R v Bright

[2013] NZHC 630

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2012-019-003826 [2013] NZHC 630

BETWEEN  THE QUEEN

AND  ROGER DAVID BRIGHT

Hearing:         25 March 2013

Counsel:         P Cornegé for the Crown

M Talbot for the Prisoner

Judgment:      27 March 2013

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 27 March 2013 at 2.30 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:

P Cornege: [email protected]

M Talbot: [email protected]

R V BRIGHT HC HAM CRI 2012-019-003826 [27 March 2013]

[1]      Mr Bright entered guilty pleas to five charges in the District Court at Huntly on 10 July 2012. The details of the charges are as follows:

(a)       Cultivating cannabis.

(b)Possession of equipment and materials with intent to use the same to cultivate cannabis.

(c)       Theft of electricity.

(d)      Unlawful possession of a firearm (x 2).

[2]      He was due to be sentenced in the District Court on 14 December 2012, but the District Court declined to sentence him, and remanded him to this Court for sentence.  I sentenced him on 25 May 2013.

[3]      Prior to sentencing Mr Bright, I was invited to make a forfeiture order in respect of the properties.  The orders were not opposed and I made the same.  I was told by counsel that in one respect, the orders which I made were novel.  For that reason, I have attached this brief judgment dealing with the matter.

[4]      The Crown had sought forfeiture of property it argued was used for the cultivation of cannabis pursuant to the Criminal Proceeds (Recovery) Act 2009.

[5]      The primary property was situated in Smith Street, Huntly.  The Crown also sought to forfeit another property at Paki Street in Huntly.  It has argued that both properties had been used as “instruments of crime”, as defined in the Sentencing Act

2000, and that a number of the offences noted above were qualifying instrument forfeiture offences.

[6]      I accepted that the drug-related convictions and the conviction for theft of electricity were qualifying instrument forfeiture offences.

[7]      The words “instruments of crime” are defined in the Act.   Relevantly, the Crown asserted that the properties were used to commit or facilitate the commission of the qualifying instrument forfeiture offences.

[8]      The property at Smith Street was purchased by a trust which Mr Bright had settled in November 2011.   The offending for which he was before the Court commenced approximately a month after he acquired the Smith Street property.  The Crown says that given the sophistication of the cannabis growing operation found at the property, it  was  plain  that Smith Street  was  always  intended  to  be used to cultivate cannabis, and that it was purchased for that purpose.   I accepted this submission.

[9]      The   Smith   Street   property   is   subject   to   mortgages   in   favour   of Westpac New Zealand Limited.   The lending by Westpac was made partly on the basis of a security over the Smith Street property, but also on the basis of a security over the Paki Street property which was also owned by Mr Bright’s trust.   The Crown asserted that Smith Street could not have been purchased unless security was available to Westpac over the Paki Street property, and that therefore Paki Street was also property used to facilitate the commission of the crime.

[10]     Given that Mr Bright did not oppose the making of the forfeiture orders, I did not hear detailed argument on whether or not the forfeiture orders should extend to the Paki Street property.  In the absence of argument to the contrary, I accepted the general  proposition  advanced  by  Mr Cornegé  for  the  Crown,  namely  that  the Smith Street property could not have been purchased but for the fact that security was able to be offered over the Paki Street property.

[11]     Both properties were owned by the family trust which Mr Bright had settled. He had effective control over both properties.  Under the trust deed, Mr Bright was in a position to remove or appoint any final discretionary beneficiary, and he had the ability to appoint or remove a trustee. As I have noted, he did not oppose the making of the forfeiture orders sought by the Crown.

[12]    Initially, Mr Bright’s son was also a trustee.  He opposed the grant of the forfeiture orders.  However, Mr Bright removed him as a trustee, with the effect that he became the sole trustee.

[13]   Unless a forfeiture order can be made over both properties in such circumstances, it is arguable that offenders would be able to circumvent the effect of forfeiture  orders,  at  least  in  part.    Moreover,  mortgagees  could  choose  which property to enforce their security against.  This could affect the rights not only of offenders, but also of the Crown when a property is forfeited.

[14]     In the circumstances of this case, I made a forfeiture order in the terms attached to this judgment.

Wylie J