Solictor-General v Swann HC Dunedin CIV 2009-412-213
[2010] NZHC 1543
•1 September 2010
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV-2009-412-000213
IN THE MATTER OF an application pursuant to the Proceeds of
Crime Act 1991
BETWEEN THE SOLICITOR GENERAL OF NEW ZEALAND
Applicant
ANDMICHAEL ANDREW SWANN First Respondent
ANDOTAGO DISTRICT HEALTH BOARD Second Respondent
ANDANNA LAURA DEVEREUX Third Respondent
ANDPETER BRUCE IBBOTSON AND CHECKETTS MCKAY TRUSTEES LIMITED AS TRUSTEES OF THE FERNTREE LODGE FAMILY TRUST Fourth Respondent
ANDORGANIC WHITE MEATS LIMITED Fifth Respondent
ANDPETER BRUCE IBBOTSON, IAN GRANT FYFE AND ANNA LAURA DEVEREUX AS TRUSTEES OF THE DEVEREUX FAMILY TRUST
Sixth Respondent
ANDANNA LAURA DEVEREUX, PETER BRUCE IBBOTSON AND CHECKETTS MCKAY TRUSTEES LIMITED AS TRUSTEES OF THE ROWAN COURT FAMILY TRUST
Seventh Respondent
ANDLIBERTY PUBLISHING LIMITED Eighth Respondent
THE SOLICITOR GENERAL OF NEW ZEALAND V MICHAEL ANDREW SWANN AND ORS HC DUN CIV-2009-412-000213 1 September 2010
ANDFRESH FREE RANGE CHICKENS LIMITED
Ninth Respondent
ANDBRUCE MCILROY LIMITED Tenth Respondent
ANDLYNDA AND GRAEME KING, NORTH END PANELBEATERS
Eleventh Respondent
ANDDUANE GEARING Twelfth Respondent
ANDDG ENGINEERING LIMITED Thirteenth Respondent
ANDPETER BRUCE IBBOTSON Fourteenth Respondent
ANDCAREYS BAY MARINE LIMITED Fifteenth Respondent
Hearing: 8 July 2010
Counsel: R P Bates and M J Grills for Applicant
L A Andersen for Ms Devereux
A G W Logan for Mr IbbotsonG J de Courcy, Amicus Curiae appointed to represent the discretionary beneficiaries of the family trusts
Judgment: 1 September 2010
JUDGMENT OF PANCKHURST J
Table of Contents
Para No
Introduction [1] Two related proceedings [7] The serious offending [10] Application of the monies fraudulently obtained [15] Innovative Solutions: secret commissions [19] Third party claims [24] Liberty Publishing Limited [28] Bruce McIlroy Limited [30] Dwayne Geering – D G Engineering Limited [32] Peter Bruce Ibbotson [34] Anna Devereux [36]
The confiscation orders sought by the Solicitor General
Confiscation, forfeiture and pecuniary orders [44]
Ownership: “effective control” of the property [48] Section 29 of the Act [49] Trusts [51] Companies [53] People [54] Was Mr Swann in “effective control” of the restrained property? [55] Discussion [60]
Which property is tainted, and thereby forfeited?
The evidence [63]
Discussion [67]
What is the appropriate pecuniary penalty order?
Statutory provisions [70]
What is the present value of the property which has been forfeited? [74] Are there other discretionary issues which require consideration? [75] What is the appropriate penalty amount in this case? [82] Directions relevant to satisfaction of the pecuniary penalty order [84] Leave to the Solicitor General [86]
Schedule: “Property the Subject of Confiscation Application”
Introduction
[1] The Solicitor General’s application for confiscation orders under the Proceeds of Crime Act 1991 (the Act) resulted in the filing of various third party claims and, initially, opposition on the part of Mr Swann. In the build-up to the hearing the third party claims were resolved by negotiation. And, Mr Swann ultimately elected to play no part in the proceeding and the forfeiture and pecuniary penalty orders sought by the Solicitor General effectively proceeded by way of formal proof.
[2] This judgment records the terms upon which the third party claims were resolved and also deals with the questions of forfeiture and the making of a pecuniary penalty order. It is convenient to deal with matters in this order, since the third party claims ultimately posed only ancillary problems, whereas there are issues which require consideration and resolution in relation to the other orders.
[3] At the substantive hearing Mr Andersen (on behalf of Ms Devereux) and Mr Logan (on behalf of Mr Ibbotson) appeared and made submissions dealing with the terms of the consent orders sought in relation to the resolution of their clients’ third party claims. With reference to Ms Devereux there is an issue concerning publication of the terms of settlement, to which I will return shortly.
[4] Otherwise, counsel who had appeared for other parties at earlier interlocutory hearings did not appear, having earlier obtained leave to that end. This included Mr Young, counsel for Mr Swann. At the eleventh hour Mr Swann instructed counsel that he did not wish to participate in the substantive hearing, nor was he prepared to be cross-examined upon the contents of affidavits he had sworn in the course of the proceeding. Accordingly, in terms of r9.74(3) of the High Court Rules I have not had regard to the contents of the affidavit, save where such contents were against interest in any event, and uncontested.
[5] Mr de Courcy appeared as counsel appointed to represent discretionary beneficiaries. As will emerge the property in relation to which forfeiture is sought is in part owned by one or other of six family trusts. One of these (the Devereux
Family Trust) was established in 1996 and another (the Swann Family Trust) a few months prior to the commencement date of the relevant offending in August 2000, while the other four were settled during the period of the offending. The trustees of the trusts were named as respondents, but elected not to play an active part in the substantive proceeding. Although Ms Devereux was a trustee of four of the trusts (and she was of course represented by Mr Andersen in her personal capacity), it was inappropriate for him to act for Ms Devereux in her trustee capacity.
[6] The discretionary beneficiaries of the trusts are Mr Swann, Ms Devereux and their children and grandchildren. In relation to a couple of trusts “more remote issue” of Mr Swann or Ms Devereux, and “any spouse” of Mr Swann, are included in the class of discretionary beneficiaries. On account of my concern that the forfeiture of property owned by any of the trusts would affect the interests of the discretionary beneficiaries, I appointed Mr de Courcy as counsel. I am grateful for his assistance. He provided a memorandum which summarised the terms of trust and, at the hearing, made helpful submissions on behalf of the residuary beneficiaries.
