R v King - [2012] NZHC 3296

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-004-0017585 [2012] NZHC 3296

THE QUEEN
Applicant

v

DEREK LESTER KING
Respondent

Hearing: 29 November 2012

Counsel: J Jelas for Crown
N Wintour for Accused

Judgment: 6 December 2012

JUDGMENT OF TOOGOOD J [APPLICATION FOR FORFEITURE]

This judgment was delivered by me on 6 December 2012 at 5:30 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:
J Jelas, Meredith Connell, Auckland: june.jelas@meredithconnell.co.nz
N Wintour, Barrister, Auckland: nwintour@civicchambers.co.nz

R V KING HC AK CRI-2011-004-0017585 [6 December 2012]

Introduction

[1] On 22 August 2012, following trial by jury, Derek Lester King was convicted of nine counts of receiving commercial sexual services from a person under
18 years; three counts of having sexual connection with a person aged 12 to 16 years; three counts of supplying the Class C controlled drug cannabis to a person under 18 years; and one count of encouraging a person under 18 to provide commercial sexual services. The following day, Mr King also pleaded guilty to two historic counts of indecent assault on a young woman in 1985. He is due to appear for sentence on 12 December 2012.

[2] The nature and the span of the offending over several decades, and the offender’s previous history of convictions for offences of a similar nature, led to Mr King being notified that the Court would consider preventive detention as an appropriate sentence. Psychiatric and psychological reports have been prepared accordingly.

[3] In the meantime, the Crown has applied under s 142B Sentencing Act 2002 for an instrument forfeiture order in respect of Mr King’s residential property in central Auckland, on the basis that it was used to commit or facilitate the offending.

[4] Whether a forfeiture order should be made in this case is a decision which will be influenced by my conclusion as to whether Mr King should be sentenced to preventive detention or a finite term of imprisonment. I will not be in a position to make that determination until after I have heard counsel’s submissions as to sentence.

[5] For reasons which are developed below, however, I indicated to counsel that, after considering their submissions on the forfeiture application, I would issue a judgment explaining my views on the appropriateness of making a forfeiture order. I said that, in the event that I determined that an order might be made, I would also give my views on the implications of forfeiture for the alternative available sentences of preventive detention and imprisonment for a finite term.

[6] Instrument forfeiture orders are provided for by sub-part 5 of Part 2 of the Sentencing Act 2002 (“the Act”). They are part of the sentencing process and can be made in relation to any offence punishable by a maximum term of imprisonment of five years or more.1 The making of an order requires the Court to be satisfied that the property to be forfeited is an “instrument of crime”, which is defined as “property used (wholly or in…

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 King

Details

AGLC: R v King [2012] NZHC 3296
Case: [2012] NZHC 3296
Decision Date: 6 December 2012

CaseChat Overview and Summary

In this case, the Crown has applied under section 142B of the Sentencing Act 2002 for an instrument forfeiture order in respect of Derek Lester King's residential property in central Auckland, on the basis that it was used to commit or facilitate the offending. The legal issues for the Court to decide were whether the property was an instrument of crime, and if so, whether an instrument forfeiture order should be made, considering the factors outlined in section 142N of the Act. The Court was also required to consider the implications of forfeiture for the alternative available sentences of preventive detention and imprisonment for a finite term.

The Court found that the property was indeed an instrument of crime, as it was specifically modified and equipped by Mr King to facilitate his sexual misconduct with the complainants and others. However, the Court was not persuaded that there was any significant community protection benefit in ordering forfeiture of Mr King's residence. The predominant purposes for forfeiture in this case would be to punish the offender and, particularly, to deter him and others from further offending. The Court concluded that making an instrument forfeiture order would not be appropriate, as it would undermine the purpose for imposing the lengthy sentence of imprisonment in the first place, namely protection of the community and rehabilitation. The Court indicated to counsel that no forfeiture order will be made, and they should approach their submissions on sentencing on that basis.

Orders