THE QUEEN v CAROL ANN MOORE [2002] NZCA 229 (7 November 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca164/02

THE QUEEN

V

CAROL ANN MOORE

Coram:	Keith J Blanchard J Tipping J
Counsel:	C J O'Neill for Appellant A J Bull for Crown
Judgment (on the papers):	7 November 2002

judgment of the court delivered by tipping j

[1] This appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Offences and sentence

[2] The appellant was convicted on pleas of guilty to three charges of supplying a Class B drug, namely morphine sulphate.She was sentenced on 10 May 2002 in the High Court at Christchurch to 20 months imprisonment with leave to apply for home detention.Further, an order was made pursuant to s32(4) of the Misuse of Drugs Act 1975 for the forfeiture of the appellant's motor vehicle on the basis that the vehicle was used in the commission of the first of the offences.The Judge commented that forfeiture was mandatory under s32(4) unless it was considered unjust to do so.The Judge was not satisfied that it would be unjust to order forfeiture and made an order accordingly.

Relevant facts

[3] On three occasions in November and December 2001 the appellant sold a quantity of morphine sulphate tablets to an undercover police officer.On 27 November 2001 the appellant met the officer on a street corner.The officer got into the appellant's motor vehicle and purchased five morphine sulphate tablets (charge one).On 30 November 2001 the appellant met the officer on a city street and drove him in her vehicle to a nearby property where a sale of 80 tablets took place (charge two).The third charge related to the sale of five tablets to the officer on 7 December 2001 in circumstances similar to those of the first charge.A total of 3,400 milligrams of morphine sulphate was exchanged for $2,200 in the course of these three transactions. It was accepted by the sentencing Judge that the appellant's role in this offending was that of an intermediary.

Grounds of appeal

[4] The appeal is only against the Judge's order for forfeiture of the appellant's motor vehicle pursuant to s32(4).Section 32(4) provides, inter alia, that where any motor vehicle owned by the convicted person was used by that person in the commission of that offence, the Court shall, unless in the circumstances of the case the Court considers that it would be unjust to do so, order forfeiture of that vehicle.

[5] The appeal proceeds on two bases.First, it is submitted that the order for forfeiture was not mandatory as the vehicle was not used in the commission of the offences as is required by s32(4).The appellant submits that the intention of the legislature must have been to require confiscation where someone was using something in the commission of the offence that was necessary for the facilitation of the offence or made to be an integral part of the offence.In this case, it is the appellant's contention that the motor vehicle was not used in the commission of the offence; rather, its use was merely incidental to the offence.

[6] The appellant's second submission is that the Judge was required to consider more than simply whether forfeiture was "unjust".It is submitted that the factors set out in s84(4) of the Criminal Justice Act 1985 as to what constitutes "unjust" should be considered in a case falling under s32(4).Such factors include undue hardship to the offender, undue hardship to any other person who would otherwise have the use or benefit of the vehicle, the nature and extent of the offender's interest in the vehicle, and such other considerations as the Court thinks fit.This being the case, the sentencing Judge was required to undergo a more exhaustive analysis of the facts of the case and the factors relating to the motor vehicle when determining whether forfeiture was appropriate.Had this been done, the factors referred to in the pre-sentence report as to the appellant's personal financial position and many other factors would assume greater importance.The failure to consider these matters meant that the order for forfeiture was wrongly made.

Reasons

[7] We have no doubt that the appellant's motor vehicle was used in the commission of the offence.Although the Judge only relied on the first charge when making the order for forfeiture, we are of the view that the vehicle was used in all three charges to aid the sale of the drugs to the undercover officer.The appellant arranged to meet the officer at a different place before each sale, and her vehicle was a necessary base to supply the drugs on each occasion.

[8] The sentencing Judge did not fall into error when considering whether it would be unjust to order forfeiture.There is a statutory presumption in favour of forfeiture unless the Court considers it unjust to do so, having regard to the circumstances of the case.Having found that the vehicle was used in the commission of the offence, the Judge proceeded on the basis that an order for forfeiture was mandatory unless he considered that such an order would be unjust.The sentencing Judge had before him all relevant documents to determine whether forfeiture would be unjust- the summary of facts, the pre-sentence report and the references filed in support of the appellant.It was certainly open to him to find that forfeiture would not be unjust.Indeed, having read that material, we agree with his assessment.

Decision

[9] The appeal is dismissed.

Solicitors

Crown Law Office, Wellington