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MEDIA RELEASE

PCA Calls on all State and Territory Governments to emulate the NZ system and introduce vehicle impoundments for unlicensed drivers.

Monday 23 August 2004

The Chairman of the PCA, Mr Harold Scruby, said today:  “Anecdotal evidence from police and insurance companies now reveals that over 10% of motorists are driving unlicensed.  These drivers are up to 8 times more likely to be involved in future crashes than licensed drivers and they are major contributors to the Road Toll.  The problem is increasing and has reached epidemic proportions.  Current punitive measures are not a deterrent.

“There are several categories of unlicensed drivers: (1 ) Never licensed. (2)  Licence disqualified - by a magistrate or judge - often drink-drive or dangerous driving.  (3) Licence cancelled (Demerit Points etc).  We are now calling on all state and territory governments to emulate the New Zealand system and confiscate the vehicles being driven by Never Licensed and Disqualified drivers.  It is abundantly clear that the current system is utterly bankrupt and these criminals know that if and when caught again, the courts will just extend the disqualification period … and they simply continue to drive.  These recidivist offenders are rarely jailed, until they kill someone.

 

Mr Scruby said;  “This is a précis of the NZ system - NZ impounds (i.e. temporarily seizes for 28 days) up to 1,000 vehicles per month.  NZ confiscates (i.e. permanently seizes by court order) about 1,200 vehicles per year.  Impoundment is for disqualified and unlicensed driving.  It is handled by police and contractors.  Confiscation is for disqualified and drink driving and other serious offences, especially repeat offences.  It is handled by judges and bailiffs.  Impoundment has resulted in significant reductions in disqualified driving and related offences.

 

“In August 2002, the NRMA received an unprecedented response to its invitation to comment on the potential use of vehicle sanctions to control serial serious offenders;  96% of respondents believe that vehicle impoundment would be an effective measure for controlling serial serious offenders.  The vast majority (93%) would like to see vehicle impoundment as a sentencing option for cases where a disqualified driver re-offends during or after the period of disqualification.

 

Mr Scruby added: “One of the major objections to vehicle confiscation comes from the police who see it as time consuming and stretching their limited resources.  Their concerns are justified.  But a simple system can be created where following a police order, the entire towing, impoundment, number-plate removal, storage, release and collection of fines can be outsourced.  Organisations such as the NRMA, RACV, RACQ are in prime positions to manage these functions.  And offenders will be required to pay all fines and costs before their vehicles are returned.

 

“We can also consider other forms of impoundment including engine immobilisers, sealed wheel-clamps and satellite monitored black-boxes.  This would allow vehicles to be towed back to the owners’ properties, but rendering them inoperable and/or under full-time observation.  We recommend that this be for a period of 3 months.  If vehicles were driven during the impoundment period, they would be automatically confiscated and sold at public auction – all funds going to the government.

 

“Drivers caught driving while disqualified or drunk a second time, after an initial impoundment, would also have their vehicles automatically confiscated and sold.

 

 “There are those who might see these interventions as harsh, but to date there have been no alternative systems adopted which have had any effect on this lethal and increasing, criminal behaviour.  If it works in NZ, it can work here.  It’s time all Australian governments started considering the lives and needs of the vast majority of law-abiding citizens as being far more important than the wants of a growing group of criminals whose behaviour will only change when they lose their vehicles.”  Mr Scruby said.

 

Harold Scruby - Chairman/CEO – Pedestrian Council of Australia - Tel: (02) 9968-4555   (0418) 110-011

Email: scruby@walk.com.au  Internet:  www.walk.com.au

Click Here to View NRMA Position on Serial Serious Offenders (PDF)

Vehicle-based Sanctions in New Zealand

 

Definitions

 

The terms impoundment, forfeiture and confiscation have different meanings in New Zealand law[1].  Therefore, it is important that these are clearly understood as they cannot be used interchangeably.  

 

Impoundment is the temporary removal of property or withholding of access to property. 

