MacPherson v R [2012] NZCA 552 (28 November 2012)

Last Updated: 4 December 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA643/2011 [2012] NZCA 552

BETWEEN IAN CAMPBELL MACPHERSON Appellant

AND THE QUEEN Respondent

Hearing: 1 November 2012

Court: Harrison, Chisholm and Ronald Young JJ

Counsel: A G Speed and S Withers for Appellant K Raftery for Respondent

Judgment: 28 November 2012 at 10 am

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.

2. The appeal against sentence is allowed in part.

100. The order for forfeiture to the Crown of 50 per cent of the appellant’s interest in the Carter Road property is quashed and replaced with an order for forfeiture of 25 per cent of such interest.

4. In other respects the sentence stands.
   

REASONS OF THE COURT

(Given by Chisholm J)

Introduction

[1] After a three week trial before Lang J and a jury in the Auckland High Court Ian Macpherson was found guilty on six charges: manufacturing methamphetamine; possessing a precursor substance; producing cannabis resin; possession of cannabis resin for supply; possession of cannabis for sale; and possession of a methamphetamine pipe. Before trial he had pleaded guilty to cultivating cannabis. He was found not guilty on three further charges.
[2] Following conviction and before imposing sentence Lang J made an order under s 142N of the Sentencing Act 2002 forfeiting 50 per cent of Mr Macpherson’s interest in a property at 214 Carter Road, Oratia, to the Crown.[1] In monetary terms this amounted to approximately $380,000. At sentencing[2] Mr Macpherson was also sentenced to nine months home detention. His co-accused, Warwick Mack, was sentenced to nine years imprisonment.[3]
[3] Mr Macpherson appeals against conviction and sentence. His conviction appeal relies on two grounds:

• (a) refusal to sever his trial from Mr Mack’s trial led to a miscarriage of justice; and
• (b) the jury was misdirected about whether Mr Macpherson had “produced” cannabis resin in terms of s 6(1)(b) of the Misuse of Drugs Act 1975.

The appeal against sentence alleging that the sentence was manifestly excessive focuses on the order for forfeiture.

Background

[4] Events giving rise to the trial spanned a period of almost four and a half years from September 2005 to January 2010. Four different properties were involved, of which one belonged to Mr Macpherson.
[5] On 23 September 2005 the police executed a search warrant at 3 Gum Road, Henderson, where Mr Mack was using a garage for panel-beating motor vehicles. A sophisticated clandestine laboratory was discovered in the garage, although the laboratory was inactive at the time. As a result of that search Mr Mack faced a charge of manufacturing methamphetamine, possession charges, and charges concerning firearms. Mr Macpherson was not involved.
[6] Five days later the police executed a search warrant at 21 Tirimoana Road, Glendene. Mr Mack occupied a flat at that address. Although chemicals and precursor substances were found, there was no evidence that methamphetamine had been manufactured at the address. As a result of this search Mr Mack faced three possession charges. Initially Mr Macpherson also faced charges because his fingerprints had been discovered on a glass jar at the address, but he was subsequently discharged on those charges.
[7] Following this search Mr Mack disappeared and was effectively a fugitive until he was found by the police when they executed a search warrant at the third address, 214 Carter Road, Oratia, on 12 November 2009. This property (since forfeited) was owned by Mr Macpherson. For around 12 months Mr Mack had also lived off and on at this address.
[8] The search of Carter Road revealed chemicals, materials and equipment that could be used for the manufacture of methamphetamine. Scientific analysis revealed that methamphetamine had been manufactured at the address. Growing cannabis and cannabis resin were also found. Joint charges of manufacturing and selling methamphetamine and possession of various items were laid against Mr Mack and Mr Macpherson. In addition Mr Macpherson was charged with producing cannabis resin, possession of cannabis resin for sale, cultivating cannabis, and possession of cannabis for sale.
[9] The fourth search on 6 January 2010 involved 8 Sherrybrooke Place, Sunnyvale. As a result of that search Mr Mack faced charges of possession of utensils and possession of ammunition. Mr Macpherson was not involved.
[10] Before trial both Mr Macpherson and Mr Mack sought severance. The crux of the argument for Mr Macpherson was that he might be found guilty by association with Mr Mack if the charges were not severed. Having provided suggestions as to the order in which the Crown evidence should be presented (chronological order) and directions that might be given by the trial Judge, Priestley J concluded that a joint trial would not give rise to any illegitimate prejudice or unfairness to Mr Macpherson.[4] His application for severance was dismissed, as was Mr Mack’s application.

