Solicitor-General of New Zealand v Loftus HC Auckland CIV2003-404-3085

[2005] NZHC 1749

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2003-404-3085

IN THE MATTER OF     an application under the Proceeds of Crime

Act 1991

BETWEENTHE SOLICITOR-GENERAL OF NEW ZEALAND

Applicant

AND  PETER LOFTUS

Respondent

Hearing:         On the papers Judgment:  24 May 2005

JUDGMENT OF ELLEN FRANCE J

(Pecuniary penalty order)

[1]                 In my decision in this matter delivered on 5 May 2005, I asked counsel to file memoranda on whether or not a pecuniary penalty should be imposed.

[2]                 I now have a joint memorandum dated 13 May 2005 from counsel for the applicant and for the respondent, and a memorandum of 12 May 2005 from counsel for the ASB.

[3]                 Counsel for the applicant and for the respondent submit I should make a pecuniary penalty order on an agreed basis. The agreement is based on these propositions, namely,

a)evidence available to the Court and appearing in the affidavit of John James Craig sworn 12 June 2003 sets out a basis upon which the value of the benefit to Mr Loftus from his offending can be calculated;

THE SOLICITOR-GENERAL OF NEW ZEALAND V PETER LOFTUS HC AK CIV2003-404-3085 [24 May 2005]

b)that basis is set out at paragraph 35 of the affidavit, that on interview Mr Loftus stated that he received approximately 4.5 grams of pure methamphetamine from Mr Collier, and that he was able to sell one gram of that methamphetamine to an associate for $600;

c)The respondent accordingly received $2,700 worth of methamphetamine (4.5 grams x $600 per gram).

[4]                 Accordingly, counsel for the applicant and respondent submit an order should be made under s25(1)(d) of the Proceeds of Crimes Act 1991 that the respondent shall pay to the Crown a pecuniary penalty of $2,700.

[5]                 Counsel for the ASB advises the property is being sold so that it can recoup its security. The ASB’s concern is that it will still be repaid in full on the date of settlement of the sale in priority to any amount imposed by the Court as a pecuniary penalty.

[6]                 As I indicated in my earlier judgment, a pecuniary penalty order would bring home the message of deterrence. I consider it appropriate to make a pecuniary penalty order. As to the sum, I accept the approach advanced by counsel for the applicant and respondent as a principled one.

[7]                 A pecuniary penalty order may be enforced as if it were an order make in  civil proceedings instituted by the Crown against the person to recover a debt due by that person to the Crown. But, in any event, a penalty of $2,700 would not affect the ASB’s  interests  as  I  understand  it.   The  property has  a  current  market  value of

$180,000-$200,000. The total amount to settle as at 2 May 2005 was $71,115.62. That figure excluded costs to date.  The ASB advises costs may be in the order of

$10,000 to $20,000 as the property may require decontamination before being sold. Taking the lesser value, and the $20,000 costs figure, there is sufficient equity to cover a penalty of $2,700.

[8]                 Accordingly, I make an order that the respondent is to pay a pecuniary penalty of $2,700. The ASB indicate the likely auction date is late June with

settlement four weeks later. The sum of $2,700 is to be paid to the Solicitor-General on or before 31 August 2005. If for any reason, the amount is not repaid by 31 August 2005, interest on the sum at the rate prescribed under the Judicature Act 1908 will accrue from that date.

[9]                 Counsel for the applicant and for the respondent submit costs should lie where they fall. No order for costs is made.

Ellen France J

Solicitors/Counsel:

The Crown Solicitor, PO Box 2213, Auckland K Harding, PO Box 105590, Auckland

Simpson Grierson, Private Bag 92518, Wellesley Street, Auckland

Delivery at : 24 May 2005 at 4.30pm