CLEVERLY v NEW ZEALAND POLICE [2019] NZHC 321

CLEVERLY v NEW ZEALAND POLICE [2019] NZHC 321 [1 March 2019]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI 2019-463-13[2019] NZHC 321BETWEEN JOSHUA CLEVERLYAppellantAND NEW ZEALAND POLICERespondentHearing: 25 February 2019Counsel: T Braithwaite for AppellantC H R Harvey for the RespondentJudgment: 1 March 2019JUDGMENT OF DUFFY JThis judgment was delivered by me on 1 March 2019 at 4.00 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors:Crown Solicitor, RotoruaBraithwaite Law Ltd, Rotorua[1] This is an appeal against sentence. The sole focus of the appeal is in an ordermade as part of the sentencing for the confiscation of a motor vehicle.Facts[2] The appellant, Alison Mary Cleverly, asserts that at all material times she wasthe owner of the subject motor vehicle.[3] On 25 May 2018 the appellant's son, Mr Cleverly, drove the vehicle in a waythat resulted in him being charged with two charges of driving with excess bloodalcohol and one charge of driving whilst suspended.[4] Following his conviction on the above charges Mr Cleverly was sentenced on20 December 2018. The relevant part of his sentence for the purpose of the appeal isan order made by Judge Snell pursuant to s 129 of the Sentencing Act 2006 (the Act)ordering that the vehicle Mr Cleverly was driving at the time of the offence beconfiscated by the Crown.[5] Section 129 relevantly provides:(3) If the court by or before which the offender is convicted of the subsequentoffence is satisfied that any motor vehicle owned by the offender or in which theoffender has any interest was being driven by, or in the charge of, the offender at thematerial time, the court must order that the motor vehicle be confiscated.[6] The appellant essentially contends that Mr Cleverly had no interest in the motorvehicle at any material time. She has provided an affidavit in which she asserts thatthe motor vehicle was going to be sold by her to Mr Cleverly. The affidavit does notmake it clear when in terms of the oral contractual arrangement between them propertyin the motor vehicle would pass from the appellant to Mr Cleverly.[7] Judge Snell's sentencing notes make no reference to whether there was anyconsideration as to who owned the motor vehicle at the material time. At [25] of thesentencing notes the Judge simply records that s 129 of the Act applies to the motorvehicle and then he directed that the motor vehicle be confiscated by the Crown underthat provision. It is not clear to me whether the Judge was ever advised that there maybe doubts as to whether Mr Cleverly was ever the owner of the motor vehicle.[8] There is a legal question as to whether the "material time" referred to in s 129of the Act is the time of conviction or sentencing as opposed to the time when theoffending occurred.[9] The Crown wanted to pursue an argument that the "material time" referred toin s 129 of the Act is the time when the offending occurred. On the other hand theappellant contended the "material time" was the sentencing date, by which time theappellant owned the motor vehicle. The difficulty with this case is that the factsconcerning the oral contractual arrangement for the sale of the motor vehicle from theappellant to Mr Cleverly were never traversed in the District Court. It was not clearto me from the evidence before me when the parties intended under this arrangementfor the property in the motor vehicle to pass to Mr Cleverly.[10] Under s 144 of the Contract and Commercial Law Act 2017 for the sale ofspecific or ascertained goods (which is what the motor vehicle is) property in the goodsis transferred to the buyer at the time the parties to the contract intend for it to betransferred. Accordingly, before the subject motor vehicle can be confiscated under s129 of the Act a decision has to be made as to whether Mr Cleverly had at the materialtime acquired ownership of that vehicle.[11] The matter was stood down while Mr Braithwaite made enquires of his client.Mr Braithwaite then informed me his client was adamant that property in the motorvehicle would not pass until she had received the full purchase price from Mr Cleverly,which never happened. If that is the case, it would mean that Mr Cleverly was not theowner of the vehicle or had an interest in the vehicle at the time of the offending. Norcould he have acquired an interest in the motor vehicle at any later time. In short, atno time was he owner of, or someone with an interest in the motor vehicle. At best hewould have a right in personam to enforce the contract against the appellant, providedhe had performed his part of the bargain. She says he never did so.[12] I raised with counsel the fact there was not a clear evidential foundation toestablish Mr Cleverly was the owner of the motor vehicle at any of the possiblematerial times. Further, raised in their respective arguments this was an issue thatneeded to be explored before the legal questions on the correct interpretation of s 129could be determined in this appeal.[13] It seemed to me that this was one of those cases where the issue of ownershiphinges on whether the appellant's evidence is accepted or not. This Court hearing anappeal is in no position to determine that question, as it entails an assessment of theappellant's credibility.[14] It seemed to me the appropriate step to take in the interests of justice was toallow the appeal on the grounds that the sentence had miscarried because the Judgedid not have a sufficiently firm evidential foundation before him to make the orderunder s 129. I reached this conclusion because the way the question of ownership isdealt with in the sentencing notes implicitly assumes that Mr Cleverly was the ownerat all times. Nothing is said about the appellant and any claim she may have to themotor vehicle at all. For this reason I considered it in the interests of justice to allowthe appeal and refer the matter back to the District Court for reconsideration of whethers 129 should be applied in this case.1 To do that will require a disputed facts hearingto determine the terms of the oral contractual arrangement the appellant entered intowith Mr Cleverly for the sale of the motor vehicle. The Crown did not oppose thisoutcome.Result[15] Appeal allowed in relation to the s 129 order. Matter referred back to theDistrict Court for reconsideration whether confiscation of the motor vehicle under s129 of the Sentencing Act 2006 is available.Duffy J1 Criminal Procedure Act 2011, s 251.