NZLII Home | Databases | WorldLII | Search | Feedback

Court of Appeal of New Zealand
You are here:  NZLII >> Databases >> Court of Appeal of New Zealand >> 2013 >> [2013] NZCA 564

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Monk v R [2013] NZCA 564 (15 November 2013)

Last Updated: 20 November 2013

     
IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
18 September 2013
Court:
Miller, Cooper and Lang JJ
Counsel:
R J Earwaker and F J Iggulden for Appellant M D Downs for Respondent
Judgment:


JUDGMENT OF THE COURT

The time for appealing is extended, but the appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Introduction

[1] The appellant, Clinton Brian Monk, appeals against a judgment of Venning J delivered on 11 October 2011, in which the Judge made an order forfeiting a property situated at 2 Hall Road, Tinopai (the property) to the Crown. The order was made on an application by the Solicitor-General dated 23 July 2009, for a

confiscation order under s 8 of the Proceeds of Crime Act 1991 (the Act) and the appeal is to be considered against the relevant provisions of that Act.[1]

[2] The appeal should have been filed by 8 November 2011, but was not filed until 21 November 2011. The appellant has explained in an affidavit dated 21 June 2013 that he did not become aware of the judgment until approximately two weeks after it had been delivered, and then promptly instructed counsel. An extension of time is sought and has not been opposed. We extend the time for appealing accordingly.

Background

[3] The property is in a rural setting, and is 4.0614 hectares in area. The police executed a search warrant at the property on 24 March 2009. In the dwelling, they found methamphetamine and equipment, materials and precursor substances capable of being used to manufacture methamphetamine. In a substantial garage/workshop, the police found further equipment, materials and precursor substances capable of being used for the same purpose.
[4] A police investigation concluded that there was a clandestine methamphetamine laboratory on the property that had been in operation for a period of time. It appears that methamphetamine had been manufactured in commercial quantities.
[5] On 20 July 2009, Mr Monk pleaded guilty to:
[6] Later, on 23 March 2010, he pleaded guilty to additional charges. These were:
[7] Mr Monk was sentenced by Judge Duncan Harvey on 23 July 2010. On the basis of the summary of facts, the Judge accepted that Mr Monk was in possession of all the equipment and chemicals necessary for the extraction of pseudoephedrine and manufacture of methamphetamine. In addition:
[8] The Judge imposed concurrent sentences in respect of the offences under the Misuse of Drugs Act 1975, resulting in an effective term of four years and 11 months in respect of those charges. In respect of the firearms and ammunition charges he imposed a further (cumulative) sentence of six months’ imprisonment.
[9] The Misuse of Drugs Act charges were clearly related to a “serious offence” as that term was defined in s 2 of the Act,[3] and Mr Monk’s conviction enabled the Solicitor-General to apply for a confiscation order under s 8 of the Act. The application sought forfeiture of the property. The appellant and his father, Brian Donald Monk, were the registered proprietors, but Venning J accepted that it was owned by the Monk Family Trust (the Trust), of which the appellant and his father were the trustees.
[10] Mr Monk’s then partner, Ms Penerata, was also charged and pleaded guilty to a number of drug-related offences. The sentencing Judge accepted that she had made extensive efforts to rehabilitate herself and consequently sentenced her to six months’ home detention, to be served at a residential treatment centre that she was attending.

Relevant statutory provisions

[11] Section 15(1) of the Act provides that on the hearing of an application for a forfeiture order in respect of a person’s conviction of a serious offence, the Court may “if it is satisfied that property specified in the application is tainted property in respect of the offence” order the forfeiture of “such of the property as is specified by the Court”, to the Crown. It is common ground that the property was tainted.
[12] Section 15(2) provides as follows:

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

(a) The use that is ordinarily made, or was intended to be made, of the property; and

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

(c) The nature and extent of the offender's interest in the property (if any), and the nature and extent of any other person's interest in it (if any); and

(d) In addition to the matter referred to in section 14(1)(b) of this Act, any other matter relating to the nature and circumstances of the offence or the offender, including the gravity of the offence.