Appeal against conviction: severance

Case for appellant

[11] Mr Speed submitted that severance should have been granted under s 340(3) of the Crimes Act 1961 at the time that the application was heard. Alternatively, he submitted, severance should have been granted at the conclusion of the Crown’s case by which time Mr Macpherson had been discharged on all the counts against him relating to events in 2005. Mr Speed claimed that once Mr Macpherson had been discharged on those charges, the remaining charges against him had no connection in terms of time, place, or circumstance with events in 2005.
[12] It was also claimed that Priestley J’s ruling effectively imposed a “cut-throat” defence on Mr Macpherson. This was on the basis that the ruling foreclosed any chance of Mr Macpherson denying that manufacturing had taken place at Carter Road. Moreover, submitted Mr Speed, Mr Macpherson was “artificially woven” into a pattern of serious and sustained offending by Mr Mack and the sheer volume of this offending made it impossible for the jury to determine Mr Macpherson’s guilt or innocence by reference to evidence that was admissible against him.
[13] Mr Speed also argued that the appellant’s situation is analogous, if not identical to, the situation of the co-accused in R v Collins[5] where severance was granted because of the risk the jury would conclude that the offending in which the co-accused were involved was a continuation of the earlier offending involving only the primary offender. Mr Speed argued that the same risk in this case could not be avoided by direction to the jury.

Our conclusions

[14] While s 340(1) of the Crimes Act permits any number of counts to be joined in the same indictment, severance of any one or more counts may be ordered under s 340(3) if it is “conducive to the ends of justice to do so”. When determining that issue the Court needs to balance the interests of an accused against the public interests in the fair and efficient dispatch of the Court’s business: R v Wilson.[6]
[15] Notwithstanding the gap in time between Mr Mack’s offending in 2005 and his offending in 2009–2010, it was inevitable that all charges against him would be heard together. Thus severance of the joint charges against Mr Macpherson turned on whether any unfair prejudice to him outweighed the obvious public interest in having the charges involving both accused heard at the same time.
[16] As Priestley J foreshadowed, there was a clear distinction, both chronologically and in terms of location, between events giving rise to the charges against Mr Mack alone and those giving rise to the joint charges against both accused. Indeed, this distinction was so clear-cut that counsel for Mr Macpherson was excused from attending the trial while evidence that only concerned Mr Mack was being presented. And the underlying factual scenario involving Mr Macpherson became even more discreet after he was discharged on the charges relating to events in 2005.
[17] If there was any uncertainty in the minds of the jurors about the admissibility of evidence against Mr Macpherson, it would have been dispelled by Lang J’s extremely clear and comprehensive directions which were repeated at strategic points of the trial (at the beginning, when particular witnesses were called, and during summing up). In addition, Lang J provided the jury with a very comprehensive, accused specific, question trail. The jury’s acquittal of Mr Macpherson on three counts indicates that they understood, and applied, the Judge’s directions.
[18] We reject the proposition that refusal to grant severance ruled out any prospect of Mr Macpherson advancing a defence that manufacturing had not taken place at Carter Road. Even if severance had been granted, the Crown could still have led evidence against Mr Macpherson about the manufacture of methamphetamine at that address; for example, scientific evidence to that effect and the video footage of Mr Macpherson purchasing a 20 litre container of toluene. Regardless of whether there were joint or separate trials, the Crown had a strong case that methamphetamine had been manufactured at Carter Road.
[19] While we acknowledge that there are close parallels between the factual situation in this case and that in Collins, the pre-trial ruling in that case is of limited assistance. It is not unusual for pre-trial rulings on severance to be finely balanced and, as this case illustrates, for different judges to reach different conclusions on similar factual scenarios. However, our task is to decide whether a miscarriage of justice resulted in this case, and, having considered all the circumstances including Lang J’s directions to the jury, we are perfectly satisfied that it did not.
[20] This ground of appeal against conviction fails.

