De Bruin v R
[2007] NZCA 600
•21 December 2007
IN THE COURT OF APPEAL OF NEW ZEALAND
CA296/06
CA317/06
[2007] NZCA 600
BETWEENROBERT CHARLES DE BRUIN
Appellant
ANDTHE QUEEN
Respondent
CA332/06
AND BETWEEN ASTRID ELEANOR DELANEY
Appellant
ANDTHE QUEEN
Respondent
Hearing:22 May 2007
Court:Wilson, Randerson and Rodney Hansen JJ
Counsel:R A A Weir for Appellant in CA296/06 and 317/06
S L Abdale for Appellant in CA332/06
D G Johnstone for Respondent
Judgment:21 December 2007 at 12pm
JUDGMENT OF THE COURT
A Mr de Bruin’s appeal against his conviction is dismissed.
BMr de Bruin’s appeal against his sentence is allowed and a sentence of 11 years imprisonment substituted.
CMr de Bruin’s appeal against the pecuniary penalty imposed under the Proceeds of Crimes Act 1991 is dismissed.
DMs Delaney’s appeal is allowed and her interest in the property at 90 Riddell Road, Glendowie, Auckland is fixed at 3.5 per cent of the value of that property from time to time.
EUpon the sale of the property, Ms Delaney is entitled to 3.5 per cent of the net proceeds of sale, together with interest at the Judicature Act rate if that sum is not paid to her immediately upon settlement of the sale and 3.5 per cent of any net income generated from the property while it was subject to restraint. The pecuniary penalty order is to be a first charge on the balance of the net proceeds of sale.
FMs Abdale is to be paid the sum of $3,440, as costs on the appeal, from Ms Delaney’s share of the proceeds of any sale of 90 Riddell Road.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wilson J)
Table of Contents
Para No
INTRODUCTION [1]
Background [5]
Issues [24]
Appeal against conviction[25]
Appeal against sentence[38]
Appeal against proceeds of crime order [58]
Assessment of the value of benefits derived for the purposes of a
pecuniary penalty order [61]
Section 27(2) [67]
The amount of the penalty [76]
Section 28 [82]
Ms Delaney’s appeal [87]
Background [87]
Preliminary matters [91]
Interest in 90 Riddell Road [100]
Costs [117]
Result [122]INTRODUCTION
[1] The appellant Mr de Bruin and Darryl Leigh Sorby were jointly convicted on 20 May 2006 on five counts of importing MDMA and five counts of selling MDMA. (MDMA is a class B controlled drug, also known as ecstasy). The offending involved ecstasy tablets being brought into New Zealand by sea freight from South Africa under the cover of importing furniture, after which the drugs were sold and the proceeds “laundered”. Mr Sorby was convicted on an additional count of importing MDMA in relation to another shipment.
[2] On 9 August 2006, Cooper J sentenced Mr de Bruin to 12 years imprisonment on each count, with the terms to be served concurrently. Mr Sorby was sentenced to nine years imprisonment. In related civil proceedings under the Proceeds of Crime Act 1991, Cooper J made pecuniary penalty orders of $1 million against both Mr de Bruin and Mr Sorby. He ordered that property that had earlier been restrained under that Act in respect of both offenders be made available to meet the pecuniary penalty orders. This included a house at 90 Riddell Road, Glendowie, Auckland owned by Mr de Bruin and his former de facto partner, the appellant Ms Delaney, as joint tenants. Cooper J ordered that certain debts were to be settled out of the proceeds of the restrained property before satisfying the pecuniary penalty order, including $20,125 (plus interest) to be paid to Ms Delaney in recognition of her equitable interest in 90 Riddell Road.
[3] Mr de Bruin appeals against conviction, sentence and the pecuniary penalty order. Ms Delaney, who was not a party to the offending, appeals against the proceeds of crime order against Mr de Bruin.
[4] The three appeals were heard together.
Background
[5] The background is protracted and complex.
[6] Mr de Bruin had been to trial on these charges no fewer than three times previously. In the first two trials, the jury was discharged before a verdict could be reached, but after a third trial Mr de Bruin and Alexander Smith (his co-accused at that time) were convicted in December 2003. Mr de Bruin appealed and his convictions were quashed by this Court on 7 March 2005 for reasons unrelated to the current appeal. A retrial was ordered.
[7] Following Mr de Bruin’s 2003 convictions, Venning J ruled, on application by the Solicitor-General, that certain property be forfeit to the Crown under the Proceeds of Crime Act: Solicitor-General v de Bruin [2004] 3 NZLR 540 (HC). That property was $379,240 in cash that had been found during a search of Mr de Bruin’s home at 90 Riddell Road, and the property itself. Venning J ruled that both the cash and the house were tainted property, being proceeds of a serious offence. However, he found that $15,000 of the deposit for the house had been provided by Ms Delaney, and that her contribution was not tainted. She was therefore entitled to recognition of her interest in the property.
[8] Ms Delaney claimed to have an increased interest in the house above her initial contribution, which was 3.5 per cent of the purchase price of $435,000. However, Venning J held that any rights Ms Delaney might have against Mr de Bruin could not translate into a right or interest in the house. He found that her equitable interest in the property was proportionate to her 3.5 per cent contribution to its purchase price. As the house had increased in value to $575,000, Venning J fixed Ms Delaney’s equitable interest in the house at $20,125. She could not however be paid that sum until the house was sold.
[9] When Mr de Bruin’s 2003 convictions were quashed, the forfeiture orders (including the order fixing Ms Delaney’s interest) were consequently discharged pursuant to s 19 of the Proceeds of Crime Act. The Solicitor-General applied for new restraint orders to preserve the Crown’s position, pending retrial. Venning J granted those orders on 22 July 2005, but noted that Ms Delaney’s interest in the house could not be finally determined at that time.
[10] On 11 May 2005, before the retrial, Mr Sorby was arrested and charged jointly with Mr de Bruin. A preliminary hearing in respect of Mr Sorby was set down for 5 to 7 September 2005. Mr de Bruin did not receive notice or service of the new informations in which he and Mr Sorby were named as joint co-accused, but became aware that there was to be a preliminary hearing in respect of Mr Sorby. He applied on 1 September for an order prohibiting the preliminary hearing until he was granted standing to attend. Although some of the witnesses that would be present at Mr Sorby’s preliminary hearing had been present at previous preliminary hearings in respect of Mr de Bruin, Mr de Bruin argued that the fact he was to be charged jointly with Mr Sorby amounted to a change of circumstances. He said that denying him the right to cross-examine witnesses amounted to a breach of natural justice, as he would not be able to test by cross-examination the evidence against him in the light of Mr Sorby’s arrest. He claimed that the indictment had had numerous changes since the preliminary hearings on 16 April and 22 September 2002, and that the arrest of Mr Sorby had raised new issues relevant to his case. However, the indictment was not amended to reflect the joint charges until after Mr Sorby’s preliminary hearing.