[13] Section 17 enables third parties claiming “an interest in any of the property specified in the application” to apply to the Court for relief under s 18 of the Act. Where the Court is satisfied that an applicant for relief has a valid claim to an interest in the property, the Court is required to declare the nature, extent and value of that interest and direct the Crown to transfer it to the applicant, or declare that the Crown should pay to the applicant an amount equal to the value of the interest or exclude the interest from the forfeiture order.[4]
[14] Section 18(2)(a) provides that the Court may refuse to make an order granting relief if it is satisfied that the applicant was, in any respect, involved in the commission of the offence in respect of which the forfeiture of the property was sought.
[15] In the present case, as we have noted, the appellant and his father owned the property, but as trustees for the Trust. However, as will be discussed, the appellant had an equitable interest in it by virtue of a Deed of Acknowledgement of Debt made by the Trust. He could not, however, claim relief under s 17 in respect of that interest because of the provisions of s 17(3).

The High Court judgment

[16] Since the property was tainted property for the purposes of s 15 of the Act, there was jurisdiction to make a forfeiture order if the Court considered that was appropriate after considering the matters set out in s 15(2)(a) to (d) of the Act.
[17] Although he swore an affidavit (dated 19 April 2011) the appellant was not represented before Venning J in his personal capacity. Counsel who appeared for the respondents on the application advised the Judge that he was acting for them as trustees, and not for the appellant in a personal capacity. However, he did seek to represent the interests of the beneficiaries of the Trust, which included Mr Monk, in submitting that relief should be granted under the provisions of ss 15(2) and 17. Thus, the interests of beneficiaries could be taken into account as persons for whom undue hardship would be caused and who might be entitled to relief under ss 17 and 18 of the Act.
[18] Venning J held that the property had been used for just over a year as the family home. However, at that point Mr Monk’s offending began and, for at least 18 months, it was used as a base for commercial manufacture of methamphetamine.[5] He found that the manufacturing operation in the home and garage must have been known to at least the older members of the family.
[19] The Judge next considered the issue of undue hardship. He noted that pursuant to this Court’s decision in Lyall v Solicitor-General, in order for there to be undue hardship, something more than ordinary hardship arising as a consequence of the execution of the forfeiture order is required.[6]
[20] He then said:

[25] Mr Monk has no personal interest in the property. An order for forfeiture could result in no hardship to him on that basis. He would lose the use of property he has had as his home, but that could not be said to be an undue hardship given his other use of the property. His children would also lose their home, although as noted, the younger children are currently able to live with their mother. Their mother and Mr Monk have apparently been separated for some time.

[21] The Judge noted the submission of counsel that forfeiture of the property would cause undue hardship to beneficiaries of the Trust who had had no involvement with Mr Monk’s offending and that to forfeit the property in those circumstances would be disproportionately harsh on those beneficiaries. However, he concluded that the “interest” of the beneficiaries in the property could only arise through their interests in the Trust and it was possible for the Trust’s interest in the property to be recognised under ss 17 and 18.[7]
[22] He then found that the Trust purchased the property in May 2005 with funds provided entirely by the appellant. The trustees completed an acknowledgement of debt of $155,000 in the appellant’s favour and agreed to provide a mortgage if called upon to do so. Venning J held that the acknowledgement was sufficient to create an equitable mortgage in favour of the appellant. At the same time, the appellant had gifted $27,000 to the Trust. The property was the sole asset of the Trust and, in terms of a government valuation report, had a value of $170,000 as at 1 September 2008. Having regard to the gift, the Trust owed the appellant a balance of $128,000. This meant that the net assets of the Trust were approximately $42,000.
[23] The present beneficiaries of the Trust are the appellant, and four of his children. The class of beneficiaries might also include any grandchildren of the appellant, born before the date of distribution. The Judge held that as discretionary beneficiaries, the individuals had no interest, legal or equitable, in the assets of the Trust, in accordance with this Court’s decision in Hunt v Muollo.[8]
[24] Addressing the statutory consideration of “other matters” the Judge noted that the offending was serious, and that this was a commercial manufacturing operation carried out over a long period of time. It was necessary to recognise the legislative intent that the forfeiture of tainted property is an important aspect of deterrence of drug offending, that the property was substantially used for the manufacture of methamphetamine and that it could not be said that forfeiture was disproportionately severe in terms of s 9 of the New Zealand Bill of Rights Act 1990.[9]
[25] The Judge then addressed relief for third parties. He held that the interests of the discretionary beneficiaries were insufficient to provide a basis for orders under ss 17 and 18. However, the trustees had an interest in the property which was a valid interest for the purposes of the Act, although it was subject to the equitable mortgage in favour of the appellant. He held that the Trust’s interest was $42,000 (for the reasons set out above at [22]) or approximately 25 per cent of the value of the property. He decided that the Trust’s 25 per cent equitable interest in the property would appropriately be recognised by requiring the Crown to pay one quarter of the net proceeds of sale of the property to the trustees, notwithstanding s 18(2)(a)[10]f the Act.10

