Gang patch wearers caught out by the Government’s ban are asking for their patches to be handed back.
Syd Te Rata, who pleaded guilty in the Lower Hutt District Court to wearing his Mongrel Mob patch in public, argues the judge has 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 the phrase, “otherwise disposed of”, allowed judges to return the items to their owners.
“The court ultimately has a wide and unfettered discretion,” said Nicholls.
“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.”
However, AUT law professor Kris Gledhill told 1News he thinks Nicholls has a credible argument. “That language ‘otherwise disposed of’ clearly means something other than destroy.”
He said if Parliament wanted to be more specific, it could have, but it didn’t. “So, it’s left it entirely to the discretion of the judges to come up with a suitable decision on each individual case.
“There’s nothing in the legislation that says it can’t go back to the owner.”
The purpose of the Government’s crackdown was reduce the ability of gangs to operate and cause intimidation by stopping the wearing of patches in public.
Gledhill said if the Government didn’t intend for gang members to get their patches back, it should have made that clear.
“[The Government] had their opportunity when they were passing through this legislation. They didn’t put in language that says it can’t go back.”
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.
Nicholls said the offence was a mistake, not a flagrant breach and asked the court to make a concession and return the patch as a one-off.
Gledhill said it was possible, for low level offending, that judges might decide to return patches.
“A judge could quite properly say it’s disproportionate to take the patch away from you entirely, so you can have it back but just take care, don’t wear it in public.”
A similar argument had also been heard in the Palmerston North District Court.
In both cases, the judges have reserved their decisions.
But Gledhill said district courts didn’t really set precedents and the claims may end up being escalated.
“I kind of suspect what will happen with this run of cases raising similar arguments that, at some stage, someone’s going to take an appeal up to the High Court and the High Court is where precedent starts getting set.”
