A District Court judge says it was clear Parliament intended for courts to decide how forfeited gang regalia should be dealt with.
A judge has ordered police to return a Mongrel Mob member’s patch seized during a traffic stop, saying the public display of it involved no public disorder, threats, or violence.
“At best, some lowish-level angst between a motorist and a police officer occurred,” Judge Bruce Davidson said in a reserved decision released yesterday.
“His patch had nothing to do with their interaction other than it is what undoubtedly attracted police attention.”
Lawyer Chris Nicholls, who represented Syd Te Rata, welcomed the decision.
He said it valued personal property rights and confirmed gang members had the same property rights as anyone else.
“It’s not illegal to own a patch, it’s just illegal to wear it in public,” he told NZME.
It’s the second time in as many months that the courts have ordered the return of gang insignia to gang members, after last year’s law came into effect, banning the wearing of patches in public places.
According to the District Court decision, Te Rata was stopped around 3.30am on April 19, riding his motorcycle in central Lower Hutt while wearing his Mongrel Mob patch.
The decision noted the 40-year-old was uncooperative and verbally aggressive towards police.
He tried to pull away from the officer and at the police station he refused a breath test or to give a blood sample.
Te Rata also didn’t have a motorcycle licence.
In explanation, he said he had been stopped after returning from visiting the home of a friend who’d recently died.
He’d visited the man before his tangi and, in an affidavit, explained his emotions had got the better of him.
“I have known the man all my life and for a substantial part of my life. He had encouraged me to get off methamphetamine and go to the gym instead.
“I was really upset when he passed away. I had gone to his home because I wanted to be close to him. I had deliberately worn my patch because, in wearing that patch, it made me feel emotionally closer to him.”
The judge’s decision to return his patch followed Te Rata’s sentencing for the April offending.
In July, he was sentenced to community detention and supervision for refusing to provide a blood specimen, and convicted and discharged on charges of driving while forbidden, resisting a police officer and displaying gang insignia in public.
However, at that hearing, Te Rata, through his lawyer, sought to have his patch returned, explaining that he had been a member of the Mongrel Mob Notorious chapter for a decade, having been associated with the gang since he was young.
“My dad, uncles, and my granddad and my grandad’s brothers were all patched Mongrel Mob members ... I consider my patch as akin to my family crest,” he said.
Police opposed the application.
Nicholls submitted that when the law was passed, Parliament said the courts were best placed to determine whether destruction or some other method of disposal was appropriate.
Judge Davidson agreed, finding that the courts had broad discretion regarding how forfeited gang regalia should be dealt with.
“It vests that discretion in the court; if all that Parliament ever intended was destruction and deprivation from the offender, it would have said so.”
He said this was because, at the conclusion of a case, the courts were in the best position to weigh the circumstances of an offence against the offender’s circumstances.
“I conclude that the words ‘otherwise dispose of’ are sufficiently wide to include return to an offender,” the judge said.
Turning to the question of whether Te Rata should get his patch back, the judge noted that Te Rata had worn the patch to a private gathering to mark the death of someone close to him.
Judge Davidson stated that wearing or carrying an item associated with a deceased person was common in cultures worldwide.
“He foolishly wore it as he rode home. The streets would have been largely deserted. There was no public disorder. There were no threats, no violence.
“Mr Te Rata says it will not happen again. He says he has learned his lesson. His affidavit on these points is unchallenged. Why would he fight for the return of his gang patch only to wear it again and have it seized and destroyed?
“In the particular circumstances of why, when, and where he was wearing his patch and the unchallenged evidence of its value to him, it should be returned to him.”
Nicholls said the decision reflected a set of exceptional and emotional circumstances, where someone had made a mistake.
“The law should recognise that and take a humane and compassionate approach,” he said.
Nicholls said he had written to police asking for the patch to be returned, but didn’t expect that would happen until the appeal period had expired.
Catherine Hutton is an Open Justice reporter, based in Wellington. She has worked as a journalist for 20 years, including at the Waikato Times and RNZ. Most recently she was working as a media adviser at the Ministry of Justice.