The Solicitor-General of New Zealand v Collings HC Auckland CIV 2004-404-4038

[2008] NZHC 2353

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2004-404-4038

IN THE MATTER OF     an application under the Proceeds of Crime

Act 1991

BETWEEN  THE SOLICITOR-GENERAL OF NEW ZEALAND

Applicant

ANDGREG MURRAY COLLINGS First Respondent

ANDSARAH PENELOPE PUNNETT Second Respondent

Hearing:         29 May 2008

Appearances: A Longdill for the Applicant

R Earwaker and S J Tee for the First Respondent
No appearance for the Second Respondent

Judgment:      29 May 2008

Reasons:        28 August 2008

REASONS FOR JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 28 August 2008 at 10:00 a.m. pursuant to r540(4) of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Ms A Longdill, Meredith Connell, Office of the Crown Solicitor

Mr R Earwaker, Barrister, Auckland

THE SOLICITOR-GENERAL OF NEW ZEALAND V COLLINGS AND ANOR HC AK CIV 2004-404-4038

29 May 2008

[1]      On 17 March 2008, after an 11 day trial before me and a jury,  Mr Collings was convicted of the following crimes:

a)        Manufacturing methamphetamine, when it was a class B controlled drug, between 1 October 2002 and 29 May 2003;

b)Manufacturing  methamphetamine,  as  a  class  A  controlled  drug, between 30 May 2003 and 7 March 2004;

c)        Selling methamphetamine, as a class A controlled drug, between 30

May 2003 and 7 March 2004;

d)       Four counts of possession of precursor substances;

e)        Eight  counts  of  receiving  property with  a  total  value  of  close  to

$31,000.

[2] By application dated 17 April 2008 the Solicitor-General sought orders of forfeiture under s 15(1) of the Proceeds of Crime Act 1991 (“the Act”) in respect of:

a)        Mr  Collings’  home,  registered  in  his  sole  name,  at  50  Sycamore

Drive, Sunnynook, Auckland;

b)A sum of $7,250 in cash found by the Police at 50 Sycamore Drive when Mr Collings was arrested on 7 March 2004;

c)        A large number of chattels, mainly electrical goods, also found by the

Police at 50 Sycamore Drive.

[3]      Sentencing of Mr Collings was deferred so that the forfeiture application could be dealt with at the same time.   The forfeiture application and sentencing proceeded on 29 May 2008.  On the forfeiture application I heard oral evidence from Mr Collings, his mother, and his father, principally by way of cross-examination of them  on  affidavits  they  had  made  in  opposition  to  the  application.    Following

submissions on the forfeiture application and sentence, I recorded my decision on the forfeiture application, but without reason, so that I could proceed with sentencing. My decision on forfeiture was:

a)        An order for forfeiture of the cash of $7,250.

b)An order for forfeiture of the chattels listed in the joint memorandum of  counsel  for  the  Solicitor-General  and  Mr  Collings  filed  in  the course of the hearing.

c)       An order for forfeiture and sale of 50 Sycamore Drive, Sunnynook, Auckland, subject to secured interests and payments for the following, having priority over the Crown:

i)        The Public Trustee as first mortgagee;

ii)$73,000 to Mr Collings’ mother, Mrs Margaret Collings, in respect of money lent by her for purchase of 50 Sycamore Drive;

iii)The reasonable costs of Mrs Margaret Collings incurred with her solicitors, Morton Tee & Co., for protection of her interests in relation to the $73,000 loan.

[4]      The forfeiture application was made as a consequence of the conviction of the second respondent, Ms Punnett, as well as the conviction of Mr Collings.  Ms Punnett was a co-accused.  She was Mr Collings’ partner and lived with him at 50

Sycamore Drive.  Ms Punnett did not appear on the application.  The applications for forfeiture of 50 Sycamore Drive and the cash did not affect any interest of Ms Punnett, although there had been offending by her at 50 Sycamore Drive.

[5]      The order for forfeiture of the chattels was made by consent.  I now set out my reasons for the orders for forfeiture of the cash and 50 Sycamore Drive.

Proceeds of Crime Act 1991, s 15, and the main issues

[6] An order may be made if the property is “tainted property”: s 15(1) of the

Act.

[7] So far as material, “tainted property” is defined in the Act, by reference to a

“serious offence”, as:

(i)property used to commit, or to facilitate the commission of, the offence; or

(ii)      proceeds of the offence.