Two related proceedings
[7] In October 2006, immediately after the fraud was discovered, the Otago District Health Board (ODHB) brought a civil proceeding (CIV-2006-412-830) against Mr Swann and multiple other parties; including his co-offender Mr Harford, Ms Devereux, the trusts and various third parties. Preservation orders were obtained in relation to all or much of the property which is now the subject of this proceeds of crime application. In due course, this civil proceeding was stayed, since it had been overtaken by the present proceeding.
[8] A restraining order under the Act was made in March 2009 immediately following the convictions and Mr Swann’s sentencing. The ODHB is also a party to this proceeding. My appreciation is that the civil proceeding will be rendered redundant, upon the making of forfeiture and related orders in favour of the Solicitor General. It follows that counsel responsible for the carriage of the civil proceeding should attend to its discontinuance.
[9] Ms Devereux also brought a proceeding in the Family Court under the Property (Relationships) Act 1976 (FAM-2009-012-629). She sought orders defining her interest in various property acquired during the course of her marriage to Mr Swann which was also the subject matter of the Solicitor General’s application for confiscation orders. Since it was apparent that proceeds of crime and relationship property issues were intertwined and required resolution in a single proceeding, application was made to transfer the Family Court proceeding to this Court. The application was granted, and on 17 August 2009 an order for consolidation was made enabling relationship property issues to be resolved as part and parcel of this proceeding.
The serious offending
[10] Jurisdiction to make orders under the Act arises where an offender is convicted of serious offences, being offences punishable by imprisonment for a term of five years or more: s2 of the Act. Mr Swann was convicted by verdicts of a jury upon three charges of with intent to defraud using a document to obtain a pecuniary advantage. The three charges, which were representative in nature, covered offending between 30 August 2000 to 10 August 2006.
[11] Count 1 related to four invoices fraudulently used to obtain $237,885 from Healthcare Otago. Count 2 related to a further 75 invoices, by which $5,056,931 was obtained from either Healthcare Otago or the ODHB. The third count related to
119 invoices by which the Board was defrauded of $11,607,328. Hence, in all 198 invoices were rendered and a total sum of $16,902,145 was obtained.
[12] The fraud was effected through Sonnford Solutions Limited (Sonnford). At all relevant times Mr Swann was in charge of the information technology (IT) department of Healthcare Otago or ODHB. He prepared draft invoices for services and products which had supposedly been supplied by Sonnford. These were sent to Mr Swann’s co-offender, Mr Kerry Harford, who prepared the final invoices in the name of Sonnford and sent them back to Mr Swann.
[13] The proceeds were divided as to 10% to Mr Harford and 90% to Mr Swann. Stevens J, the trial Judge, described the fraud in these terms in the course of his sentencing remarks:
[9] This was fraud on a grand scale. It affected not only the ODHB as your employer Mr Swann, but also indirectly the patients of the Board and the wider Otago community. In your case it is hard to think of a more serious and cynical breach of trust of your employer. It is likely that this is one of the largest frauds, if not the largest, in New Zealand history, and it arises in an area of public health where financial resources are particularly scarce.
[14] Although the maximum penalty available upon each of the three representative charges was seven years’ imprisonment, the Judge considered that a totality approach was required and that, hence, he should adopt a starting-point based upon the total cumulative sentence available to the Court (21 years imprisonment). A starting-point of 10 years six months’ imprisonment was adopted in relation to Mr Swann. The Judge continued:
[63] I take into account your relatively clear record, your remorse and attempts at reaching an agreement regarding reparation. For those I make an allowance of 12 months, so the final sentence will be in total, in your case Mr Swann, nine years and six months’ imprisonment.
This end term was made up by a sentence of seven years’ imprisonment on count three and sentences of two years six months on counts one and two to be served cumulatively upon the lead charge, but concurrently with each other. A minimum period of imprisonment (MPI) of four years and six months was also imposed.
Application of the monies fraudulently obtained
[15] To recap, the arrangement entered into by Messrs Swann and Harford contemplated a 90:10 split of the fraudulent proceeds. However, an analysis undertaken by David Osborn, a supervising senior investigator with the Serious Fraud Office (SFO) established that the actual split was:
M A Swann $15,116,516
K G Harford $1,785,629
$16,902,145
[16] The invoice payments were made to Sonnford and Mr Harford, upon direction from Mr Swann, paid out the latter’s share to a solicitor’s trust account or another company, or in the direct purchase of assets. Sonnford was incorporated in November 2001. Prior to this date payment of the invoices was made to Sonnford Associates, but following incorporation of the new company it was the recipient of the funds. For convenience, references to Sonnford include the previous entity as well.
[17] Mr Osborn calculated that the total sum paid by Sonnford to the benefit of
Mr Swann was as follows:
Checketts McKay $5,313,000 Computer South Limited $9,167,000 Direct purchase of assets $1,999,000 $16,479,000
These amounts were described by Mr Osborn as “approximate”. Checketts McKay is a firm of solicitors with whom Mr Swann dealt throughout the relevant period. Computer South Limited was a company incorporated in 1997 when Mr Swann was bankrupt. Evidence given at the trial showed that the company was used for trading purposes while Mr Swann was bankrupt. Over the period of the offending the bank account of Computer South Limited was often used to receive funds from Sonnford.
[18] I note that the total sum paid to the trust account, the bank account and to the purchase of assets was $16,479,000 (see above); whereas Mr Osborn calculated that Mr Swann received only $15,116,516 of the total amount that was fraudulently obtained. This is a discrepancy of almost $1.4m. I shall return to this issue in due course, but this is also a convenient point at which to refer to developments subsequent to the trial in November-December 2008 which in part explain the discrepancy.
Innovative Solutions: secret commissions
[19] Over much the same time span as the major fraud was committed, Mr Swann was also receiving secret commission payments from Robin Sew Hoy. The ODHB made 85 payments to Innovative Solutions for what were termed “Helpdesk” services. Mr Sew Hoy’s company was paid for such services at the rate of $95 per hour, and paid a secret commission to Mr Swann of $25 per hour for facilitating the provision of this work to his business. The total amount received by Mr Swann was
$755,153.
[20] Neither offender was dealt with in relation to these kickback payments until sometime after the major fraud case was completed. Mr Sew Hoy was sentenced in November 2009 and Mr Swann (following a guilty plea) in February of this year.
[21] At that time Chisholm J sentenced Mr Swann to 20 months’ imprisonment, but on a concurrent basis. With regard to reparation the Judge noted that this proceeding was extant, commented that a reparation claim pertaining to the secret commissions amount would probably be “futile”, but nonetheless adjourned the reparation issue for future consideration, if appropriate.
