Keen v R
[2015] NZCA 221
•8 June 2015 at 4.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA479/2014 [2015] NZCA 221 |
| BETWEEN | ROBERT GEORGE KEEN |
| AND | THE QUEEN |
| Hearing: | 29 April 2015 |
Court: | French, Simon France and Clifford JJ |
Counsel: | A J Bailey for Appellant |
Judgment: | 8 June 2015 at 4.00 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Simon France J)
Introduction
Mr Keen was found guilty following a jury trial of one charge of possessing methamphetamine for supply.[1] He was sentenced by Judge Garland to a term of imprisonment of five years and three months. At the same time the sum of $43,170 was forfeited to the Crown.[2] Mr Keen appeals the forfeiture order.
[1]He also pleaded guilty to a charge of being in unlawful possession of a pistol and a charge of receiving stolen goods, but those charges are not material to this appeal.
[2]R v Keen DC Christchurch CRI‑2011‑042‑3369, 6 August 2014.
On the particular occasion when the drugs were found, Mr Keen came to the attention of the police because of complaints made by members of the public about his driving, and an altercation which then followed. When police went to apprehend him, they did so with care because their national information system contained warnings that Mr Keen may be armed. Accordingly his residence, a mobile home, was placed under brief observation.
Judge Garland made the following findings of fact as to what happened next:
[5] … You then entered the mobile home briefly before exiting and standing alongside. At that point the dog handler moved forward and called upon you to get on the ground and show your hands. You raised your left hand and crouched down to lie on the ground. Whilst doing that your right hand was not visible and the dog handler asked you to show your right hand. The dog handler moved closer to where you were and he could see that your right hand was now on the ground and partially under the mobile home. You were then apprehended and placed under arrest.
[6] Located under the mobile home where your hand had been was a .22 calibre revolver which contained seven rounds of ammunition. Located underneath in the same place was a plastic shopping bag containing a large amount of cash and two pill containers with small plastic snap lock bags inside them. Further examination of those items established that there was [$43,130] in cash and that the snap lock bags contained methamphetamine with a total weight of 30.5 grams. Once the methamphetamine was dried it weighed 21.8 grams.
[7] Subsequent to your apprehension and arrest search warrants were executed on your vehicles and also a storage unit rented by you in Belfast. A search of your mobile home located a set of digital scales which were found to have on them traces of methamphetamine. Additionally, $810 in cash was also obtained from inside a small safe also found in the mobile home…
Mr Keen was charged with possession of methamphetamine for supply. He admitted possession but denied that he intended to sell it to others. Mr Keen claimed to be a heavy user of methamphetamine who bought in bulk because it was cheaper. The jury verdict represents a rejection of this explanation. Judge Garland’s assessment was that Mr Keen was a user, but the amount he used had been “greatly exaggerated”.[3]
[3]R v Keen, above n 2, at [10].
Concerning the money, Mr Keen said that it was money earmarked for a new venture into truck ownership. He said four associates had provided the money in varying sums on the promise of a 50 per cent profit within a year. Each of the four investors was called to give evidence. Judge Garland rejected the evidence, noting its inherent implausibility, the lack of any paperwork and the investors’ lack of knowledge about their proposed investment. The Judge then concluded:[4]
It would be naïve of me to think that this very large sum of money was from a legitimate source. You did not appear to have any legitimate means of having such a large sum of money. I, therefore, conclude on the balance of probabilities that either this large sum of money was profit from previous sales of methamphetamine and was intended to be used for the purchase of further methamphetamine, or if any of your associates had invested money with you as you claimed, they had done so knowing that they were investing in the methamphetamine business and so the money was possessed by you as a float for the purchase of more methamphetamine, or it was a combination of both. Either way I am left in no doubt at all that the sum of $43,170 in cash found in the bag with the methamphetamine was a float intended to fund future purchases of methamphetamine.
[4]At [11].
Consistent with the finding, forfeiture was ordered.
The law
Forfeiture is authorised by s 32(3) of the Misuse of Drugs Act 1975 (the Act), which provides:
32 Forfeiture
…
(3)If, on the conviction of any person for an offence against section 6, … the District Court Judge is satisfied that money found in the possession of that person was received by that person in the course of or consequent upon the commission of that offence, or was in the possession of that person for the purpose of facilitating the commission of an offence against that section, the … District Court Judge may, in addition to any other penalty imposed pursuant to this Act, order that that money be forfeited to the Crown.
