R v Van de Ven

[2013] NZHC 479

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-055-001742 [2013] NZHC 479

UNDER  Sections 142A to 142Q of the Sentencing

Act 2002

BETWEEN  R

AND  WAYNE PETER VAN DE VEN

CIV-2011-404-005664

AND UNDER                 Subpart 4 of Part 2 of the Criminal

Proceeds (Recovery) Act 2009

BETWEEN  THE COMMISSIONER OF POLICE Plaintiff

ANDWAYNE PETER VAN DE VEN First Respondent

ANDGODEFRIDUS VAN DE VEN Second Respondent

Hearing:         12 December 2012

Counsel:         B Finn for Applicant

P J Kaye for W Van de Ven
S M Cowdell for G Van de Ven

Judgment:      14 March 2013

JUDGMENT OF WOOLFORD J [As to forfeiture]

R V VAN DE VEN & ANOR HC AK CRI-2010-055-001742 [14 March 2013]

This judgment was delivered by me on Thursday, 14 March 2013 at 12:15 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitors (Meredith Connell), Auckland

P Kaye, PO Box 941, Shortland Street, Auckland 1140
S M Cowdell, PO Box 76-683, Manukau City, Manukau 2241

Paramjit K Singh, PO Box 76-323, Manukau City, Manukau 2241

Introduction

[1]      Mr Wayne Van de Ven was convicted of serious drug offending following a trial in this Court last year.  The property in which Mr Van de Ven was living at the time of the offending and from which some of the offending was conducted, is the subject of a forfeiture application made by the Crown.

[2]      Mr Wayne Van de Ven’s father, Mr Godefridus Van de Ven, seeks relief from

that forfeiture order due to an interest he has in the property.

The applications

Crown’s application

[3]      The Crown seeks forfeiture of the property as an instrument of crime but accepts that relief from forfeiture may be available for Mr Godefridus Van de Ven, if he can be shown to have an interest in the property and not to have been implicated in any way in Mr Wayne Van de Ven’s offending.

Mr Wayne Van de Ven’s stance

[4]      Mr Kaye, in his sentencing submissions, states that Mr Wayne Van de Ven does not oppose any forfeiture application that might be made, though he submits Mr Godefridus Van de Ven’s interest would not be affected by his son’s lack of opposition to the forfeiture application.

Mr Godefridus Van de Ven’s application for relief

[5]      Mr Godefridus Van de Ven has  applied  for relief from the effect  of the forfeiture order.  Mr Godefridus Van de Ven maintains that he owns the property and was not involved in the qualifying offending.  He asks that the Court make an order declaring him the sole owner of the property and refusing forfeiture of any part of it.

Valuation of the property

[6]      The Crown obtained an updated valuation of the property which, as at mid- September 2012, showed the property and the house together to be worth $270,000.

Written Evidence

Mr Godefridus Van de Ven’s affidavit

[7]      Mr Godefridus Van de Ven says in his affidavit that he decided to buy the property in 1989 following difficulties Mr Wayne Van de Ven had had with his business and financial affairs.

[8]      Mr Godefridus Van de Ven says he paid $94,555 for the property.  Mr Wayne Van de Ven was registered as the owner on the certificate of title but he agreed to repay the full purchase price to Mr Godefridus Van de Ven with interest at 4.5 per cent.  To protect his interest Mr Godefridus Van de Ven arranged for a mortgage to be registered.  Mr Godefridus Van de Ven says in his affidavit that he has never received any repayments of the loan from his son.

[9]      Mr Godefridus Van de Ven says that he was visited by some people, who he believed to be council officers, early last year.  When asked about the property he told them it belonged to his son and had been paid off.  Mr Godefridus Van de Ven explains that he said this as he did not wish to be responsible for paying rates on the property.

[10]     Mr Godefridus Van de Ven does not want the property to be forfeited since he has never been paid for it, has never been involved in Mr Wayne Van de Ven’s activities and would like his other children to inherit it.

Mr Colin Van de Ven’s affidavit

[11]     Mr  Colin  Van  de  Ven  is  Mr  Godefridus  Van  de  Ven’s  eldest  son  and

Mr Wayne Van de Ven’s brother.  Mr Colin Van de Ven’s affidavit relates principally

to the care of the house following Mr Wayne Van de Ven’s incarceration.  Mr Colin Van de Ven says that Mr Wayne Van de Ven never paid their father for the property but this material appears to be based on statements from Mr Godefridus Van de Ven rather than any independent material.