 

In New Zealand, motor vehicles must be seized at the roadside by the Police and impounded for 28 days if the officer believes, on reasonable grounds, that the driver is disqualified from holding or obtaining a licence or their licence is suspended or revoked.  These provisions also apply to unlicensed drivers and those whose licences have expired if these drivers have previously been forbidden to drive until they obtain a current valid driver licence.  The driver does not have to own or have a financial interest in the vehicle in order for it to be impounded.  Any vehicle (including borrowed and commercial vehicles) that is driven by a disqualified or unlicensed driver under the criteria outlined above, must be impounded.  There are only very limited grounds on which a vehicle’s owner may appeal the impoundment.  Hardship resulting from the impoundment is not a grounds for appeal.  The vehicle’s owner is liable for the towage and storage costs which are paid directly to the storage provider usually at the end of the impoundment period. 

 

The Police also have the power to seize and impound vehicles for a shorter period (ie 12 hours with a possible extension of up to 24 hours) in the interests of public safety.  They have the power to impound (for up to 7 days) a vehicle that is suspected of being involved in a serious crash or a ‘hit and run’ offence, for the purposes of preserving evidence or conducting a scientific examination of the vehicle.  

 

In 2003, Parliament extended the 28 day vehicle impoundment regime to include vehicles being used in illegal street racing activities. The Police may impound a motor vehicle being driven in an unauthorised race on a road or in an unnecessary exhibition of speed or acceleration; or, without reasonable excuse, causing the vehicle being driven on a road to undergo a sustained loss of traction.    

 

Forfeiture is the permanent seizure of equipment or property used in the commission of an offence at the time of the offence, and disposal of it after conviction.  Once a forfeiture order has been passed, the equipment becomes the property of the Crown and any proceeds from the sale of the property are returned to the Crown.  

 

Provision for forfeiture is set out in the Fisheries Act 1996 for property (including motor vehicles) that are used in the commission of offences against this Act.  The Proceeds of Crimes Act 1991 includes provision for the seizure of profits of serious offending, including (under some circumstances) the forfeiture of assets assessed to be the equivalent of criminal gains. 

 

There is no provision under current legislation in New Zealand for motor vehicles to be forfeited to the Crown for serious traffic offending.  Forfeiture has not been supported as an option for dealing with persistent traffic offending due to considerable inequalities in sentencing arising from disparities in the relative values of motor vehicles.  For example, the owner of a motor vehicle valued at $30,000 would face a much larger penalty than the owner of a vehicle whose value is only $500.  Forfeiture has the potential to create other serious injustices because of the wide range of situations in which the driver of the vehicle is not the owner.  Furthermore, forfeiture could have a serious and unpredictable impact on family members since the size of the financial penalty incurred in the total loss of equity in the seized vehicle, would vary so widely.

 

Confiscation is the permanent seizure of property (ie motor vehicles) following conviction and court order.  The vehicle is sold with money off-setting seizure costs, monies owed on the vehicle to third parties (eg finance companies) and outstanding fines being first removed from the proceeds of the sale.  If there are any remaining funds, these are then returned to the vehicle’s owner.  The return of remaining funds to the owner addresses the equity issue relating to owners of high value versus low value vehicles that exists with forfeiture. 

 

The confiscation provisions relating to motor vehicles are discussed in more detail below.

 

Prior to 1996, the courts had the power to confiscate motor vehicles on conviction of serious traffic offences.  However, the imprecise wording of these provisions resulted in confiscation orders being frequently overturned on appeal.  In 1996, Parliament amended the Criminal Justice Act 1985 to strengthen and extend the power of the courts to confiscate motor vehicles owned by serious traffic offenders.  

 

Confiscation may be applied if the offender is convicted of any of the following offences:

 

·        Offences punishable by imprisonment for a term of more than 12 months or by imprisonment for life;

·        Dangerous or reckless driving;

·        Careless or inconsiderate use of a motor vehicle causing injury or death;

·        Aggravated careless use of a motor vehicle causing injury or death;

·        Drink or drugged driving offences.

 

Other Conditions

 

·        For the traffic related offences, the offender must have been driving or in charge of the vehicle at the time of the offence. 

 

·        For other offences, the vehicle must have been used by the offender to facilitate the offender’s flight or avoid detection or arrest.