[8]      The offences in respect of which the forfeiture application is made are those of manufacture and sale of methamphetamine by Mr Collings and sale of methamphetamine by Ms Punnett.  They are serious offences.

[9]      The central issue in relation to the cash was whether it is tainted as being the proceeds of the serious offence of selling methamphetamine.   There was no submission for Mr Collings that the cash should not be forfeited if I found that it represented the proceeds of crime.

[10]     In respect of 50 Sycamore Drive, Mr Earwaker, for Mr Collings, accepted that it is tainted property because it was used to commit or facilitate the commission of the serious offences.

[11] The central issue in relation to 50 Sycamore Drive was whether a forfeiture order should be made. If property is tainted the Court has a discretion to make a forfeiture order. In exercising that discretion the Court may have regard to matters set out in s 15(2). I will come to the s 15(2) considerations later.

[12] A second issue in relation to 50 Sycamore Drive was whether, if there was to be an order for forfeiture, relief should be granted to Mr Collings’ mother in respect of money she provided for purchase of the home. Section 18 of the Act provides for relief to third parties. This issue was resolved by a concession from the Solicitor- General following discussions between me and Ms Longdill for the Solicitor-

General.   This resulted in the condition to the forfeiture order recorded at [3]c)ii) above – on sale $73,000 is to be paid to Mrs Margaret Collings together with her reasonable costs.

The cash

[13] In determining whether the cash was tainted it was necessary to make findings of fact. In the discussion that follows, matters of fact recorded as such without comment are facts either as found by me or not in dispute. My findings of fact were on the balance of probabilities as required by s 85 of the Act.

[14]     In the evening of Sunday, 7 March 2004, police officers executed a warrant to search 50 Sycamore Drive.   The front door was answered by Ms Punnett.   A police officer said that she “appeared to try and delay us at the door”.  I was satisfied that that was Ms Punnett’s intention.  Two police officers went through the house to a garage at the back.   Mr Collings was in the garage.   One officer said that it appeared that Mr Collings was trying to hide cash.   There was a light on in the garage.  It was immediately turned out.

[15]     Mr Collings was taken into the house.  The garage was later searched.  Cash was found in five different places in the garage as follows:

•    Two $20 notes in a toolbox at the southern end of the garage;

•    Ninety two $20 notes and two $10 notes in a clear plastic ziplock bag on a table in the middle of the garage;

•    $400 in $20 notes, $100 in $20 notes, $200 in $50 notes loose on top of some clear plastic bags in a tool box on a bench;

•    A further ziplock plastic bag containing $650;

•    A further ziplock plastic bag containing thirty six $100 notes and eight

$50 notes.

[16]     The total of the cash found in the garage was $7,250.  When questioned at the time Mr Collings said that the cash was his and that there was $4,000.

[17]     Mr Collings said at trial and in his affidavit that $7,000 of the total came from a cash withdrawal from a bank account on 24 February 2004.  The withdrawal was proved.  Mr Collings gave evidence at trial.  In evidence-in-chief there was the following:

Q.        Where did you get that from, which account?

A.        That was from my Saltburn Holdings trading account, so I withdrew that from the bank in cash and took that home and put it in my safe as I usually do and I just had the cash in there and I just went out to count exactly how much was there because I was pretty unsure and it was the beginning of the week so I thought obviously I’d be catching up with my clients man or the guy that I usually buy drugs from.

Q.        Why did you go out into the garage?

A.Just for having privacy really.  I knew there was nobody out there, it was just nice and quiet so that’s exactly what I do.

[18]     Mr Collings said that when the Police arrived:

I got my money and put it straight into my toolbox which was right beside me.  I didn’t put it all in because I had loose money in my hands and that’s what I was more concerned about.  I didn’t know who this person was at first sight so I just put it in there.

Mr Collings’ evidence that he put most of his money into his toolbox, and with that amount on his other evidence being a sum close to $4,000, may be contrasted with what the Police found – notes in two toolboxes and totalling $740.

[19]     Later  in  evidence  Mr  Collings  identified  the  bank  statement  with  the withdrawal of $7,000 and said:

That was a cash withdrawal.  I went and cashed a cheque at the ANZ Bank and that was the money that I was counting in the garage.

