Rimine v R [2015] NZCA 167 (13 May 2015)

Last Updated: 28 May 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA474/2014 [2015] NZCA 167
BETWEEN	DEAN RIMINE Appellant
AND	THE QUEEN Respondent

Hearing:	22 April 2015
Court:	Wild, Clifford and Dobson JJ
Counsel:	C J Tennet for appellant M H Cooke for respondent
Judgment:	13 May 2015 at 3.30 pm

JUDGMENT OF THE COURT

The appeal against forfeiture is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

[1] At about 10.30 pm on 26 November 2009 the appellant, Dean Rimine, was driving a motor vehicle that was stopped at a police checkpoint. Following a search of Mr Rimine’s vehicle, cash of approximately $39,010 was found, together with a large quantity of empty point bags and five sets of electronic scales. When Mr Rimine was searched personally at the police station, the police found a total of 18 grams of methamphetamine, a glass pipe used for smoking methamphetamine and a further $639.20 in cash.
[2] Mr Rimine challenged the admissibility of that evidence. The District Court ruled the search and seizure lawful and the evidence thereby obtained admissible.^[1] On appeal, this Court found the initial decision to search Mr Rimine’s vehicle was unlawful. However, applying the test in s 30 of the Evidence Act 2006, it ruled exclusion would be disproportionate to that impropriety.^[2] We return to the reasons for this at [33]–[39].
[3] In June 2011 Mr Rimine pleaded guilty to one charge of supplying methamphetamine and one charge of possessing methamphetamine for supply. He was sentenced in October 2011 to three years and eight months’ imprisonment.^[3] Mr Rimine has completed that sentence.
[4] By the time Mr Rimine was convicted and sentenced, the police had made an application for the forfeiture of the cash found on 26 November 2009. That application was not heard until July 2014. On 5 August 2014 Judge Hobbs ordered forfeiture of that cash.^[4] Mr Rimine now appeals that forfeiture order.

Facts

[5] On 17 November 2009 a Mr Alan Hill lent Mr Rimine $50,000 in cash, made up of $100 notes. Mr Hill is now deceased. The Crown accepts Mr Hill lent that money for what he thought were legitimate purposes.
[6] Of the money found in Mr Rimine’s vehicle when he was arrested some two weeks later, $14,800 was made up of $100 notes. The balance comprised $50, $20 and $10 notes.
[7] In February 2010 the late Mr Greg King wrote to the police on behalf of Mr Hill, asserting a claim of ownership to the money found in Mr Rimine’s car. The police subsequently confirmed Mr Hill’s account that he had cashed in Bonus Bonds to generate the $50,000 in cash he had paid to Mr Rimine. At the forfeiture hearing before Judge Hobbs, the police accepted that, at the time of Mr Rimine’s arrest on 26 November, the $14,800 in $100 bills was the balance of the loan from Mr Hill that had not been used to acquire methamphetamine.
[8] In late 2012, whilst Mr Rimine was still in prison, the police offered to settle the forfeiture claim on the basis they would return $14,800 (representing the $14,800 the police accepted had not yet been used in Mr Rimine’s drug dealing operations), together with $147.80 in coins found on Mr Rimine (presumably also accepted by the police as not forming part of Mr Rimine’s drug dealing operations). The remaining amount would be forfeited.
[9] The terms of that offer were recorded in a disclaimer which Mr Beattie, a police financial investigator, left with Mr Rimine in prison on or around 6 December 2012. Mr Rimine said at the time he wanted to talk to his lawyer. Ultimately, Mr Rimine did not accept that settlement proposal and so the matter proceeded to the forfeiture hearing before Judge Hobbs.^[5]