It can be seen that the section provides two routes to forfeiture — those situations where money was received as a direct product of the offending of which the defendant has been convicted, and those situations where the money is being held for the purposes of facilitating the commission of future offences against s 6 of the Act. Previous decisions of this Court have confirmed that the first option is limited to situations where a direct link can be established between the money and a conviction for an offence against s 6.[5] This means that where the only charge is possession for supply, the first option is not available.
[5]R v Collis [1990] 2 NZLR 287 (CA) and Bishop v R [2010] NZCA 66.
Mr Keen was charged only with possession for supply, so forfeiture of the money becomes available only if the Judge was satisfied the money:
… was in the possession of [Mr Keen] for the purpose of facilitating an offence against [s 6 of the Act].
It has been held that in this context “is satisfied” requires a determination on the balance of probabilities.[6]
The appeal
[6]R v Gibbons CA75/99, 4 May 1999 at [15].
Mr Keen disputes that the evidence supports a finding that all the money was to be used for the commission of further offences. On his behalf, Mr Bailey submitted that given only one ounce was initially purchased, there was no basis to infer that the whole of the sum of money would be expended on future purchases. Once the existing drugs were sold, Mr Keen would have had enough money to buy over five ounces. There was, in Mr Bailey’s submission, nothing to suggest the drug dealing would escalate to that degree or that Mr Keen had access to suppliers able to meet such an order. It is plain that at the time the existing ounce was purchased, Mr Keen had the financial capacity to purchase a larger amount, and did not do so. Accordingly, it was wrong to conclude he would alter his practices in the future. Mr Bailey also submitted that other potential uses of the money should be considered such as Mr Keen using some of it for living expenses or purchasing assets.
We consider the starting point is to identify what can be said about the circumstances of possession. Here, Judge Garland found, and we agree, that the money was a float. In the absence of any credible alternative explanation, this conclusion was inevitable. The Judge was unsure whether the source of the float was past sales or the four investors, although he considered past sales to be the more likely explanation. It is important to recognise, however, that the Judge did not order forfeiture based on the past sales, but focused properly on its status as “a float intended to fund future purchases”.[7]
[7]R v Keen, above n 2, at [11].
We turn then to what further proof, if any, is required in order to permit seizure of all the float. We first put to one side cases such as Blackler v Police, where $15,000 of a total sum of $21,000 was proved to be separate funds, provided by another person and earmarked for a specific purpose. [8] In cases such as those, the funds in question are not truly part of the float but just happen to be other money possessed contemporaneously by the offender.
[8]Blackler v Police [2013] NZHC 1003.
Blackler can be distinguished from R v Masters, where joint possession of the money by Mr Masters and his partner was held not to insulate the float from forfeiture.[9] There, the money was still possessed by a person who intended to use it to facilitate the commission of further drug dealing. The difference between the two cases lies in the purpose for which the money is possessed.
[9]R v Masters [2013] NZHC 2443.
It is important to have regard to the language of s 32(3). The test is that the money be possessed for the purpose of facilitating the commission of further offences. We consider this language answers the submissions advanced by Mr Bailey — it is the availability of the money as the working capital of the enterprise that renders it liable to forfeiture. We do not consider the legislature envisaged detailed and inherently speculative analysis of how the money might be used in future offending.
The standard definition of “facilitate” is “to make easy or easier”.[10] In the context of future drug offending, the ready availability of a pool of money able to be deployed to purchase product as the offender wishes comfortably comes within the concept. The emphasis must remain on the purpose of possession, but if it is established on the balance of probabilities to be a sum of money held at readiness to be used as needed, and to the extent desired, for the drug enterprise, we consider the entire sum is liable to be forfeited.[11]
[10]Concise Oxford English Dictionary (11th ed, revised, Oxford University Press, Oxford, 2008) at 509; Solicitor-General v Barker HC Nelson CRI-2008-442-22, 9 June 2009 at [15], Solicitor-General v Fitzgerald HC Christchurch M329/92, 4 April 2003 at [17].
[11]In Bishop v R, above n 5, this Court, faced with a similar situation as in R v Collis, above n 5, had invited the Crown to consider the alternative that the money could be viewed as a “float”. The invitation was not accepted on that occasion.
Concerning the other aspects of Mr Bailey’s argument, we similarly regard it as irrelevant that Mr Keen may or may not have dipped into the float for other purposes such as occasional day-to-day living expenses. The type of analysis accepted in Blackler requires a clear evidential foundation that shows the money to be actually not part of the float at all. A court is not required to analyse all the possible other uses to which an offender may put the money, so long as, as we say, the money was also to be held as a float available to fund future drug dealing.
For these reasons the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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