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…

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 Van de Ven

Details

AGLC: R v Van de Ven [2013] NZHC 479
Case: [2013] NZHC 479
Decision Date: 14 March 2013

CaseChat Overview and Summary

Wayne Peter Van de Ven was convicted of serious drug offences. The Crown sought to have the property in which Van de Ven was living at the time of the offending, and from which some of the offending was conducted, forfeited under the Sentencing Act 2002 and the Criminal Proceeds (Recovery) Act 2009. Van de Ven’s father, Godefridus Van de Ven, sought relief from the effect of the forfeiture order, submitting that he owned the property and was not involved in the qualifying offending. The Court found that Godefridus Van de Ven had an interest in the property and that the Crown had not demonstrated that Van de Ven had effective control of the property. The Court concluded that ordering the forfeiture of the property would cause undue hardship to Godefridus Van de Ven. The Court dismissed the Crown’s application for forfeiture of the property.

Orders