[11] In a Minute dated 1 September 2005, Harrison J dismissed Mr de Bruin’s application for an order prohibiting the preliminary hearing, commenting that:
[2] The statement of claim appears fundamentally flawed. It does not plead or particularise a coherent jurisdictional basis for the relief claimed. It also reflects a misconception of the statutory purpose and effect of a preliminary hearing of evidence on an indictable offence.
[12] Mr Sorby’s preliminary hearing went ahead without Mr de Bruin, who then applied for a stay of prosecution and an order that the Crown name their informant. He was unsuccessful on both counts. Courtney J found that, at the time of Mr Sorby’s preliminary hearing, Mr de Bruin was facing the same charges as he always had. The actual indictment was not altered to reflect joint charges until after the hearing. For that reason, Courtney J found that there was no factual basis on which Mr de Bruin could even have asserted a right to attend the hearing: R v de Bruin HC AK CRI-2005-088-1527 18 October 2005 at [14] – [15].
[13] The retrial began on 1 May 2006 and the jury delivered their verdicts on 20 May.
[14] In sentencing Mr de Bruin and Mr Sorby, Cooper J began by noting that the offences for which they had been convicted carried a maximum penalty of 14 years imprisonment. He then considered the quantity and value of drugs involved. Cooper J relied on evidence from Mr de Bruin’s co-accused in the earlier trials, Mr Smith, to form the view that there were likely to have been approximately 20,000 tablets in the consignments that had not been intercepted. He described the operation as sophisticated, finding that well over $3 million of MDMA must have been imported. Consignments of MDMA had been regularly dispatched from South Africa between July 2000 and February 2002 and the offenders’ criminal activities were only curtailed by the intervention of the police.
[15] Although Mr Smith’s involvement in the operation must have been substantial, Cooper J found that Mr Sorby and Mr de Bruin had also been heavily involved. There was no evidence as to how the drugs had been distributed or sold, but Cooper J agreed with the Crown that the offending was on a substantial scale, had been sustained over a lengthy period and had involved substantial sums of money. Large sums of cash were also found in Mr Sorby’s possession, and there was evidence that over $1 million had been buried on a property adjacent to his, although that money was not recovered.
[16] The Judge noted that Mr de Bruin had no relevant history of previous offending, other than his previous quashed convictions in respect of the same facts that were at issue in this trial. Mr de Bruin’s convictions resulting from the December 2003 trial had included an additional count of importation, as well as counts of money laundering. Venning J had sentenced Mr de Bruin on those convictions to 13 years imprisonment, but Cooper J accepted that he was sentencing Mr de Bruin on this occasion for less extensive offending. Mr de Bruin’s pre‑sentence report noted that he was 53 years old, with no history of drug use or dealing. He maintained his innocence on the charges, and consequently displayed no remorse or acceptance of his offending. On completion of his sentence, Mr de Bruin would probably be deported to Australia.
[17] The guideline decision for the purposes of sentencing was identified as R v Wallace and Christie [1999] 3 NZLR 159 (CA), and it was agreed by counsel that this offending fell within the most serious category there identified. That category covers commercial activity on a major scale, for which the appropriate starting point, before mitigating factors are taken into account, is in the range of eight to 14 years imprisonment. Cooper J found that the number of convictions for which he was sentencing (ten for Mr de Bruin and 11 for Mr Sorby) justified a starting point near the top of that range.
[18] For Mr de Bruin, the Judge adopted a starting point of 13 years to reflect the overall gravity of the offending. He then had regard to matters raised by Mr de Bruin’s counsel, including that he was sentencing on fewer charges than those for which he was sentenced by Venning J. The final sentence on each count was 12 years imprisonment, the terms to be served concurrently.
[19] Mr Sorby’s end sentence was nine years imprisonment, from a starting point of 11 years. His previous serious drug offending in Australia, was an aggravating factor, but an existing sentence for money laundering to which Mr Sorby had earlier pleaded guilty had to be taken into account. Mr Sorby had already served one year and nine months of that sentence. He had also co-operated with the police to some extent, although he had maintained his innocence.
[20] The Solicitor-General had applied for pecuniary penalty orders under s 25(1) of the Proceeds of Crime Act, and for orders that property restrained under that Act be released to satisfy those orders. At that stage, the restrained property in respect of Mr de Bruin consisted of the house (less Ms Delaney’s equitable interest of $20,125 and interest thereon, as originally fixed by Venning J and confirmed in 2006 by Williams J) and a sum of $126,941.58, which remained from the $379,240 cash seized by police. The balance had been used to fund Mr de Bruin’s living expenses pending resolution of the charges against him, and to meet legal fees and other expenses relating to his defence. This was in accordance with court orders.
[21] The Crown sought a pecuniary penalty of $1 million, claiming that figure represented “a nominal, minimum value of the revenue acquired by [Mr de Bruin]” from sales of MDMA. Mr Weir, counsel for Mr de Bruin, opposed that level of penalty on a number of grounds but Cooper J ultimately found that the Crown’s application was justified. In coming to this conclusion, the Judge noted that $400,000 of tainted money was used to fund the purchase of the house, and a further $379,240 in cash was found at that property. In addition, there was direct evidence of several substantial cash payments (ranging from $10,000 to $50,000) sent overseas by Mr de Bruin himself or at his direction. The total of these amounts was not far short of the $1 million sought by the Crown.
[22] As an alternative assessment, Cooper J also considered the street value of the imported MDMA. Assuming that there were four unintercepted shipments of 20,000 tablets that could be sold for $30 each, the imported MDMA would have had a value of $2.4 million. Cooper J observed that:
[28] It is plain from the legislation that the Court’s assessment of benefit is not to be limited to a consideration of property which was kept by the offender, but extends, under s 27(2)(a), to money that merely came into his possession during the offence period. The money sent overseas confirms that this was a substantial commercial drug dealing operation. A penalty in the sum of $1 million would not be one which unfairly singled out Mr De Bruin to meet the “whole burden of a pecuniary penalty” (see Solicitor-General v O’Donnell [HC AK M681/95 3 March 1997] since the revenue overall would have been far in excess of that figure.
[23] Overall, Cooper J concluded that nothing in Mr Weir’s submissions dissuaded him from the conclusion there should be an order against Mr de Bruin for a pecuniary penalty in the sum of $1 million.