The appeal

[26] The appellant contends that in all the circumstances of this case, the Judge was wrong to order forfeiture of the property. Mr Earwaker submitted in particular that the Judge:

Further evidence

[27] The appellant sought to adduce further evidence on the appeal. Counsel have addressed us on the question of whether the evidence should be admitted, and on the basis that the relevant law is that stated in Fairburn v R,[11] which adopted what was said by this Court in R v Bain.[12] Those cases were criminal appeals, whereas the present appeal is clearly civil. However, s 82(2) of the Act provides that a person who has an interest in property against which a forfeiture order is made may appeal against the order as if the order were a sentence imposed on the person in respect of the relevant conviction. Further, s 83(1) provides that the provisions of pt 13 of the Crimes Act 1961 apply to the appeal as if it were an appeal under s 383 of that Act. We think this means that counsel correctly submitted that the relevant principles are those in R v Bain. In any event the principles applicable in the civil context are substantially the same.[13]
[28] In accordance with that judgment, an appellant who wishes an appellate court to consider evidence not called in the lower court must demonstrate that the new evidence is sufficiently fresh and credible.[14] If the evidence could with reasonable diligence have been called at the trial, it will not satisfy the first requirement, although there is a residual discretion to admit evidence which is not fresh if that course will best serve the interests of justice. Insofar as credibility is concerned, “[b]oth inherent and contextual credibility will usually need consideration”.[15] It is also necessary for the evidence to be cogent.[16]
[29] The appellant’s application to adduce further evidence on the appeal was supported by an affidavit dated 21 June 2013. In that affidavit, amongst other things, the appellant explained the circumstances in which he became addicted to methamphetamine and began to manufacture it, as well as addressing his progress through the criminal justice system. He also referred to the circumstances in which the Trust purchased the property, after selling his former family home in Glen Eden, and referred to the gift of $27,000 to the Trust. He recorded his belief that he thought he had done everything he needed to in order to protect the property for the benefit of his children, and says he did not understand that the Trust still owed him a debt for the purchase of the property.
[30] In his affidavit the appellant recorded that he had been employed as a mechanic prior to leaving Auckland to live on the property. In other parts of the affidavit, he addressed the use made of the Hall Road property as a family home and for carrying out mechanical work on motor vehicles.
[31] None of this evidence is fresh and to some extent it repeats evidence that was before Venning J in any event, being covered by the appellant’s affidavit of 19 April 2011, and by his father’s affidavit of 18 November 2009. We see no reason why this evidence should be admitted. We observe also that the Deed of Gift attached to the April 2011 affidavit as well as recording the gift of $27,000 specifically stated that there was a balance outstanding of $128,000. The assertion now made that the appellant did not understand that the Trust was indebted in that amount lacks credibility.
[32] In other paragraphs the appellant addresses events that have transpired since the matter was before Venning J and indeed since the appellant’s release from prison. He refers to steps that he has taken for his rehabilitation as well as his registration of a company as a vehicle for him to carry out restoration work on motor vehicles. He has used the property as a base for this business and to earn an income to support his family, including an adult daughter and younger children. He says that since his release from prison on parole this has developed into a fulltime business. None of this evidence, of course, can bear on whether or not Venning J was correct to order forfeiture of the property and the same applies in respect of an affidavit on which the appellant seeks to rely from his current partner, which also attests to the steps that the appellant has taken in relation to his rehabilitation since being released from custody in May 2012.
[33] Mr Earwaker argues that the evidence in this category is “fresh”, since it was not available at the time of the hearing in the High Court in September 2011, and consequently represents a change in circumstances. However we do not regard it as relevant to the question of whether or not Venning J correctly ordered that the property be forfeited. Nor do we regard this case as one justifying exercise of the jurisdiction referred to in R v Moriarty where evidence of factors occurring since the imposition of a sentence can be admitted on appeal.[17] Assuming that jurisdiction is applicable here,[18] we note that it is reserved for exceptional cases.[19] We record that Mr Downs in his written submissions contended that this case was “not selfevidently” exceptional, but appeared to soften that stance in oral argument. However, we are not persuaded that the present case is of that nature. We note also the Crown’s view that the evidence would not have affected the result.
[34] The appellant has also sought to adduce valuation evidence which refers to the value of the property as at 1 September 2008 ($275,000), 1 September 2011 ($215,000) and 21 May 2013 ($225,000). The valuation on which Venning J relied, attached to the affidavit of Constable Iosefa, gave a value of $170,000. It appears that, unsurprisingly, the value of the property has fluctuated over time. Once again, we fail to see how this can be relevant to the correctness of a judgment made on 11 October 2011. No valuation evidence was called by the appellant before Venning J; the parties were evidently content that the Judge rely on the government valuation. Constable Iosefa’s affidavit was sworn on 20 July 2009, over 20 months before that of the appellant.
[35] We note finally that the appellant swore a further affidavit dated 16 September 2013, which addressed a rent increase that had been put in place by Housing New Zealand in respect of the address at which Mr Monk’s family had been residing in Auckland. It was suggested that the family would have to move back to the property. Once again, we do not consider this affidavit is relevant. Venning J’s judgment is now some two years old. It is inevitable that persons’ circumstances may change with the passing years; that cannot be a basis for issues to be revisited on appeal other than in exceptional circumstances. There is nothing of that nature here.
[36] For the reasons discussed, we decline to admit the further evidence.