[22] For the avoidance of doubt I note that confiscation orders in this proceeding cannot be made on the basis of the secret commissions offending. The Solicitor General’s application is confined to the charges in relation to which Mr Swann was found guilty by jury.
[23] However, the secret commissions amount, $755,153, was intermingled with the money fraudulently obtained via the Sonnford invoices. And, the analysis undertaken by Mr Osborn as summarised above in [17] extends to and includes the secret commissions money. This explains over half of the excess of funds paid to Mr Swann’s benefit.
Third party claims
[24] Section 18 of the Act governs the grant of relief to third parties. Pursuant to the previous section third parties may apply for relief before a forfeiture order is made, where the third party claims an “interest” in any property covered by the forfeiture application. An interest is broadly defined in the interpretation section, s2 of the Act. It means a legal or equitable estate or interest in the property; or a right, power or privilege in connection with the property.
[25] The power of the Court to grant relief to a third party is equally broadly expressed. Subject to a relief application being made pursuant to s17, the Court, if satisfied that the claim is “valid” may grant relief. Relief takes the form of a declaration as to the “nature, extent, and value” of the interest, coupled with a direction for transfer of the interest, or payment to the third party – unless the relevant interest is severable in which case relief may be granted by severance of the interest from any forfeiture order.
[26] On the other hand, relief may be refused where the third party was “involved in the commission of the [relevant] offence” or where the third party acquired the interest at the time of, or after, the commission of the offence and otherwise than in good faith and for fair value: s18.
[27] In this instance the third party claims have been resolved, in light of the affidavit evidence, following negotiations between counsel for the Solicitor General and counsel for the various third parties. Accordingly, it only remains for me to make the various consent orders. In the case of the third respondent, Anna Devereux (Mr Swann’s former wife), some ancillary issues arise. I shall, therefore, consider her third party claim last.
Liberty Publishing Limited
[28] The Solicitor General seeks a forfeiture order in respect of a property at 6-8
Macandrew Road, Careys Bay, Port Chalmers. The registered proprietors of the property since it was acquired in May 2006 have been two companies, Fresh Free
Range Chickens Limited and Liberty Publishing Limited. The former was incorporated in 2002 with Mr Peter Ibbotson as the sole director and shareholder, with a trustee company of Mr Swann’s solicitors also a shareholder. As with other companies of which Mr Ibbotson is a director and shareholder, Mr Swann remained the person in control of the company. I am satisfied on the basis of the evidence given at the trial, and the affidavit evidence in this proceeding, that Mr Ibbotson was no more than a figurehead and that Mr Swann remained in control of the company at all relevant times.
[29] Liberty Publishing Limited was the sole registered proprietor of the property prior to May 2006. It sold an 8/10th interest to Fresh Free Range Chickens Limited. In these circumstances it is common ground that Liberty is entitled to relief pursuant to s18 of the Act. I direct that the interest of Liberty shall not be included in any forfeiture order.
Bruce McIlroy Limited
[30] In 2005-06 this company undertook restoration work on a 1933 Rolls Royce
20/25 saloon. Such work was undertaken at the request of Mr Swann. Invoices were progressively rendered in relation to the work. At the time of Mr Swann’s apprehension a sum of $16,715.80 was still owed to Bruce McIlroy Limited in relation to restoration expenses.
[31] The Solicitor General accepts that relief in favour of this third party is appropriate. By consent I make an order that upon the sale of the vehicle the proceeds will be first applied to meet reasonable sale costs, followed by payment of
$16,715.80 to Bruce McIlroy Limited, the tenth respondent.
Dwayne Geering – D G Engineering Limited
[32] Mr Geering and his company provide marine engineering services. They were retained by Mr Swann to undertake work on the “Townsend Cromwell”. The vessel was built in 1963 as an oceanographic research boat. On 1 July 2009 the restraining order was varied to enable the “Townsend Cromwell” to be sold on
account of its wasting nature. Such order was made without prejudice to the right of
Mr Geering and D G Engineering Limited to bring a claim for third party relief.
[33] An application for relief was duly made, and before me counsel for the Solicitor General consented to the payment of $212,409.84 to the respondents, being the value of the unpaid work and therefore the extent of the respondents’ interest in terms of s18. I make an order for payment of this sum to the 12th/13th respondents.
Peter Bruce Ibbotson
[34] Mr Ibbotson is a plumber by occupation. He undertook work for Mr Swann in relation to both house properties and vessels. Arising out of this relationship Mr Ibbotson filed an application for third party relief dated 18 January 2010.
[35] In the end result this application was resolved, by consent, upon the basis that an unregistered Buick convertible (model 2625X) in need of restoration and two containers, one containing car parts (as more particularly described in the joint memorandum of counsel dated 9 July 2010), were to be vested in Mr Ibbotson. I make orders in favour of the fourteenth respondent in terms of the memorandum.
Anna Devereux
[36] In addition to the property relationship proceeding which was consolidated with this proceeding (see [9]) Ms Devereux also filed an application for third party relief dated 28 April 2009. Such application effectively mirrored Ms Devereux’s relationship property claim, in that an interest in various items of property was asserted and orders were sought excluding such interests from any orders made in favour of the Solicitor General.
[37] In the end result Ms Devereux’s relationship property/third party claims were resolved by negotiation between counsel. A joint memorandum sought, and I make, orders as follows:
A Pursuant to the Property (Relationships) Act 1976:
(i)The five titles comprising 24 Redding Street, Waynes shall vest in Clare Elgar Trustee Limited and Ms Devereux as trustees of The ALD Trust.
(ii)All family chattels at 14 Ferntree Drive, Dunedin and all family chattels that were in 15 Rowan Court, Wanaka on 11
March 2009, shall vest in Ms Devereux as her separate property.
(iii)The balance of Ms Devereux’s interest in relationship property is fixed in the sum of $55,000 to be received as follows:
(a)by the vesting of a 2005 Toyota Landcruiser 4.2 TD4, registration number CYU519, in Ms Devereux as her separate property at an agreed value of $50,000,
(b)by debiting the sum of $1,500 as paid by Ms Devereux as the purchase price of five items from Rowan Court (a wooden six drawer cabinet, a low large wooden table, two black leather couches, a wooden two drawer cabinet and a wooden four drawer cabinet), and
(c)by payment of $3,500 by the Official Assignee towards rates arrears in respect of 14, 22 and 24
Ferntree Drive, Dunedin.