Issues
[24] There are four issues to be determined:
·did Mr de Bruin have a right to standing at the preliminary hearing of Mr Sorby and, if so, did the failure to grant him standing amount to a breach of natural justice that rendered Mr de Bruin’s trial unfair and his convictions unsafe?
·was the sentence imposed by Cooper J manifestly excessive in all the circumstances?
· was the pecuniary penalty imposed by Cooper J excessive in all the circumstances?
· was Ms Delaney’s equitable interest in 90 Riddell Road properly determined?
Appeal against conviction
[25] Mr de Bruin submits through counsel that his conviction was unfair because he was denied the opportunity to participate in the preliminary hearing of his co‑accused, Mr Sorby. He argues the preliminary hearing process was so fundamentally flawed that the trial itself was a nullity. The breach was more than minor or technical, and could not have been cured by post preliminary hearing applications to examine witnesses, as suggested by the Crown. As noted at para [11] above, Mr de Bruin’s request for judicial review of the decision not to grant him standing at Mr Sorby’s preliminary hearing was rejected by Harrison J on 1 September 2005, by minute in chambers and without hearing from counsel. The result is, it is submitted, a breach of the Summary Proceedings Act 1957 and a breach of natural justice, contrary to s 27 of the New Zealand Bill of Rights Act 1990.
[26] Mr Weir also points to the fact that the indictment against Mr de Bruin was amended after Mr Sorby’s preliminary hearing, and that the amendment must have been on the basis of information gleaned from that hearing. Mr de Bruin should therefore have had the opportunity to examine witnesses under the same conditions as the prosecution and co-accused. In particular, he was unable to cross-examine Mr Smith (who had agreed to assist the police after his conviction) and could not take the risk of cross-examining Mr Smith at trial.
[27] The Crown maintains that Mr de Bruin did not have standing to attend Mr Sorby’s preliminary hearing, and that there has been no breach of natural justice. The appellant could have had Mr Smith’s evidence taken under s 178 of the Summary Proceedings Act, but elected not to do so. The question of a possible breach of natural justice has already been considered and correctly decided by Courtney J in the High Court and this Court (R v de Bruin [2007] NZCA 76).
[28] We will consider whether a miscarriage of justice may have arisen first from the fact that the appellant did not examine Mr Smith prior to his trial and, secondly, because the indictment was amended after Mr de Bruin’s preliminary hearing.
[29] As to the first issue, we accept that, on the basis of the Summary Proceedings Act, Mr de Bruin did not have standing to attend Mr Sorby’s preliminary hearing. The procedure for preliminary hearings of indictable offences is regulated by Part 4 of that Act. Section 154 provides that certain sections in Part 2 (which relates to summary proceedings) also apply.
[30] These sections include s 37(1), (2) and (3). These provisions allow for the informant and defendant to appear either personally or by counsel but do not provide any right of appearance by anyone else.
[31] Section 161 provides for witnesses to depose and be cross‑examined at a preliminary hearing. Section 158 entitles the defendant to be present (subject to some irrelevant exceptions). On the basis of these provisions, those with a right to attend Mr Sorby’s preliminary hearing were the informant (the police), the defendant (Mr Sorby), their respective counsel and any witnesses called. There is no provision in the Act to confer standing on other parties who claim to have an interest in the proceedings.
[32] While in our view the process followed was less then ideal, there was no breach of natural justice that amounted to a miscarriage of justice. There is no absolute right to cross-examine all witnesses at depositions hearings. Any prejudice suffered by the appellant could have been mitigated in one of three ways. First, Mr de Bruin could have examined Mr Smith prior to his trial. Section 178 of the Summary Proceedings Act expressly recognises that it may be in the interests of justice for a defendant to be able to examine witnesses who were not called at his or her preliminary hearing, and provides an avenue for doing so. Mr de Bruin did not apply to examine Mr Smith under s 178. Secondly, Mr de Bruin had the option of opposing the Crown’s application to amend the indictment, but again he did not do so. Thirdly, he had the opportunity to test at trial the evidence adduced at the preliminary hearing. Cumulatively, these protections provided ample opportunity to Mr de Bruin to examine Mr Smith if he wished to do so. Mr de Bruin cannot now complain of a miscarriage of justice if he chose not to pursue these opportunities.
[33] Of more concern is the second issue, arising out of the fact that Mr de Bruin’s preliminary hearing was held before he knew that he would be charged jointly with Mr Sorby. Joint charges would have created a different factual context for cross‑examining potential witnesses. Section 162 of the Summary Proceedings Act provides that an information may be amended at any time during the preliminary hearing, but that the defendant can request the preliminary hearing be adjourned if the amendment would cause the defendant to be “embarrassed” in his defence. The ability to depose witnesses after a defendant has been committed for trial (s 178) allows a defendant to obtain the evidence of “any person who did not give evidence … at the preliminary hearing”, but not to re-examine witnesses who did appear at the preliminary hearing.
[34] The Crown applied to amend the indictment after Mr Sorby’s preliminary hearing. Sections 335 and 345D of the Crimes Act 1961 address variation and amendment of indictments. Section 345D(1) provides that a Trial Judge may allow a prosecutor to file an amended indictment “if it appears to the Trial Judge that the filing of an amended indictment would be conducive to the ends of justice.”
[35] That Mr Weir may have been denied the opportunity to cross-examine witnesses with full knowledge of the charges faced by Mr de Bruin is concerning. But this complaint can only pertain to the pre-trial process. It has not been suggested that Mr Weir was not able to properly cross-examine witnesses at the trial itself. Counsel could not point to any particular witness or piece of evidence that he discovered during cross-examination at trial that might have led him to conduct Mr de Bruin’s defence differently. It therefore does not appear to us that the trial as a whole was unfair.
[36] In summary, Mr de Bruin had no right to attend Mr Sorby’s preliminary hearing, and there was no breach of natural justice in the pre-trial process because it was open to Mr de Bruin to take action to mitigate any prejudice he may have suffered by being excluded from the hearing. In any event, he has not demonstrated any prejudice.
[37] For these reasons, the appeal against conviction must fail.
Appeal against sentence
[38] Mr de Bruin submits through counsel that his 12 year sentence is manifestly excessive because it is inconsistent with those of others involved in this offending, and does not reflect his personal circumstances. The parties agree that the offending in this case falls within the top band identified in the guideline decision in Wallace and Christie, but disagree on the appropriate starting point. The top band covers commercial activity on a major scale, and mandates a starting point within the range of eight to 14 years.
