296 of the Criminal Procedure Act 2011. That requires this Court, as the first appeal Court, to grant leave to appeal,1 and for the question of law to arise either in the determination of the charge,2 or, as in this
case, in proceedings that relate to or follow the determination of the charge.3
1 Criminal Procedure Act 2011, s 296(2).
2 Section 296(3)(b).
3 Section 296(3)(a).
NEW ZEALAND POLICE v TU WHANGAI [2014] NZHC 1890 [12 August 2014]
How did the question of law arise?
[3] On 27 March 2014 the respondent pleaded guilty to a charge of driving with excess blood alcohol under s 56(1) of the Land Transport Act 1998 and was sentenced to 50 hours community work and disqualified from driving for six months.
[4] The prosecutor also sought an order that a written caution be issued and served on the registered owner of the vehicle (who was not the respondent) pursuant to s 129B of the Sentencing Act 2002.
[5] The District Court Judge declined to make such an order, stating that the section only applied if the Court was able to confiscate the vehicle (if the respondent had been the registered owner) and he did not have the power to confiscate for a first offence.
[6] The appellant describes the question of law for which leave is sought is whether the Judge erred in law by failing to issue a written caution to the registered owner of the vehicle under s 129B of the Sentencing Act 2002.
The Relevant Law
[7] The relevant statutory provisions are s 128 and 129B of the
Sentencing Act 2002. Section 128 provides:
128 Confiscation of motor vehicle
(1) This section applies if a person is convicted of any of the following offences:
(a) an offence punishable by imprisonment for a term of more than 12 months, or by imprisonment for life:
(b) an offence against any of the provisions of sections 35(1)(a),
35(1)(b), 36A(1)(a) or (c), 38(1), 39(1), 52(1)(aa), 52(1)(c) (but only in relation to failing to stop in accordance with section 114(2) or failing to give particulars in accordance with section 114(3)) or 56 to 60 of the Land Transport Act 1998 (which relate to driving offences).
(2) A court may exercise the power in subsection (3) if a person is convicted of an offence referred to in subsection (1) and the court by or before which the offender is convicted is satisfied-
(a) that a motor vehicle-
(i) was used to commit or facilitate the commission of the offence, whether or not the offender was the driver or person in charge; or
(ii) in the case of an offence against any of the provisions of sections 35(1)(a) and (b), 36(1)(a),
36AA, 36A(1)(a) and (c), 38(1), 39(1), 52(1)(aa) and
(c), and 56 to 62 of the Land Transport Act 1998, was being driven by, or in the charge of, the offender at the material time; or
(iii) was used by the offender, whether or not the offender was the driver or person in charge, to facilitate the offender's flight or avoid his or her detection or arrest after the commission of the offence; and
(b) that, at the time of the conviction, the offender or a substitute for the offender owns the motor vehicle or has an interest in the motor vehicle.
(3) The court may order that the motor vehicle be confiscated.
(3A) The court must not make an order under this section in respect of a motor vehicle that a substitute for an offender owns or has an interest in if satisfied that-
(a) the substitute did not know, and could not reasonably have known, that the offender would commit the offence or offences; or
(b) the substitute took all reasonable steps to prevent the offender from committing the offence or offences.
(4) The court may make an order under this section in addition to, or instead of, passing any other sentence or making any other order.
(5) In deciding whether to make an order under this section, the court must have regard to-
(a) any undue hardship that the making of the order would cause to the offender or, as the case requires, to the substitute for the offender in relation to his or her trade, business, profession, occupation, or employment:
(b) any undue hardship that the making of the order would cause to any other person who would otherwise have the use or benefit of the motor vehicle on a regular basis:
(c) the nature and extent of the offender's interest, or, as the case requires, the interest of the substitute for the offender, in the motor vehicle, and the nature and extent of any other person's interest in it:
(d) any other considerations that the court thinks fit.
[8] The effect of s 128 in the context of the case under appeal is that the Court may order a motor vehicle be confiscated when the following pre-conditions are satisfied:
(a) a person is convicted of an offence against s 56 of the
Land Transport Act 1998 (s 128(1)(b));
(b) a motor vehicle is being driven by the offender at the material time
(s 128(2)(a)(ii));
(c) at the time of conviction, the offender or a substitute for the offender owns the motor vehicle or has an interest in the motor vehicle (s 128(2)(b)).
[9] Section 127 defines a substitute offender as:
For the purposes of sections 128 to 142, a person is, in relation to an offender, a substitute for the offender or a substitute if—
(a) the person is served with a written caution, under section 129B, about an offence committed by the offender; and
(b) within 4 years after the date of the commission of the offence for which that written caution was served, the offender commits a further offence specified in section 128(1) involving a motor vehicle that, at the time of the commission of that offence, the person owns or has an interest in.
Thus a person can only be a substitute offender under s 128(2)(b) if they have been served with a written caution under s 129B. This is what the prosecutor argued should have occurred in the present case because of the mandatory wording of s 129B(2).
[10] The relevant provisions of s 129B provide:
129BWritten caution to persons with interest in motor vehicles involved in offences
(1) Subsection (2) applies whenever-
(a) a court convicts an offender of an offence specified in section 128(1) involving a motor vehicle; and
(b) the court is satisfied the offence was committed in circumstances that would permit or require the confiscation of the motor vehicle under section 128,
129, or 129A if the offender owned or had an interest in it at the time of conviction; and
(c) it appears to the court that the offender does not own or have an interest in the motor vehicle.