Appeal against conviction: cannabis resin

[21] Count 16, which arises from the discovery of 7.8 grams of cannabis resin at Carter Road, alleges that Mr Macpherson “produced a Class B controlled drug, namely cannabis resin”. With reference to that count Lang J directed the jury:

[121] Mr Macpherson told you that ... in the police interview ... that when you are handling dried cannabis plant, and particularly cannabis heads it becomes sticky. The stickiness rubs off on your fingers. If you rub your fingers together then it will ball up or solidify in some way, and that’s hash, that is resin. And all he did was to take the resin off his hands and put it in that bag. He collected it together. His evidence was “I didn’t produce the resin, the plants did”. Well that might be a layman’s way of looking at it all, but legally that isn’t how it operates. In this case our Misuse of Drugs Act says that “to produce” an item includes to compound it. “Compound it” means to put bits together till you get a whole. So I can tell you that legally if you take resin on your hands, rub it together, put it together in a block, then that is producing it in legal terms.

Mr Speed submitted that this direction was erroneous in law because the actions of Mr Macpherson did not “produce” cannabis resin in terms of s 6(1)(b) of the Misuse of Drugs Act.

Argument for Mr Macpherson

[22] Mr Speed submits that the Judge’s definition of “compound” was wrong. To compound something is to combine it with another element, not the simple accumulation of a larger amount. This is consistent with the dictionary definition of compound which involves mixing or combining ingredients or constituents.
[23] This analysis is supported by Re Parke[7] in which Roper J held that the drying and pulverising of dried mushroom material for easier consumption did not amount to producing “magic mushrooms” for the purposes of s 6(1)(b) of the Act. It is also supported by R v Jordan[8] where Salmon J decided that crushing morphine sulphate tablets and mixing with baking soda and vinegar before heating did not constitute producing morphine.
[24] The ordinary and natural meaning of “produce” or “compound” requires a more sophisticated effort than removing sticky material that was already in existence from one’s hands. No new substance has been brought into existence and there has been no alteration to the existing compound and active ingredient present on the outside of the cannabis head. Further, there was no intention to modify or process the head material to resin.

Response for Crown

[25] Mr Raftery responds that in R v Rua[9] this Court held that the words “produce” or “manufacture” in s 6(1)(b) broadly cover the creation of controlled drugs by some form of process which changes the original substances into a particular controlled drug. This reflects sch 2 of the Misuse of Drugs Act which expressly contemplates that cannabis resin is produced by subjecting cannabis plant material to “any kind of processing”.
[26] According to Mr Macpherson’s video interview he produced the cannabis resin found in his home by rubbing his hands together after harvesting the cannabis. Detective Sergeant Sowter confirmed that cannabis resin can be produced in this way. If Mr Macpherson did not produce cannabis resin, we are left with the “nonsense conclusion that no-one did”.
[27] The cases relied on by Mr Macpherson are distinguishable. They make it clear that a change in chemical make-up is required when one drug is “produced” from another. In each of those cases an example was given of a process that would not qualify as production: rolling a cannabis cigarette[10] and dissolving aspirin in water.[11]

Our conclusions

[28] In broad terms we agree with Mr Raftery’s analysis.
[29] As already noted, count 16 alleges that Mr Macpherson “produced ... cannabis resin”. While s 2 of the Misuse of Drugs Act states that “produce includes compound; and production has a corresponding meaning”, for present purposes the focus needs to be on the word “produce” rather than the word “compound”.
[30] According to the Shorter Oxford Dictionary “produce” means:

To bring forth, bring into being or existence ... To bring a thing into existence from its raw materials or elements ... To ... yield.

Once that definition is applied to Mr Macpherson’s admitted actions it becomes clear that he brought the cannabis resin into existence by rubbing his hands together after harvesting the cannabis plant.

[31] We agree with Mr Raftery that this analysis is supported by the scheme of the Act. Schedule 2 of the Act, which lists Class B controlled drugs, includes:

Cannabis preparations: that is, any preparation containing any tetrahydrocannabinols, including cannabis resin (commonly known as hashish) ... produced by subjecting cannabis plant material to any kind of processing.

(Emphasis added.)

In other words, the legislature has expressly stated that cannabis resin can be produced by subjecting cannabis plant to any kind of processing. Sophistication is not a yardstick.

