Solicitor-General v Dodd - [2013] NZHC 1489

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2012-488-457 [2013] NZHC 1489

BETWEEN THE SOLICITOR-GENERAL Applicant

ANDKELLY RICHARD DODD Respondent

ANDTREVOR JOHN McTAVISH Other Party

Hearing: 29 April 2013

Appearances: M B Smith for applicant
H D M Lawry for respondent
W McKean for Mr T McTavish (other party) Judgment: 20 June 2013
JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 11 am on Thursday 20 June 2013

Solicitors:
Crown Solicitor Whangarei
H M Lawry, Auckland
Webb Ross McNab Kilpatrick, Whangarei

SOLICITOR-GENERAL v DODD [2013] NZHC 1489 [20 June 2013]

Introduction

[1] Mr Dodd pleaded guilty to a number of serious drug charges for which he was sentenced to five years four months imprisonment by Woodhouse J on
24 August 2012.1 Among the offences for which he was sentenced were nine counts

of offering to supply cannabis, eight of offering to supply methamphetamine, two of conspiring to supply a precursor substance and one of money laundering.

[2] The Solicitor-General now applies for a Pecuniary Penalty Order pursuant to s 8 of the Proceeds of Crime Act 1991 (the Act). He also seeks a declaration pursuant to s 29(3) of the Act, that a 2003 Harley Davidson V Rod motorcycle, registration 83ZNN, currently the subject of a restraining order, may be applied in partial satisfaction of any Pecuniary Penalty Order which the Court may see fit to make. It is common ground that the motorcycle is worth $10-12,000.

Pecuniary Penalty Order

[3] Section 8 of the Act empowers the Solicitor-General to apply for a Pecuniary Penalty Order against any person who has been “convicted on indictment of a serious offence”. The section relevantly reads:

8 Application for confiscation order

(1) Where a person is convicted on indictment of a serious offence, the Solicitor-General may, at any time before the expiration of the relevant application period, apply to the appropriate Court for …:

…

(b) A pecuniary penalty order against the person in respect of benefits derived by the person from the commission of the offence.

[4] The expression “serious offence” is defined in s 2 of the Act as any offence punishable by imprisonment for five years or more. Each of the offences to which Mr Dodd pleaded guilty is a serious offence for the purposes of the Act.

[5] An applicant for a pecuniary penalty in respect of a serious offence must

“identify the benefits that are alleged to have been derived from the commission of

1 R v Clarke [2012] NZHC 2146.

the offence”.2 A “benefit derived by a person” includes direct or indirect benefits, or

those obtained at the request or direction of another.3

[6] In Solicitor-General v Pedersen, the Court of Appeal observed that the expression “benefits” was of wide application as had long been recognised in the common law.4 The Court further observed in Pedersen that:5

…being a measure designed to deter serious crime by demonstrating emphatically that…

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 Solicitor-General v Dodd

Details

AGLC: Solicitor-General v Dodd [2013] NZHC 1489
Case: [2013] NZHC 1489
Decision Date: 20 June 2013

CaseChat Overview and Summary

The High Court of New Zealand was presented with an application by the Solicitor-General for a Pecuniary Penalty Order under the Proceeds of Crime Act 1991 against Kelly Richard Dodd, who had pleaded guilty to multiple drug-related offences. The court was also asked to declare that a 2003 Harley Davidson V Rod motorcycle, valued between $10,000 and $12,000, could be applied towards the penalty. The key legal issues were whether Dodd derived benefits from his criminal activities sufficient to warrant a penalty and if the motorcycle was under his effective control for the purposes of satisfying the penalty.

The court found that Dodd derived benefits from his drug-related activities, totaling $14,640. This included $10,200 from money laundering, $3,500 from methamphetamine, and $940 from cannabis sales. However, there was insufficient evidence to support a penalty for the precursor substance charges. The court also determined that Dodd did not have effective control of the motorcycle, as it was primarily owned and used by Trevor John McTavish, who had loaned it to Dodd occasionally. Therefore, the court granted the Pecuniary Penalty Order for $14,640 but refused the declaration regarding the motorcycle.

The final orders of the court were that Dodd must pay a pecuniary penalty of $14,640, costs for McTavish were awarded against the applicant, and Dodd's costs were to lie where they fell.

Orders