B Pursuant to the application for relief under the Proceeds of Crime
Act 1991:
(i)No forfeiture order shall be made in relation to the house property or family chattels vested in Ms Devereux.
(ii)The order permitting Ms Devereux to occupy 14 Ferntree Drive, Dunedin ceased on 19 August 2010 and vacant possession of the property was to be given, unless a prior agreement was reached with the Official Assignee
permitting Ms Devereux to remain in occupation of the property upon agreed terms.
(iii) That Ms Devereux shall pay rates arrears in respect of 14,
22 and 24 Ferntree Drive in the sum of $6,282.59 to the Dunedin City Council and in the sum of $2,311.71 to the Otago Regional Council, and
(iv)otherwise, Ms Devereux’s application for relief is dismissed.
[38] Mr Andersen sought an ancillary order in relation to publicity pertaining to this proceeding. The Property (Relationships) Act 1976 imports the relevant provisions in the Family Courts Act 1980 in relation to the publication of reports of proceedings (see 35A of the former Act). And, s11B of the Family Courts Act provides that any person may publish a report of a proceeding in the Family Court (subs (1)), save that identifying information pertaining to persons under the age of 18 years or pertaining to “a vulnerable person” may not be included in the report without leave of a Judge: s11B(3).
[39] Mr Andersen pointed out that his client has the care of school-age children who could be adversely affected by the publication of a report. While I well appreciate the concern behind this submission, it does not seem to me that Ms Devereux’s children are relevantly involved in the proceeding so that s11B(3)(a) is engaged. However, this observation of itself provides protection to the children, because their non-involvement in the proceeding precludes reference to them, or reference to identifying information about them.
[40] Although not necessarily expressed in these terms Mr Andersen’s submissions indicated that Ms Devereux could be classified as a vulnerable person and she, of course, is a party to this relationship property proceeding.
[41] Is it appropriate to grant leave to publish a report concerning the relationship property aspects of this case even assuming that the applicant is a vulnerable person?
Mrs Grills submitted that there was legitimate public interest in all aspects of this proceeding and that, if required, leave to publish should be granted.
[42] Although I have sympathy for Ms Devereux’s position, I am in no doubt that this case is one of public interest and that open reporting of it must be allowed. The fact is that Ms Devereux has only received her entitlement under the Property (Relationships) Act. Put another way, the order defining her rights simply preserves to her a modest amount of relationship property, not items of property which represent the fruits of Mr Swann’s offending.
[43] Submissions were also made concerning the vesting of the Waynes’ property upon a trust. I reserve leave in relation to that aspect, so that counsel may revert to me if the need arises.
The confiscation orders sought by the Solicitor General
Confiscation, forfeiture and pecuniary penalty orders
[44] A confiscation order may take the form of either a forfeiture order or a pecuniary penalty order: s2 of the Act. Here, the Solicitor General seeks both. His application dated 3 June 2009 seeks:
(a)the forfeiture of tainted property (land, vehicles and vessels) described in a schedule to the application,
(b)a pecuniary penalty order in the sum of not more than $15,116,515.37, and
(c)an order pursuant to s29(3) of the Act declaring that property not in the legal ownership of Mr Swann, where not forfeited, is available to satisfy the pecuniary penalty order.
[45] The form of the application reflects the distinction between forfeiture, and pecuniary penalty, orders. A forfeiture order relates to specific identifiable property used to commit or facilitate the commission of a serious offence, or as in this case property that represents the proceeds of that offence (i.e. “tainted” property): s15(1).
“Proceeds” includes both property derived directly or indirectly, from the commission of the offence; and therefore extends to property purchased with money fraudulently obtained by the offender: s2. If tainted, it matters not that the property is not in the offender’s ownership. This much is clear from s15(2)(c) which identifies as relevant to forfeiture “the nature and extent of the offender’s interest in the property (if any) ...” (emphasis added). Where another person has an interest in (or owns) the property this is a relevant consideration in determining hardship (s15(2)) or, of course, in determining a third party claim (ss 17 and 18).
[46] In contrast, a pecuniary penalty order relates to any benefit gained by the offender from the offending during the offence period where it is not possible to trace the proceeds of the offending to the acquisition of specific property (otherwise, forfeiture would be appropriate): ss 25, 27 and 28. Once the level of benefit is established and a pecuniary penalty order is made, enforcement may follow as for any debt due in civil proceedings instituted by the Crown: s25(3). Hence, untainted property of the offender may be applied to satisfaction of the pecuniary penalty.
[47] In relation to both types of order the onus of proof is upon the Solicitor General to justify the making of relevant orders on the balance of probabilities: s85 of the Act.
Ownership: “effective control” of the property
[48] Some of the restrained property which may be available to satisfy a pecuniary penalty order is owned by persons or entities other than Mr Swann. Accordingly, the Solicitor General relies upon the Court’s power to treat property as that of the offender in a pecuniary penalty context.
Section 29 of the Act
[49] This section relevantly provides:
Court may lift corporate veil, etc
(1) In assessing the value of benefits derived by a person from the commission of an offence or offences, the Court may treat as property
of that person any property that the Court is satisfied is subject to the effective control of the person whether or not the person has –
(a) Any legal or equitable estate or interest in the property; or
(b) Any right, power, or privilege in connection with the property.
(2) Without limiting the generality of subsection (1) of this section, 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) of this subsection or trusts of the kind referred to in paragraph (b) of this subsection, and any other persons.
Pursuant to subs (3) a Court, upon making a pecuniary penalty order, may also declare that property is “available to satisfy the order” where the test in subs (1) is met. Thereby, property of which the offender is not the legal owner, may nonetheless be treated as his/her property.
[50] Subsection (4) provides for enforcement of a pecuniary penalty order against the relevant property as if it were that of the offender. And, subs (5) requires that the Solicitor General serve notice of any application for a pecuniary penalty order on those persons who may have an interest in the particular property. In this case trusts and companies which hold property against which orders are sought, have been served, but not others who may have an interest in the property.
