The Queen v Carl Brian King

[2001] NZCA 460

IN THE COURT OF APPEAL OF NEW ZEALAND CA23/01

THE QUEEN

V

CARL BRIAN KING

Hearing:	21 June 2001
Coram:	Gault J Robertson J Hammond J
Appearances:	A J S Snell for Appellant S P France for the Crown
Judgment:	21 June 2001

JUDGMENT OF THE COURT DELIVERED BY GAULT J

[1]                 Carl Brian King pleaded guilty to 10 charges of receiving. In light of that the Crown offered no evidence on other charges including alternative charges of theft. The case against him was that he had been engaging in what is popularly known as “car ringing”. He obtained vehicles he knew were stolen with a view to changing their identifying details and selling them.

[2]                 He was sentenced in the District Court at Auckland on 24 November 2000 to imprisonment for three years. In addition, the Judge made an order for forfeiture in the following terms:

The Crown has applied for forfeiture of a number of items some of which relate to the vehicles, some of which relate to the equipment required for the commission of your crimes and they are set out in the schedule and marked with an asterisk. I propose to put you in a position where you are not in a position to indulge in this type of activity again. Accordingly, I am going to order forfeiture of all the items on the schedule marked with an asterisk, all to be returned to the owners where they can be identified. That means all your car ringing equipment is forfeited.

The items to be forfeited or returned are the following:

SO16 through to 28 inclusive, SO31 and 32, SO34 through to 72 inclusive and 74.

[3]                 An appeal against both conviction and sentence was filed by the appellant personally. However, when Mr Snell became involved, as assigned counsel, he  could advance no grounds in support of the conviction appeal. That has been abandoned and is accordingly dismissed.

[4]                 In the context of the sentence appeal, Mr Snell sought to raise two matters only. The first is that although asked to do so, the sentencing Judge, when imposing the sentence, did not order remission of outstanding fines amounting to $5,940. While orders to that effect commonly are made at the time of sentencing, counsel were not able to refer us to any statutory authority other than s88(3)(h) Summary Proceedings Act 1957. That section, which lays down the circumstances in which an order for remission may be made, indicates that such an order is not part of a sentence for an offence unrelated to that for which the fine or fines may have been imposed.

[5]                 While we have generally taken a broad view of matters that might be addressed on appeal against sentence under s383 Crimes Act, we do not consider this point reasonably can be encompassed. Certainly not without evidence of the appellant’s inability to pay. We are strengthened in that view by the fact that the jurisdiction under s88 may be invoked elsewhere at any time.

[6]                 The second matter raised by counsel is that the order of forfeiture was made on the basis of a misunderstanding between the appellant and his then counsel as to

the items of equipment he consented to forfeit. We were told the appellant maintains that some items to which the order relates were not used in the course of the offending and were not marked on the schedule with his consent.

[7]                 We have no evidence on the matter, either from the appellant or his counsel  at the time, so it is difficult to see how we could advance the matter even if it were open to us to do so. In that respect, we have not been assisted with the basis for the original order. Section 199 Summary Proceedings Act may not easily be applied in respect of the offence of receiving. Nor have we been pointed to a basis for the jurisdiction of this Court to deal with the matter in the context of a sentence appeal.

[8]                 If there is a question of jurisdiction for the original order, that must be addressed other than by way of sentence appeal. Jurisdiction aside, Mr France for  the Crown helpfully advised that if there has been a mistake Crown counsel will co- operate in having the matter placed before the Judge, perhaps for rehearing. We leave the matter on that basis.

[9]Accordingly, the appeal against sentence, also is dismissed.

Solicitors

Bannister & von Dadelszen, Hastings, for Appellant Crown Law Office, Wellington