[32] Equally importantly it is clear that for the purposes of the Act cannabis plant and cannabis resin are different substances. Whereas the plant is a Class C controlled drug, the resin is a Class B drug. Schedule 3 of the Act, which lists Class C drugs, states that “cannabis plant” includes “any part of any plant of the genus Cannabis except a part from which all the resin has been extracted”,[12] which again reflects the distinction between the plant and the resin.
[33] Given this statutory structure it is not surprising that this Court observed in Rua:

[12] The words “produce” or “manufacture” in s 6(1)(b) broadly cover the creation of controlled drugs by some form of process which changes the original substances into a particular controlled drug.

We are satisfied that the Crown proved beyond reasonable doubt that Mr Macpherson changed the cannabis plant he had harvested into another controlled drug, cannabis resin.

[34] While we agree with Mr Raftery that Parke and Jordan can be distinguished, our reasoning is slightly different. In Parke Roper J concluded that the drying and pulverising of the mushroom material for ease of consumption “produced nothing new and brought nothing into being”.[13] And in Jordan Salmon J decided that in the absence of evidence as to any chemical changes that might have taken place as a result of the process to which the morphine sulphate tablets were subjected, he was unable to hold that morphine sulphate had been produced.[14] By contrast there was clear evidence in this case that cannabis resin was produced by the actions of Mr Macpherson.
[35] Finally, we reject Mr Speed’s submission that there was no intention to modify or process the head material to resin. The question trail before the jury required them to be satisfied beyond reasonable doubt that Mr Macpherson “... knew that cannabis resin was being produced and intended that result”. Clearly the jury was satisfied that this element had been proved by the Crown to the requisite standard.
[36] This ground of appeal against conviction also fails which means that the appeal against conviction cannot succeed.

Appeal against sentence

[37] Given the Crown’s application for an instrument forfeiture order, it was necessary for that application to be determined before Mr Macpherson was sentenced so that any order could be taken into account when sentence was imposed.

Forfeiture decision

[38] It was not disputed that the offences in respect of which Mr Macpherson had been convicted were qualifying offences in terms of the instrument forfeiture legislation. Lang J also held that the Carter Road property was “an instrument of crime” in terms of s 142N of the Act.
[39] Section 142N(2) sets out the considerations the Court may have regard to:

142N Instrument forfeiture orders

...

(2) In considering whether or not to make an instrument forfeiture order under subsection (1) in respect of particular property, the court may have regard to—

(a) any matter raised in an application for relief under section 142J; and

(b) the use that is ordinarily made, or was intended to be made, of the instrument of crime; and

(c) any undue hardship that is reasonably likely to be caused to any person by the operation of such an order; and

(d) the nature and extent of the offender’s interest in the instrument of crime (if any), and the nature and extent of any other person’s interest in it (if any); and

(e) in addition to the matters referred to in section 77(1) of the Criminal Proceeds (Recovery) Act 2009, any other matter relating to the nature and circumstances of the qualifying instrument forfeiture offence or the offender, including the gravity of the qualifying instrument forfeiture offence.

...

Although Lang J covered each of these matters, a relatively brief summary will suffice.

[40] With reference to the use that was ordinarily made of the property, Lang J noted that it had been owned since 1996 and that it had been primarily used throughout as Mr Macpherson’s place of residence and as an office from which he conducted his mobile windscreen repair business. The Judge continued:[15]

[35] The evidence established, however, that Mr Macpherson regularly used the property for the consumption of cannabis. During the 18 month period leading up to 12 November 2009 he also used the property to grow, harvest and store a reasonably significant quantity of cannabis.

[36] In addition, during the 12 month period leading up to 12 November 2009, Mr Macpherson allowed it to be used periodically to store items associated with the manufacture of methamphetamine. He also permitted it to be used on at least one occasion for the actual manufacture of methamphetamine. I accept that these activities were, however, very much subsidiary to his primary use of the property as a residence and place of business. He did not modify the property in any way to accommodate the activities in respect of which he has now been convicted.