[39] Mr Weir argues that Mr de Bruin’s sentence is inconsistent with the sentences of Mr Sorby and Mr Smith (nine years imprisonment each). Counsel challenges the finding of Cooper J that Mr de Bruin’s role in the offending was greater than that of Mr Sorby. He points out that Mr Sorby was apprehended with drug paraphernalia, money, drugs and firearms, whereas Mr de Bruin was not. Further, Mr Sorby was being sentenced for more convictions (11) than Mr de Bruin (ten), and the extra conviction related to the only importation where MDMA was actually intercepted. Mr Sorby had also earlier been convicted for money laundering in relation to this offending, whereas Mr de Bruin was not convicted of that offence.
[40] The appellant acknowledges that Mr Sorby’s sentence was greatly discounted to recognise, among other matters, his co-operation with the police and the 21 month sentence he had already received for money laundering. However, he submits through counsel that the end sentences are still incongruous, and the 12 year starting point adopted for Mr Sorby was also too high. The Crown’s position is that Mr Sorby’s lower sentence is justified because he played a lesser role in the offending and co-operated with police.
[41] Mr Weir also draws a comparison between Mr de Bruin’s sentence and the sentence of nine years imprisonment imposed on Mr Smith after the 2003 trial. After Mr Smith was sentenced, it emerged that he had actually played a far greater role in the offending than was apparent at his trial. Mr Weir submits that, in all the circumstances, Mr de Bruin should not be required to serve a sentence of three years more than Mr Smith. Counsel asks this Court to substitute a sentence of nine years imprisonment on Mr de Bruin.
[42] The Crown’s response is that Mr Smith’s lower sentence is justified because it was based on the evidence against him at the time he was sentenced. The fact that more evidence has since come to light may make Mr Smith’s sentence seem lenient in hindsight, but it does not mitigate the seriousness of Mr de Bruin’s offending.
[43] This was serious commercial offending. According to Wallace and Christie, it warrants a starting point near the top of the available range. In that case, this Court noted that:
[30] The cases reflect a considerable range in the seriousness of offending. They show that for commercial activity on a major scale the starting point before any allowance for mitigating factors for a principal offender will be in excess of eight years and in the very bad cases up to 14 years, especially where repeat offending is involved. For major offending of this kind there will likely be numerous separate offences so that the 14-year maximum penalty will have little direct relevance to the total offending.
[44] It does not assist Mr de Bruin to seek parity with the sentence of Mr Smith by relying on information that was not available to the Judge who sentenced that offender.
[45] We think however that there is considerable force in Mr Weir’s submission that, for the reasons summarised at para [38] above, Mr de Bruin’s sentence was inconsistent with that imposed on Mr Sorby.
[46] In his sentencing remarks, the Judge did not give any reason for the disparity in the sentences imposed on Mr de Bruin and Mr Sorby. When a Judge is sentencing on the basis of conclusions reached on the evidence, reasons for those conclusions should be given. If they are not, the appellant is effectively deprived of the right to challenge the conclusions, and an appellate court cannot assess their correctness or otherwise.
[47] From our own reading of the record of the evidence at trial, the starting point when sentencing both Mr Sorby and Mr de Bruin could have been 13 years imprisonment.
[48] Because of the sentence actually imposed on Mr Sorby, we think however that the only safe course is to reduce the sentence of Mr de Bruin to one of 11 years imprisonment. Giving due weight to the substantial mitigating factors available to Mr Sorby but not Mr de Bruin (summarised in para [19] above), that outcome does in our view represent an appropriate relativity as between the two offenders.
[49] In addition to the disparity argument, Mr Weir submits that the sentencing Judge either overlooked or did not properly take into account:
· Mr de Bruin’s previously “clean” record (in comparison with Mr Sorby’s previous convictions for serious drug offending in Australia);
· 20 months imprisonment already served by Mr de Bruin in relation to the convictions that were quashed; and
· the additional punishment imposed by the pecuniary penalty order.
[50] Another factor that has emerged since Mr de Bruin was sentenced is that he has been diagnosed with terminal lung cancer. Mr Weir submits that this warrants a more lenient sentence than the one that was imposed. He pointed out that allowances were made for Mr Smith’s personal circumstances (that he was from South Africa and was without familial support in New Zealand) and argues that it would be unjust for Mr de Bruin’s personal circumstances not to be taken into account in the same way.
[51] The Crown submits that a “clean” criminal history is less significant in drug offending than other offending, given that deterrence is a key determinant of sentencing for this type of offending: R v Terewi [1999] 3 NZLR 62 (CA); Wallace and Christie. The Crown acknowledges that Mr de Bruin has been sentenced for less extensive offending than when he was sentenced by Venning J in 2003, but argues that the difference is negligible given the totality of the offending. Moreover, Cooper J was not required to take into account time that the appellant had already served or that a pecuniary penalty order was also being imposed: R v Brough [1995] 1 NZLR 419 at 424 (CA). Finally, the Crown points to the aggravating factors of the vast scale of the offending, the 18 months over which it was sustained, and the large amount of money derived from it. Those factors justified a starting point very close to the top of the available range.
[52] The Crown also submits that the appellant’s terminal lung cancer was not evident at sentencing, and should not justify a retrospective adjustment. Mr de Bruin’s personal circumstances can be addressed by the Parole Board, which can grant a prisoner early release on compassionate grounds under s 41 of the Parole Act 2002. Alternatively, s 62(2)(a)(ii) of the Corrections Act 2004 authorises the temporary release from custody of a prisoner for “the compassionate or humane treatment of the prisoner”.
[53] We cannot accept the appellant’s arguments on this point. As this Court has previously emphasised, considerations of deterrence must take precedence over personal circumstances in sentencing for drug offences: Terewi at [13]; Wallace and Christie at 167. The Judge was also right not to take into account the time Mr de Bruin had already spent in custody. Section 82 of the Sentencing Act states that:
In determining the length of any sentence of imprisonment to be imposed, the court must not take into account any part of the period during which the offender was on pre-sentence detention as defined in section 91 of the Parole Act 2002.
The definition of pre-sentence detention in s 91 is very broad and clearly includes the detention in this case.
[54] Likewise, the Judge was correct not to take into account the existence of the pecuniary penalty order. The position was summarised by this Court in Brough at 424:
It is our conclusion, having regard to the scheme of the Act, that as a general proposition, confiscation orders under the Act should not be taken into account when assessing sentencing, subject to two qualifications. First, there may be exceptional or unusual circumstances where orders made, particularly orders to forfeit valuable property used in the commission of an offence, may have a disproportionate or exceptional affect on the offender, sufficient for some regard to be had to it when imposing sentence. Secondly, recognising that one of the purposes of the sentence to be imposed is to deter others who may be minded to commit like offences, if forfeiture orders of property used in the commission of offences are particularly severe, some adjustment to the sentence may be appropriate because the deterrent effect of the forfeiture orders may lessen the need for the deterrent element in the sentence. But it is difficult to conceive of circumstances where orders to forfeit the proceeds of the offence or for a pecuniary penalty order reflecting the benefit derived from the commission of an offence, should have any relevance to an appropriate sentence. These reflect the offender’s ill-gotten gains which, in accordance with the policy of the Act, and irrespective of sentencing for offences, the offender should be required to disgorge.