[20]     In cross-examination Mr Collings maintained his explanation that he had simply gone into the garage to count the money.  One of the police officers said that he had gone to the garage because he heard noises.  I was satisfied that the police officer did hear noises from the garage.  It was put to Mr Collings that these were

noises caused by Mr Collings “in a mad panic trying to hide some of the evidence”. Mr Collings denied this.  He said he could not explain the noises the police officer said he heard.

[21]     Mr Collings twice said in evidence-in-chief that he had withdrawn the $7,000 from the bank.  However, in cross-examination he said that the money was drawn out of the bank by his partner Ms Punnett, and this was what he said in his affidavit.

[22]     In evidence-in-chief and in cross-examination Mr Collings said that he was counting the money that evening, a Sunday evening, because at the beginning of the next week he would “be catching up with my client’s man or the guy that I usually buy drugs from”.  He said he had taken the money out of a safe in his bedroom and gone into the garage for privacy.

[23]     My  reasons  for  finding  that  the  money  was  tainted  property  were  the following:

a)       I did not believe Mr Collings’ explanation as to why he was in the garage with the money because it was implausible and because it was inconsistent.

b)I  did  not  believe  that  $7,000  of  the  cash  came  from  the  bank withdrawal.  The $7,000 bank withdrawal occurred a week before the search.   The denominations of the notes found on the search are consistent with the range of denominations that would come from drug dealing and not consistent with denominations for a cash withdrawal of $7,000.   In cross-examination on the forfeiture application  Mr  Collings  said  he  had  given  no  instruction  to  Ms Punnett as to denominations for the cash withdrawal which he said Ms Punnett had undertaken for him.

c)       I was satisfied that Mr Collings was trying to hide the money because the Police had arrived at the front door.  This was the only reasonable inference that could be drawn, on the balance of probabilities, from

the facts that I have outlined, coupled with Mr Collings’ convictions and the evidence as a whole.

[24]     From this I was satisfied that the cash was tainted property because it was the proceeds of a serious offence.  It was for these reasons that I ordered forfeiture of the cash.

50 Sycamore Drive

Relevant principles

[25] Parliament has made provision for forfeiture of property in two distinct circumstances. This is seen in the definition of “tainted property” set out at [7] above. Forfeiture may occur either because the property is the proceeds of a crime or because the property was used to commit a crime. In making statutory provision for forfeiture of property acquired from the proceeds of crime, Parliament was in considerable measure reflecting principles that have long existed in the common law enabling property wrongfully obtained to be recovered. However, the statutory provision for forfeiture of property used to commit a crime represented a new policy decision by Parliament to impose a severe deterrent. As part of this there is the inevitable result that, where an order is made for forfeiture of a home which has been used to commit a crime, the consequences for the offender in that case will be different from the consequences for a person committing the same crime but not owning property. This arises from the deterrent policy decision of Parliament reflected in the legislation.

[26]     These and related matters have been discussed in  a number of Court  of Appeal decisions.  In R v Dunsmuir [1996] 2 NZLR 1 (CA) the Court of Appeal said at 6:

Where a forfeiture order is made in respect of property representing the proceeds of crime, it merely takes from the criminal his ill-gotten gains. There  can  be  no  complaint  as  to  that.  A  forfeiture  order  in  respect  of property used for the commission of a crime goes further. It is an additional penalty provided by Parliament as a deterrent. The criminal is sentenced for his crime, and in addition any of his property used to commit or facilitate the

crime is liable to forfeiture. If this is Draconian, that appears to be the intention of the legislation. Innocent third parties who have an interest in the property are protected under ss 17 and 18. The offender who puts his property at risk by using it for criminal purposes must face the consequences. No doubt there will be cases where separate items of property are involved, and the Judge may, having regard to the considerations set out in subs (2) of s 15, order that some only of the tainted items be forfeited. Here the only item is the house, the upper portion of which had been elaborately set up and equipped for a large-scale cannabis operation. The fact that the house had been acquired by previous honest endeavours, and that the offences were discovered before he had enjoyed much of their intended fruits, is not a sufficient reason why forfeiture should not be ordered.