[12]     Mr Colin Van de Ven has, as at September 2012, paid various bills which were outstanding on the property, since it was restrained, including:

(a)       $1,019.44 for power;

(b)      $2,549.00 in council rates;

(c)       $2,589 in regional council rates; and

(d)      $3,565.20 for water.

[13]     Mr Colin Van de Ven says that at the time of his affidavit there was still

$6,107.90 to be paid to various providers.

Detective Sergeant Gray’s affidavit

[14]     Detective Sergeant Gray is the officer in charge of the forfeiture proceedings against  Mr  Van  de  Ven.  Detective  Sergeant  Gray  has  filed  an  affidavit,  dated

12 November  2012,  in  response  to  matters  raised  in  the  affidavits  sworn  by

Mr Godefridus Van de Ven  and Mr Colin Van de Ven.

[15]     The Detective Sergeant spoke to Rice Craig, the solicitors who had handled the property purchase, and obtained a copy of the mortgage.   That confirms a mortgage in favour of Mr Godefridus Van de Ven in the sum of $94,555 but he notes that the mortgage is repayable on demand and that, on the face of the mortgage document, no interest is payable.

[16]     He also annexes a letter to the Department of Social Welfare from Rice Craig dated 24 February 1993, which appears to relate to benefit issues.  It records the mortgage to Mr Godefridus Van de Ven and notes that Mr Wayne Van de Ven has had

trouble making payments on the mortgage.  The letter notes Mr Wayne Van de Ven’s intention to pay his father back at a rate of $200 per week.  According to the Detective Sergeant’s calculations, if Mr Wayne Van de Ven did pay his father back at a rate of $200 a week then he might have paid off the mortgage sometime around

2002.

[17]     Detective Sergeant Gray also obtained bank information for Mr Godefridus Van de Ven going back to 2005.  Earlier records were not retained by his bank.  The records do not show payments identified as coming from Mr Wayne Van de Ven or cash payments/deposits in any consistent amounts.

[18]     Detective Sergeant Gray also mentions his meetings with both Mr Wayne Van de Ven and Mr Godefridus Van de Ven. Detective Sergeant Gray was responsible for serving an earlier restraining application on 14 September 2011.  He has included an earlier affidavit of service with the current affidavit.   That affidavit records a conversation between himself and Mr Godefridus Van de Ven in which Mr Godefridus Van de Ven said that he no longer had any interest in the property and that the mortgage had been paid back 3 years previously (ie 2008).  The following day Detective Sergeant Gray also spoke to Mr Wayne Van de Ven in prison who said that the property actually belonged to his father. Detective Sergeant Gray annexes his notes of those meetings.

Mr Coleman’s affidavit

[19]    Mr Coleman is a police officer who was involved in the investigation and prosecution of Mr Wayne Van de Ven. Mr Coleman was the officer who served the restraining order relating to the property on Mr Godefridus Van de Ven.  He recounts that, on 18 October 2011, he visited Mr Mr Godefridus Van de Ven’s home address and served him with the restraining order.

[20]     Mr Coleman said that he was wearing civilian clothing on that day and so would have identified himself to Mr Godefridus Van de Ven with his official police identification.

[21]     Mr Coleman recorded a conversation with Mr Godefridus Van de Ven in his notebook.   His recollection of that conversation is that, during the course of conversation with Mr Godefridus Van de Ven, the latter stated:

(a)       That he had bought the property;

(b)That Mr Wayne Van de Ven had paid the deposit but that he had paid the rest of the purchase price; and

(c)       Wayne Van de Ven was supposed to pay him back but had not done so.

[22]     Mr Coleman’s notebook entries contain much the same details but also record a   discussion   Mr   Coleman   had   with   Detective   Sergeant   Gray   regarding Mr Godefridus Van de Ven’s conflicting statements about the status of the mortgage.

Areas of doubt

[23]     The written evidence showed considerable uncertainty as to the interests in the property. The questions raised by the written evidence were:

(a)       Whether the deposit on the house was paid by Mr Godefridus Van de

Ven or Mr Wayne Van de Ven;

(b)Whether the   interest rate and the intervals at which interest would accrue were agreed;

(c)       Whether repayments had been made under the mortgage and to what extent;

(d)      What  level  of  equity  each  of  Mr  Godefridus  Van  de  Ven  and

Mr Wayne Van de Ven had in the property; and

(e)       Whether Mr Colin Van de Ven can be regarded as having any interest in the property as a result of his payments.