Trusts
[51] A number of family trusts own restrained property:
Name
Devereux Family Trust
Settlement Date
18 April 1996
Trustees
Anna Devereux
Peter Ibbotson
Grant Fyfe
Ferntree Lodge Family Trust
1 July 2002
Peter Ibbotson Checketts McKay Trustees Limited
Rowan Court Family Trust
26 September 2003
Anna Devereux Peter Ibbotson Checketts McKay Trustees Limited
Rowan Court Family
Trust No. 2
8 March 2005 Anna Devereux Peter Ibbotson Checketts McKay Trustees Limited Organic White Meats Trust
19 June 2002
Peter Ibbotson Checketts McKay Trustees Limited
Fresh Free Range Chickens
Trust19 June 2002
Peter Ibbotson Checketts McKay Trustees Limited
[52] The trustees of these trusts are named as respondents and were therefore served. However, ultimately none of the trustees participated, or were represented, at the substantive hearing (see [5] and [6]). This circumstance in part prompted my decision to appoint Mr de Courcy as counsel to represent the discretionary beneficiaries of the various trusts. In addition to the role played by counsel in analysing the details of the trusts, Mr de Courcy also made inquiries concerning distribution of the trusts’ property. He filed a memorandum which included this:
Counsel is not aware of any resolutions of the trustees appropriating and partitioning any part of the trust assets or vesting any of the trust assets in any beneficiary.
Companies
[53] There are four relevant companies:
Name Date of Incorporation Directors
Sonnford Solutions Limited 7 November 2001 Kerry Harford
Eleanor Sonntag
Computer South Limited
20 March 1997
Peter Ibbotson Organic White Meats Limited
Organic White Meats
Limited20 June 2002
Peter Ibbotson
Fresh Free Range Chickens
Limited20 June 2002
Peter Ibbotson
Computer South and Sonnford were companies involved in the commission of the fraud (see [16]-[17]). Organic White Meats Limited and Fresh Free Range Chickens
Limited are the registered owners of property (land) in relation to which forfeiture is sought.
People
[54] Appended to this judgment is a schedule entitled “Property the Subject of Confiscation Application” (the Schedule). Numerous motor vehicles are included in the Schedule, some of which are registered in the names of people other than Mr Swann. These people were interviewed. A pattern emerged. They were either relatives or friends of Mr Swann. Although shown as the owner of a vehicle of some description, they conceded that Mr Swann paid for the item, registered it in their name and that he remained the beneficial owner. None of this group asserted otherwise in the context of this proceeding.
Was Mr Swann in “effective control” of the restrained property?
[55] Strictly speaking this question is only relevant in relation to property which is not tainted and which is also held by someone other than Mr Swann. However, I shall evaluate whether Mr Swann is in effective control of the restrained property generally. Otherwise there is a risk that a pattern of conduct, which I think is evident in relation to Mr Swann’s actions, may be lost sight of to a degree.
[56] There are three individuals and one company who are trustees of the various family trusts, namely Ms Devereux, Mr Ibbotson, Mr Grant Fyfe and Checketts McKay Trustees Limited.
[57] Mr Grant Fyfe is a Central Otago solicitor and a partner in Checketts McKay, which firm owns the trustee company of that name. Mr Ibbotson is also the sole director of the two companies which own restrained land.
[58] At the fraud trial Ms Devereux gave evidence by consent. It included this:
I had nothing to do with any of these trusts other than signing the documents as directed and I do not understand what a settlor or a discretionary beneficiary is. I left all that to Michael and Grant.
Later she added:
I am not specifically aware of what properties were owned under the various trusts, as Michael dealt with all that.
[59] Mr Ibbotson was also a witness at the trial. With reference to his role as a trustee and a company director he said:
I did nothing for these entities other than just be there in name and sign documents on [the] instruction of Mike Swann or Grant Fyfe from time to time.
Mr Fyfe likewise gave evidence at the trial in which he said that Mr Swann was his point of contact throughout the relevant period and he gave the instructions in relation to the affairs of the trusts.
Discussion
[60] I am satisfied there is ample evidence in support of the conclusion that Mr Swann maintained “effective control” over those items of property shown in the Schedule as owned by trusts, companies or individual people. This case is characterised by an unmistakable pattern of conduct. Property often purchased using Sonnford money was transferred into the ownership of entities, or persons, connected to Mr Swann. Even where such property is not shown as acquired with Sonnford money, I am satisfied it was held by others in an endeavour to protect the property from subsequent attack (see [54]). There is no other credible explanation for what occurred, particularly given the passive role of those who assumed legal ownership and/or control of the property.
[61] Mr Swann advanced an alternative explanation in his most recent affidavit. He said that following his bankruptcy in 1996 he subsequently adopted a “philosophy” of not holding assets or money in his own name. He instanced the position in relation to his salary from the ODHB, which was paid to Ms Devereux’s bank account and used by her to meet family expenses. Mr Swann suggested that his philosophy explained why assets were held in the names of entities or individuals other than himself.
[62] Whether this explanation is credible is probably beside the point. For present purposes the issue is whether, having orchestrated these various ownership arrangements, Mr Swann remained in effective control of the assets. For the reasons already given, I am in no doubt that the property which became subject to a restraint order in this proceeding remained under the effective control of Mr Swann. Where necessary, it may be treated as his property and applied towards satisfaction of a pecuniary penalty order.
Which property is tainted, and thereby forfeited?
The evidence
[63] In anticipation of the substantive hearing Mrs Grills filed a schedule which effectively summarised the Solicitor General’s case by reference to the property which is presently restrained. Counsel’s document has been recast to a degree, and is now the Schedule entitled “Property the Subject of Confiscation Application” and is annexed to the judgment. Where property has been vested in third parties in paras [28]-[37] it no longer features in the Schedule.
[64] The substance of the Solicitor General’s case is found in detailed affidavits sworn by Mr Osborn and Detective S M Watt of the Dunedin Proceeds of Crime Unit. The deponents have investigated the acquisition of each item of property in the Schedule on a case by case basis. I am satisfied that, in large measure, they have been able to trace the source of funds used to acquire the various items of property and thereby to establish that numerous items are tainted property, as defined in the Act.
[65] I have also had regard to Mr Swann’s May 2010 affidavit, at least to see whether he disputed any of the conclusions reached by the investigators. Mr Swann expressly accepted the evidence of Mr Osborn concerning the amounts of Sonnford money paid to Computer South Limited or paid to the trust account of Checketts McKay. However, he contested the conclusion that about $1,999,000 was paid to his benefit by way of the direct purchase of assets (see [17] of this judgment).
Mr Swann contended that any expenditure of this nature was for the benefit of
Computer South Limited, not him.
[66] Importantly, Mr Swann does not seek to challenge the investigators’ conclusions concerning the source of funds used in the acquisition of individual assets. This is not surprising, given that the affidavit evidence of Mr Osborn and Detective Watt is based on the relevant documentary records. I accept their evidence.