There were further references to the scope of the offending later in the judgment.[16]

[41] Turning to undue hardship, the Judge noted that while the property was held in trust, Mr Macpherson, as sole beneficiary under the trust, was the only person who would suffer real hardship if an instrument forfeiture order was made. He accepted that Mr Macpherson had created the equity in the asset using funds earned or acquired from legitimate sources, including an inheritance from his late father. The Judge set the value of the property at $780,000. Approximately $14,000 was owing to a bank by way of mortgage.
[42] Lang J also accepted that the property represented the only asset of any significance that Mr Macpherson had been able to acquire and that if he lost his home he would be forced to find rental accommodation in which to live and from which to conduct his business. He noted that at 46 years of age Mr Macpherson was concerned that he would be unable to acquire another property in the future. However, Lang J concluded that hardship was an intended consequence of the instrument forfeiture regime and that Mr Macpherson had failed to demonstrate the necessary undue hardship to avoid an order being made.
[43] After considering the nature and extent of Mr Macpherson’s interest in the property, Lang J turned to “other matters” under para (e). Although he considered the methamphetamine related offending was serious, he concluded that the evidence did not permit any conclusion to be reached regarding the extent to which manufacturing had taken place and he could not discount the possibility that it may have only occurred on one or two occasions. The fact that the manufacturing was not for commercial gain was also seen as “significant”.
[44] In relation to the cultivation of cannabis the Judge proceeded on the basis that cultivation had occurred on at least two occasions during the 18 month period prior to the police search. However, it did not involve sophisticated growing methods and:

[50] ... Although the jury’s verdict means that a degree of commerciality was involved, I am satisfied that sales were likely to have been to friends and associates. The cannabis-related offending was therefore at the lower end of the spectrum in terms of seriousness.

The Judge took into account, however, that there had been two separate forms of offending. Given the age of the appellant’s previous convictions,[17] Lang J regarded them as “a neutral factor”.

[45] On the other side of the coin the Judge accepted that Mr Macpherson was a hardworking individual who had gainful employment and was likely to continue to retain that status if given the chance to do so. The Judge commented that it would be unfortunate if Mr Macpherson’s financial position was reduced to the point that he would be a burden on the state, or worse, was forced to return to drug related activity in order to supplement his income.
[46] Having traversed all the matters referred to in s 142N, the Judge reached the following conclusions:

[54] The seriousness of the offending, and in particular the fact that Mr Macpherson was prepared to involve himself in both methamphetamine and cannabis-related activities at his home, mean that the deterrent purposes of the legislation must be given effect. In the absence of undue hardship to Mr Macpherson, I consider that an instrument forfeiture order is required in the present case.

[55] I am satisfied, however, that forfeiture of the entire property would be disproportionate to the gravity of the offending in the present case. Of particular significance is the fact that the property was derived from legitimate funds well before the offending took place. The property was used as Mr Macpherson’s family home for a very considerable period before he became involved in the offending, and it was primarily used for that purpose once the offending began. The offending was also towards the lower end of the scale of its type. Those factors must, in my view, be given recognition. I therefore consider that Mr Macpherson should be entitled to receive an amount equivalent to 50 per cent of the net sale proceeds of the property.

The property was vested in the Crown and 50 per cent of Mr Macpherson’s interest was forfeited.

Sentencing

[47] At sentencing Lang J proceeded on the basis that Mr Macpherson’s culpability on the methamphetamine related charges lay, first, in providing the premises at which Mr Mack could manufacture methamphetamine and, secondly, in providing active assistance and encouragement to him. The Judge accepted that the methamphetamine was manufactured for personal use and/or for sharing with associates. However, he considered that a deterrent sentence was required.
[48] Having noted that R v Fatu[18] identified four years imprisonment as being the lowest starting point on a charge of manufacturing methamphetamine (which he had used for Mr Mack in relation to Carter Road), Lang J adopted a starting point of three years imprisonment. This reflected that Mr Macpherson was only a secondary party to the manufacture of methamphetamine at Carter Road.
[49] In relation to the cannabis offending the Judge said that he would ordinarily have taken a starting point of two and a half years imprisonment on the basis that this was “for offending on a relatively small scale”[19] in terms of R v Terewi.[20] He also noted that he would have to apply a discount of approximately 20 per cent for the guilty plea. However, applying the totality principle Lang J reduced the overall starting point to four years imprisonment and he accepted that there were no aggravating factors justifying any increase to that starting point.[21]
[50] Lang J then turned to the forfeiture order:

[26] In a judgment delivered on 19 August 2011 I directed that your house property was to be forfeit to the Crown and was to be sold. Of the net sale proceeds, 50 per cent was to be returned to you. I made that order in light of a Crown submission that, when that order was taken into account, an appropriate end sentence was 12 months home detention. You therefore stand to benefit to that extent from the instrument forfeiture order that I have made. Ordinarily, therefore, I would now sentence you to 12 months home detention.