(2) The court by or before which the offender is convicted must order that a written caution be issued and served on every person (other than the offender) who is registered in respect of the motor vehicle or who the court believes owns or has an interest in the motor vehicle.
[11] The appellant argues that the effect of subsections 129B(1) and (2) is that the Court is under a mandatory obligation to order that a written caution be issued where the offender is:
(a) convicted of an offence specified in 128(1);
(b)where the offending would permit or require the Court to confiscate the motor vehicle if the offender owned or had an interest in the motor vehicle but where the offender does not have such an interest.
[12] For completeness, there are some statutory exceptions set out in s 129B(3) which do not appear relevant to this appeal. The appellant says that as s 128 permits the Court to confiscate a vehicle owned by an offender convicted of an offence under s 56(1), regardless of whether it is the offender’s first or second or subsequent conviction, s 129B(2) makes it mandatory to issue a caution to the owner.
What occurred in the District Court
[13] I was provided with a transcript of the exchange between the Court and the prosecutor in the District Court hearing. It is apparent from the exchange that the District Court Judge was of the view that s 129B could only apply where the Court would have confiscated the vehicle if the respondent had been the registered owner, and then only on a second offence.
[14] The exchange with counsel went as follows:
Prosecutor: Sir I’ve just passed up the details of the registered owner of the car. I submit that s 129B applies Sir.
The Court: Not according to my list it doesn’t. It says first offence of
driving.
Prosecutor: If I may address the Court Sir, the drink-driving charge is one of the qualifiers under s 128 and under 129B the Court may make an order–
The Court: I’m not going to… Not for a first offence on a reading of
470…
Prosecutor: Sorry Sir. It’s the warning letter to the registered owner of the vehicle Sir, not confiscation.
The Court: Well even so.
Prosecutor: I’m, I hate to belabour the point Sir. I don’t believe it’s discretionary Sir. I believe the wording is, “The Court shall”.
The Court: No it only applies if I were to confiscate it and I can’t
confiscate it on a first offence…
[15] The Crown considers that the learned District Court Judge erred in reaching that conclusion in two respects:
(a) the first is in holding that the s 129B requirement applies only where the Court would have confiscated the vehicle if the offender owned it; and
(b)the second is in holding that the Court was unable to confiscate for a first offence.
Discussion on legal issues
[16] Put in simple terms, s 128 permits the confiscation of a motor vehicle owned by someone convicted of an offence specified in s 128(1)(b) where it was being used in specified ways in relation to the offence. The power to confiscate arises even if it is a first offence.
[17] Section 129, which follows, simply makes it mandatory to confiscate the motor vehicle after a second offence, in the circumstances described in that section, unless certain specified exceptions apply. Section 129A also deals with a specific category of offence requiring mandatory confiscation.
[18] The respective permissive and mandatory requirements of ss 128, 129 and
129A are reflected in the language of s 129B(1)(b) which refer to circumstances that would either “permit or require the confiscation of a motor vehicle under section 128, 129 or 129A if the offender owned or had an interest in it at the time of conviction”(emphasis added). Thus the requirement to issue a s 129B caution is not simply engaged when the Court would have confiscated the motor vehicle under ss 128, 129 or 129A, but also where it could have, that is, where it was permitted to even if it chose not to.
[19] I am satisfied that such an interpretation is driven by the plain language of the words, but it also reflects the statutory purpose of these provisions. These provisions were inserted by s 7 of the Sentencing (Vehicle Confiscation) Amendment Act 2009. The purpose of that Act, as described in s 4, is to reduce traffic offending by strengthening the powers of the Courts to order the confiscation of motor vehicles, and by empowering the Courts to order the destruction of motor vehicles used by persistent illegal street racing offenders. In particular, the legislation permits the confiscation of a motor vehicle owned by a third party, where that person has received a written caution and thus been warned about the consequences of the offender continuing to offend in that person’s vehicle.
[20] An offender can have their vehicle confiscated on a first offence, must have it confiscated on the second offence and must have it confiscated and destroyed after a third illegal street racing offence, subject only to some express statutory exceptions. A substitute for the offender can only have their car confiscated following receipt of an official warning. That power would be diluted if the official warning was only ever exercised in the circumstances when the actual owner would in fact have had their vehicle confiscated. It makes sense that an owner of a vehicle is warned of the risk of becoming a substitute for the offender that risk on the first offence, so that the
powers of confiscation can be exercised on the second or subsequent offence as envisaged by the legislation.
Outcome
[21] Accordingly:
(a) I grant leave to appeal the question of law; (b) I determine the question of law as follows:
The District Court Judge erred in law by concluding he could not issue a written caution to the registered owner of the vehicle under s 129B of the Sentencing Act 2002, because, where the Court would have either a discretion or an obligation to confiscate the motor vehicle under s 128, 129 or 129A if the offender owned or had an interest in it at the time of the conviction, the Court must issue a written caution to the registered owner of the motor vehicle, except in the circumstances described in s 129B(3).
[22] The outcome of this appeal does not, of course, affect the outcome for the respondent. However, it does set aside the District Court Judge’s ruling on whether to issue a written caution under s 129B. The matter is to be referred back to the District Court to reconsider whether a s 129B caution should be issued to the owner of the Mitsubishi vehicle which was involved in the offence.
Solicitors:
Raymond Donnelly & Co., Christchurch
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