[55] On the present facts, there is no justification for departing from the general approach that a pecuniary penalty order is not relevant when sentencing.
[56] Finally, Mr de Bruin’s lung cancer was not evident at sentencing, and cannot justify a retrospective adjustment when s 41 of the Parole Act and s 62 of the Corrections Act 2004 provide alternative mechanisms for a merciful response to the change in his personal circumstances.
[57] In summary, we have accepted that the appellant’s sentence should be reduced by one year to achieve parity with his co-offenders. However, there is no justification for reducing the sentence any further to reflect Mr de Bruin’s personal circumstances.
Appeal against proceeds of crime order
[58] In relation to the pecuniary penalty order, Mr de Bruin contends that the Judge erred in taking into account benefits from offending for which he had not been convicted, and that the penalty amount was not justifiable on the evidence.
[59] More particularly, the appellant submits that the Judge erred in calculating the pecuniary penalty order because:
· on the facts, the Court is limited to assessing the value of the defendant’s property under s 27(2)(c) of the Proceeds of Crime Act; s 27(2)(a) does not apply;
· there was insufficient evidence to justify a pecuniary penalty of $1 million;
· section 28(3) applied so as to exclude the increase in the value of the house due to market forces.
[60] Both appellants initially challenged the jurisdiction of the High Court to make forfeiture orders on the application by the Solicitor-General but, after being shown a copy of the application by Mr Johnstone, accepted that there was jurisdiction.
Assessment of the value of benefits derived for the purposes of a pecuniary penalty order
[61] The starting point for assessment of the value of benefits derived for the purposes of a pecuniary penalty order is s 25, which relevantly provides:
(1)On the hearing of an application for a pecuniary penalty order in respect of benefits derived by a person from the commission of a serious offence, the Court may, if it is satisfied that the person derived benefits from the commission of that offence, —
(a)Assess, in accordance with sections 27 and 28 of this Act, the value of the benefits so derived; and
(b)Order the person to pay to the Crown a pecuniary penalty not greater than the penalty amount.
(2) The penalty amount is the value of the benefits assessed under sections 27 and 28 of this Act, reduced by—
(a)An amount equal to the value of any property that has been forfeited, or is proposed to be forfeited, to the Crown under this Part of this Act as proceeds of the relevant serious offence; and
(b)An amount equal to the value of any pecuniary penalty that has already been imposed, in respect of the benefit, under this Act or any other enactment; and
(c)Any further amount which the Court considers appropriate to take into account, after having regard to the matter referred to in section 14 (1)(b) of this Act.
[62] Section 14(1)(b) provides that, on an application for a confiscation order, the Court may take into account any sanction upon conviction which is in the nature of a pecuniary penalty or forfeiture of property.
[63] Section 25(1) thus requires that, before making an order under s 27, the Court is satisfied that the person against whom the order is made has derived benefits from the commission of a “serious offence”.
[64] A “serious offence” is defined in s 2 as “an offence punishable by imprisonment for a term of five years or more”, as the offences of which Mr de Bruin was convicted plainly were.
[65] Section 25(2) then provides that the penalty amount is to be the value of the benefits assessed under ss 27 and 28, reduced as provided in paras (a), (b) and (c).
[66] It is therefore necessary to determine first what were the benefits received by Mr de Bruin and, in particular, whether Cooper J was correct in holding that, on the facts, he was not limited to assessing the value of his property under s 27(2)(c).
Section 27(2)
[67] Section 27(2), the relevant sub-section, provides:
For the purposes of an application for a pecuniary penalty order, the value of the benefits derived by a person (in this subsection referred to as the “defendant”) from the commission of an offence or offences shall be assessed by the Court having regard to evidence before the Court concerning all or any of the following matters:
(a) The money, or the value of the property other than money, that came into the possession or under the control of—
(i) The defendant; or
(ii) Another person at the request or direction of the defendant—
by reason of the commission of the offence or any of the offences:
(b) The value of any other benefit provided to—
(i) The defendant; or
(ii) Another person at the request or direction of the defendant—
by reason of the commission of the offence or any of the offences:
(c) The value of the defendant's property,—
(i) Where the application relates to a single offence, before and after the commission of the offence; or
(ii) Where the application relates to 2 or more offences, before, during, and after the offence period.
[68] The appellant’s argument turns on the first part of this assessment, namely whether he derived benefits from the offence in addition to the property in his possession at the time of the offending of which he was convicted. His argument is that only paragraph (c) is applicable because he was merely a courier, and did not derive benefit from the money that was passed on by him.
[69] Mr de Bruin concedes that an assessment under s 27(2)(c) does not exclude the value of the property of which he was in possession “at the time of the offending”. The issue is whether Cooper J was correct in taking into account money that was not in Mr de Bruin’s possession when he was apprehended. The Judge assessed this in two ways, first by taking into account money that was held by Mr de Bruin and then sent overseas by him or at his direction, totalling $296,000, and alternatively by taking into account the estimated value of the MDMA imported.
[70] For Mr de Bruin, Mr Weir submits that paras (a) and (b) should not apply where the person concerned is merely a courier or go-between, who has not derived any benefit from the offence. The Crown’s position is that Mr de Bruin was a receiver or intermediary, but that he would be liable for a pecuniary penalty even if his role in the offending was only as a courier.
[71] It is not necessary to address the position of couriers. In our view, Cooper J was correct to reject the contention that Mr de Bruin was a mere courier. As the Judge pointed out, he was the person to whom the imported drugs were consigned in New Zealand, he was found guilty of six counts of sale of MDMA, and he was rewarded handsomely. Mr de Bruin was an integral part of the entire importation operation. The fact that he elected to pass on some of the benefits that he received in order to continue the operation does not mean that he did not receive these benefits in the first place.
[72] This conclusion is supported by the decision of this Court in R v Pederson [1995] 2 NZLR 386. The Court there held that, although the offender had made a profit of only $240 from dealing in drugs, the full amount paid to him ($8,800) should be the subject of a pecuniary penalty order as the “benefit” derived.