Having noted that the appellant had spent two months in custody while awaiting sentence and a further month on a 24 hour curfew, Lang J imposed an end sentence of nine months home detention.

Submissions for Mr Macpherson

[51] Mr Speed submits that the starting point of four years was too high. It failed to properly reflect the absence of commerciality in relation to the methamphetamine offending and the “negligible” commerciality in relation to the cannabis offending. It was also out of step with the starting point of the primary offender who had also offended at three other locations.
[52] The level of the forfeiture order was manifestly excessive and grossly disproportionate to the appellant’s culpability. An instrument forfeiture order under the Sentencing Act is a uniquely criminal sanction and should be subject to the same principles when determining quantum as any other criminal sentence. Although it was accounted for in the sentence the forfeiture in this case was “grossly disproportionate” to the end sentence that would have been ordinarily imposed. When compared with similar offenders convicted of similar offending in similar circumstances, the magnitude of the forfeiture order arguably amounted to double punishment. Numerous cases were cited.
[53] Mr Speed submitted that the sentence should have been constructed along the following lines:

(1) an end starting point in the region of two years in respect of methamphetamine

(2) an end starting point of six months to one year in respect of cannabis

(3) a modest uplift (if any) of six months to reflect the totality of the Appellant’s offending; an overall sentence of in the range of two to two and a half years

(4) no forfeiture or a considerably reduced level of forfeiture.

He suggested that a sentence along those lines would represent the least restrictive outcome in terms of s 8(g) of the Sentencing Act.

Response of Crown

[54] Mr Raftery submits that to the extent that the starting point is relevant, the four years adopted by the Judge was within the available range. Although Mr Macpherson was not the primary manufacturer of methamphetamine, he nevertheless played an active role. In addition he was involved in cannabis offending which concerned significant quantities of cannabis material having considerable value. Even allowing for his personal use, there was still enough for a “reasonable” supply operation.
[55] In this case the forfeiture of a half share of the appellant’s home had the effect of reducing the sentence from four years to 12 months home detention. This represented a very significant reduction in sentence, and was a much greater reduction than in any of the cases before the Court. If anything, the reduction was generous to Mr Macpherson.
[56] No error of principle has been exposed in relation to the Judge’s approach to forfeiture. Having presided over a three week trial he was in the best position to judge all relevant matters and arrive at the appropriate level of the forfeiture order. The level of forfeiture is a discretionary consideration and should be treated as such by this Court.

Our conclusions

[57] While we accept that the starting point of four years adopted by Lang J was near the top of the available range, we are nevertheless satisfied that it was within range. We agree with the Judge that application of the tariff decisions in Fatu and Terewi indicated a starting point in excess of four years. However, the Judge, correctly in our view, reduced the starting point to four years to reflect the totality of the offending. This starting point was entirely consistent with the starting point for Mr Mack in relation to his offending at Carter Road.
[58] As we see it, the critical issue is whether the instrument forfeiture order, either by itself or in conjunction with the sentence of home detention, was manifestly excessive. This reflects that s 10B of the Sentencing Act required the sentencing Judge to take into account any instrument forfeiture order that had been made. In other words, the forfeiture order forms part of the overall sentence. Just as this Court can examine individual components of a sentence, it can examine the instrument forfeiture order in this case to determine whether the overall sentence is manifestly excessive.
[59] As the High Court observed in R v Brazendale, instrument forfeiture orders:[22]

... reflect a legislative intent that such orders are part of the means by which the offender before the Court and other potential offenders are deterred from committing offences. In other words, the instrument forfeiture order is doing part of the work that would otherwise need to be performed in responding to s 7(1)(f) of the Sentencing Act.