The use made of the property

[37] The first substantive ground of appeal was that insufficient consideration had been given by Venning J to the use ordinarily made of the property, a consideration referred to in s 15(2)(a), as a matter to which the Court “may have regard”.
[38] The evidence before the High Court was that when the property was purchased it required substantial work. In his affidavit, the appellant said that his father, who was a builder by trade, had done a very large amount of work on the property, referring to stripping walls, re-gibbing, painting, plastering and a variety of carpentry and related work. His stepfather, Mr Robinson, was a builder by trade and had replumbed the house. Another friend who is a registered electrician had rewired it. The house could not be lived in for a period of about a year after its purchase by the Trust on 19 May 2005.
[39] The appellant gave very little evidence in the April 2011 affidavit about the use of the property. He said that since his arrest (which was in March 2009) four of his children had been living at the property. In a later paragraph he said they were living with their mother, Dianne Monk, from whom he separated in 2002. Brian Monk’s affidavit said:

My son Clinton Monk, was living at the ... property since about 2006, together with his four children, who are all beneficiaries under the trust. The property has thus been the family home for some of my grandchildren.

[40] Brian Monk also explained that shortly after the property was purchased, an old “fireworks factory” had been moved onto the site, together with a “round barn”. Those had been renovated and made habitable. Venning J also had before him, attached to the affidavit sworn by Constable Iosefa, an interim summary of facts prepared for a District Court bail hearing on 26 March 2009, which noted that the property contained:

...the main dwelling, a large half round garage/workshop, a number of sheds, freight containers containing car parts, two pre fabricated buildings being used as sleep outs, a number of heavy machinery and vehicles that were wrecks, under or in the process of being restored.

[41] It is clear that Venning J understood that the property was used, amongst other things as the home for Mr Monk and his family. However, there is doubt as to whether he appreciated that it remained in use as such down to the date of the hearing before him. He said:

[22] Mr Monk deposed that for a year after it was bought (in mid 2005), the property was unliveable as it required substantial work. The property was then more recently used as the family home. Mr Monk says that since his arrest (but before sentence), his children [S] (22), [N] (20), [J] (14) and [C] (9) had been living at the property. Following his imprisonment they are now living with their mother.

[23] For a period of just over a year then, the property was used by the family before Mr Monk’s offending began. However, as the Crown submit, for at least 18 months thereafter it was used as a base for the commercial manufacture of methamphetamine. The manufacturing operation in the home and garage and workshop must have been known to at least the older members of the family. The job sheets attached to Constable Iosefa’s evidence suggest that is the case.