[73] As soon as the Court is satisfied that the defendant has derived a benefit, it is entitled to make an assessment under s 27. In the present case, 90 Riddell Road and the cash found there are identifiable benefits from the commission of the offences. Cooper J was therefore entitled to have regard to “all or any” of the matters set out in the section when assessing the amount of the benefits received by Mr de Bruin.
[74] More particularly, Cooper J was fully justified in finding (as noted at [21] above) that the purchase of the house was intimately connected with the offending. The offending occurred between July 2000 and May 2002. The house was purchased in March 2001. An Auckland solicitor gave evidence at trial that a man who, the defence accepted, was Mr Sorby, on four occasions brought cash to him (in each case $100,000) asking that it be held on trust for Mr de Bruin’s shelf company to purchase a property. Mr de Bruin paid a deposit of $43,000 (in $20 notes) on the house. Ms Delaney contributed $15,000. Mr de Bruin’s shelf company was registered against the title as mortgagee, securing the balance of the purchase price.
[75] On these facts, it is impossible to avoid the inference that, apart from Ms Delaney’s contribution of $15,000, the house was purchased with cash which was a benefit to Mr de Bruin of his offending.
The amount of the penalty
[76] The issue then arises of whether, taking into account the matters identified in s 27, the penalty of $1 million was justified on the evidence.
[77] The appellant submits that that penalty was fixed on the basis of unreliable and non-quantifiable evidence, or on evidence that is not properly attributable to Mr de Bruin. He submits through counsel that the assessable benefit should be limited to the funds directly attributable to property traced and found.
[78] The parties refer to various principles to be taken into account in the assessment. The Crown points out that what is required is a “somewhat rough and ready approach": Allen J in R v Fagher (1989) 16 NSWLR 67 at 80 (CA), quoted in Pedersen at 395. The appellant cites the principle that discretionary orders should not be unjustly applied: Solicitor-General v O’Donnell HC AK M681/95 3 March 1997 at 4.
[79] As noted at paras [21] and [22] above, Cooper J assessed the evidence in two alternative ways in coming to his conclusion that $1 million was a reasonable penalty. First, he assessed the amount of the house deposit and the cash found at the house ($779,240) combined with the amounts sent overseas by Mr de Bruin or his associates, totalling approximately $296,000. The total of these two sums is $975,240. This assessment does not take into account the increased market value of the house (approximately $300,000). The appellant objects to the inclusion of the amounts forwarded overseas on the grounds that “they are not money or property that came into Mr de Bruin’s possession or control: the whole purpose of the transfers was for Alex Smith to put the money out of the control of everyone in New Zealand”. However, we are satisfied for the reasons already given that these sums could legitimately be taken into account under s 27(2)(a).
[80] Cooper J estimated the value of the consignments of MDMA at $2.4 million. This conclusion was primarily based on the evidence of Mr Smith as to the amount of MDMA imported, and the evidence of Detective Steedman as to the value of the tablets. The appellant argues that Mr Smith’s evidence is unreliable, a point acknowledged by Cooper J in his judgment. However, the Judge did not rely solely on Mr Smith’s evidence but confirmed it by reference to the other evidence available.
[81] Section 85 of the Proceeds of Crime Act provides that any question of fact is to be determined on the balance of probabilities. We think that, on the balance of probabilities and on the evidence available to him, Cooper J’s assessment was correct. The assessment is necessarily a “rough and ready” one but we are satisfied that it is appropriate in the circumstances of this case.
Section 28
[82] Finally, the appellant objects to the forfeiture in its entirety of his interest in 90 Riddell Road. He complains that the current market value of the property was taken into account under s 27(2)(c) in determining the value of the benefits derived by him. This is a very significant issue, given that the property has increased in value from $435,000 when it was purchased to $700,000 to $750,000 when it was last valued. Mr de Bruin claims that the Judge should have recognised that the increase in value was not a benefit that flowed from the offending.
[83] Section 28 of the Proceeds of Crime Act establishes a presumption that, if the value of the defendant’s property increased during the offending, the increase in value can be attributed to the offending. Under s 28(3), the onus is on the defendant to displace this presumption. If the court is satisfied that the increase was due to causes unrelated to the offending, that amount “shall not” be included in the assessment of benefits derived.
[84] The appellant relies on Chief Constable of Leicestershire v M & Anor [1988] 3 All ER 1015 (Ch) for the proposition that an increase in the value of a property due to market forces is not a benefit derived from offending. The defendant there obtained money by fraud and used it to purchase property, which then increased in value. The Chancery Division held that the police did not have any right based on the increase in value to found a claim for an injunction to prevent the defendant dealing with the money. The decision was however based on the proposition that the court had no jurisdiction at common law, and is therefore distinguishable from the present case which turns on the statutory jurisdiction under the Proceeds of Crime Act.
[85] For the Crown, Mr Johnstone submits that the effect of s 28(3) of the Proceeds of Crimes Act is that, unless the defendant can discharge the onus of establishing that any increase in the value of his property subsequent to his offending was due to causes unrelated to the offending, the increase may be taken into account for the purposes of s 27. We agree with this analysis of the subsection.
[86] On the facts, the appellant has not discharged the onus of showing that the increase in the value of house was due to causes unrelated to the offending. As the Crown points out, almost all of the funds used to purchase the house came from the proceeds of crime, and the increase in value of the property owned by Mr de Bruin could not have occurred but for the offending. The value of the benefit acquired through the purchase of the house is therefore the present value of the house. The Judge was therefore correct to include the increase in value in his assessment.
Ms Delaney’s appeal
Background
[87] Ms Delaney, through her counsel Ms Abdale, submits that she is entitled to at least $15,000 plus interest and 50 per cent of the increase in value since the house was purchased. In February 2001, Ms Delaney contributed $15,000 (3.5 per cent) to the purchase price of $435,000. By January 2004, the property had increased in value to $575,000. As we noted at para [8] above, Venning J fixed Ms Delaney’s equitable interest in the property at 28 May 2004 by calculating 3.5 per cent of $575,000, which amounted to $20,125.
[88] On July 8 2005, Ms Delaney and Mr de Bruin entered into a property agreement under which Ms Delaney was entitled to a 55 per cent interest in 90 Riddell Road, as well as $25,000 towards legal fees.
[89] After Mr de Bruin’s second conviction, the question of the pecuniary penalty order came before Cooper J on 9 August 2006. Ms Abdale submitted that the same proportional approach should be applied to the property’s current value, which had increased to between $700,000 and $750,000 according to a valuation dated 27 June 2006. Cooper J dismissed the claim, for the same reason he had dismissed Mr Weir’s argument that Mr de Bruin should not have to forfeit an increase in property value that was entirely unrelated to his criminal offending. The Judge ordered that Ms Delaney be paid the sum of $20,125 from the proceeds of the sale of the house in satisfaction of her interest in that property, plus interest of 7.5 per cent per annum from 28 May 2004. Other orders were made in respect of various debts and legal fees, but they are not material to this appeal.