[27] A recent statement of the deterrent principle reflected in the Act was made by

Heath  J  in  Solicitor-General  v Sowman  (HC  AK,  CIV  2005-404-2118,  30  July

2007).  In that case the defendant had been convicted on charges of manufacturing methamphetamine, as a Class A controlled drug, and other charges.   He was sentenced to 9 years imprisonment with a minimum non-parole period of 50%.  Mr Sowman owned a property with a valuation at the date of the Court application of

$1.2 million.  After allowing for the interest of Mr Sowman’s wife, and some smaller third party interests, the value of Mr Sowman’s interest was assessed at around

$450,000.  In holding that a forfeiture order should be made in respect of the total interest of Mr Sowman, Heath J said at [38]:

… for offending on this scale a deterrent approach is required.   Criminals who  engage  in  manufacturing  Class  A  controlled  drugs  of  a  pernicious nature must realise that they stand not only to lose liberty but also to suffer significant financial consequences as a result of that offending.

[28] Section 9 of the New Zealand Bill of Rights Act 1990 requires a determination whether forfeiture combined with the sentence imposed would result in “disproportionately severe” treatment or punishment. Mr Earwaker did not advance a submission expressly directed to s 9 of the New Zealand Bill of Rights Act, but of course the Court must itself apply the provisions of the Bill of Rights Act. The sentence imposed in this case took account of the order for forfeiture of the home, as I will explain later. On the relationship between forfeiture under the Act and s 9 of the Bill of Rights Act, the following statement by the Court of Appeal in R v Crombie (CA453/05, 29 June 2006) (at [16]) is relevant:

We emphasise that in order to engage in s 9 it will be necessary, in each case, to point to treatment or punishment that is “disproportionately severe”:

a  high  threshold.  Further,  the  policy  factors  in  favour  of  forfeiture  of property utilised in the commission of offending are cogent. This is apparent from the judgment of this Court in R v Lyall [1997] 2 NZLR 641 at 647:

We see nothing excessive in the forfeiture. It is not disproportionately severe treatment or punishment in terms of s 9 of the New Zealand Bill of Rights Act 1990. Black had for a long period chosen to trade in drugs from his property frequently and in a quite substantial way. He may, as is submitted, have been primarily motivated by a need to feed his homebake addiction and may have in that manner parted with his cannabis dealing profits but that cannot excuse his deliberate participation in the distribution of an addictive substance. Other choices were open to him. The policy of the Act is to strip an offender of his or her interests in the property used to commit the crime. The reason for committing those crimes will ordinarily be immaterial. The property was not bought using tainted money but it was largely dedicated by its owners to drug dealing. Those who establish drug houses and commit serious offences in or from them can normally expect to lose them unless there is gross or severe disproportion between the gravity of offending and the value of the property sought to be forfeited coupled with the other punishment inflicted on the offender. We have obtained some guidance on this question from the decision of the Court of Appeals for the Ninth Circuit in United States v Washer 817 F 2d 1409 (1987) in which it was held that only those forfeitures that in light of all the circumstances are grossly disproportionate to the offence committed are prohibited by the Eighth Amendment's ban on cruel and unusual punishment. Black's appeal against the forfeiture order is dismissed.

[29]     The citation from R v Lyall is important in the present case not only because of the statement of principle, but also because of factual parallels with the present case.  There was evidence in this case that Mr Collings’ offending was motivated to an extent by his addiction to methamphetamine.   This was not challenged by the Crown and I was satisfied that Mr Collings did have an addiction and made some of the methamphetamine for his own consumption.  But as was made clear by the Court of Appeal in Lyall, that did not justify declining to make the order for forfeiture.

[30]     The citation from Lyall also makes another broad principle clear; people who use their houses for the commission of serious drug offences can normally expect to lose them. The emphasis on forfeiture in the Act was firmly restated by the Court of Appeal more recently in Solicitor-General v Anaru (CA52/06, 16 August 2006) at [27]:

The Act contemplates forfeiture where property is tainted unless the Court concludes the circumstances do not justify such an order. The legislature

accepted that in  cases of tainted  property  there  would  be  a  sanction  in addition  to the sentencing process.  In  this  case  we  do  not  consider  the combination of imprisonment and forfeiture is disproportionately severe.

Discussion

[31]     It is convenient to deal with relevant submissions for the Solicitor-General and Mr Collings in setting out my reasons for making the order for forfeiture of 50

Sycamore Drive.

[32] As earlier mentioned, s 15(2) of the Act sets out four matters “the Court may have regard to” in considering whether or not to make a forfeiture order. The first four sub-headings that follow correspond to those considerations.