Similarly it was not the statutory intention that an offender would be more severely punished simply because he or she owns a substantial asset that was used to facilitate the offending: Elliot v R.[23]

[60] To the same effect is this Court’s observation on appeal R v Brazendale at [39]:

[39] In addition, in determining whether the hardship is disproportionately severe, it is relevant that the sentence imposed can be adjusted to take account of the financial impact of the forfeiture order. This provides a means of ameliorating any risk that an offender is more severely punished simply because he or she owns a substantial asset. Finally, the gravity of the offending is only one factor to be weighed in the balance.

[61] While we have no doubt that it was appropriate for an instrument forfeiture order to be made in this case, we are troubled by the level of the order. In this regard we note that one of the purposes of the Sentencing Act is to provide principles and guidelines to be applied by the courts when sentencing or otherwise dealing with offenders: s 3(b). One of the principles of sentencing requires the Court to take into account the gravity of the offending and the culpability of the offender: s 8(a). Another requires the Court to impose the least restrictive outcome that is appropriate in the circumstances: s 8(g).
[62] In terms of the gravity of the methamphetamine offending, we note that manufacture might have only taken place once; there was no evidence as to quantum; it was non-commercial; and Mr Macpherson was a secondary party. While there was an element of commerciality in relation to the cannabis offending, any sales were likely to have been to friends and associates and the offending was at the lower end of the spectrum in terms of seriousness. Furthermore, it was accepted that Mr Macpherson was a hardworking individual who had gainful employment and the illegal use of Carter Road was very much subsidiary to its primary use as a home and place of business.
[63] After allowing for deterrence we have concluded that forfeiture of about $380,000 to the Crown is out of proportion to the seriousness of the offending. Moreover, it does not reflect the least restrictive outcome in terms of s 8(g). For those reasons we consider that forfeiture at that level is manifestly excessive, whether taken in isolation or as part of the overall sentence. In our judgment the appropriate level is 25 per cent of the appellant’s interest in the property (about $160,000).
[64] The final issue is the impact, if any, such an adjustment to the instrument forfeiture order should have on the overall sentence. Mr Speed asked us to provide some guidance as to the relationship between the sentence that would ordinarily be imposed and instrument forfeiture. We decline to do so. Each case will depend on its own facts and the exercise of judgment on the part of the sentencing Court. Suffice to say that in this case we consider the combination of an order for forfeiture of 25 per cent of Mr Macpherson’s interest to the Crown coupled with the nine months home detention imposed by the Judge will produce an end sentence that is appropriate in all the circumstances.

Result

[65] The appeal against conviction is dismissed. The appeal against sentence is allowed in part by quashing the order for forfeiture of 50 per cent of Mr Macpherson’s interest in the Carter Road property and replacing it with an order for forfeiture of 25 per cent of such interest. In other respects the sentence stands.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Macpherson HC Auckland CRI-2009-090-11944, 19 August 2011.
[2] R v Macpherson HC Auckland CRI-2009-090-11944, 16 September 2011.
[3] R v Mack HC Auckland CRI-2009-090-11944, 15 July 2011.
[4] R v Mack HC Auckland CRI-2009-090-11944, 15 October 2010.
[5] R v Collins [2008] BCL 982 (HC).
[6] R v Wilson [1997] 2 NZLR 161 (CA) at 164.

7 Re Parke (1991) 7 CRNZ 676 (HC).
[8] R v Jordan HC Whangarei T002868, 23 November 2001.
[9] R v Rua [2008] NZCA 38.
[10] R v Parke, above n 7, at 677.
[11] R v Jordan, above n 8, at [13].
[12] Emphasis added.
[13] At 677.
[14] At [14].
[15] R v Macpherson HC Auckland CRI-2009-090-11944, 19 August 2011.
[16] See [43] and [44] below.

[17] Including convictions for cultivating cannabis, possession of cannabis and possession of a smoking implement in 1982 and 1986.
[18] R v Fatu [2006] 2 NZLR 72 (CA).
[19] At [23].
[20] R v Terewi [1999] 3 NZLR 62 (CA).
[21] At [24]–[25].
[22] R v Brazendale HC Auckland CRI-2009-092-17133, 20 August 2010 at [20]; aff’d [2011] NZCA 494, (2011) 25 CRNZ 580 at [39].
[23] Elliot v R [2011] NZCA 386, [2011] 3 NZLR 811 at [36].