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(6), 52A(1), 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.

Compare: 1985 No 120 s 84(2), (4)

Section 128(1)(b): amended, on 11 August 2017, by section 105(2) of the Land Transport Amendment Act 2017 (2017 No 34).

Section 128(1)(b): amended, on 2 May 2003, by section 11(1) of the Land Transport (Unauthorised Street and Drag Racing) Amendment Act 2003 (2003 No 11).

Section 128(2): replaced, on 1 December 2009, by section 6(2) of the Sentencing (Vehicle Confiscation) Amendment Act 2009 (2009 No 37).

Section 128(2)(a)(ii): amended, on 10 September 2012, by section 100(2) of the Land Transport (Road Safety and Other Matters) Amendment Act 2011 (2011 No 13).

Section 128(3A): inserted, on 1 December 2009, by section 6(3) of the Sentencing (Vehicle Confiscation) Amendment Act 2009 (2009 No 37).

Section 128(5)(a): amended, on 1 December 2009, by section 6(4) of the Sentencing (Vehicle Confiscation) Amendment Act 2009 (2009 No 37).

Section 128(5)(c): amended, on 1 December 2009, by section 6(5) of the Sentencing (Vehicle Confiscation) Amendment Act 2009 (2009 No 37).