The challenged forfeiture decision

[10] Mr Rimine opposed forfeiture on the basis the Crown was not in a position to satisfy the Judge, as required by s 32(3) of the Misuse of Drugs Act 1975, that the money found in Mr Rimine’s possession was received by him in the course of or consequent upon the commission of his drug dealing offences, or was in his possession for the purpose of facilitating the commission of an offence against s 6 of that Act. Mr Rimine also argued the Court should decline to order forfeiture because to do so would be unfair to the beneficiaries of Mr Hill’s estate and because not ordering forfeiture would see Mr Rimine appropriately compensated for the illegal search on the evening of 26 November 2009.
[11] At the forfeiture hearing evidence was given by Mr Beattie and also by Detective Sergeant Ferguson, a drug expert who commented on text messages sent by Mr Rimine to a third party shortly before his arrest.
[12] Judge Hobbs concluded the items found by the police in Mr Rimine’s car and on his person were indicative of drug dealing. The irresistible inference was that the $50,000 borrowed by Mr Rimine from Mr Hill was used by Mr Rimine as a “float” for his methamphetamine dealings. The smaller denominations represented money received by Mr Rimine in the course of or consequent upon the supply of methamphetamine to others. The remaining $14,800, still in $100 bills, was in Mr Rimine’s possession for the purpose of facilitating the further supply of methamphetamine. The Crown had, therefore, discharged the burden placed on it pursuant to s 32 of the Misuse of Drugs Act.
[13] Furthermore, the Judge could see no reason why he should not order forfeiture. Mr Tennet, counsel for Mr Rimine at the forfeiture hearing, advised the Judge that a confidential settlement had been reached between Mr Rimine and Mr Hill’s estate. The Judge had no idea of the terms of that settlement. Whilst he had sympathy for Mr Hill’s estate, he concluded that not ordering forfeiture to allow Mr Rimine to potentially settle his debt with the estate would create a precedent contrary to the policy of the forfeiture regime. Nor was the Judge persuaded that declining forfeiture was appropriate compensation for the illegal search. The only matter of concern to the Judge was the delay between sentencing and the application for forfeiture. The Judge concluded, however, that the delay – whilst undesirable – had not caused any prejudice to Mr Rimine.
[14] The Judge ordered that the money held by the police be forfeited accordingly.

Appeal

[15] On appeal, Mr Tennet advanced similar grounds on behalf of Mr Rimine as had been the basis of Mr Rimine’s opposition to forfeiture. In brief, they were:

• (a) As matters of fact and law, the Judge had been wrong to conclude that the circumstances of Mr Rimine’s possession of the forfeited money, and in particular the $14,800 in $100 bills, satisfied the requirements of s 32 of the Misuse of Drugs Act.
• (b) The combination of the factor of delay and that, at sentencing, Mr Rimine was not given any credit for the subsequent forfeiture, meant the discretion should have been exercised to decline forfeiture.
• (c) Forfeiture should also have been declined either in its entirety or, at least, as to the $14,800 representing the unapplied balance of the loan from Mr Hill at the time Mr Rimine was arrested, to compensate Mr Rimine for the unlawful search on 26 November 2009.

[16] We consider each ground of appeal in turn.

Section 32

[17] Section 32 of the Misuse of Drugs Act provides:

32 Forfeiture

(1) Every person convicted of an offence against this Act shall, in addition to any penalty imposed pursuant to this Act, forfeit to Her Majesty, by virtue of such conviction, all articles, if any, in respect of which the offence was committed and in the possession of such person.

(2) Articles forfeited under the provisions of subsection (1) of this section shall be sold, destroyed, or otherwise disposed of as the Minister directs.

(3) If, on the conviction of any person for an offence against section 6, the Judge or District Court Judge is satisfied that money found in the possession of that person was received by that person in the course of or consequent upon the commission of that offence, or was in the possession of that person for the purpose of facilitating the commission of an offence against that section, the Judge or District Court Judge may, in addition to any other penalty imposed pursuant to this Act, order that that money be forfeited to the Crown.

...

