Stanton v Solicitor-General - [2007] NZCA 434

IN THE COURT OF APPEAL OF NEW ZEALAND
CA117/07
[2007] NZCA 434
BETWEENMAURICE ROBERT STANTON

Appellant

ANDTHE SOLICITOR-GENERAL OF NEW ZEALAND

Respondent

Hearing:17 September 2007

Court:Ellen France, John Hansen and Wild JJ
Counsel:P G Mabey QC for Appellant

M D Downs for Respondent

Judgment:9 October 2007 at 3 pm

JUDGMENT OF THE COURT

A        The appeal is allowed.
B        The order for forfeiture is quashed.
REASONS OF THE COURT
(Given by John Hansen J)
[1]       On 8 March 2005 the police executed a search warrant at the appellant’s rural lifestyle block at Whatawhata.
[2]       They found eight cannabis plants growing in a vegetable garden; 1.62 kilograms of drying cannabis head; three boxes of snaplock bags; and some ammunition.
[3]       The appellant, and a co-offender, Mr Hendriks, accepted growing the cannabis, but denied possessing it for the purpose of sale. Mr Hendriks pleaded guilty to one count of cultivation of cannabis, one of possession of cannabis for sale, and one of possession of utensils and a pipe. The appellant pleaded guilty to one count of possession of cannabis. Following trial before Judge Tompkins and a jury, Mr Hendriks was convicted of one count of cultivation and one of possession of cannabis for sale. The appellant was convicted on one count of cultivation of cannabis and two counts of possession of cannabis for sale. The appellant was acquitted of cultivating cannabis in an area adjacent to his property for which his co-offender acknowledged guilt.
[4]       At sentencing, the Judge found the appellant and his co-offender had similar levels of culpability. He sentenced both to two years and three months’ imprisonment on the cultivation of cannabis and possession of cannabis for the purpose of sale, and convicted and discharged the appellant for possessing ammunition. The sentences were concurrent.
[5]       The Solicitor-General applied for the forfeiture of the appellant’s property that he had purchased in 2003 for $223,000. All but $20,000 of this came from a bank mortgage. The appellant’s mother maintained that she had advanced funds to her son, and claimed an interest.
[6]       Following a defended hearing, the District Court Judge rejected the mother’s claim and concluded that forfeiture was appropriate: DC HAM CIV 2006-019-991 28 February 2007. He did not consider the appellant’s personal circumstances would create insurmountable obstacles for him re-establishing himself as a law abiding, property owning member of the community. He found that there was no undue hardship. He accepted the state would gain from the significant inflationary increase in the value of the property, but when compared to the seriousness of the offending concluded there was no disproportionality.
[7]       The appellant appeals against that forfeiture order.
The District Court judgment
[8]       After analysing the valuation evidence, the Judge concluded that the extent of the appellant’s financial contribution to the purchase of the property was $20,000. He concluded that any additional increase in value was as a consequence of the somewhat spectacular inflationary movement in New Zealand property prices over the relevant period. He stated:
[62]     It is…

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 Stanton v Solicitor-General

Details

AGLC: Stanton v Solicitor-General [2007] NZCA 434
Case: [2007] NZCA 434
Decision Date: 9 October 2007

CaseChat Overview and Summary

The appellant, Maurice Robert Stanton, appeals against the District Court's order for the forfeiture of his property, which he purchased in 2003 for $223,000. The District Court found that the appellant and his co-offender had similar levels of culpability, and both were convicted of cultivating cannabis and possessing cannabis for the purpose of sale. The Solicitor-General applied for the forfeiture of the appellant's property, and the District Court rejected the mother's claim and concluded that forfeiture was appropriate. The appellant argues that the Judge made the wrong enquiry by focusing on his equity and comparing it with the seriousness of the offending, instead of focusing on the appellant's cash contribution to the purchase of the property. The appellant submits that it was clear the property was intended for use as a home, and that on release the appellant would not be in a position to re-establish himself as a property-owning member of the community. The Court considers whether the forfeiture of the property is disproportionate to the appellant's offending. The Court found that the appellant's circumstances can be contrasted with other cases where the offending was more sophisticated, and the appellant only had a share in the crop said to be worth $20,000–$40,000. The property was acquired by legitimate means, used as a residence by the appellant, and had special utility for him. The appellant's ability to work is seriously curtailed, which makes it almost impossible to re-establish himself upon release. The Court concluded that the appeal is allowed, and the order for forfeiture is quashed.

Orders