R v Duthie - [2022] NZHC 2851

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2021-419-79

[2022] NZHC 2851

THE KING

v

RICHARD ALAN DUTHIE

Hearing: 21 October 2022

Appearances:

K Whyte for the Crown J Wall for the defendant

Judgment:

2 November 2022

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 2 November 2022 at 2.30 pm

Registrar/Deputy Registrar

R v DUTHIE [2022] NZHC 2851 [2 November 2022]

[1] The defendant, Mr Duthie, faced a charge of manufacturing methamphetamine,1 a charge of possession of methamphetamine for supply,2 and a charge of possession of equipment for the manufacture of methamphetamine.3 He pleaded guilty to and was convicted of those charges on 9 February 2022.

[2] Under s 142N of the Sentencing Act 2002, a court may make an order that an instrument of crime (or any part of it) be forfeited to the Crown (an instrument forfeiture order). The Crown says Mr Duthie used his home at 2511 State Highway 1, Lichfield (the Lichfield property) to commit the methamphetamine offences. The Crown applies under s 142N for an instrument forfeiture order over the entirety of Mr Duthie’s interest in the Lichfield property.

[3] Mr Duthie accepts an instrument forfeiture order should be made. But he says it should be over only 50 per cent of his interest in the Lichfield property.

[4] Credit will be available against Mr Duthie’s provisional sentence for any forfeiture order. It is therefore appropriate to determine the application before Mr Duthie is sentenced (currently scheduled for 11 November 2022).

[5] For the reasons that follow, I consider there should be an order forfeiting 50 per cent of Mr Duthie’s interest in the Lichfield property.

The offending

[6] Mr Duthie was charged following an investigation by the Waikato Police Organised Crime Squad. The investigation started in December 2019. It focused on several individuals involved in the organised manufacture and supply of methamphetamine.

[7] Upon termination of the covert phase of the investigation in July 2020, Police executed a search warrant at the Lichfield property. Police located the following in a safe in Mr Duthie’s bedroom:

1      Misuse of Drugs Act 1975, s 6(1)(b). Maximum penalty life imprisonment.
2      Section 6(1)(f). Maximum penalty life imprisonment.
3      Section 12(2)(a). Maximum penalty five years’ imprisonment.

(a)A container holding 92 grams of methamphetamine;

(b)A case containing 17 zip-lock bags, each holding approximately
20.4 grams of methamphetamine (a total of 346.8 grams); and (c) $41,510 cash.

[8]The total amount of methamphetamine found was 438.8 grams.

[9]Police also found the following in the kitchen:

(a)162 milligrams of methamphetamine hydrochloride dried on a glass baking dish;

(b)1,615 milligrams of methamphetamine hydrochloride within plastic containers;

(c)Various items of glassware; and

(d)Numerous indicia of supply, including unused zip-lock bags, NIK tests, a money counter and electronic scales.

[10] ESR tested the property. Methamphetamine contamination was detected. Swabs taken in the kitchen were consistent with the manufacture of methamphetamine.

[11] The agreed summary of facts records…

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 Duthie

Details

AGLC: R v Duthie [2022] NZHC 2851
Case: [2022] NZHC 2851
Decision Date: 2 November 2022

CaseChat Overview and Summary

In the case of R v Duthie, the defendant, Richard Alan Duthie, pleaded guilty to charges of manufacturing, possession for supply, and possession of equipment for the manufacture of methamphetamine. The Crown sought an instrument forfeiture order over Duthie's interest in his home at 2511 State Highway 1, Lichfield, under section 142N of the Sentencing Act 2002, on the basis that the property was used as an instrument of crime. Duthie agreed that an instrument forfeiture order should be made but argued it should be limited to 50 per cent of his interest in the property. The primary issues before the court were the value of the Lichfield property and the appropriate extent of the forfeiture order.

The court considered two valuations of the Lichfield property, one by the Official Assignee at $760,000 and another by Duthie at $1,015,000. The court found that the Lichfield property was valued at $950,000, with Duthie's equity being approximately $650,000. The court then addressed the extent of the forfeiture order, considering factors such as the seriousness of the offending, Duthie's personal circumstances, and the proportionality of the order. The court concluded that Duthie's offending, while serious, did not involve repeated use of the property for criminal activity and that the property's primary use was residential. Additionally, Duthie had financed the purchase of the property with legitimate funds, and the value of the property far exceeded the value obtained from the offending.

The court determined that a 50 per cent forfeiture order was appropriate, balancing the seriousness of the offending with the potential for undue hardship to Duthie if his entire interest in the property were forfeited. The court also noted that the Lichfield property was Duthie's only significant asset, and forfeiture of the entire property would severely limit his ability to re-establish himself.

In conclusion, the court made an instrument forfeiture order forfeiting 50 per cent of Duthie's interest in the Lichfield property. The property was vested in the Crown and placed in the custody and control of the Official Assignee. The Crown was to account to Duthie for half of the moneys paid to it by the Official Assignee after repaying the mortgage secured by Avanti Finance Limited.

Orders