Sutherland v Police HC Wellington CRI-2011-485-13

[2011] NZHC 446

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2011-485-13

NICHOLAS SUTHERLAND

Appellant

v

NZ POLICE

Respondent

Hearing:         3 May 2011

Counsel:         Mr Nisbet for the Appellant

Ms Carter for the Respondent

Judgment:      3 May 2011

JUDGMENT OF MALLON J (Reasons for allowing appeal)

[1]      Mr Sutherland was convicted on a charge of driving while disqualified.  On his conviction on the driving while disqualified charge the Judge made an order confiscating Mr Sutherland’s car pursuant to s 129 of the Sentencing Act 2002.  At that time all counsel and the Judge were of the view that s 129 applied because Mr Sutherland had other relevant offending within the previous four years.

[2]      Mr Sutherland filed an appeal against the confiscation order on the basis that a bail condition preventing him from disposing of his car while awaiting sentence had been imposed unlawfully.  The decision of Boggs v Police [2006] NZAR 193 is on point. However, there is a more fundamental problem with the order. It is now

accepted by both sides that there was no jurisdiction to make the confiscation order

SUTHERLAND V NZ POLICE HC WN CRI-2011-485-13 3 May 2011

because Mr Sutherland had not committed an offence of the kind specified in s 129 in the previous four years.

[3]      The appeal is allowed.  The confiscation order is rescinded.  Counsel for the police accepts that there will be no issue as to storage costs of the car.

Mallon J