[24]     The Crown applied to have Mr Godefridus Van de Ven and Mr Colin Van de Ven cross-examined on their affidavits and reserved its position on the forfeiture application until after the conclusion of the hearing.

Evidence at the hearing

[25]     The two police officers, Mr Godefridus Van de Ven and Mr Colin Van de Ven all gave evidence and were cross-examined at the hearing.

[26]    Detective Sergeant Gray and Detective Coleman confirmed their affidavit evidence.   They, of course, have no firsthand knowledge of the circumstances surrounding the purchase of the property or the arrangements entered into between Mr Wayne Van de Ven and his father.   They quite properly have endeavoured to assist  the  Court  by  drawing  together  all  available  documentation  and  making inquiries of anyone who may have some knowledge of relevant matters.

[27]     I was impressed with the evidence of Mr Godefridus Van de Ven.  He is an immigrant to New Zealand and speaks English as his second language.  He has worked all his life, mainly as a commercial grower of tomatoes.  He says he bought the property for his son, who had financial difficulties.   His son was to repay the purchase price.  They agreed on an interest rate of 4.5 per cent, which was a third of the bank rate at the time.  Mr Godefridus Van de Ven also paid the deposit, which was a priority for his son to repay, but no repayments of either the deposit or the balance of the purchase price were ever made by his son.  His son could not get a job but Mr Godefridus Van de Ven does not know why.  His son seemed to avoid him and  the  family,  perhaps  because  he  was  shy  of  having  to  pay,  according  to Mr Godefridus Van de Ven.  He never pressured his son to repay as he would not put him on the street.

[28]     As to the contradictory accounts given to the police officers, Mr Godefridus Van de Ven explained that he thought at least one of the police officers was from the council.   He did not want to be responsible for the rates so he says he “played a prank” and “let them do a bit of homework”.

[29]     The evidence given by Mr Colin Van de Ven was generally supportive of his father’s evidence.   He knew his father had purchased the property but he did not know of the arrangements.  He was aware of his father getting rates demands from the council.  Neither he nor any other member of the family knew about his brother’s drug dealing from the house.  If the family knew, there is no doubt Wayne Van de Ven would have been “out like a shot”.

Conclusions on the evidence

[30]     Having heard from the parties, I find that Mr Godefridus Van de Ven did provide the entire purchase price for the property.  To protect his interest a mortgage for the full amount of the purchase price was executed.  The interest rate agreed was

4.5 per cent, which was clearly a concessional rate at the time.  Even today, it is a little less than market rates.  Notwithstanding that the mortgage document does not record any interest rate, I accept Mr Godefridus Van de Ven’s evidence that there was an  oral  agreement,  which  is  consistent  with  the  intra-familial  nature  of  the transaction.

[31]     I also find that Mr Wayne Van de Ven has not made any repayments of interest or principal.  The police accessed Mr Godefridus Van de Ven’s bank records but they have not been able to identify any transaction which might be a payment of principal  or  interest.     The  letter  to  the  Department  of  Social  Welfare  dated

24 February 1993, which states “Due to the son’s financial position he is not able to pay off the loan and arrangements are being made with his father to pay off the loan at a rate of $200 per week”, is obviously in support of a benefit application by Mr Wayne  Van  de  Ven.    It  expresses  an  intention  for  the  future  and  is  quite insufficient to displace the oral evidence of Mr Godefridus Van de Ven.

[32]     Detective Sergeant Gray visited Mr Godefridus Van de Ven’s house on 19

September 2011, during which Mr Godefridus Van de Ven told Detective Sergeant Gray that Mr Wayne Van de Ven had paid the loan back approximately three years previously.  I accept that Mr Godefridus Van de Ven thought Detective Sergeant Gray was from the council and was trying to avoid liability for the rates on the property.  I accept that there was a measure  of misunderstanding between them.   Detective

Sergeant Gray has been in New Zealand for four years and speaks English with a

Birmingham accent.  Mr Godefridus Van de Ven’s first language is Dutch.  He is also

82 years old and hard of hearing.

Purely legal and equitable interests in the property

[33]     The definition of interest under the forfeiture legislation is a wide one and cuts across traditional legal and equitable categories of ownership.   However, as a matter purely of title, Wayne Van de Ven is the legal owner of the property, being the registered proprietor of it.   He also, as mortgagor, has an equitable interest in whatever part of the property has been redeemed through payments of the mortgage (and to any increase on the value of that). Although, I have found as a matter of fact in the present case that he has not made any payments under the mortgage.

