Commissioner of Police v McGregor HC Invercargill CIV-2011-425-000566

[2011] NZHC 1983

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2011-425-000566

IN THE MATTER OF     an application pursuant to the Criminal

Proceeds (Recovery) Act 2009

BETWEEN  THE COMMISSIONER OF POLICE Applicant

ANDJOHN DARRELL MCGREGOR First Respondent

ANDJENA MARGARET MCGREGOR Second Respondent

Hearing:         12 December 2011

Appearances: S N McKenzie and R Donnelly for Applicant

No appearance for Respondents

Judgment:      12 December 2011

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on

12 December 2011 at 4.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Preston Russell Law, Crown Solicitors, PO Box 355, Invercargill 9840

THE COMMISSIONER OF POLICE V MCGREGOR HC INV CIV-2011-425-000566 12 December 2011

[1]      Mr McGregor has been charged with a drug offence.  His wife, Jena, is the registered owner of a property at 12 Katrine Street, Otautau (“the property”).[1]   The police  believe  that  the  true  beneficial  owner  is  Mr McGregor.    They  seek  a restraining order over that property.

[1] The estate in fee simple being 1088 square metres more or less, Lot 17 Deposited Plan 1274.

[2]      Before granting that order I must be satisfied:

(a)      The McGregors and the Official Assignee were served with a copy of the application.

(b)Mr McGregor   has   been   charged   with   a   qualifying   instrument forfeiture offence.

(c)      There  are  reasonable  grounds  to  believe  that  the  property  is  an instrument of crime used to facilitate that qualifying instrument forfeiture offence.

[3]      I am satisfied that the McGregors were served with the application.[2]   There is no evidence before me that the Official Assignee was served.  Any order I make is conditional upon service of the application on the Official Assignee.

[2] Affidavits of service by John Kean dated 8 December 2011 and by Mike Williams dated 9 December 2011.

[4]      I am also satisfied that the respondent has been charged with a qualifying instrument forfeiture offence,[3]  namely possession of cannabis for sale, a Class C controlled drug.[4]

[3] Section 5, Criminal Proceeds (Recovery) Act 2009, includes an offence punishable by a maximum term of imprisonment of five years or more.

[4] Refer paragraph 5, affidavit of Sheryl Margaret Watt. Refer also s 6(2) – possession of Class C drug is liable on conviction on indictment to imprisonment for a term not exceeding eight years.

[5]      I am also satisfied that based on the evidence placed before me, that the property is an instrument of crime or was an instrument of crime used to facilitate the qualifying instrument forfeiture offence.

[6]      The following is recorded in the affidavit of Sheryl Margaret Watt:

8.On 6 May 2011, members of the Invercargill Police conducted a search of the property and found that it was being used for the drying of approximately 6 pounds of cannabis head.

9.There was also equipment that included electric seed raising mats, transformers and high density light bulbs and lighting shades commonly used for growing cannabis in a controlled indoor environment.

10.The property is a residential property.  I have been informed that it was apparent that it was not occupied as a day to day residence. There  was  little  food  and  furniture,  no  fridge,  no  beds,  bed coverings, or line.

11.       I have been informed that it was immediately apparent that the house was  being  used  exclusively  for  a  cannabis  operation,  including drying large quantities of high quality cannabis.   I have also been informed that there were indications that the property had also been used for the cultivation of cannabis.

[7]      She also avers at:

90.      Detective  Boucher  also  viewed  a  series  of  photographs  taken  at

12 Katrine Street, Otautau on 6 May 2011.

91.Detective  Boucher  advised  me  that  from  those  photographs,  he observed a large number of items used in the indoor cultivation of cannabis plant material.  He also advised me that because of the high costs and manpower involved in setting up these types of premises, it  is  not  considered  normal  for  a  grower  to  set  up  this  type  of cannabis growing operation as a “one off”.

92.      In  Detective  Boucher’s  experience,  the  following  equipment  is

consistent with that commonly found at indoor cannabis scenes:

92.1Lighting  and  shades,  including  fluorescent,  halidied  or sodium bulbs of various wattage.

92.2     Ballast (transformers)

92.3     Electronic or manual timers

92.4Extractor fans/oscillating fans/ventilation systems including ducting, heaters, pots, bags of soil and compost, plant fertilisers, seedling trays, thermometers and polythene wall linings to mention a few.

93.Detective Boucher noted that a significant number of these items were located at the property.

94.Detective Boucher advised me that he believes that the property has been used for the purpose of propagating, cultivating, drying and storing of cannabis on a commercial scale.

95.Considerable time, effort, planning, knowledge, skill and money had been  invested  into  the  commercial  cannabis  operation  at  the property.

[8]      It would have been preferable for Detective Boucher to provide the evidence directly, rather than have it come through another deponent.   Be that as it may, neither of the McGregors attended the hearing so I did not hear from them and no evidence was produced in opposition to the application.  On that basis, given that I am satisfied that they were properly served, I grant the orders sought.  I qualify the order however by simply noting that the property shall be restrained pending the determination of the application for vesting of the property pursuant to the Criminal Proceeds (Recovery) Act 2009.

Orders

[9]      Accordingly, I make the following orders:

(a)      The  property  is  not  to  be  disposed  of,  or  dealt  with,  other  than pursuant to an order of this Court pending determination of an application for vesting under the Criminal Proceeds (Recovery) Act

2009.

(b)      The property is to be in the Official Assignee’s custody and control.

[10] As noted at [3] above, this order shall have immediate effect, but a copy of the application must be served on the Official Assignee. I reserve leave to the Official Assignee to make any application it thinks appropriate should it deem it

necessary to do so.

Whata J