De Bruin v R - [2007] NZCA 600

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading De Bruin v R

Details

AGLC: De Bruin v R [2007] NZCA 600
Case: [2007] NZCA 600
Decision Date: 21 December 2007

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard appeals by Robert Charles de Bruin and Astrid Eleanor Delaney against their convictions and sentences, as well as an appeal by de Bruin against a pecuniary penalty imposed under the Proceeds of Crime Act 1991. The appeals were heard together. De Bruin had been convicted of importing and selling MDMA, and his sentence was 12 years imprisonment, with the terms to be served concurrently. A pecuniary penalty order of $1 million was also made against de Bruin under the Proceeds of Crime Act, and property that had been restrained under the Act was made available to meet the pecuniary penalty order. This included a house at 90 Riddell Road, Glendowie, Auckland, owned by de Bruin and Delaney as joint tenants. The Court dismissed de Bruin’s appeal against his conviction, but allowed his appeal against his sentence, substituting a sentence of 11 years imprisonment. The Court also dismissed de Bruin’s appeal against the pecuniary penalty order. Delaney, who was not a party to the offending, appealed against the proceeds of crime order against de Bruin. The Court allowed Delaney’s appeal, and fixed her interest in the property at 3.5 per cent of the value of the property from time to time. Upon the sale of the property, 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. Delaney’s counsel, Ms Abdale, is to be paid the sum of $3,440, as costs on the appeal, from Delaney’s share of the proceeds of any sale of 90 Riddell Road.

Orders