BThe order for forfeiture is set aside and the resulting sentence of supervision quashed.
CThe issue of forfeiture is to be considered again by the High Court and the appellant is to be re-sentenced by that Court.

REASONS OF THE COURT

(Given by Venning J)

Introduction

The appellant, Mr Elliot, pleaded guilty to charges relating to the cultivation and sale of the Class C controlled drug cannabis. As part of the sentencing process Heath J made an order under s 142N of the Sentencing Act 2002 for the forfeiture of the appellant’s property at 42 Moana Road, Okitu, Gisborne.[1] The Judge then sentenced the appellant to a term of supervision for one year. Without the forfeiture order the Judge would have imposed a sentence of two years six months’ imprisonment.
[1] R v Elliot HC Gisborne CRI-2009-016-3799, 19 August 2010.
The appellant appeals against his sentence, in particular against the forfeiture order. The appellant says the Judge was wrong when he concluded that the provisions of the Sentencing Act, and s 142N(1) in particular, did not enable forfeiture of part of the property. He argues there was jurisdiction to forfeit part only of the property and that such an order was appropriate in this case. The appellant acknowledges that if the appeal is allowed that would lead to him being re-sentenced with the likelihood a term of imprisonment would be imposed.
In the alternative the appellant argues that if the Judge was correct, and it was not possible to forfeit part of the property, then the forfeiture order should not have been made as it caused him undue hardship.
The Crown submits that the Judge could not order forfeiture of part only of the property as it was held in one title and that, in this case, the forfeiture of the entire property did not result in undue hardship to the appellant.

The issues

This appeal raises the following issues:
(a)Is there jurisdiction to forfeit part only of the property?
(b)If there is, how is the order to be implemented?
(c)If there is no jurisdiction to forfeit part only of the property, was it open to the Judge to forfeit?

Background

On the termination of a covert drug investigation police executed a search warrant at 42 Moana Road. During the search of the property they located an indoor (hydroponic) cannabis growing area at the rear of a garage on the property. It was divided into two separate rooms. One was for plants in the process of growing while the other was used to facilitate flowering. The appellant owned the property. When interviewed…

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 Elliot v R

Details

AGLC: Elliot v R [2011] NZCA 386
Case: [2011] NZCA 386
Decision Date: 11 August 2011

CaseChat Overview and Summary

Rodney George Elliot appeals against his sentence, specifically the forfeiture of his property, following his guilty plea to charges related to the cultivation and sale of cannabis. The appeal was heard by Wild, Venning and Courtney JJ. The central issue was whether the Court had jurisdiction to order the forfeiture of only part of the appellant's property under section 142N of the Sentencing Act. The Court held that the Act now provides for such jurisdiction. The Court also considered how the order could be implemented, noting that while the property vests in the Crown absolutely, the offender’s interest in the property can be recognised and appropriate orders made to give effect to that direction. The appeal was allowed, the forfeiture order set aside, and the sentence of supervision quashed. The issue of forfeiture is to be reconsidered by the High Court, and the appellant will be re-sentenced following the outcome of that process.

Orders