 

·        The offender must own or have a financial interest in the vehicle (ie borrowed vehicles cannot be confiscated). 

The 1996 amendment also provided for a presumption in favour of confiscation[2] where the owner of the vehicle has previously committed a serious traffic offence and then, within a four year period, has gone on to commit a further serious traffic offence.

 

The qualifying offences are:

 

·        Drink (or drugged) driving;

·        Drink (or drugged) driving causing injury or death;

·        Careless driving causing injury or injury or death while under the influence of drink or drugs. 

·        Failing or refusing to supply a blood specimen;

·        Driving while disqualified or contrary to the terms of a limited licence; or while one’s licence is suspended or revoked;

·        Dangerous or reckless driving;

·        Dangerous or reckless driving causing injury or death;

·        Failure to perform the duties of a driver in an accident in which another person is injured or killed.

·        Illegal street racing activities (previously described)

·        Illegal street racing activities (previously described) causing injury or death.

 

The vehicle that is confiscated must have been used in the commission of the offence.  In addition, the offender must own or have a financial interest in the vehicle.  The offender may make representations to the courts in relation to hardship that may ensue if their vehicle is confiscated. 

 

Vehicles subject to a confiscation order are seized by the courts and sold at public auction.  The costs associated with the seizure including any unpaid fees to a towage and storage provider for a previous impoundment, any monies owed on the vehicle to third parties (eg finance companies) and any unpaid fines are removed from the proceeds of the sale.  Any remaining funds are then returned to the vehicle’s owner.   While the return of these funds to the owner is intended to address potential disparities in the severity of the penalty between the owners of high value versus low value vehicles, the forced sale of the vehicle at auction may well realise less than what the owner deems to be its resale value.   

 

The courts may also issue an order preventing the offender from owning another vehicle for 12 months. 

 

Operation of the Legislation

 

If a court is considering whether to order the confiscation of a motor vehicle, it may order the offender to complete a declaration of ownership. 

 

 

 

Confiscation Orders Imposed

 

The following table was provided by the Ministry of Justice.

 

 

Table 1:    Number of cases where a court order was made for confiscation of a motor vehicle, 1996 to 2002

Most serious offence

1996

1997

1998

1999

2000

2001

2002

Drive with excess alcohol

34

93

252

462

614

640

530

Drive while disqualified

33

173

377

480

558

479

437

Reckless/dangerous driving

2

4

18

28

20

24

41

Other traffic offence

1

2

6

9

5

12

10

Non-traffic offence1

8

9

17

19

15

17

27

Total

78

281

670

998

1212

1172

1045

Notes:

1.        For example: aggravated robbery, burglary, dealing in cannabis, and fisheries offences

2.        Source:  Research and Evaluation Unit, Ministry of Justice.

 

 

The table shows that since the amendment that came into force in 1996, the number confiscation orders imposed by the courts has been increasing steadily until 2000,  with a reduction in 2001.  The two types of offences that activate the majority of confiscation orders are drink-driving offences and driving while disqualified.  The overall reduction in confiscation orders in 2001 is due to a reduction in orders activated by driving while disqualified offences.  The reason for this is likely to be due to an overall reduction in driving while disqualified offences.  Since vehicle impoundment, mandatory licence carriage and photo driver licences came into effect in 1999, the number of driving while disqualified offences detected by the Police has reduced significantly.  


[1] These definitions relate to New Zealand law only.  We can offer no guarantees that these terms will be used in the same way by other jurisdictions.  While impoundment tends to have a more universal meaning, the difference between forfeiture and confiscation that applies in New Zealand law, may not be reflected in the laws enacted by other jurisdictions. 

[2] A presumption in favour of confiscation means that the Courts must confiscate the vehicle unless at least one of the exclusion criteria applies. 



