New Zealand Acts

SENTENCING (VEHICLE CONFISCATION) AMENDMENT ACT 2009 - SECT 7

7 New sections 129A to 129F inserted

The following sections are inserted after section 129 :

129A Confiscation and destruction after third illegal street racing offence

1 This section applies if—

a) an offender commits an offence against section 36A(1)(a) or (c) of the Land Transport Act 1998 (the
"current offence" ); and

b) the offender has previously been convicted of 2 offences (the
"previous offences" ) against section 36A(1)(a) or (c) of the Land Transport Act 1998 that were each committed within the period of 4 years before the commission of the current offence.

2 For the purpose of subsection (1) , it does not matter whether or not the offences are of the same kind, but the current offence and each of the previous offences must arise from different incidents.

3 The court by or before which the offender is convicted of the current offence may order the confiscation and destruction of any motor vehicle if satisfied that the offender was driving, or was in charge of, the motor vehicle at the material time and that—

a) the offender owns or has any interest in the motor vehicle; or

b) a substitute for the offender owns or has an interest in the motor vehicle if the written caution served on the substitute was issued in respect of an offence specified in subsection (1)(a) .

4 The court must not make an order under subsection (3) if it will result in extreme hardship to the offender or undue hardship to any other person, including, without limitation, to any substitute for the offender.

129B Written 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 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.

3 Despite subsection (2) , a written caution must not be served—

a) on anyone if the court is satisfied that the motor vehicle—

i) was stolen or converted at the material time; or

ii) was let on hire at the material time in accordance with a rental service licence under the Land Transport Act 1998:

b) on a person who the court is satisfied—

i) did not own or have an interest in the motor vehicle at the material time; or

ii) is a party to an encumbrance relating to the motor vehicle but has no relationship of another kind with the offender.

4 On any 1 occasion, a court may only order that 1 written caution is to be served on each recipient described in subsection (2) , regardless of the number of convictions entered against the offender.

5 A written caution must provide the following information:

a) the name and identifying details of the offender:

b) the relevant convictions against the offender:

c) the identifying details of the motor vehicle:

d) that the recipient is believed to own or have an interest in the motor vehicle and that none of the exceptions stated in subsection (3) has been established to the satisfaction of the court:

e) a warning that if the offender is convicted of a further offence specified in section 128(1) that involves a motor vehicle owned by the recipient or in which the recipient has an interest, the motor vehicle is liable to be confiscated or confiscated and destroyed:

f) the recipient’s right to seek a review of the court’s decision to order the service of the written caution on the recipient.

6 The written caution remains current for 4 years after the date of the commission of the offence for which that written caution is served.

7 A written caution ordered to be served on a person must be served on the person in one of the following ways:

a) by being delivered to the person personally or by being brought to the person's notice if the person refuses to accept it:

b) by being left for the person at the person's place of residence with another person (other than the offender) who appears to be of or over the age of 14 years.

8 A written caution may be served by one of the following persons:

a) a Police employee:

b) an officer of the court:

c) any person who is authorised to serve the written caution under a general or particular authority given by a District Court Judge or Registrar:

d) any officer or employee of a corporation that is authorised by the Secretary for Justice to serve the written caution.

9 An endorsement on a copy of a written caution stating the fact, the date, and the time of service and purporting to be signed by a person of a kind described in subsection (8) is, in the absence of evidence to the contrary, sufficient proof of service of the written caution in accordance with this section.

129C Review of written caution

1 A person served with a written caution may, within 20 working days after the date of service, apply to the court that ordered the service of the written caution for a review of the decision to serve the applicant on 1 or more of the following grounds:

a) the motor vehicle was stolen or converted at the material time:

b) the applicant did not own or have an interest in the motor vehicle at the material time:

c) the applicant is a party to an encumbrance relating to the motor vehicle but has no relationship of another kind with the offender:

d) the motor vehicle was let on hire at the material time in accordance with a rental service licence under the Land Transport Act 1998 .

2 Every application must include a statutory declaration that specifies a ground stated in subsection (1) and why that ground applies.

3 The Registrar must promptly forward a copy of the application to the prosecuting agency in the proceeding that resulted in the relevant conviction.

4 The prosecuting agency may, within 10 working days after the day on which the copy of the application is forwarded to the agency, make a written submission to the court.