[34]     Mr Godefridus Van de Ven has his registered interest under the mortgage as well as a right, under the mortgage, to enforce it by way of entering into possession and selling the property in order to release the money secured, interest and other outgoings on the mortgage.  It does not, however, normally entitle the mortgagee to benefit from increases in the value of the security.

Instrument forfeiture orders

Legislation

[35]     Instrument forfeiture orders are made under the Sentencing Act 2002 (“the Act”) and as part of the sentencing process.  However, the relevant provisions also rely heavily on the Criminal Proceeds (Recovery) Act 2009 (“CPRA”).   Section

142N of the Act provides:

142N Instrument forfeiture orders

(1)      Following a  hearing under  section  142K,  the  court  may,  if  it  is satisfied that the property described in the notice given under section

142B is an instrument of crime, order that the instrument of crime or

any part of it specified by the court be forfeited to the Crown.

(2)       In considering whether or not to make an instrument forfeiture order under subsection (1) in respect of particular property, the court may have regard to—

(a)      any matter raised in an application for relief under section

142J; and

(b)       the use that is ordinarily made, or was intended to be made, of the instrument of crime; and

(c)       any undue hardship that is reasonably likely to be caused to any person by the operation of such an order; and

(d)       the  nature  and  extent  of  the  offender's  interest  in  the instrument of crime (if any), and the nature and extent of any other person's interest in it (if any); and

(e)       in addition to the matters referred to in section 77(1) of the Criminal Proceeds (Recovery) Act 2009, any other matter relating to the nature and circumstances of the qualifying instrument forfeiture offence or the offender, including the gravity of the qualifying instrument forfeiture offence.

(3)       A court that makes an instrument forfeiture order may, if it considers that it is appropriate to do so, by order,—

(a)       declare the nature, extent, and value of any person's interest in an instrument of crime; and

(b)       declare that the instrument forfeiture order may, to the extent to which it relates to the interest, be discharged under section

85 of the Criminal Proceeds (Recovery) Act 2009.

(4)       If the court orders that property (other than money) be forfeited to the Crown, the court must specify in the order the amount that it considers to be the value of the property at the time the order is made.

(5)       If a court makes an instrument forfeiture order, the court may give any directions that are necessary or convenient for giving effect to the order.

...

[36]     This  section  contains  a  number  of  steps  which  I  propose  to  address  as follows:

(a)       Considering whether the property is an instrument of crime;

(b)Determining  what  interest  the  offender  and  others  have  in  the property;

(c)      Considering whether to order the forfeiture of the property, taking into account the considerations mentioned (including the interests of third parties); and

(d)Determining whether to grant any application for relief from a third party.

Instrument of crime

[37]     The first prerequisite for the making of an instrument forfeiture order is that the court be satisfied that the property is an instrument of crime.1    The primary definition of an instrument of crime is:2

property used (wholly or in part) to commit, or to facilitate the commission of, a qualifying instrument forfeiture offence.

Where part of the property is used to commit or facilitate the commission of a qualifying offence the whole of the property or any part of it may be subject to an instrument forfeiture order.3    It is not disputed that the property in this case is an instrument of crime.

Determining interests

[38]     When considering making a forfeiture order and in order to better determine the interests of third parties, the Court may first determine the extent of the interest of the offender in the property.

[39]     The term “interest” is defined in the CPRA:4

interest, in relation to property of any kind (including, without limitation, restrained property or forfeited property), means—

(a) a legal or equitable estate or interest in the property; or

1      Sentencing Act 2002, s 142N(1).

2      Sentencing Act 2002, s 4.

3      Solicitor-General v Fitzgerald HC Christchurch M32/92, 4 April 2003.

4      Criminal Proceeds (Recovery) Act 2009, s 4.

(b) a right, power, or privilege in connection with the property

[40]     As well as the interests of the offender, the word “interest” may denote any other person’s interest in the property.5    It is in this context that the lack of an offender’s interest or the assertion of some third party’s interests in the property may be challenged.  This is by seeking to show that the offender has effective control of the property or over the interest despite the seemingly intermediary presence of the third party.  Effective control is addressed in s 58 of the CPRA:

58  Court  may  treat  effective  control  over  property  as  interest  in property

(1)       If the High Court is satisfied that a respondent has effective control over property, the Court may, on an application made by the Commissioner, order that the property is to be treated as though the respondent had an interest in the property specified by the Court.