[42] The statement in [22] that the children “had been” living at the property, followed by the observation that they were “now living with their mother” together with the statement in [23] that the property had been used as the family home for just over a year before the offending began, led Mr Earwaker to submit that the Judge had not appreciated that the family home use was ongoing, and had in fact been used as a place of residence for the family for a period of approximately five years by the time of the High Court decision.
[43] We are inclined to think that Mr Earwaker is correct and the Judge was mistaken in this respect. However, the appellant’s evidence was confusing. His statement that the children were living with their mother did not make it clear that they were living at the property, and the affidavit had also stated that he separated from his wife Dianne in September 2002. His co-offender, Ms Penerata had also been living at the property. Nevertheless if the relevant paragraphs of the appellant’s affidavit are read together it does seem that Dianne Monk was living at the property with the children. The bracketed words in [22] of the judgment, “but before sentence” appear to be incorrect, because the affidavit was sworn well after sentencing which took place on 23 July 2010.
[44] However, any error about these matters does not mean that the decision to forfeit the property to the Crown should not have been made. This was a substantial methamphetamine manufacturing operation and the appellant pleaded guilty to offending that had occurred for at least 18 months down to the date when the police executed the search warrant. As Venning J noted, the manufacturing operation was taking place in both the home and the garage. The operation was known to other members of the family and there was no evidence of any other substantial use of the property apart from the residential use.
[45] Mr Earwaker also drew our attention to the statement in the summary of facts that there were a number of vehicles that were in the process of being restored. A police job sheet recording what was observed on 24 March referred to approximately 23 vehicles located on various parts of the property. However, in his April 2011 affidavit the appellant did not allege that he was engaged in the restoration of vehicles as a business activity on the property.
[46] Mr Earwaker relied on Cooksley-Mellish v Solicitor-General in which this Court held that the intended and actual use of the property involved was principally as the appellant’s place of residence.[20] The police had found 13 x 20 litre plastic pails of cannabis totalling approximately 20 kilograms. The cannabis was the product of 116 plants which had been grown in a shadehouse on the property. The police also found a set of electronic scales and a quantity of snap lock bags commonly used for packaging cannabis. A sawn-off shotgun was found in a shed. The Court was satisfied there was no evidence of selling or of personal gain.[21]
[47] Counsel for the respondent in that case submitted that the sentencing Judge was entitled to form the view that a significant purpose of the purchase of the property was to use it for cultivation of cannabis on a major scale. However, the Judge had not made such a finding. This Court observed:

[21] In the circumstances we think the appellant’s cannabis-related activities could more fairly be seen as subordinate to the property’s main use. They are to be contrasted, for example, with a house used principally and over a period for drug-dealing (Lyall v Solicitor General [1997] 2 NZLR 641 is an example) or premises specially modified for indoor cannabis cultivation (as in R v Dunsmuir [1996] 2 NZLR 1 (CA)) or for cultivation and dealing (as in R v Law [2000] 3 NZLR 163). The link between the property and the offending is less than in cases of this kind.

[48] These issues are essentially questions of fact and degree. We are satisfied in this case that there was a substantial use of the property for the purposes of the production of methamphetamine and possessing it for supply. While the property was at the relevant times used as the family home, it was also the base for significant criminal activity. We are not persuaded that the use made of the property was such as to make a forfeiture order inappropriate.

Undue hardship

[49] Mr Earwaker submitted that Venning J did not accurately identify the undue hardship that would result from an order to forfeit the property. He referred to Venning J’s observations at [25] that Mr Monk had no personal interest in the property, and that an order for forfeiture could consequently not result in hardship to him. Mr Earwaker further submitted that the Judge did not consider all of the circumstances which might have consequences for Mr Monk and his family. He noted again in this context that Venning J had referred to the younger children as being able “currently” to live with their mother, by inference elsewhere. Mr Earwaker also submitted that the Judge should have considered Mr Monk’s age and the prospect of him being able to re-establish himself upon his release from prison if an order for forfeiture of the property was made, relying again on this Court’s decision in Cooksley-Mellish v Solicitor-General and noting that the absence of a realistic prospect for rebuilding the appellant’s asset base had influenced the Court’s disposition of that appeal.
[50] Mr Cooksley-Mellish had been hit at work by a falling tree. This resulted in injuries to his shoulder and back, and he had been unable to work since that accident. Cannabis was used by him as an effective painkiller. This Court accepted his evidence that the property was ideally suited to his needs:[22]

He could occupy his time productively in a garden fed by natural springwater, in a shed suited to wood carving and looking after a small number of animals.