Photo Driver Licences, Mandatory Licence Carriage and Vehicle Impoundment
 
Photo driver licences and mandatory licence carriage were introduced in May 1999 to support the enforcement of other sanctions.  Of particular relevance are the roadside sanctions (mandatory licence suspension and vehicle impoundment) which came into effect on the same date.  The vehicle impoundment regime requires the Police to seize and impound, for 28 days, vehicles driven by disqualified drivers and drivers whose licences had been suspended either administratively by the Police under the roadside licence suspension regime or by the LTSA under the demerit point system.  The impoundment provisions also apply to never licensed drivers and drivers whose licences have expired providing that these offenders have previously been warned by the Police not to drive until they obtain a current valid driver licence.  The roadside licence suspension regime is discussed separately in another section of this report. 

 

Photo driver licences and the mandatory licence carriage requirement were intended to assist the Police to more easily identify illegal drivers at the roadside, so that the impoundment regime and other sanctions could be applied more efficiently.  Since all three of these interventions act on the same outcome measures, it will not be possible to identify the individual contributions of each one on the outcome measures. 

 

The following section discusses the effects of these interventions on common outcome measures before presenting information that is specific to each one.


Effect of law change on crash involvement by disqualified and unlicensed drivers
(Update for data to 31 August 2002).

The first figure below shows the number of disqualified and unlicensed drivers involved in crashes, since January 1994. This has been reducing gradually over this period as part of the overall improvement in road safety with countermeasures such as Compulsory Breath Testing (CBT), speed enforcement, the Supplementary Road Safety Package etc.

Disqualified and unlicensed drivers involved in injury crashes
Monthly, Jan 1994 - Aug 2002

We are interested in the effect of vehicle impoundment, mandatory licence carriage and photo driver licences on disqualified and unlicensed drivers, over and above the other things going on in the road environment, ie the effect on disqualified and unlicensed drivers relative to other drivers on the road. The graph below does this by showing the proportion of all crash-involved drivers who were disqualified or unlicensed.


Disqualified and unlicensed drivers as proportion of all drivers involved in injury crashes, monthly, Jan 1994 - Aug 2002



Prior to the law change, this proportion fluctuated around a mean of just under 6% for several years, with no evidence of a trend over time. There is some indication of a slight increase during 1998; to be conservative we have used the longer period from January 1994 as the "before" period. The graph shows an apparent drop in the proportion who are disqualified or unlicensed from May 1999.

 

To see whether this difference was significant, a regression model was fitted to the data. The proportion of crash involved drivers who were disqualified or unlicensed was modelled against a time trend term with an intervention at May 1999. No significant underlying trend was found. To be conservative, the small positive (non-significant) trend effect was omitted from the final model, as including it would tend to overstate the drop at May 1999.

 

The proportion of crash involved drivers who were disqualified or unlicensed decreased from an average of 5.8% of all drivers in the before period (Jan 1994 - April 1999) to 4.0% of all drivers in the forty months following the introduction of vehicle  impoundment (May 1999 – August 2002). A 95% confidence interval for this decrease of 1.9%[1] percentage points is (1.5, 2.2) percentage points.

 

Summary:

 

The role of disqualified and unlicensed drivers in crashes has decreased since the introduction of vehicle impoundment, mandatory licence carriage and photo driver licences. The proportion of crash involved drivers who were disqualified or unlicensed decreased by between 1.5 and 2.2 percentage points (95% confidence interval) when these interventions were introduced, from 5.8% of all drivers to 4.0%. The number of crash-involved disqualified and unlicensed drivers reduced by approximately a quarter relative to other drivers.



[1] Figures quoted have been rounded. This decrease was calculated before rounding.


Disqualified Driving Offences

 

The following data were provided by the Police who have been monitoring the impact of the new regimes (roadside vehicle impoundment, mandatory licence carriage and photo driver licences) on the numbers of offences they detect for driving while disqualified. 

 

The graph below presents the numbers of offences detected each month.  The graph shows a reduction in offences for each month from May 1999 when the new interventions came into effect.   This reduction is especially marked in the first year.

 

Disqualified driving offences detected by the Police each
month from May 1998 - June 2002

 

The size of the effect becomes apparent if the numbers of disqualified driving offences are aggregated on an annual basis (ie for the year before the regime came into effect) and compared to both the first, second abd third years of the new regime.  This is shown in the graph below.    Overall, there has been a 38% reduction in the number of disqualified driving offences from the year before the regime came into effect to the third year of new regime.   From the first year of the new regime, there has been a further 8% reduction in disqualified driving offences detected by the Police between Year 1 to Year 2 of the new regime and a further 6% reduction from Year 2 to Year 3.