[18] In arguing the Judge had been wrong to conclude the requirements of s 32 were met, Mr Tennet placed particular reliance on what he said was the acknowledgement of Crown counsel, at the forfeiture hearing, that the police accepted the $14,800 did not constitute part of Mr Rimine’s “float” for drug offending. In making that submission, Mr Tennet was referring to a particular exchange between Judge Hobbs and Crown counsel, Mr Ferrier, during Mr Tennet’s cross-examination of Mr Beattie. Mr Tennet was endeavouring to determine the rationale for the offer to return the $14,947.80 to Mr Rimine. Mr Tennet’s point was to show that the settlement offer had been calculated by reference to the $14,800 (comprising $100 notes) that appeared to be the balance of Mr Hill’s loan to Mr Rimine. Confusion arose when Mr Tennet’s questions appeared to focus on the denominations that would make up the returned money, rather than reasoning why the amount to be returned had been decided upon by the police. At that point, the Judge sought clarification of the position from Mr Ferrier:

THE COURT:

Well is there any dispute about this Mr Ferrier? Presumably that was the original – originally the police thought well maybe we’ll give him back the money that was borrowed from Mr Hill.

MR FERRIER:

Well that’s as I understand it Sir. My learned friend is putting three options to him. The first one contains the $14,800 and $147.80 in coins. The second one doesn’t contain either of those two denominations and that’s the total that’s to be returned to him, $14,987, that’s $14,800 plus the coins. That was all the police were intending to do at that point.

THE COURT:

Presumably the police had made an offer to return what they thought was the money borrowed from Mr Hill that hadn’t yet been, from the police point of view, used for a float?

MR FERRIER:

Yes, I accept that.

[19] Mr Tennet’s argument was that if, from the police point of view, the $14,800 “hadn’t yet been used for a float”, it could not subsequently be forfeited on the basis that it was, in terms of s 32(3), in Mr Rimine’s possession as part of his float for the purpose of facilitating methamphetamine dealing.
[20] We think Mr Tennet is reading too much into that exchange. Mr Ferrier had earlier explained the Crown case to the Court in the following, very clear, terms:

MR FERRIER:

So if I could just, for my learned friend’s benefit and for Your Honour’s, the Crown case is that we accept that $50,000 was lent from Mr Hill to Mr Rimine, withdrawn in $100 bills and we say it can be inferred, given in $100 bills, at the time of his arrest some two weeks later only $14,800 is in that denomination. So we accept that we can’t prove on the balance of probabilities that money isn’t, is not the same money he received from Mr Hill, so I suppose it’s the same way of saying we accept that $14,800 that he received from Mr Hill, it hasn’t changed. The remainder, the $24,000 odd in his possession can’t be the money he received from Mr Hill because it’s in different denominations and so we say it’s been wasted through a drug deal in the meantime.

THE COURT:

Different denominations but presumably – right the Crown case is that that $50,000 was a float.

MR FERRIER:

Yes, borrowed by Mr Rimine from Mr Hill to do his drug dealing.

THE COURT:

And what’s left in $100 bills hasn’t yet been used for the purchase and on sale of drugs.

MR FERRIER:

Yes, so we say the $24,000 is forfeit as the proceeds of the offending for which he has pleaded guilty but in any case the entire amount is forfeit as a float which is to be used to purchase more drugs.

THE COURT:

Yes, that’s what I understood the Crown position to be. I know there’s going to be an argument later about – a submission about the difference, the potential difference in approach to the $100 bills as opposed to the rest of it but we’ll deal with that later.

MR FERRIER:

Yes.

[21] That is, the total amount of $50,000 had been borrowed by Mr Rimine from Mr Hill to (unbeknownst to Mr Hill) facilitate drug dealing. Whilst the police accepted the $14,800 in $100 bills had not at the time of Mr Rimine’s arrest been used to purchase drugs, that did not mean it was not part of the “float”.
[22] On that basis, and as a matter of fact, we think the Judge was right to find the requirements of s 32(3) were satisfied.
[23] Moreover, we do not think the authorities cited by Mr Tennet give rise to any legal basis to challenge that conclusion. Mr Tennet relied in particular on the decision of this Court in R v Collis.^[6] Mr Collis was found by the police in possession of a quantity of cannabis and of some $103,000. Mr Collis was subsequently convicted on a charge of possession of cannabis for the purposes of supply. At his trial, he denied any knowledge of the $103,000. Mr Collis subsequently applied, under what was then s 199 of the Summary Proceedings Act 1957, for the return of that money to him. He did so on the explicit basis that the money belonged to him and was the result of his dealing in cannabis. As a result of that claim, Mr Collis faced a further charge of supplying cannabis. That charge was dismissed, on what the Court of Appeal described as the “technicality” of the fact that Mr Collis had not been warned against selfincrimination when he made the claim that the money was the result of his drug dealing operations. In response to Mr Collis’ application, the District Court ordered that the money be paid to the Commissioner of Inland Revenue in reduction of Mr Collis’ outstanding tax liability. A question of law was reserved for the Court of Appeal, as to whether the District Court had been right in making that decision. Casey J held:^[7]

