The Queen v Fay Janet Frances Birch
[2002] NZCA 185
•31 July 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA66/02 |
THE QUEEN
V
FAY JANET FRANCES BIRCH
| Coram: | Keith J Tipping J McGrath J |
| Counsel: | R E Neave for the Appellant A Markham for the Crown |
| Judgment (On the papers): | 31 July 2002 |
| JUDGMENT OF THE COURT DELIVERED BY KEITH J |
This appeal against a forfeiture order made by the District Court at Greymouth under the Proceeds of Crime Act 1991 has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The relevant materials, including written submissions which have been received in terms of r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.
The appellant’s submissions in reply were filed more than two weeks late along with an application to adduce further evidence. They were not accompanied by applications for leave to file out of time. The Court has nevertheless considered the submissions and application. We would stress however the importance, particularly to the appellant, that the consideration of and decision on the appeal not be delayed in this manner. The time limits are designed to assist just and expeditious decision making.
Ms Birch, having pleaded guilty on indictment, was convicted of cultivating cannabis, selling cannabis and having cannabis in her possession for the purpose of sale. She was sentenced to two years nine months imprisonment on these charges. A cumulative term of nine months imprisonment was imposed for an associated offence against the Arms Act 1983. The total sentence was accordingly three and a half years.
The cannabis offences are “serious offences” for the purposes of the 1991 Act and on that basis the Solicitor-General applied for an order that a property owned by the appellant at Ruru in Westland be forfeited to the Crown. The Court has the power to make such an order if it is satisfied that property specified in the application is “tainted property”. That is defined as including property used to commit or to facilitate the commission of the offence. The cannabis which was the subject of the prosecution was cultivated and stored at the Ruru address. A forfeiture order was made.
The forfeiture order
The conditions for making an order under s15(1) existed. There was and is no dispute about that: Ms Birch had committed a “serious offence” and the property was “tainted” in terms of the definitions in the Act. The satisfying of those conditions is not however the end of the matter since the Court has a discretion to make an order under subs (1) – “may … order” – and subs (2) sets out matters to which it may have regard:
(a) The use that is ordinarily made, or was intended to be made, of the property; and
(b) Any undue hardship that is reasonably likely to be caused to any person by the operation of such an order; and
(c) The nature and extent of the offender's interest in the property (if any), and the nature and extent of any other person's interest in it (if any); and
(d) In addition to the matter referred to in section 14(1)(b) of the Act, any other matter relating to the nature and circumstances of the offence or the offender, including the gravity of the offence.
A relevant matter referred to in s15(1)(b) is any pecuniary or property sanction imposed for the conviction – but not other sentences.
The appellant appeals against the order on the ground that Judge erred on two matters which, in the circumstances of the case, mean that the Judge erred in the exercise of his discretion. The errors alleged were in the Judge’s assessment of:
1) the appellant’s offending and her role in it; and
2) the nature of the property.
This is an appeal against the exercise of a discretion. To succeed the appellant must demonstrate that the Judge below erred in principle, failed to have regard to relevant factors or considered irrelevant ones, or was plainly wrong in his decision to order forfeiture. We note at the outset that all of the factors identified by the appellant as relevant to the exercise of the discretion were carefully considered and weighed by the Judge in the court below.
The appellant’s role in the offending
The Judge was satisfied that the appellant had played an active part in the cannabis growing and selling with considerable monetary gain from a substantial cannabis operation. The Judge expressly rejected the submission that the appellant played a lesser role in the offending than her alleged co-offender who, it was submitted, would face no economic sanction from which it followed that any order under the Act against the appellant would amount to undue hardship.
Mr Neave for the appellant submits there seems to be little if any evidence that the appellant received any benefit from the cannabis operation. The Police were unable to locate any substantial money or assets attributable to the appellant other than the property in question and there was no evidence she was living beyond her means. Rather the suggestion from the transcript of taped conversations between the appellant and her co-offender suggest the co-offender received the bulk of the funds. Mr Neave submits that these transcripts also suggest that the co-offender, not the appellant, played the major role in the offending. In terms of proportionality no account was taken of these differing roles or the fact that the co-offender, sentenced to two years three months imprisonment, did not suffer forfeiture of any property.
The Crown in response submits that there is evidence in the transcripts of a bank deposit and money being kept in the house which indicated money accruing to the appellant. In any event the Crown submits it is the potential value and the potential benefits of the operation that are relevant for the purposes of the Act : Dunsmuir [1996] 2 NZLR 1, 6.
