Monk v R - [2013] NZCA 564

IN THE COURT OF APPEAL OF NEW ZEALAND

CA779/2011
[2013] NZCA 564

BETWEEN	CLINTON BRIAN MONK Appellant
AND	THE QUEEN Respondent

Hearing:	18 September 2013
Court:	Miller, Cooper and Lang JJ
Counsel:	R J Earwaker and F J Iggulden for Appellant M D Downs for Respondent
Judgment:	15 November 2013 at 10.00 am

JUDGMENT OF THE COURT

The time for appealing is extended, but the appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Introduction

The appellant, Clinton Brian Monk, appeals against a judgment of Venning J delivered on 11 October 2011, in which the Judge made an order forfeiting a property situated at 2 Hall Road, Tinopai (the property) to the Crown. The order was made on an application by the Solicitor-General dated 23 July 2009, for a

confiscation order under s 8 of the Proceeds of Crime Act 1991 (the Act) and the appeal is to be considered against the relevant provisions of that Act.[1]

[1]The Act has been repealed by the Criminal Proceeds (Recovery) Act 2009, but continues in force for the purpose of continuing and completing any proceedings commenced prior to that Act’s commencement date, 1 December 2009.

The appeal should have been filed by 8 November 2011, but was not filed until 21 November 2011. The appellant has explained in an affidavit dated 21 June 2013 that he did not become aware of the judgment until approximately two weeks after it had been delivered, and then promptly instructed counsel. An extension of time is sought and has not been opposed. We extend the time for appealing accordingly.

Background

The property is in a rural setting, and is 4.0614 hectares in area. The police executed a search warrant at the property on 24 March 2009. In the dwelling, they found methamphetamine and equipment, materials and precursor substances capable of being used to manufacture methamphetamine. In a substantial garage/workshop, the police found further equipment, materials and precursor substances capable of being used for the same purpose.
A police investigation concluded that there was a clandestine methamphetamine laboratory on the property that had been in operation for a period of time. It appears that methamphetamine had been manufactured in commercial quantities.
On 20 July 2009, Mr Monk pleaded guilty to:
(a)A representative count of manufacturing methamphetamine between 1 September 2007 and 22 March 2009.
(b)A charge of manufacturing methamphetamine on or about 24 March 2009.
(c)Possession of equipment.
(d)Possession of materials.
(e)Possession of precursor substances.
Later, on 23 March 2010, he pleaded guilty to additional charges. These were:
(a)A representative count of supplying methamphetamine between 1 September 2007 and 22 March 2009.
(b)Possession of methamphetamine for supply.
(c)Two counts of possession of a firearm except for some lawful, proper and sufficient purpose.
(d)Possession of explosives, except for some lawful, proper and sufficient purpose.
Mr Monk was sentenced by Judge Duncan Harvey on 23 July 2010. On the basis of the summary of facts, the Judge accepted that Mr Monk was in possession of all the…

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 Monk v R

Details

AGLC: Monk v R [2013] NZCA 564
Case: [2013] NZCA 564
Decision Date: 15 November 2013 at 10.00 am

CaseChat Overview and Summary

Clinton Brian Monk appeals against a decision of the High Court which ordered the confiscation of his property. The property was used for the manufacture of methamphetamine, which led to Mr Monk's conviction for serious drug offences. The appeal was heard by the Court of Appeal of New Zealand, consisting of Miller, Cooper, and Lang JJ. The appeal was dismissed, but the Court extended the time for appealing. The central legal issue in the case was whether the confiscation order was appropriate under the Proceeds of Crime Act 1991. The Court of Appeal found that the property was substantially used for the production of methamphetamine and possessing it for supply, and therefore the confiscation order was appropriate. The Court also found that any hardship caused to Mr Monk and his family by the confiscation order could not be characterised as "undue." The Court further held that the nature and extent of Mr Monk's interest in the property and the interest of other parties did not preclude the confiscation order. Finally, the Court rejected the argument that the confiscation order was disproportionately severe punishment in terms of the New Zealand Bill of Rights Act 1990.

Orders