A gang member – caught out by the Government’s patch ban – will get their Mongrel Mob patch back following a ruling by a district court judge.
Syd Te Rata was wearing the patch while riding his motorcycle around 3.30am on April 19 when he was stopped by police.
In July, Te Rata, who pleaded guilty in the Lower Hutt District Court to wearing his Mongrel Mob patch in public, argued the judge had discretion to return it to him.
The Gangs Act 2024 states that when a person pleads guilty or is convicted, the gang insignia is forfeited to the Crown. It may then be destroyed or “otherwise disposed of” as the court directs.
Te Rata’s lawyer Chris Nicholls argued at the time that the phrase “otherwise disposed of” allowed judges to return the items to their owners.
“The court ultimately has a wide and unfettered discretion,” Nicholls said.
“There’s nothing in the law, and I’m certainly no legal scholar but from what I can see, that says this can’t happen.”
Police prosecutor Emily Eden told the court “otherwise disposed of” did not include returning a patch.
“It directly contradicts the purposes of the act.”
Te Rata was given a discharge without conviction, after the court was told he was wearing the patch while in a period of mourning for a loved one.
On Tuesday aternoon, Lower Hutt District Court judge Bruce Davidson ordered the patch to be returned to Te Rata.
In his decision, Davidson said if all Parliament had intended was the destruction of a patch, it would have said so.
“Return to an offender is neither expressly or implicitly precluded. It is an open and available avenue of relief for the court as long as proper regard is given, in each the particular case, to the Act’s purposes and Parliament’s intent,” he wrote.
“I conclude that the words ‘otherwise dispose of’ are sufficiently wide to include return to an offender.”
It’s understood to be the second time a district court judge has ordered the return of a gang patch to a member.
In a statement to 1News, Nicholls said his client was “very pleased”.
He said he had written to police to see when Te Rata could pick up his patch from a police station.
“Obviously my client’s patch is a very important personal possession to him.
“What it means for my client is that he can now keep his patch and wear it in private.”
Nicholls said Te Rata knew he couldn’t wear it in public, and “wouldn’t want to jeopardise losing it” by doing so.
“This is an important case about the protection of personal property rights, which gang members have the same as everyone else.
“I agree with the judge that the court is in the best position after hearing all the facts to decide what should happen to gang insignia seized. In this case, Mr Te Rata’s explanation for wearing the patch was accepted without challenge by the police and that provided a good and reasonable reason for its return.”