Section 15(2)(a) : The use ordinarily made, or intended to be made, of the property

[33]     50 Sycamore Drive was purchased by Mr Collings as his home in 2000.  He bought the property for $215,000.  Mr Collings said in his affidavit that he put in

$5,000 of his own money.   The balance came from an advance on first mortgage from the Public Trustee, a loan of $73,000 from Mr Collings’ mother, and a gift of a further $27,000 from Mr Collings’ mother.

[34]     The house was used as Mr Collings’ home.  He lived there with Ms Punnett. However, from October 2002, and until his arrest in March 2004, Mr Collings also used the property for the purpose of manufacturing methamphetamine on a large scale.   The fact of manufacturing arises from the convictions.   The scale of the operation arises from my conclusions from the evidence and as outlined in my notes on sentencing Mr Collings, including the following:

[8]       I am satisfied, Mr Collings, from the evidence I heard and from the verdicts  themselves,  that the  manufacturing was  entirely  your  operation, notwithstanding the fact that you had assistance from others.  It is clear, Mr Collings, from the verdicts of the jury that that is an essential foundation of their conclusion.  And – I repeat what I have said, having heard the evidence

– I agree.  You did get assistance from others, and that included Ms Allen who  gave  evidence  against  you,  and  she  in  fact  was  convicted  having pleaded guilty on the manufacturing charges.

[9]       The  Crown  case  –  and  I  accept  that  it  was  established  beyond reasonable doubt – is that you used Ms Punnett, your partner, Ms Allen and your former partner, Ms Carmody, to buy precursor substances, and that was over the period from October 2002.   And that indicates that this was an extensive operation over an extended period.  You set up and controlled it. And it was clearly, to a reasonable extent, a commercial operation, although as the Crown accepts, and I agree, from the evidence you were supplying a relatively small number of people, including yourself and your partner Ms Punnett as users of methamphetamine.

[35]     On sentencing there were extended submissions for Mr Collings and the Crown as to the quantity of methamphetamine manufactured.  For reasons set out in my sentencing notes I was satisfied that at least 250 grams of methamphetamine had been manufactured at 50 Sycamore Drive over the period from June 2003 alone. The assessment of “at least 250 grams” was made to determine whether the quantity came within band 2 of R v Fatu.  I was in fact satisfied that the total manufactured in a shorter period of seven months from August 2003 the quantity was between 250 and 285 grams.  August 2003 was the month when another co-accused, Ms Allen, came to live at Sycamore Drive.   There was other evidence of a substantial manufacturing operation carried on by Mr Collings in his home.  The total period of manufacture was approximately 17 months.

[36]     In addition, Mr Collings was convicted for selling methamphetamine from the property between May 2003 and March 2004.   The forfeiture application was based  also  on  the  conviction  of  Ms  Punnett  after  she  pleaded  guilty to  selling methamphetamine between October 2002 and March 2004.  The Police summary of facts, expressly accepted by Ms Punnett, recorded that the sales were conducted from

50   Sycamore   Drive   “on   a   regular   basis”   and   included   exchanges   of methamphetamine for stolen property.

[37]     Mr Earwaker naturally emphasised the fact that the property was purchased by Mr Collings as his home.   Mr Collings has a daughter, now aged 8, from a relationship with Ms Carmody.   Over the period from 2000 to 2004 Mr Collings’ daughter was living with her mother, but did visit her father on a reasonably regular basis and stayed with him at 50 Sycamore Drive.  This was also a point of emphasis by Mr Earwaker in respect of the use of the property.

[38] To the extent that this first consideration under s 15(2) can be considered in isolation, my conclusion was that the original intention on purchasing the property – simply as a residence – and its use as a residence, did not outweigh the fact that for a substantial part of the period from purchase in May 2000 until March 2004, 50

Sycamore Drive was being used on a regular basis for the manufacture and for the sale of significant quantities of methamphetamine.

