R v Higgins [2021] NZDC 11056 (8 June 2021)

Last Updated: 12 March 2022

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.html

IN THE DISTRICT COURT AT WELLINGTON I TE KŌTI-Ā-ROHE KI TE WHANGANUI-A-TARA

CRI-2020-091-001020 [2021] NZDC 11056

THE QUEEN

v

[HAYDEN HIGGINS]

Hearing:	8 June 2021
Appearances:	M Heslop for the Crown L Ord on behalf of V Nisbet for the Defendant
Judgment:	8 June 2021

ORAL JUDGMENT OF JUDGE J M KELLY

Section 142D of the Sentencing Act 2002

[1] The issue before the Court today is whether the Court should exercise its discretion under s 142D of the Sentencing Act 2002, to order a notice to be recorded on the registry of the property, given my decision under s 142C dated 20 November 2020, that the Court should consider making an instrument forfeiture order.

[2] Section 142D provides as follows:

R v [HAYDEN HIGGINS] [2021] NZDC 11056 [8 June 2021]

(1) Subsection (2) applies if the court has given a direction under section 142C relating to property of a kind that is covered by a New Zealand enactment that enables the registration of—

• (a) title to that property; or
  
• (b) charges over that property.
  

(2) If this subsection applies, the court may order any authority responsible for administering an enactment of the kind referred to in subsection (1) (an Authority) to enter on the register a note of the fact that the Court will consider whether an instrument forfeiture order may be made against the property.

(3) The Court must order an Authority to cancel an entry made on a register under subsection (2) if—

• (a) the matter to which the entry relates is finally determined and the relevant appeal period (defined in section 73(3) and referred to in section 85 of the Criminal Proceeds (Recovery) Act 2009) has expired; or
  
• (b) proceedings to which the entry relates are discontinued for any reason.
  

Background

[3] The defendant, Mr [Hayden Higgins], entered a guilty plea to a charge of cultivating of cannabis and possession for the purpose of supply on 3 September 2020, after a sentence indication on 14 August 2020.

[4] Following entry of the guilty plea and convictions, the Crown gave notice on 3 September 2020 under s 142B that the Court should consider whether to make an instrument forfeiture order in relation to the property.

[5] That application was opposed by the defendant on a number of grounds.

[6] Having considered those submissions, I accepted the prosecutor’s submission that the proper course was to assess the testable claims under the regime set out in s 142A to s 142Q of the Sentencing Act.

[7] Accordingly, I directed pursuant to s 142K, that the Court convene a hearing to determine whether to make an instrument forfeiture order or to grant an application for relief from an instrument forfeiture order.

[8] I directed the Crown to serve notices on interested parties under s 142E.

[9] I also directed a nominal date of Tuesday 9 February 2021 to allocate a hearing time to consider whether an instrument forfeiture order under s 142N may be made against the property.

[10] Applications for relief, under s 142J were filed by the mortgagor of the property, ASB Bank Limited, and the defendant and his wife, in their capacities as trustees of the [Higgins] Family Trust.

[11] The matter then was adjourned to callover on 4 May 2021.

[12] The interested parties and the Crown filed evidence in April 2021.

[13] A two-day instrument forfeiture hearing was set down for 8 and 9 June 2021.

[14] On 11 May 2021 the Court granted the defendant’s application for an adjournment of the fixture, due to the defendant having suffered concussion. There is a callover on 22 June 2021 to set a new hearing date.

[15] The two-day fixture for today and tomorrow was vacated. The matter has been called today solely for the purpose of considering whether the court should exercise its discretion under s 142D.

[16] As far as I am aware, no indication has been given to the Court as to when the defendant’s head injury will allow him to be fit for a hearing.

[17] Ms Ord who appears today on behalf of Mr Nisbet, counsel for Mr [Higgins], and also appears on behalf of the trustees of the [Higgins] Family Trust, has indicated that Mr [Higgins] remains unwell and it is very difficult to obtain instructions from him at present.

[18] Given that factor and the lack of hearing time, I anticipate that there may be some considerable delay before a further two-day fixture can be arranged to be heard before me. It may be the end of this year before such a fixture can be held.