Discussion
[67] It follows that where the Schedule identifies the “source of funds” as emanating from Sonnford, Computer South Limited or Checketts McKay’s trust account, I regard the property acquired with such funds as tainted. In some instances funds from Ms Devereux’s bank account, or from the sale of other assets were also utilised in the acquisition. But, given that in every case money fraudulently obtained was the dominant source of the purchase price, there is no basis for concern that the making of a forfeiture order would be inappropriate. Nor for that matter has any entity or person sought to invoke the undue hardship exception in s15(2), or sought relief pursuant to ss 17 and 18 (save for the third party claims previously considered in this judgment).
[68] In these circumstances I make forfeiture orders with reference to the items of property numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21, 22,
25, 26, 27, 28, 29, 35, 36, 37, 38, 39, 40, 41, 42 in the Schedule.
[69] I shall return to the value of these items shortly. Section 15(4) requires that the value of forfeited property at the time of its forfeiture must be reflected in the making of any pecuniary penalty order.
What is the appropriate pecuniary penalty order?
Statutory provisions
[70] Sections 25 to 29 govern the making of pecuniary penalty orders. A two stage inquiry is necessary. First, the value of the benefits derived by the offender from the offending is to be assessed in accordance with ss 27 and 28 of the Act. A benefit in this context may be derived “directly or indirectly”, so that both the immediate benefit (here cash) and subsequent assets are caught: s2(3)(a). Second, the actual penalty amount is to be assessed by reducing the benefits figure by:
(a) the value of any property that has been forfeited,
(b) the value of any other pecuniary penalty that has been imposed, and
(c)any further amount which the Court considers appropriate on account of any other sanction imposed upon conviction, being a sanction in the nature of a pecuniary penalty or forfeiture of property.
As to these requirements see s25(2)(a), (b) and (c) and s14(1)(b) of the Act.
[71] Section 27 prescribes how the value of benefits is to be assessed. Any money, or property, that by reason of the commission of the offences came into the possession or under the control of the offender during the offence period, may result in the making of a pecuniary penalty order. Any expenses or outgoings of the offender incurred in connection with the offending are to be disregarded.
[72] In this instance a close analysis of ss 27 and 28 is not required. The value of the immediate benefit obtained by Mr Swann is not in issue. He, and his co- offender, obtained a total of $16,902,145 from the commission of the offences (see [11]). And, the Solicitor General seeks a pecuniary penalty order of not more than
$15,116,516, being Mr Swann’s share of the proceeds (see [15]).
[73] Reductions are not required in recognition of any other monetary, or similar, penalty already imposed at sentencing. Stevens J sentenced Mr Swann to imprisonment and left the monetary aspects to be considered in the present context.
What is the present value of the property which has been forfeited?
[74] Formal valuations were obtained in relation to many items of property. In other cases estimated values were established. Where the valuation/estimate identified a range, I have adopted the mid-point as the appropriate value. The relevant figures appear in the present value column of the Schedule. The total value of the forfeited items (see [68]) is $3,492,583.
Are there other discretionary issues which require consideration?
[75] Cases decided in the pecuniary penalty context have recognised various factors which may be relevant to determining the final amount of an order. These include cooperation with the police, any division of the proceeds between co- offenders and whether the offender’s ability to meet the order should be taken into account. I shall briefly consider each of these questions.
[76] In the leading case of R v Pedersen,[1] Cooke P and Richardson J in their joint judgment considered that, by analogy with the approach at sentencing, cooperation with the authorities could justify a reduction in the penalty amount. Presumably they had in mind cooperation in relation to unravelling the offending conduct itself, or cooperation in relation to the involvement of other offenders. Cooperation in tracing and recovering the proceeds of the offending would ordinarily result in the making of a forfeiture order and the value of this reduces the amount of a pecuniary penalty order (s25(2)(a)), so that cooperation of this kind will automatically be recognised.
[1] R v Pedersen [1995] 2 NZLR 386 (CA).
[77] However, in my view Mr Swann has done nothing to warrant any allowance for cooperation. The material provided in support of the present application evidences Mr Swann’s attitude from beginning to end. For example, following the guilty verdicts Mr Swann swore an affidavit in support of a bail application. It included this:
8. At the very least, I believe the ODHB as a victim of my actions deserves any reparation I am able to facilitate, which I can only do if I am granted bail.
9. I believe that reparation from me is a far better outcome than the ODHB spending money on legal fees in pursuing further proceedings to secure judgment against parties who are not culpable.
10. I am totally remorseful for my actions, and if I am granted bail, prior to sentencing I will commit myself fully to cooperating with the ODHB and the Crown.
And, in his May 2010 affidavit Mr Swann asserted “I can definitely say that there is nothing by way of hidden or missing property ...”, as every item of property is already restrained.
[78] Bail was not granted. No cooperation in relation to tracing assets was forthcoming. Mrs Grills in submissions drew attention to the discovery of various items of property which had only been very recently located through inquiries, not with Mr Swann’s help. In short, his attitude throughout has been the very antithesis of cooperation.
[79] The issue of the division of proceeds among co-offenders does not arise for consideration. As I have already noted, the Solicitor General seeks a pecuniary penalty order no greater than the sum which Mr Swann received as his share of the proceeds. Thereby account was taken of the share of the proceeds received by Mr Harford.
[80] Is an offender’s ability to pay relevant to fixing the amount of a pecuniary penalty order? Sections 35 and 41 of the Sentencing Act 2002 provide that the financial capacity of an offender is directly relevant to the making of a reparation order and to fixing the amount of a fine. But, there is no equivalent provision in the Proceeds of Crime Act. In fact, such indications as there are point in the opposite direction – to the conclusion that financial capacity is not a relevant consideration. In response to a submission that subs (8)(g), (h) and (i) of the Sentencing Act should
be taken into account in assessing a pecuniary penalty order, the Court in R v Jury [2]
disagreed; stating that the provisions of the Act govern the making of orders, not anything contained in the Sentencing Act. Although the word “code” was not used by the Court of Appeal, I think the sense of their observations is that this Act is self- contained.
[2] R v Jury [2004] 2 NZLR 457 (CA) at [37] – [38].