 

Disqualified driving offences detected by the Police each year

 

Mandatory Licence Carriage

 

Since 3 May 1999, all drivers have been required to carry their licences with them at all times when driving so that they can immediately produce them for inspection at the request of an enforcement officer.  Self-reported compliance with this requirement  is measured by an annual public attitude survey that is commissioned by the LTSA and NZ Police. Drivers are asked to report how often they carry their licences with them when driving.  This issue was first canvassed in the 1998 survey a year prior to the law change and has continued to be included ever since.

 

Percentage of People who Report Carrying Their Licenses when Driving (Public Attitude Survey)

 

The percentages in the above graph relate to the percentages of respondents in the survey who report they carry their driver licences with them always or most of the time when driving.   The percentages recorded in 1999 and 2000 are significantly different from those in the previous year.  The 2001 result is maintained at 96% with a  small (1%) reduction in 2002.  The 1999 survey was conducted just after the law change came into effect in May 1999.  Anecdotal information suggests that a number of licence holders found it difficult to comply with the new requirement as they had lost or mislaid their old synthetic paper licences and had a number of months to wait before upgrading to their photo driver licence around the time of their birthday.  The increase in self-reported compliance in the Year 2000 survey could be partly due to the near completion of the photo driver licence upgrades so that people had a licence to carry and also a greater awareness over time of the new requirements.

Vehicle Impoundment


Since this regime came into effect in May 1999, the Police report the following numbers of vehicle impoundments per month.

No of vehicles impounded by the Police per month since May 1999

Since the new regime came into effect, the number of impoundments per month averages about 1100 although the monthly totals fluctuate.  The likely reason for the decline from about July 2000-October 2000 is to be due the impacts of a court case in which Police powers to forbid a driver to drive were challenged [NZ Police v Sinclair].  In this case, a driver (Ms Sinclair) was detected driving without an appropriate driver licence (ie she was driving on an expired synthetic paper licence).  She was duly forbidden by the Police to drive until she renewed her driver licence by upgrading to a photo driver licence.  Several hours later she was detected again driving on an expired licence.  As the ‘forbidden to drive’ warning was still in effect, her vehicle was seized by the Police and impounded under the 28 day roadside vehicle impoundment regime.  In the following court-case, the Judge found that the Police did not have the power to forbid the holder of an expired licence to drive and therefore did not have the power to impound her vehicle.  The Police appealed this ruling and it was subsequently overturned by the High Court in October 2000.  While waiting for the appeal to be heard in the High Court the Police stopped forbidding the holders of expired licences to drive.  Therefore, these drivers would not have been subject to vehicle impoundment if they were detected driving on their expired licence on a subsequent occasion.  Once the High Court clarified the status of an expired licence for the purposes of forbidding the holder of an expired licence to drive, the Police resumed applying the ‘forbidden to drive’ warning to holders of expired licences.  This is likely to be why the numbers of impoundments began to increase again in October.  

 

The graph below shows annual counts of the number of  vehicles impounded by the Police since the regime came into effect.  The number of impoundments are lower for 1999 as the regime did not operate for the full year.   In 2001, the number of impoundments has increased by 582 over the total for the year 2000  and in 2002, reduced by 782.

No of vehicles impounded by the Police each year since May 1999



A question has been raised to why the number of impoundments has remained so high when disqualified driving offences detected by the Police have reduced significantly over the time in which vehicle impoundment regime has been operating.  This is likely to be due to the other contributing offences to vehicle impoundments (ie unlicensed drivers or holders of expired licences who have been forbidden to drive until they obtain a licence).  Unfortunately, Police statistics do not record the type of offence that activated the impoundment (ie whether a disqualified driving offence or an unlicensed/expired licence driving offence).  It is not easy to distinguish these offending from licence offences since there is a generic offence “driving without an appropriate current driver licence” that applies to never licensed drivers, drivers on expired licences and drivers who drive on the wrong class of licence.