[51] The Court also noted that the property had a pool and spa which were therapeutic to the appellant’s shoulder and back. The Court thought it significant that because of his accident and the fact that, at 50 years of age, he would be unable to work in the future, there was no realistic prospect of the appellant acquiring another property. Forfeiture for him therefore had consequences going beyond those which would follow in the usual run of cases.[23]
[52] We accept that Mr Monk did have a personal interest in the property, contrary to what Venning J found. That was because, as a result of the Deed of Acknowledgement of Debt, he was in the position of an equitable mortgagee. The Trust owed him some $128,000 and had agreed to recognise the interest by way of mortgage if called on to do so.
[53] However, in Lyall v Solicitor-General this Court observed:[24]

There will always be some hardship to an offender and sometimes to a third party when a forfeiture order is made. It stems from the operation of the Act and is disregarded: R v Hadad (1989) 16 NSWLR 476. Section 15(2) refers to undue hardship. Here there can be no undue hardship to anyone other than [the offender] in the making of a forfeiture order because the other interests...are able to be addressed under ss 17 and 18.

[54] In that case, the property in question was a house which the Court held had been used for the purposes of dealing in cannabis. It was held that that was the predominant use of the property notwithstanding that other activities, such as panelbeating, may also have been carried out there.
[55] The Court rejected an argument that forfeiture would create disproportionate hardship for one of the offenders, who would suffer loss of his one-third of the equity of the property. That equity was valued at about $130,000. The Court said:[25]

We see nothing excessive in the forfeiture. It is not disproportionately severe treatment or punishment in terms of s 9 of the New Zealand Bill of Rights Act 1990. [The offender] had for a long period chosen to trade in drugs from his property frequently and in a quite substantial way....The policy of the Act is to strip an offender of his or her interests in the property used to commit the crime....The property was not bought using tainted money but it was largely dedicated by its owners to drug dealing. Those who establish drug houses and commit serious offences in or from them can normally expect to lose them unless there is gross or severe disproportion between the gravity of offending and the value of the property sought to be forfeited coupled with the other punishment inflicted on the offender.

[56] Notwithstanding the fact that Venning J overlooked Mr Monk’s personal interest, we are satisfied that any hardship caused to him could not be characterised as “undue” having regard to the observations of this Court in Lyall. The offending was serious and it took place over a period of more than 18 months. While it is true that the property was also used as a family home during that period, forfeiture of the property does not result in undue hardship to Mr Monk in the circumstances. We add that the appellant did not file a notice of opposition to the application for a confiscation order and that, as already noted above, counsel advised Venning J that he was not acting for the appellant in his personal capacity. Consequently, personal hardship to the appellant was not an issue argued before Venning J.
[57] The facts are clearly different from those of Cooksley-Mellish on which Mr Earwaker relied. Mr Monk is not a person with special needs, he was in his late 30s at the time of the offending and, unlike the appellant in that case, is able to work.
[58] It is true that as a result of the forfeiture, the family home will be lost. The undue hardship referred to by s 15(2)(b) of the Act is hardship reasonably likely to be caused “to any person”. Consequently, the position of Mr Monk’s children has to be considered: in Lyall the Court referred to use of the family home for drug dealing and the potential for innocent family members suffering “special hardship” as a result of forfeiture. Here at least one of the appellant’s adult children was aware of the unlawful manufacturing. Moreover, it could not simply be assumed that the forfeiture order would result in undue hardship to the children. Neither the appellant nor his father, in the affidavits that were before Venning J, made out a case that the forfeiture order would have that result. There was in our view nothing in the evidence before Venning J which meant that forfeiture would be “reasonably likely” to cause undue hardship to the children.

The nature and extent of the offender’s interest in the property and of any other person’s interest

[59] The third specific element of s 15(2) requires consideration of the nature and extent of the offender’s interest in the property (if any) and the nature and extent of any other person’s interest in it (if any). Most of the relevant issues under this provision have already been discussed. The only new matter raised by Mr Earwaker in this part of his argument was the submission that by the time of the High Court decision the property had increased in value as a result of the significant contribution made by the appellant to it.
[60] However, the only evidence about the value of the property before Venning J was the government valuation on which he relied. The affidavits filed by the appellant and his father referred to the work that had been done on the property, but the Judge was entitled to rely on the valuation before him. As noted earlier, no other valuation evidence was called.
[61] We do not consider there is anything in this point.