[81] The judgments in Pedersen stressed that the policy of the Act was to deter serious crime by demonstrating emphatically that it does not pay and that it should be judicially administered in this spirit. Even respecting this admonition, I do not think that the capacity of the offender to meet a pecuniary penalty order is completely irrelevant. There comes a point at which the making of an order for the full amount assessed under s25 may be seen as pointless. If there is no prospect of an offender making payment of the amount ordered, then the order may become an exercise in futility, at least to the extent that payment of the order is totally beyond reach.
What is the appropriate penalty amount in this case?
[82] The starting-point is the benefit of $15,116,516 obtained by Mr Swann. This figure must be reduced by $3,492,583, being the present estimated value of the property forfeited to the Crown. This leaves a balance of $11,623,933. The further restrained property still available to part satisfy the pecuniary penalty order (see [85]) has a value of the order of $700,000-$800,000.
[83] In my view the appropriate amount of a pecuniary penalty order is $6m.
Directions relevant to satisfaction of the pecuniary penalty order
[84] Although I have made forfeiture orders in relation to 33 items of property identified in the Schedule (see [68]), another 15 items of property remain subject to the restraining order.
[85] Items 10, 23, 31, 32, 33, 34, 35, 44, 45, 46, 48 and 49 are in the ownership of Mr Swann. As such this property is available to meet the pecuniary penalty order without further direction from me. In relation to items 18, 24 and 46 I declare pursuant to s29(3) that the relevant property is available to satisfy the penalty order.
Leave to the Solicitor General
[86] Leave is reserved to the Solicitor General:
(a)to apply pursuant to s16 for leave to dispose of forfeited property before expiry of the appeal period, and
(b)to revert to me in relation to any issue which I have overlooked in the course of the preparation of this judgment.
Solicitors:
Wilkinson Adams Lawyers, Dunedin for Applicant
Len Andersen Barrister, Dunedin for Ms Devereux
Ross Dowling Marquet Griffin, Dunedin for Mr Ibbotson
Downie Stewart, Dunedin for discretionary beneficiaries(Mr G J de Courcy, Amicus Curiae appointed to represent the discretionary beneficiaries of the family trusts)
PROPERTY THE SUBJECT OF CONFISCATION APPLICATION
| NO. | PROPERTY | LOCATION | NAME OF OWNER | PURCHASE DATE | PURCHASE PRICE | SOURCE OF FUNDS | PRESENT VALUE |
| 1. | 14/24 Ferntree Drive, Wakari. | Dunedin | Ferntree Lodge Family Trust | 29 August 2002 | $636,266.42 & Fees of $8,000 Disb ($644,000) | Sonnford $526,000 Devereux Bank Account $31,000 Sale Orokonui Property $87,000 | $650,000 |
| 2. | 22 Ferntree Drive, Wakari. | Dunedin | Organic White Meats Ltd | 11 July 2004 | $249,968.36 | Sonnford $50,000 Checketts McKay (Funds ex sale of vehicles purchased with Sonnford funds) $199,968.36 | $280,000 |
| 3. | 7 Macandrew Road, Careys Bay | Port Chalmers | Devereux Family Trust | December 2004 | $104,850 | Sonnford $103,850 Anna Devereux Bank Account $1,000 | $140,000 |
| 4. | 15 Rowan Court, Wanaka | Wanaka | Rowan Court Family Trust | 29 September 2003 | $660,107.27 plus fees and disbursements | Sonnford $595,000 Anna Devereux Bank Account $1,000 Sale of Orokonui property $72,000 | $695,000 |
| NO. | PROPERTY | LOCATION | NAME OF OWNER | PURCHASE DATE | PURCHASE PRICE | SOURCE OF FUNDS | PRESENT VALUE |
| 5. | 6 & 8 Macandrew Road, Careys Bay And 8 Macandrew Road, Careys Bay | Port Chalmers | Fresh Free Range Chickens Ltd (as to an 8/10ths share) Liberty Publishing Ltd (as to a 2/10ths share) | 30 May 2006 | $700,414.21 | Sonnford $695,746 Anna Devereux Account $4,667.75 | $650,000 |
| 6. | 1933 Rolls Royce 20/25 Saloon | Custody of Official Assignee | M A Swann | 18 August 2004 | $56,000 | CSL Limited Cheque $56,000 | $24,083 |
| 7. | 1970 Jaguar E Type SM9063 | OA | M A Swann | 30 April 2001 | $75,000 | CSL Limited cheques (2) $75,000 | $50,000 |
| 8. | 1911 Cadillac 30 | OA | M A Swann | 15 December 2000 | $54,000 | CSL Limited cheques (2) | $45,000 |
| 9. | 1960 Mercedes Benz 190SL 1960SL | Unknown | M A Swann | October 2000 | $60,000 | CSL Limited cheques (2) $60,000 | $50,000 |
| 10. | 1997 Landrover Defender TDI 110 C/CAB (W19724) | Sold $7,656.75 Proceeds held by OA | M A Swann | 27 December 2002 | Not forfeited |
| NO. | PROPERTY | LOCATION | NAME OF OWNER | PURCHASE DATE | PURCHASE PRICE | SOURCE OF FUNDS | PRESENT VALUE |
| 11. | 1969 Mercedes Benz 280SL (MY280) | OA | M A Swann | 3 February 2004 | $65,000 | CSL cheque $65,000 | $32,000 |
| 12. | 1938 Rolls Royce Phantom III AP101 | OA | M A Swann shown as “unconfirmed owner” (previous owner said he sold to M A Swann) | 31 August 2005 | $200,000 | CSL cheque $100,000 Checketts McKay Trust $100,000 (Sonnford) | $180,000 |
| 13. | 1925 Phantom Rolls Royce AWB003 | OA | M A Swann | 24 August 2004 | $110,000 | CSL cheque $110,000 | $115,000 |