In directing that the money be paid to the Commissioner, the Judge in effect accepted that the accused was entitled to have his property returned to him, notwithstanding that it was admittedly the proceeds of the sale of cannabis. The parties agreed with the Judge’s finding that no order for forfeiture to the Crown could have been made under s 32(3) of the Misuse of Drugs Act 1975, since such an order may be made only if the money found in the possession of a person convicted of an offence against s 6 was received by him “in the course of or consequent upon the commission of that offence, or was in the possession of that person for the purpose of facilitating the commission of an offence against that section ...”.

[24] As the accused had been convicted only of possession of cannabis for supply, it was accepted in the District Court by both parties that neither of those conditions were satisfied. There was no challenge by the Crown on appeal to the correctness of that approach. The arguments on appeal related to whether, s 32 not applying, there was some other lawful basis for the Judge’s decision.
[25] In its subsequent decision, R v Gibbons, this Court recognised the limitations on the authority provided by R v Collis as regards s 32, which arise because of the Crown’s agreement that the section did not apply.^[8] Gibbons was an appeal against a District Court forfeiture decision. Mr Gibbons was found in possession of one kilogram of cannabis and some $2,350 in cash. He was charged with possession of cannabis for supply, and found guilty after trial. On the question of forfeiture, Mr Gibbons argued that the $2,350 in cash arose not from any cannabis purchase or dealing, but rather related to his function as the treasurer of the “Tribesmen” motorcycle club. The money was, therefore, held by him for legitimate and explicable purposes and it was only a coincidence that he had placed it for safekeeping in the hiding place he used for cannabis. The Crown case was that Mr Gibbons possessed that money as a float to enable further purchases of cannabis, to support his ongoing supply activities. The Judge was satisfied that was the case, and concluded that the money was therefore possessed by Mr Gibbons for the purpose of facilitating an offence against s 6, namely the possession of cannabis for the purpose of sale.
[26] Mr Gibbons relied on R v Collis to argue, given the charge he faced (possession of cannabis for supply), that was not a conclusion that was open to the Judge. This Court held:^[9]

The judgment in R v Collis is of no assistance in this case because it was accepted in that case that neither of the conditions in s 32(3) were satisfied. It was for that reason that the majority of the Court upheld the decision that the respondent was entitled to have his property returned to him.

[27] In other words, the charge Mr Gibbons faced, possession of cannabis for supply, did not as a matter of law preclude the Judge concluding that the conditions in s 32(3) were satisfied. Moreover, there was ample evidence to allow the Judge to reach the conclusion that he did.
[28] Similar conclusions were reached by this Court in Bishop v R and Scully v R.^[10] In Bishop, this Court acknowledged that on a charge of possession for sale, money could not be forfeited as having been derived from the offence of possession of cannabis for supply under the first limb of s 32(3). At the same time, the Court indicated it was prepared to consider whether the money was in the nature of a float, and therefore that the second limb of s 32(3) had been satisfied. The Crown did not seek to make that argument, however, and effectively conceded that an order for forfeiture was not available on the facts of that case. In Scully, this Court explained:

[27] There is an alternative factual basis upon which money can be forfeited under s 32(3). This is where the Judge is satisfied that the money is held for the purpose of committing other offences against s 6 of the Misuse of Drugs Act. The usual scenario advanced is where the Crown can establish that the money was intended to serve as a “float” for purchasing further cannabis, which in turn would be sold as part of the on-going criminal enterprise.