[90] By way of further background, we note that the property at 90 Riddell Road and the cash found there had been subject to restraint since June 2002, but that the restraint orders expired on 20 July 2006 because the Crown had neglected to apply to extend them. New restraint orders were granted by Williams J on 27 July 2006: Solicitor-General v de Bruin HC AK CIV-2002-404-3302. In relation to Ms Delaney’s interest, Williams J had noted:
[15] Turning to the merits of the matter, as mentioned in the adjournment part of this judgment, Mr de Bruin and his partner Ms Delaney own the property at 90 Riddell Road, Glendowie, Auckland. Their interest has been subject to restraint under the Proceeds of Crime Act 1991 since June 2002.
[16] Ms Delaney’s interest, however, was calculated and specifically excluded from the ambit of the restraining order made by Venning J on 22 July 2005. The amount of her equitable interest in the property was crystallised in the judgment on that date at $20,125 together with interest on that sum at the Judicature Act rate from 28 May 2004.
[17] Since the present application seeks orders in the same terms, the exception of Ms Delaney’s interest in the property is maintained and accordingly because her interest cannot be affected there is no need to direct service of the current application on her.
Preliminary matters
[91] Two preliminary matters arise. First, is the property agreement into which Ms Delaney and Mr de Bruin entered on 8 July 2005 effective to fix her interest in 90 Riddell Road at 55 per cent of the value of the property? Secondly and alternatively, does the order made by Venning J on 22 July the same year fix Ms Delaney’s interest in the house in the sum of $20,125?
[92] The first of these issues must turn, in our view, on whether the agreement was intended to defeat the interests of the Crown as a creditor of Mr Bruin. If it was, it was rendered void by s 47(1) of the Property (Relationships) Act 1976. If it was not, the agreement would be effective to fix the interest of Ms Delaney in the property.
[93] For the Crown, Mr Johnstone points out that the agreement was made well after Ms Delaney became aware (by at the latest November 2001) that 90 Riddell Road had been purchased primarily with illicit funds and that the Crown was therefore seeking to recover all or most of the value of the property under the provisions of the Proceeds of Crimes Act. The Crown was therefore a creditor, albeit at that time a contingent one. The purpose of that legislation would be defeated, counsel submitted, if a person in control of illicitly acquired funds could remove them from the reach of the Act by giving them to a third person, particularly one with notice of the offending.
[94] We accept these submissions. In the absence of any probative evidence to the contrary, it is impossible to avoid the inference that the agreement was entered into with the sole or dominant motive of defeating the interests of the Crown.
[95] Section 47(1) therefore applies, with the consequence that the agreement has no effect.
[96] On the second of the preliminary issues, the Crown submits that the interest of Ms Delaney in 90 Riddell Road is as determined by Venning J. Ms Delaney did not appeal against his decision. The quashing of Mr de Bruin’s 2003 convictions and the subsequent discharge of the forfeiture orders did not, it is submitted, alter Ms Delaney’s interest in the property or entitle her to greater relief.
[97] On this point, we do not accept the Crown submissions. The orders made by Venning J were expressed to be made “pending further order of the Court”. And, as we noted at [9] above, the order of the Judge was quashed by operation of law following Mr de Bruin’s successful appeal.
[98] Against this background, and notwithstanding that she did not appeal against the 2004 order fixing her interest, Ms Delaney is, we think, entitled to have her interest in 90 Riddell Road assessed anew.
[99] We therefore now embark on that exercise, unconstrained by either the property agreement or the 2004 order.
Interest in 90 Riddell Road
[100] Ms Delaney maintains that her interest in 90 Riddell Road is greater than her initial contribution because it was her family home with Mr de Bruin. She submits that, as a person wholly innocent of the offending, she is entitled to claim her share of the present value of the property in terms of the property agreement. In the alternative, Ms Delaney says she should be entitled at the very least to her initial contribution plus interest, and 50 per cent of the amount by which the property has increased in value between when it was purchased and when it is sold
[101] Ms Delaney submits through counsel that primacy of the relationship property claim arises from s 4(4) of the Property (Relationships) Act, which states that:
Where, in proceedings that are not proceedings under this Act, any question relating to relationship property arises between spouses or [partners], or between either or both of them and any other person, the question must be decided as if it had been raised in proceedings under this Act.
[102] She further submits that Venning J was wrong in deciding in 2004 that Ms Delaney and Mr de Bruin were tenants in common who had contributed in unequal shares, and that Cooper J has failed to correct this error. The Property (Relationships) Act is a code, and s 4(1) states that the Act applies instead of the rules and presumptions of the common law and of equity to the extent that they apply to transactions between partners and third persons in respect of property.
[103] Ms Abdale then submits that the decision of Cooper J was wrong in law because the Judge mistakenly viewed Venning J’s decision as being made in the context of a forfeiture order, rather than a pecuniary penalty order. Forfeiture orders are directed at tainted property, and third parties are granted relief only at the Court’s discretion. However, pecuniary penalty orders are aimed at individuals rather than property. An individual’s property may be confiscated in order to satisfy a pecuniary penalty, but subject to all prior equitable and legal interests that third parties might have in that property.
[104] In reply, Mr Johnstone invokes s 29 of the Proceeds of Crime Act, which reads in part as follows:
(1)In assessing the value of benefits derived by a person from the commission of an offence or offences, the Court may treat as property of that person any property that the Court is satisfied is subject to the effective control of the person whether or not the person has—
(a) Any legal or equitable estate or interest in the property; or
(b) Any right, power, or privilege in connection with the property.
(2)Without limiting the generality of subsection (1) of this section, the Court may have regard to—
(a) Shareholdings in, debentures over, or directorships of, any company that has an interest (whether direct or indirect) in the property; and
(b) Any trust that has a relationship to the property; and
(c) Family, domestic and business relationships between persons having an interest in the property, or in companies of the kind referred to in paragraph (a) of this subsection or trusts of the kind referred to in paragraph (b) of this subsection, and any other persons.
(3)Where a Court, for the purposes of making a pecuniary penalty order against a person, treats particular property as that person’s property under subsection (1) of this section, the Court may, on application by the Solicitor-General, make an order declaring that the property is available to satisfy the order.