| 14. | 2006 Volkswagon Touareg DGB845 | Unknown | M A Swann | 5 April 2006 | $192,000 | Trade-in VW earlier Touareg $120,000 CSL cheque $72,000 | $130,000 |
| 15. | 1929 Rolls Royce Phantom II AWB001 | OA | M A Swann | 23 May 2006 | $160,000 | CSL cheques (2) $160,000 | $125,000 |
| 16. | 1993 Mercedes Benz Cabriolet SP5291 | Unknown | A L Devereux | 3 July 2003 | $53,000 | CSL cheque $20,000 Finance $33,000 (paid out by | $15,500 |
| NO. | PROPERTY | LOCATION | NAME OF OWNER | PURCHASE DATE | PURCHASE PRICE | SOURCE OF FUNDS | PRESENT VALUE |
| 17. | 2004 Toyota Land Cruiser 4WD CH674 | OA | Lindsay John Kaan | 11 November 2004 | $58,707 | CSL cheque $58,700 | $30,000 |
| 18. | 1974 V12 E-Type Jaguar JAG 74 | Unknown | Stewart Scott MacDonald | 20 October 2005 | Not forfeited | ||
| 19. | 1928 Buick Standard 6 Convertible SG63 | OA | Evan Leslie Cameron | 22 October 2003 | $9,500 | CSL cheque $9,500 | $12,500 |
| 20. | 1989 Isuzu FTR 12 Firetruck BHW134 | OA | DG Engineering | 16 June 2004 | $40,000 | Trade-in, Sonnford & CSL $10,000 cheques | $6,000 |
| 21. | 1990 Isuzu Truck BMA305 | OA | DG Engineering | May 2003 | $25,000 | CSL cheque $25,000 | $5,000 |
| 22. | 1942 Willys MB 444 Jeep KC5582 | OA | Evan Leslie Campbell | 3 October 2000 | $10,000 | CSL cheque $10,000 | $12,500 |
| 23. | Buick hard top AS1220 (unrestored) | OA | M A Swann | Not forfeited |
| NO. | PROPERTY | LOCATION | NAME OF OWNER | PURCHASE DATE | PURCHASE PRICE | SOURCE OF FUNDS | PRESENT VALUE |
| 24. | 1990 Prosche 928 SY172 | OA | Paul Nahu Kilpatrick | 14 August 2007 | $24,000 | Transfer from Kilpatrick’s ASB account for $24,000 | Not forfeited |
| 25. | 1948 Series 1 Landrover, tag no 395-208 | OA | Not registered | 28 November 2004 | $34,487.50 | CSL cheque for $52,287 (two vehicles) | $10,000 |
| 26. | 1950 Land Rover 88 DR6873 | OA | 28 November 2004 | $17,800 | As above | $11,000 | |
| 27. | 2003 Toyota Land Cruiser BJA 107 | OA | Paul Nahu Kilpatrick | 30 June 2006 | $41,000 | CSL cheque $41,000 | $30,500 |
| 28. | 1924 BSA Motorcycle & Sidecar, 691YX | OA | Michael Andrew Swann | 25 January 2006 | $17,995 | CSL cheque for $18,000 | $9,000 |
| 29. | 2005 Honda NRX 1800 motorcycle 40WQY | OA | Michael Andrew Swann | 29 March 2005 | $43,311 | CSL cheque for $43,311 | $21,000 |
| 30. | 2003 Trailer, B165C | Unknown | Michael Andrew Swann | Not forfeited |
| NO. | PROPERTY | LOCATION | NAME OF OWNER | PURCHASE DATE | PURCHASE PRICE | SOURCE OF FUNDS | PRESENT VALUE |
| 31. | 1999 Boat Trailer 9176N | Unknown | Michael Andrew Swann | Not forfeited | |||
| 32. | 2004 Shoreland Boat Trailer, E932G | OA | Michael Andrew Swann | Not forfeited | |||
| 33. | 2001 Trailer, 1353U | Unknown | Michael Andrew Swann | Not forfeited | |||
| 34. | “Townsend Cromwell” 763 ft vessel | Sold in 2008, proceeds $606,115 | M A Swann | 11 July 2005 | $826,000 | Checketts McKay trust a/c $200,000 Checketts McKay trust a/c $80,000 CSL cheque $71,000 Sonnford cheque $226,600 Armstrong Prestige (trade-in proceeds) $250,000 | Not forfeited |
| 35. | “Arataki” tug ID No. 1875941 | Miller & Tunnage Slipway Careys Bay | M A Swann | April 2004 | $56,250 | CSL cheque $56,250 | $11,000 |
| NO. | PROPERTY | LOCATION | NAME OF OWNER | PURCHASE DATE | PURCHASE PRICE | SOURCE OF FUNDS | PRESENT VALUE |
| 36. | Hikurangi Tug 1961 ID No YTL629 | OA | M A Swann | 8 April 2003 | $60,000 | CSL cheque $60,000 | $25,000 |
| 37. | White Rabbit 29 ft fibreglass boat & 6 wheel trailer | OA | M A Swann | 12 July 2001 | $50,000 | Checketts McKay cheque $50,000 (Sonnford) | $10,000 |
| 38. | Rinka Captiva 7 metres and trailer, J921B | OA | M A Swann (boat) Paul Nahu Kilpatrick (trailer) | 29 September 2004 | $96,239 | Anna Devereux account $1,000 CMTA $95,239 Balance trade-in of Bayliner boat (Sonnford) | $31,000 |
| 39. | Aqua Pro NB Raider 680 | OA | M A Swann | 31 July 2006 | $60,000 | CSL cheque $60,000 | $21,000 |
| 40. | Aqua Pro 470 Monaco | OA | M A Swann | 9 August 2005 | $34,024.17 | CSL cheque $34,024.17 | $11,000 |
| 41. | Grand Inflatable | OA | M A Swann | 29 August 2006 | $15,843.38 | CSL cheque $15,843.38 | $9,500 |
| NO. | PROPERTY | LOCATION | NAME OF OWNER | PURCHASE DATE | PURCHASE PRICE | SOURCE OF FUNDS | PRESENT VALUE |
| 42. | HEM Salt Water Converter | OA | M A Swann | $98,000 | CSL cheque $98,000 | $45,000 | |
| 43. | Winch, Anchors (2) & engine parts ex vessels | OA | M A Swann | Unknown | Not forfeited | ||
| 44. | Vintage Steam Engine | OA | M A Swann | Unknown | Not forfeited | ||
| 45. | 5 containers of vehicle parts | OA | M A Swann | Unknown | Not forfeited | ||
| 46. | Cash $70,046.38 balance proceeds of sale of 17 Rowan Court | OA | Rowan Court No. 2 Family Trust | Balance proceeds | Sale of 17 Rowan Court (Sonnford) | Not forfeited | |
| 47. | Cash $5,500 (proceeds of sale of Mercedes Benz XH 4152) | M A Swann | Not forfeited | ||||
| NO. | PROPERTY | LOCATION | NAME OF OWNER | PURCHASE DATE | PURCHASE PRICE | SOURCE OF FUNDS | PRESENT VALUE |
| 48. | Cash $6351.34 | Anderson Lloyd | M A Swann | Final salary – ODHB. | Not forfeited |
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