(2)      An order under subsection (1) may—

(a)       be  made  even  if  the  respondent  has  no  interest  in  the property; and

(b)      specify an interest that differs from the interest that the respondent has in the property.

(3)       Without limiting the generality of subsections (1) and (2), the Court may have regard to—

(a)      shareholdings in, debentures over, or directorships of, any company that has an interest (whether direct or indirect) in the property; and

(b)      any trust that has a relationship to the property; and

(c)       family,   domestic,   and   business   relationships   between persons having an interest in the property or in companies of the kind referred to in paragraph (a) or in trusts of the kind referred to in paragraph (b), and any other persons.

...

[41]    The submission that an offender has effective control over a property will normally be made in situations where the offender has no legal or equitable interest in  the  property  but  where  the  Court  is  seeking  to  look  through  structures  or

arrangements (such as trusts or companies) to determine whether the level of control

5      Sentencing Act 2002, ss 142N(2)(d) and 142N(3)(a).

exercised by the offender equates to a personal interest in the subject matter of the forfeiture application.6   An offender will have effective control of the property when he or she can control, use, dispose of or otherwise treat the property as his or her own.7

[42]     At  the  very  least  there  are  legal  and  equitable  interests  in  the  property identified above.  Mr Wayne Van de Ven’s interest consists, at the bare minimum, of the legal ownership of the property as it stands and any equity left in the property, were the mortgagee to enforce its right to enforce the mortgage and claim the capital, and any interest owing.

[43]     There is also an argument that Mr Wayne Van de Ven has effective control of the property, which should be treated as an interest which is additional to his legal and equitable interest in the property.  The Crown submits that whatever the formal arrangements in place at the time of the offending in 2009–2010, Mr Wayne Van de Ven had de facto control of the property as he was the one who had the power to control, use and treat the property as his own. The Crown points to:

(a)       20 years of uninterrupted residence by Mr Wayne Van de Ven;

(b)      Improvements to the property made by Mr Wayne Van de Ven; and

(c)       The control of the use of the property and access to it exercised by

Mr Wayne Van de Ven.

[44]     The Crown  submits that  by the time of the offending the mortgage had become a “paper mortgage” and Mr Godefridus Van de Ven had, in effect, gifted the property to his son.  The Crown submits that in reality the mortgage never would have been enforced. Although undischarged on paper it was “not in the minds of the

parties to it”.

6      Solicitor-General v Bartlett [2008] 1 NZLR 87 (HC).

7 At [27].

minimal and would not have increased its value.  Mr Godefridus Van de Ven did visit the property on birthdays and Christmas Day, although sometimes the gate was shut and access could not be obtained.

[46]     Counsel submits that the mortgage is certainly not a paper mortgage nor has Mr Godefridus Van de Ven gifted the property to his son.  There is no evidence of any intention on the party of Mr Godefridus Van de Ven to gift the property in the form of gift statements or tax receipts for the payment of gift duty.

[47]     Counsel accepts that “effective control” may have changed as Mr Wayne Van de Ven built fences and installed security cameras but submits that Parliament would not have intended this fact to be of detriment to Mr Godefridus Van de Ven.  Counsel submits that the use of a concept such as “effective control” is directed at a situation where an offender is trying to hide their interest in a property so that it will not be forfeited and that there is no evidence of such an arrangement in this case.

[48]     Mr Godefridus Van de Ven’s interest in the property consists, on its face, of the mortgage interest and the attendant right to capital and interest that comes with that.  The Crown submitted that his interest is nominal (“a paper mortgage”) and that Mr Wayne Van de Ven has effective control of the property, meaning that he has the right to the entirety of the equity in the property.

[49]     However, there are a number of aspects to the mortgage:

(a)       The memorandum records the mortgage as registered on 13 January

1989.

(b)      The  memorandum  of  mortgage  records  it  as  securing  a  sum  of

$94,555.  From the evidence, I have found that Mr Wayne Van de Ven has made no repayments of the principal sum.

that Mr Wayne Van de Ven has made no interest payments.

