R v Corless - [2013] NZHC 2735

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-090-002181 [2013] NZHC 2735

THE QUEEN

v

SCOTT JAMES CORLESS

Hearing: 4-6 June, 23 August and 16 October 2013

Appearances: B D Tantrum and M R Walker for Crown
R M Mansfield, V Withy and S N B Wimsett for Prisoner
S R Jefferson QC and S D Patel for Laura Corless
D M M Dickinson for Luke Corless
H B Leabourn for Casey Corless

Judgment: 21 October 2013

JUDGMENT OF ELLIS J

This judgment was delivered by Justice Ellis on 21 October 2013 at 3.00 pm
pursuant to R 11.5 of the High Court Rules.

Registrar / Deputy Registrar

Date………………………

R v CORLESS [2013] NZHC 2735 [21 October 2013]

[1] Mr Corless has pleaded guilty to, and is to be sentenced for, a number of methamphetamine related charges. As part of the sentencing process the Police also seek an instrument forfeiture order in relation to the property at 61 Otitori Bay Rd, Titirangi, where much of his offending took place.

[2] This judgment relates to a number of issues that are relevant to his sentencing.

[3] The first relates to the amount of methamphetamine manufactured by Mr Corless, which is a potentially aggravating factor that is relevant to his sentence and about which there is a dispute.1 The second group of issues arises from the application for instrument forfeiture. Mr Corless’ ex-wife, Laura, his adult son Casey Corless and his minor son Luke Corless2 have applied for relief from any such forfeiture on the grounds that they have an “interest” in the Otitori Bay Rd property which the Court is required to recognise under s 142L of the Sentencing Act 2002 (the SA). If any such interest is found to exist then there are further issues as to its nature, extent and value which must be considered.

[4] And lastly, in the event that Laura and/or Luke Corless are found to have no such interest then they each apply for relief in the alternative under s 142M of the SA on the grounds that forfeiture of the property is likely to cause them undue hardship.

Disputed fact: the quantity of methamphetamine manufactured

[5] As far as the manufacturing issue is concerned, Mr Corless pleaded guilty to one charge of manufacturing methamphetamine between 30 April 2008 and 29 April
2009 at Auckland and one charge of manufacturing methamphetamine between

30 April 2009 and 7 May 2010 at Auckland. The charges are not stated to be representative.

[6] The charges arose out of two searches of the Otitori Bay Rd property. The first was on 29 April 2009 and the second on 7 May 2010. Some of the results of

1 Sentencing Act 2002, s 24.
2 Casey and Luke have different mothers, neither of whom is Laura Corless. Luke’s mother has been appointed his litigation guardian for the purposes of these proceedings.

those searches are relevant to the disputed fact hearing and will be discussed further in that context.

[7] As…

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 R v Corless

Details

AGLC: R v Corless [2013] NZHC 2735
Case: [2013] NZHC 2735
Decision Date: 21 October 2013

CaseChat Overview and Summary

This case involves the sentencing of Scott James Corless, who pleaded guilty to methamphetamine related charges. The Crown seeks an instrument forfeiture order in relation to the property at 61 Otitori Bay Rd, Titirangi, where much of Corless' offending took place. The court was required to decide the amount of methamphetamine manufactured by Corless, and whether the applicants have an interest in the Otitori Bay Rd property. The court found that Corless manufactured over 500 grams of methamphetamine during the period in question. It was also found that Laura Corless has an interest in the Otitori Bay Rd property derived from her claim and rights under s 182 of the Family Proceedings Act 1980, and that the value of that interest is 50 percent of that property. The other applications for relief were declined. Corless will need to consider his position in light of this judgment, and is to file a memorandum advising whether he intends to pursue an application for relief against forfeiture himself at, or before, sentencing and how he wishes to proceed.

Orders