McQuade v The Queen - [2010] NZCA 226

IN THE COURT OF APPEAL OF NEW ZEALAND
CA649/2009
[2010] NZCA 226
BETWEENALAN CLINTON MCQUADE

Appellant

ANDTHE QUEEN

Respondent

Hearing:25 May 2010

Court:Randerson, Wild and Rodney Hansen JJ
Counsel:M W Ryan for Appellant

M D Downs for Respondent

Judgment:2 June 2010 at 1.30 p.m.

JUDGMENT OF THE COURT

The appeal against the pecuniary penalty order is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
[1]        In 2008, the appellant was convicted of 19 offences under the Misuse of Drugs Act 1975. Eight of these involved the supply of methamphetamine between 10 and 31 October 2006. Keane J found that the quantity involved was 1.5kg to a value of at least $624,000. The appellant was sentenced by Keane J[1] to a term of 14 years’ imprisonment.
[1]      R v McQuade HC Auckland CRI-2006-019-8458, 10 September 2008.
[2]        Then, on 18 September 2009, Winkelmann J imposed a pecuniary penalty order on the appellant under the Proceeds of Crimes Act 1991 (the “1991 Act”) of $94,000.[2] That sum represented the appellant’s share of the net proceeds of sale (plus accumulated interest) after the sale of a property owned jointly by the appellant and his former wife.
[2]      Solicitor-General v McQuade HC Auckland CIV-2008-404-4161.
[3]        In the High Court, the appellant opposed the making of the pecuniary penalty order on the basis that the property had not been purchased with the proceeds of any criminal offending; it was not used for the purposes of crime; and that he did not derive any pecuniary benefits from the offending as he was merely a middle man. Any reward he obtained was by way of supply of methamphetamine for his personal use. Finally, he submitted that the making of the orders would cause him undue hardship and would hamper his rehabilitation when released from prison.
[4]        In this appeal, the appellant challenges the making of the pecuniary penalty order on two grounds:
(a)he did not obtain any benefits as that term is used in s 25(2) of the 1991 Act;
(b)the penalty breached s 9 of the New Zealand Bill of Rights Act 1990 in that it failed to allocate a portion of the net proceeds of sale to assist the appellant’s rehabilitation.

Did the appellant receive a benefit in terms of the 1991 Act?
[5] There are two insurmountable difficulties facing the appellant in this limb of his argument. First, a full Bench of this Court decided in R v Pedersen[3] that the whole price received for the supply of drugs is a benefit derived by the supplier. The cost to the supplier of obtaining the drugs is irrelevant. In other words, what matters is the revenue received. It does not matter if the sale proceeds are passed on to the person from whom the offender obtained the drugs. This is confirmed in the following passage from the joint judgment of Cooke P and Richardson J:[4]
… The case is concerned with three sales made by the respondent. From each the benefit 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 McQuade v The Queen

Details

AGLC: McQuade v The Queen [2010] NZCA 226
Case: [2010] NZCA 226
Decision Date: 2 June 2010

CaseChat Overview and Summary

In McQuade v The Queen, the appellant, Alan Clinton McQuade, was convicted of drug-related offences and sentenced to 14 years in prison. Following his conviction, a pecuniary penalty order under the Proceeds of Crime Act 1991 was imposed on McQuade, requiring him to pay $94,000, which represented his share of the net proceeds of sale from a jointly-owned property. McQuade appealed the order, arguing that he did not benefit from the criminal activity in the terms of the Act and that the order constituted disproportionately severe treatment or punishment under the New Zealand Bill of Rights Act 1990.

The Court of Appeal considered McQuade’s arguments and found them to be without merit. The Court upheld the lower court’s interpretation of the Proceeds of Crime Act, holding that the whole price received for the supply of drugs is a benefit derived by the supplier, regardless of the cost to the supplier of obtaining the drugs. The Court also noted that the language of the Act was intended to be broad to achieve the statutory purpose of deterring serious crime. The Court further found that the amount of the pecuniary penalty order was entirely appropriate and did not constitute disproportionately severe treatment or punishment.

Accordingly, the appeal was dismissed, and the pecuniary penalty order stood as made. The Court of Appeal upheld the lower court’s decision and reasoning, finding that McQuade had indeed benefited from the criminal activity and that the penalty order was not disproportionately severe. The final orders of the Court of Appeal were that the appeal against the pecuniary penalty order was dismissed.

Orders