Other matters

[62] Referring to s 15(2)(d) of the Act, Mr Earwaker endeavoured to persuade us that the offending, while serious, had in fact lasted for less time than the sentencing Judge found and Venning J accepted was the case. However, Mr Earwaker’s submission was based on the affidavit of the appellant sworn on 21 June 2013 which we have declined to admit for the purposes of the appeal. In any event there is no proper basis upon which the appellant could avoid the implications of his guilty plea at this late stage.
[63] Mr Earwaker also addressed us on the establishment by the appellant of a business engaged in the restoration of motor vehicles at the property. That evidence was again based on affidavit material which we have declined to admit and relates in any event to a period after Venning J’s decision.
[64] Finally, Mr Earwaker was critical of Venning J’s conclusion that forfeiture would not be disproportionately severe punishment in terms of s 9 of the New Zealand Bill of Rights Act.[26] Mr Earwaker submitted that the conclusion reflected the Judge’s finding that the property was “substantially given over” to the manufacture of methamphetamine. Mr Earwaker contended that given that this was a rural lifestyle block of ten acres, containing a number of buildings, the conclusion that it was “substantially given over” to the offending was incorrect.
[65] We do not accept that this is a valid criticism. The findings in the District Court at sentencing meant that the offending was a substantial use of the property even if evidence of the manufacture was confined to two specific areas. The evidence of use of the property as a family home was established, but there was no other substantial evidence about the use of the property, as already discussed.
[66] In the circumstances we reject Mr Earwaker’s submission that the forfeiture was a disproportionately severe response.

Result

[67] We extend the time for appealing, but the appeal is dismissed.




Solicitors:
Haigh Lyon, Auckland for Appellant
Crown Law Office, Wellington for Respondent

[1] The Act has been repealed by the Criminal Proceeds (Recovery) Act 2009, but continues in force for the purpose of continuing and completing any proceedings commenced prior to that Act’s commencement date, 1 December 2009.

[2] R v Monk DC Whangarei CRI-2009-488-41, 23 July 2010 at [18].

[3] An offence punishable by imprisonment for a term of five years or more.

[4] Section 18(1).

[5] Solicitor-General v Monk HC Whangarei CIV-2011-488-10, 11 October 2011 at [23] [High Court judgment].

[6] Lyall v Solicitor-General [1997] 2 NZLR 641 (CA) at 646.

[7] At [26].

[8] Hunt v Muollo [2003] 2 NZLR 322 (CA).

[9] Relying on Lyall v Solicitor-General, above n 6.

[10] At [42].

[11] Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63.

[12] R v Bain [2004] 1 NZLR 638 (CA).

[13] Rae v International Insurance Brokers [1998] 3 NZLR 190 (CA); Paget v Station Properties Ltd [2011] NZCA, (2011) 21 PRNZ 46.

[14] R v Bain, above n 12, at [22]–[27]. See also Lundy v R [2013] UKPC 28 at [120].

[15] At [23].

[16] Fairburn v R, above n 11, at [25]. See too R v Dunsmuir [1996] 2 NZLR 1 (CA) at 8, a case decided under the Act.

[17] R v Moriarty CA109/84, 10 August 1984.

[18] It has been applied only on sentence appeals. This is not a sentence appeal although, as already noted, s 83 of the Act applies pt 13 of the Crimes Act 1961 to this appeal as if it were an appeal under s 383 of that Act.

[19] This Court confirmed in R v Sanchez-Silverio CA196/05, 4 November 2005 that the jurisdiction of the Court to receive evidence of matters arising since sentencing remains for exceptional cases.

[20] Cooksley-Mellish v Solicitor-General CA209/05, 27 March 2006.

[21] At [33].

[22] Cooksley-Mellish, above n 20 at [7].

[23] At [22]–[23].

[24] Lyall, above n 6, at 646.

[25] At 647.

[26] High Court judgment, above n 5, at [32].

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2013/564.html