[29] On that basis, we are satisfied that the conclusion reached by Judge Hobbs, that the money found in Mr Rimine’s possession was held by him for the purpose of facilitating the commission of an offence against s 6 (namely the supply of methamphetamine), was one that was open to him not only on the facts but also on the law.

Delay

[30] In Williams v R, the Supreme Court considered that:^[11]

[18] The remedy for undue delay in an accused coming to trial must provide a reasonable and proportionate response to that delay. ...

[31] The appropriate remedy depends on the nature of the breach in all the circumstances. In Williams there was a five-year delay between arrest and conviction. The Court considered a 25 per cent reduction in sentence afforded to the appellant was generous.
[32] Here there was a delay, just short of three years, between imposition of Mr Rimine’s custodial sentence and the making of the forfeiture order. That delay is unsatisfactory, but can to an extent be explained by the interests Mr Hill asserted in the money, and the steps taken by the Crown subsequent to that. Furthermore, Mr Tennet was unable to identify any prejudice that had resulted to Mr Rimine by reason of that delay. We are satisfied the Judge was right when he decided that here the delay was not a factor which stood in the way of, or should have affected the amount of money subject to, the forfeiture order. In reaching that conclusion, we note that even if the money had been forfeited at the time of Mr Rimine’s sentencing that would not have served to reduce his sentence.

Remedy for breach of unlawful search

[33] In Rimine v R, this Court concluded that the original decision to search Mr Rimine’s vehicle, when he had been stopped at the police checkpoint, was unlawful.^[12] As noted, the police had purported to make that decision under s 60 of the Arms Act 1983. At that time, s 60 provided:

Search and seizure of firearms

60. Search of suspected persons and seizure of firearms, airguns, pistols, imitation firearms, restricted weapons, ammunition, or explosives

(1) If a member of the Police has reasonable grounds to suspect that any person being in a public place is carrying or is in possession of any firearm, airgun, pistol, imitation firearm, restricted weapon, ammunition, or explosive in breach of this Act, the member of the Police may, without warrant,—

(a) search that person, or any vehicle, package, or other thing there in his possession or under his control; and

(aa) use such force as is reasonable in the circumstances for the purposes of effecting entry to the vehicle, and for breaking open any package or other thing to which paragraph (a) relates; and

(b) detain that person for the purpose of any search under paragraph (a); and

(c) seize any such firearm, airgun, pistol, imitation firearm, restricted weapon, ammunition, or explosive, and detain the same.

...

[34] The Court of Appeal concluded that at the point when the decision to search was made, the information in the police’s possession did not provide a sufficient foundation for the reasonable suspicion required by s 60. That conclusion the Court said was, however, “not clear cut”.^[13] The relevant facts were as follows.
[35] When Mr Rimine was stopped at the alcohol checkpoint, he passed a passive breath screening test, but his vehicle was pulled over because the rear tail lights were not working correctly. As Mr Rimine was not carrying a driver’s licence, the police officer dealing with him sought information about Mr Rimine from the police communications systems. The police officer was advised there was a flag on the police intelligence database in relation to Mr Rimine, recording that he was wanted for an interview regarding an incident involving threatening a police officer with a firearm. The operator suggested a search under s 60 of the Arms Act should be considered if the officers were threatened. A Senior Constable then became involved. He had been told of the alert, but not of the recommendation to consider a s 60 search if threatened. The Senior Constable spoke to Mr Rimine, who identified himself, and told the Senior Constable he was a relation of a man who the Senior Constable knew as a senior member of a gang in the local area. The Senior Constable then asked Mr Rimine for his keys and to get out of the car. Mr Rimine refused. The evidence was that Mr Rimine was nervous and agitated. The Senior Constable thought he might be intoxicated by alcohol or some other drug.
[36] After Mr Rimine refused to get out of the car, the Senior Constable advised him the vehicle was going to be searched pursuant to s 60 of the Arms Act. At that point, Mr Rimine became aggressive and began yelling at the police officers. He screamed that he did not have a gun and began to reach into his glove box. The Senior Constable yelled at Mr Rimine not to open the glove box, believing he was reaching for a weapon. The Senior Constable then brought the police pistol he was holding from behind his body to the front of his body, making it obvious that the pistol was in his possession but not pointing it at Mr Rimine. A further altercation ensued as the police tried to get Mr Rimine out of his car. Ultimately, Mr Rimine was pepper sprayed. A police officer looked in the back of the car, and located an imitation firearm. The search of the vehicle ensued, which gave rise to the finding of the cash and the drug dealing paraphernalia.
[37] This Court concluded, assessing the legality of the search by reference to the information in the possession of the police at the point in time the Senior Constable decided that a s 60 search was to be undertaken:

[22] Looking at the matter in the round, and acknowledging the tension caused by concerns that firearms may be involved in any interaction with a police officer, we do not consider that the information available to Senior Constable Todd was sufficient to found the reasonable suspicion that s 60 requires. ...

[38] The Court went on to conclude, however, under s 30 of the Evidence Act that the impropriety in invoking the s 60 power at that point resulted from an error of judgment about the satisfaction of the “reasonable suspicion” test, rather than anything more serious. The police officer had acted instinctively and had misjudged the requirements for invoking the search under s 60. The impropriety, however, only extended to that point. Once that occurred, Mr Rimine’s reactions were the catalyst for the action taken to remove him from the vehicle and for the activities that followed at the roadside and the police station.
[39] The Court concluded:

[36] ... In those circumstances we conclude that the challenge to admissibility of the evidence should fail, though for different reasons from those given by the District Court Judge.

[40] Against that background, we are satisfied the Judge was correct to decline forfeiture in whole or in part for the purpose of compensating Mr Rimine for the illegal search. To the extent that Mr Rimine was entitled to a remedy, the finding of unlawfulness by this Court was sufficient, in these circumstances, to provide that remedy. We are satisfied that a claim for monetary compensation for that breach of rights would not succeed. Nor do we consider that forfeiture should be declined (in whole or part) in some way as a reduction of sentence to recognise the breach of Mr Rimine’s rights. Again, we are satisfied that the declaration of illegality, in these circumstances, was sufficient recognition of that breach.^[14]

Result

[41] Mr Rimine’s appeal against the forfeiture order made by Judge Hobbs is, therefore, dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] R v Rimine DC Wellington CRI-2009-032-4901, 21 July 2010.

^[2] Rimine v R [2010] NZCA 462.

^[3] R v Rimine DC Wellington CRI-2009-032-4901, 28 October 2011.

^[4] Police v Rimine DC Wellington CRI-2009-032-4901, 5 August 2014.

^[5] There is some uncertainty about the precise amount of money that was involved in the police offer and the subject of the forfeiture application before Judge Hobbs. On the basis that a total sum of $39,649.20 was originally seized by the police ($39,010 plus $639.20) and that $14,947.80 would have been returned to Mr Rimine, by our calculations that would represent a forfeiture of $24,701.40. The disclaimer indicates that the sum to be forfeited was $24,845. In a memorandum prepared by Ms Cooke, which Mr Tennet accepted correctly recorded the factual situation, that amount was also referred to as $24,845. There would seem to be some arithmetic difficulties involved. These are not, however, material to Mr Rimine’s appeal. He is arguing that all the money taken from him should be returned but, if not, then at least the $14,800 representing the acknowledged balance of the loan from Mr Hill should be returned.

^[6] R v Collis [1990] NZCA 30; [1990] 2 NZLR 287 (CA).

^[7] At 290.

^[8] R v Gibbons CA75/99, 4 May 1999.

^[9] At [20].

^[10] Bishop v R [2010] NZCA 66; Scully v R [2011] NZCA 265, (2011) 25 CRNZ 296.

^[11] Williams v R [2009] NZSC 41, [2009] 2 NZLR 750.

^[12] Rimine v R, above n 2, at [22].

^[13] At [27].

^[14] See Attorney-General v Van Essen [2015] NZCA 22 at [105].