5 The court must conduct the review on the papers, unless the court considers a hearing necessary.

6 If satisfied that a ground stated in subsection (1) applies, the following provisions apply:

a) the court must cancel the written caution served on the applicant:

b) if the ground for cancelling the applicant's written caution is that stated in subsection (1)(a) or (d) , the court must also cancel the written caution served on any other person under the same order that required service of the written caution on the applicant:

c) the Registrar must advise, by ordinary post, facsimile, email, or other electronic means, every person (including the applicant) whose written caution is cancelled of that outcome:

d) if a written caution served on a person is cancelled, the written caution is deemed not to have been served on the person.

129D Written caution of no effect if conviction quashed

1 If all of the convictions in respect of which a written caution has been served on a person are quashed, and no convictions for offences qualifying for confiscation under section 128, 129, or 129A are substituted, the written caution ceases to have effect and is deemed not to have been served.

2 If a written caution ceases to have effect under subsection (1) , the Registrar must, by ordinary post, facsimile, email, or other electronic means, advise every person served with the written caution of that outcome.

129E Appeal against confiscation by persons treated as substitutes

1 If the court orders, under section 128 or 129A , the confiscation of a motor vehicle on the basis that the person who owns it, or has an interest in it, is a substitute for the offender, that person may, within 20 working days after the date of the order, or within any further time that the appropriate court allows, appeal to the appropriate court against the order on 1 or more of the following grounds:

a) the appellant did not own or have an interest in the motor vehicle at the material time:

b) the motor vehicle was stolen or converted at the material time:

c) the appellant did not know, and could not reasonably have known, that the offender would commit the offence or offences:

d) the appellant took all reasonable steps to prevent the offender from committing the offence or offences:

e) the appellant had not, prior to the commission of the offence or offences, been served with a written caution under section 129B in relation to the offender:

f) the appellant is a party to an encumbrance relating to the motor vehicle but has no relationship of another kind with the offender:

g) the motor vehicle was let on hire at the material time in accordance with a rental service licence under the Land Transport Act 1998 .

2 The appellant must serve the notice of appeal on—

a) the prosecuting agency in the proceeding that resulted in the relevant conviction; and

b) any other person treated as a substitute who owns or has an interest in the motor vehicle.

3 The persons described in subsection (2) are parties to the appeal.

4 The right of appeal under subsection (1) is independent of the offender's right of appeal against conviction and sentence for the relevant offence or offences.

5 The court must set aside the confiscation of the motor vehicle if satisfied that—

a) a ground stated in subsection (1)(b) or (g) applies; or

b) another ground stated in that subsection applies to the appellant and to every other person who is treated as a substitute for the offender.

6 For the purposes of subsection (1) ,—

a) if the order was made in a District Court, the appeal must be brought in the High Court in accordance with the High Court Rules:

b) if the order was made in the High Court, the appeal must be brought in the Court of Appeal in accordance with the rules of court governing civil appeals to that court.

129F Warning notice to secured parties if confiscation not ordered for second illegal street racing offence

1 This section applies if—

a) an offender commits an offence against section 36A(1)(a) or (c) of the Land Transport Act 1998 (the
"current offence" ); and

b) the offender has previously been convicted of an offence (the
"previous offence" ) against section 36A(1)(a) or (c) of the Land Transport Act 1998 committed within the period of 4 years before the commission of the current offence; and

c) the court by or before which the offender is convicted of the current offence is satisfied that a motor vehicle owned by the offender or by the substitute for the offender or in which the offender or the substitute has any interest was being driven by, or in the charge of, the offender at the material time; and

d) the court does not order the confiscation of the motor vehicle.

2 The Registrar must—

a) check whether a financing statement has been registered in respect of the motor vehicle on the personal property securities register kept under the Personal Property Securities Act 1999 ; and

b) issue a warning notice stating that any motor vehicle owned by the offender or by the substitute for the offender or in which the offender or the substitute has an interest is liable to be confiscated and destroyed if the offender commits another offence against section 36A(1)(a) or (c) of the Land Transport Act 1998 before the expiry of 4 years from the commission of the previous offence; and

c) send the warning notice, by ordinary post, facsimile, email, or other electronic means to every person (other than the offender or the substitute) who the Registrar believes is a party to an encumbrance relating to the motor vehicle.

3 The jurisdiction of a court to make a confiscation and destruction order under section 129A or 136(4) or the validity of any order made under those sections is not affected by a failure to comply with subsection (2) .