[19] In the meantime, counsel have not opposed an application by ASB Bank Limited, claiming relief from forfeiture. I have accordingly today made an order by consent granting ASB Bank Limited relief from instrument forfeiture in respect of all interests pursuant to a registered mortgage and associated costs due as at the date of discharge of mortgage.

Crown submissions

[20] The Crown submits that the Court should exercise its power under s 142D to order LINZ (Registrar-General of Land) to enter a note on the register of land, that is the property’s title, of the fact that the Court will consider whether an instrument forfeiture order may be made against the property. The Crown is concerned that it appears that there is going to be considerable delay before the hearing and Mr [Higgins] and his wife have separated, and they may attempt to sell the property or refinance the property.

Defence submissions

[21] The defendant and the [Higgins] Family Trust oppose the making of the order under s 142D.

[22] Ms Ord submits that the order should not be made as it is entirely unnecessary in the circumstances. Ms Ord submits the trustees have no intention of selling the property, that forfeiture of the property would be a disproportionate response to the offending which was a one-off grow of cannabis and any notification on the register would be problematic because it would make it difficult for the trustees to refinance the property in the event this matter is settled or a sum to be paid is ordered by the Court.

[23] Ms Ord submits that although Mr [Higgins] and Mrs [Higgins] have been temporarily living apart, they have not separated. The defence submits this application is an attempt to achieve de facto restraint of the property.

Discussion

[24] With respect, I disagree with the submissions made on behalf of Mr [Higgins] and the [Higgins] Family Trust.

[25] I do not accept the submission that an order is entirely unnecessary in the circumstances, on the basis that Ms Ord submits there is no reasonable prospect that an order for forfeiture will be made. To me that is the wrong question. That would be to prejudge the hearing that is to take place.

[26] As I have indicated I considered the defence submissions in my decision regarding s 142C, that this was a case where the Court should not initiate the instrument forfeiture process. However, having considered those submissions including the details of the ownership of the property, the discretionary beneficiaries who live at the property, and the fact that Mr [Higgins] runs a business from the property owned by a company that leases part of the property, I held that the Court is of the opinion that it should consider making an instrument forfeiture order.

[27] At the end of the day, the outcome of that hearing is a matter for another day.

[28] What is relevant, as I have indicated to Ms Ord, is the issue of delay and the consequent risk of disposition or dealing with the property.

[29] I accept there has already been a considerable delay since Mr [Higgins] was charged on 10 May 2020 and pleaded guilty on 3 September 2020. I accept that the trustees deposed in April 2021 that they have no intention of selling the property. Against those factors, there is likely to be a further considerable delay and Mr and Mrs [Higgins] have also said they are living apart.

[30] As I have said in my view the purpose of any notice being registered is notice to the world that the Court is to consider whether to make an instrument forfeiture order in respect of the property. In the event that the trustees decided to raise funds against the property or to sell the property, then any prospective purchaser or funder would have notice of the Court proceedings.

[31] I reject the submission made by Ms Ord that a notification on the register would be problematic because it would make it difficult for the trustees to refinance the property in the event that this matter is settled or a sum to be paid is ordered by the Court.

[32] As Mr Heslop has correctly pointed out, s 142D(3) provides that the Court must order cancellation of an entry on the register if the matter is finally determined and the appeal period has expired or proceedings to which the entry relates are discontinued for any reason.

[33] Therefore, in the event that this matter is settled, or a sum to be paid is ordered by the Court, the notice on the title can be cancelled.

Decision

[34] For the reasons given, I make an order under s 142D that LINZ (Registrar-General of Land) enter a note on the register of the land that is against the title of the property at [address and location deleted], registered in the names of [name deleted] and [Hayden Higgins] and described in the record of title unique identifier [deleted] and legal description [deleted] and section 4 survey office plan [deleted], of the fact that the Court will consider whether an instrument forfeiture order may be made against the property.

Judge J M Kelly

District Court Judge

Date of authentication: 11/06/2021

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.