[105] Mr Johnstone submits that “effective control” must be assessed at the point in time at which the offending makes the property available. In support of this submission, counsel points first to the wording of s 27(2) that, when quantifying the benefits of offending, the Court must have regard to property coming under the control of the defendant “by reason of” the offending. More generally, Mr Johnstone submits that the alternative interpretation that ongoing control is required would permit a defendant to defeat the purpose of the legislation by giving the property to another person, even one with knowledge of the offending.
[106] While acknowledging the force of these arguments, we think that they cannot overcome the plain words of s 29. The repeated use of the present tense (“is subject to” and “has” in subs (1) and “has an interest”, “has a relationship” and “having an interest” in subs (2)) is only explicable on the basis that the section is directed to the question of effective control at the time of the Court order.
[107] Whatever the position may have been at the time the property at 90 Riddell Road was acquired, there is no evidence that, at the date of the decision under appeal, Ms Delaney’s interest as a tenant in common in the property was subject to Mr de Bruin’s effective control. The parties had then separated and there is no evidence from which effective control by Mr de Bruin could properly be inferred.
[108] Ms Delaney’s relationship property claim was, we think, correctly analysed by Venning J when he issued the first forfeiture orders in May 2005. In the Judge’s analysis, Ms Delaney’s claim could only be against Mr de Bruin, and was not against the property itself:
The problem for the submissions advanced on behalf of Ms Delaney that rely on her obtaining an increased interest in the property from the interest held by Mr de Bruin, is that Mr de Bruin has no right to maintain an interest in the Riddell Road property given the source of the money he contributed to it. Ms Delaney, claiming through Mr de Bruin cannot be in any better position than the person she claims through, Mr de Bruin.
(At [31]).
[109] As Venning J pointed out, rights under the Property (Relationships) Act only crystallise from the date of the Court order or agreement. Unperfected rights do not constitute existing equitable estates or interests in property: Fisher on Matrimonial Property at [1.27]. The Act is concerned with providing equal shares “on division of relationship property”, rather than with establishing the respective interests of the parties during the course of the relationship (s 11). In this way, the conventional property law regime can be applied to property owned by relationship partners unaffected by their potential rights under the Property (Relationships) Act.
[110] Ms Delaney was never in a position to maintain any interest under the Property (Relationships) Act against Mr de Bruin’s interest in the property. His interest in the property was tainted from the outset since his contribution to it was derived solely from the serious offending for which he was convicted. Section 19 of the Property (Relationships) Act preserves the title of any third person to any property and the entitlement to the benefit of any mortgage, charge or other security in relation to the property. The successive restraining orders made against Mr de Bruin's interest in the property were made under ss 42 and 43 of the Proceeds of Crime Act to preserve the Crown’s ability to obtain a forfeiture order against his interest in the property or to have it available as property against which a pecuniary penalty order could be enforced.
[111] Ms Delaney’s interest in the property was excluded from the restraining order, presumably on the basis that, in terms of s 48(b) of the Proceeds of Crime Act, her interest in the property was not tainted property.
[112] In summary, the effect of the Proceeds of Crime Act and the orders made under it was that Mr de Bruin’s interest in the property was tainted property and therefore not available for division under the Property (Relationships) Act.
[113] When granting new restraining orders on 27 July 2006 ([91] above) Williams J said the amount of Ms Delaney’s interest in the property crystallised at $20,125. But, as noted at [9] of this Judgment, when Venning J made fresh restraining orders in 2005 he said that Ms Delaney’s interest could not finally be determined at that time. In our view, there is no reason in principle why the value of Ms Delaney’s interest should be fixed by reference to the value of the house at the time Venning J initially determined the extent of her interest. Any increase in the value of her interest is not a benefit derived from the offending. It simply reflects the increasing value of the house over time. Ms Delaney should therefore receive 3.5 percent of the net proceeds of sale and the pecuniary order will apply to the remaining 96.5 percent.
[114] It was not suggested by Mr de Bruin that Ms Delaney’s 3.5 per cent interest should be subject to any claim by him.
[115] It follows that, when the property is sold, Ms Delaney will receive 3.5 per cent of the net proceeds of sale. The pecuniary penalty order will be a first charge on the balance of the proceeds. If however Ms Delaney’s share of the proceeds is not paid to her immediately upon settlement, she should receive interest at the Judicature Act rate, to be paid out of the balance of 96.5 per cent of the proceeds. Ms Delaney should also receive 3.5 per cent of any net income generated from the property from the time of the first restraint (28 May 2004) until the date of sale.
[116] In practical terms, 96.5 per cent of the sale proceeds would therefore be available to satisfy the pecuniary penalty order, with any balance going to Mr de Bruin, and the remaining 3.5 per cent would go to Ms Delaney.
Costs
[117] At the hearing of these appeals, Ms Abdale sought costs of $2,000 for the hearing plus five hours preparation at $288 per hour, a total of $3,440.
[118] Mr Johnstone did not oppose such an award, provided that payment was made out of Ms Delaney’s share of the proceeds.
[119] We think that the proposed costs are reasonable, and therefore order that Ms Abdale be paid the sum of $3,440 (GST inclusive) out of Ms Delaney’s share of the proceeds.
[120] Subsequent to the hearing, and without having obtained leave to do so, Mr Weir filed a memorandum seeking the payment out of property held by the Official Assignee of fees totalling $8,943.00 for acting for Mr de Bruin in various proceedings in the High Court.
[121] Without having heard argument on the point, we doubt whether this Court has jurisdiction to order payment of the claimed costs in these appeals. Even if we did, we would not be prepared to exercise that jurisdiction. If Mr Weir wishes to pursue these claims, he should do so in the High Court.
Result
[122] For the reasons given:
(a) The appeal of Mr de Bruin against his conviction is dismissed.
(b) The appeal of Mr de Bruin against his sentence is allowed and a sentence of 11 years imprisonment substituted.
(c) The appeal of Mr de Bruin against the pecuniary penalty imposed under the Proceeds of Crime Act is dismissed.
(d) The appeal of Ms Delaney is allowed and her interest in the property at 90 Riddell Road, Glendowie, Auckland is fixed at 3.5 per cent of the value of that property from time to time.
(e) Upon the sale of the property, Ms Delaney is entitled to 3.5 per cent of the net proceeds of sale, together with interest at the Judicature Act rate if that sum is not paid to her immediately upon settlement of the sale and 3.5 per cent of any net income generated from the property while it was subject to restraint. The pecuniary penalty order is to be a first charge on the balance of the net proceeds of sale.
(f) Ms Abdale is to be paid the sum of $3,440, as costs on the appeal, from Ms Delaney’s share of the proceeds of any sale of 90 Riddell Road.
Solicitors:
Crown Solicitor, Auckland for Respondent
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