[50]     Given that I have found that the mortgage of $94,555 over the property, dated

13 January 1989, was never repaid and accrued interest at 4.5 per cent, I need to consider what sum Mr Godefridus Van de Ven would be able to claim if he was to exercise his power of sale.  I consider that the best way to determine his interest in the property is under the Act.   If interest on the capital is taken to run from 13

January 1989 to 13 December 2012, then Wayne Van de Ven would, by my calculations, owe Mr Godefridus Van de Ven between $271,941.49 and $277,820.32 depending on whether interest is compounded.  This amount exceeds the value in the property and should he enforce the mortgage, Mr Godefridus Van de Ven would be left with a small shortfall.  Mr Wayne Van de Ven’s equity in the property would be extinguished.

[51]     I have accordingly formed the view that Mr Wayne Van de Ven did not have effective control as that term is used in s 58 of the CPRA whether at the time of the offending or at the time of the forfeiture application.  The fact that Mr Wayne Van de Ven had exclusive use of the property did not give him effective control.  Nor did restricted access give him effective control.  I find that Mr Wayne Van de Ven’s obligation to repay his father the purchase price of the property as well as to pay interest at a concessional rate of 4.5 per cent, continued throughout the 20 years that he occupied the property.  Although he was the legal owner of the property because his name was on the certificate of title, his legal ownership was subservient for the purposes of the forfeiture legislation, to the contractual rights of his father.

[52]     The mortgage was repayable on demand and although demand was never made, it could have been made at any time.  A mortgage for the full price repayable on demand in fact gave Mr Godefridus Van de Ven effective control of the property. The mortgage prevented Mr Wayne Van de Ven from being able to use or dispose of the property as his own.   Mr Godefridus Van de Ven chose not to exercise that control however, because of parental affection for his son.   He never pressured Mr Wayne Van de Ven to repay him as he did not want to put him on the street.  The

dealing from the property he would have been “out like a shot.”

Whether to make the order?

[53]     The use of the word “may” in s  142N and  the list of considerations in s 142N(2) means that the decision to order forfeiture or not, is an exercise of the Court’s discretion.8   This decision will turn on a number of criteria, principally, those listed in 142N(2), including whether other people might be affected by the making of the order.

[54]     The consideration of third parties in deciding whether to make the order includes both parties who do have an interest in the property such as co-owners and third parties who do not, such as the children of an offender who live at or use the property.  Of note, however, is that third party applications may also ground an application seeking relief against forfeiture.

[55]     In this case, I have determined that it is not appropriate to order that the property be forfeited to the Crown.  In so doing, I reject the Crown’s submission that the mortgage is only a paper mortgage and that the property was in fact gifted by Mr Godefridus Van de Ven to his son.  A major factor in reaching the determination not to order forfeiture is the fact that if Mr Godefridus Van de Ven were to exercise his power of sale, the entire value of the property would be payable to him.  This is because I have found that there was an oral agreement that interest on the purchase sum would accrue at the concessional rate of 4.5 per cent.  If it had appeared likely that there would be some equity remaining in the property after any exercise of Mr Godefridus Van de Ven’s power of sale, then I would have been more inclined to order its forfeiture before considering any application for relief against such forfeiture.  In other words, in my mind, the predominant consideration in the present

case is s 142N(2)(d), that is, the nature and extent of Mr Wayne Van de Ven’s interest

8      Solicitor-General v Wong (1997) 14 CRNZ 624 (HC).   This decision applied s 15(1) of the

Proceeds of Crime Act 1991 which is the equivalent provision to s 142N of the Sentencing Act.

interest in it.   Furthermore, s 142N(2)(c) requires the Court to consider undue hardship caused to any person by the operation of such an order.  To order the property to be forfeited would be unduly harsh to Mr Godefridus Van de Ven considering he possesses the entirety of the equity in the property.

[56]    There can be no suggestion that there was anything artificial about the transaction in 1989 or that it was structured in a way to avoid any possible liability for forfeiture.

Relief from forfeiture

[57]     As already indicated, if I had been minded to order forfeiture of the property, I would have granted relief from forfeiture.  Where a Court has decided to make an order for forfeiture a third party may also make an application for relief from forfeiture.9   In some cases this may be the preferred route but in the circumstances of this case I have formed the view that the interests in the property of Mr Godefridus Van de Ven will be better taken into account in considering whether to make the

order in the first place.

Conclusion

[58]     The Crown’s application for forfeiture of the property situated at 16 Jupiter

Street (CT NA11C/964) is dismissed.

……………………………….

Woolford J

9      Sentencing Act 2002, s 142J.