We agree that the Judge addressed in an appropriate way the money the appellant would gain from the cannabis operation. This was clearly a substantial continuing operation. As the Crown submits, there is evidence of significant advantage; in addition, the operation had potential value and benefits. The Judge was also entitled on the evidence before him to reach his conclusions on the relative roles of the offenders. We accept the Crown’s submission that to attempt to maintain “parity” between co-offenders would frustrate the purposes of the Act as discussed in such cases as R v Brough [1995] 1 NZLR 419, 422-424, and Dunsmuir 6-8.
The nature of the property
In relation to the ordinary use of the property the Judge found that, while the property was used as a dwellinghouse for the appellant, it was not a family home or the appellant’s exclusive residence. Mr Neave now submits that the Judge failed to take into account that the house was the appellant’s principal place of residence. It is also submitted that the appellant’s work required her to travel a considerable amount with the result that she did not spend a lot of time at the property. Further, it is the appellant’s sole significant asset representing the proceeds of property inherited from her mother and its forfeiture effectively strips her of her only significant asset when her earning potential is rapidly diminishing. There was no suggestion that when it was acquired in 1988 as a family home that acquisition was with the proceeds of crime.
The Crown submits the Judge was correct to find the property was not a family home. The appellant has no dependants there and by her own admission did not live there on an exclusive basis. The appellant could not have it both ways by attempting to distance herself from the site of the cannabis operation while submitting it was her principal residence. The Crown submits it was clearly open to the Judge, having taken into account the appellant’s personal circumstances, including her age and the fact that she lost her job as a consequence of the offending, to conclude the resulting hardship was nevertheless not “undue”.
We are satisfied that the Judge gave this factor careful and proper weight. That the house was originally acquired by honest means is no reason for forfeiture not to occur: Dunsmuir. After cultivation began in 1997 the “ordinary” use of the house was clearly a dual one. From that point the appellant put her property at risk by using it for criminal purposes and she must now face the consequences. We are not satisfied that the Judge was plainly wrong in his assessment.
Application to call further evidence
The proposed evidence relates to two matters : boundary issues and the appellant’s health. On the first, the appellant deposes that two sheds on her property in which she says the offences were essentially carried out encroach significantly onto the next door property. She understands that the owner of the adjacent property was not served with the forfeiture application. Further, there was no evidence before the Court about the effect of this problem on the value of the property. At the least the value of the equity in the property would be reduced.
In addition to making the point that there is no apparent explanation for the delay in filing the application and affidavit, the Crown submits that the appellant has not demonstrated that the boundary issue is in any way material to the appeal. The forfeiture order is in respect of the property described in a particular Certificate of Title. It does not relate specifically to the sheds with the consequence that any encroachment on to the neighbouring property does not affect the order or that neighbouring property. The finding that the appellant’s property is tainted is not affected by the encroachment, nor is it relevant that the neighbour was not served – there is no evidence whatsoever that the neighbour was involved in the “serious offence”. The fact that the property may be worth less is also of no moment for the forfeiture.
For those reasons, we agree with the Crown that the proposed evidence is not relevant to the appeal. It is possible that it may be relevant to any final order made by the District Court (see the final paragraph of this judgment).
The appellant also wishes to raise her medical situation which she details. While some of the proposed evidence does post-date the District Court proceedings (which were delayed on several occasions to allow the appellant to provide evidence – an opportunity not properly taken up), most of it predates the proceedings; further, the later material essentially updates information on the appellant’s health available at the earlier stage. So a recent report from a counsellor records that the appellant in 1999 was reported as having a chronic form of Post-Traumatic Stress Disorder, symptoms for which were present as well in 2000 and in 2002. The report states that the symptoms “include and have included” listed matters. The detail of the report refers to events in 1992, 1997, 1998 and 1999. We agree with the Crown that this material was available at the time of the District Court proceedings. Further, the District Court did take into account the fact that the appellant had lost her job and professional registration as a result of the offending and issues about her health.
We accordingly dismiss the application to call further evidence.
Result
The Judge carefully examined and weighed the points addressed to him, and cannot possibly be said to have erred in principle or to have been plainly wrong in the conclusions to which he came. He properly applied the policy of the Act to the present circumstances. When viewed in the light of the s15(2) criteria, and all other relevant matters, the offending was such that it was certainly open to the Judge to conclude that a forfeiture order was called for.
The appeal is dismissed. We note that the District Court Judge granted leave to the parties to apply under s15(5) of the Act for such directions as may be necessary to give effect to the Court’s order. As counsel for the appellant points out, s15(4) requires the forfeiture order to specify the value of the property. It appears that that may not yet have occurred. The parties may still apply to the District Court in terms of the leave granted.
Solicitors
Crown Law Office, Wellington
1
0
0