Section 15(2)(b) : Any undue hardship that is reasonably likely to be caused to any person by a forfeiture order

[39]     Under this heading Mr Earwaker submitted that there was “the possibility” of undue hardship to Mr Collings and to his daughter.  Inevitably there was going to be some hardship for Mr Collings.   It was possible that there might also be some hardship to Mr Collings’ daughter in not being able to visit him at 50 Sycamore Drive on his release from prison.  However, what was required was undue hardship as opposed to what must naturally flow from an order for forfeiture of a home.  The meaning  of  the  expression  “undue  hardship”  was  discussed  by  Venning  J  in Solicitor-General v De Bruin (2004) 20 CRNZ 933 at [22] as follows:

The second consideration is whether undue hardship is likely to be caused to any person by forfeiture. In this case there will be hardship to Mr De Bruin but more directly to Ms Delaney and her mother by forfeiture of the property to the Crown. However, undue hardship for the purposes of s 15(2) requires the existence of something out of the ordinary, something in excess of the hardship which would inevitably arise upon forfeiture. There will often be some hardship to a third party when a forfeiture order is made. It stems from the wording of the Act and is disregarded. Undue hardship is required: Lyall v Solicitor-General [1997] 2 NZLR 641; (1997) 15 CRNZ 1 (CA), at p 646; p 6; Solicitor-General v Fisher (27/6/03, M44/02, HC Whangarei M44/02).

I agree.  I was satisfied that no undue hardship had been demonstrated in this case.

Section 15(2)(c) : The nature and extent of the interests of Mr Collings and of any other person in the property

[40]     Persons other than Mr Collings with an interest in the property are the Public Trustee and Mr Collings’ mother.  The interests of both were protected by the order that was made.

[41] The remaining interest was that of Mr Collings in the equity. Because the order affected only Mr Collings’ interest, this factor under s 15(2) had no particular relevance except in relation to the value of Mr Collings’ interest, which I discuss below.

Section 15(2)(d) : Any other matter relating to the nature and circumstances of the offence or the offender, including the gravity of the offence

[42] In my judgment there were no considerations under this heading in Mr Collings’ favour and which I have not already discussed. The specific matter identified in s 15(2)(d) – the gravity of the offence – weighed heavily in favour of the making of an order of forfeiture.

Other considerations

[43]     Two principal submissions were made for Mr Collings in opposition to the application for an order for forfeiture of 50 Sycamore Drive.   The first was that already dealt with – hardship to Mr Collings’ daughter as well as Mr Collings.  The second submission was that “forfeiture of the entire proceeds of sale, even excluding the amount owed to the mortgagee, would be a disproportionately severe response to the offending”.   In this regard Mr Collings relied on observations by the Court of Appeal in R v Ryan (CA514/05, 18 December 2006).  At [15] the Court said:

The Courts have not been troubled about making forfeiture orders or the imposing of pecuniary penalties which serve to strip from offenders the benefits derived from their offending. We note in passing that, for these purposes,   benefits   are   assessed   on   a   gross   basis.   Potentially   more problematic is the forfeiture of property which is used in the commission of offending. Such property may be of very substantial value but may have been   utilised   in   the   commission   of   offending   of   limited   gravity. Alternatively, the property may have played merely an incidental part in the offending so that its forfeiture may seem disproportionate. When considering forfeiture applications in relation to property which has been utilised for offending, Courts sometimes use estimates of the proceeds of the offending as a check when determining whether forfeiture would be unduly harsh.

[44]     Mr Earwaker made a careful submission directed to an estimate of the value of the methamphetamine produced by Mr Collings, and referred to “gross profit” ranging from $150,000 on one basis to as low as around $21,000 on another basis.

Mr Earwaker submitted, in effect, that even at the higher figure of $150,000, forfeiture of the entire proceeds of sale would be a disproportionate response.

[45]     I was not persuaded that any adjustment on the order  for forfeiture was warranted beyond those made.   Based on a current valuation obtained for the Solicitor-General, and after allowing for the interests of the Public Trustee and Mr Collings’ mother, and an allowance towards Mrs Collings’ costs, the equity was around $195,000.   As earlier noted, I was satisfied that the total quantity of methamphetamine manufactured by Mr Collings in the seven month period from August 2003 to March 2004 would have been between 250 and 285 grams.  Based on evidence at the trial, 1 gram could be sold for around $600 (which may have been conservative).   That represents a total of between $150,000 and $171,000 of methamphetamine manufactured by Mr Collings over seven months only out of the total period of manufacture of some 17 months.

[46]     Looking at the present issue solely in terms of the value of Mr Collings’ interest in the home and of the total value of methamphetamine manufactured, I was satisfied that there was no disparity; there was certainly none sufficient to warrant modification of the order.  And it was modification of the order for forfeiture which was sought on Mr Collings’ behalf in reliance on the present argument; Mr Earwaker’s submission was not directed to the proposition that there should be no order for forfeiture at all.

[47]     In any event, comparative value is not the sole touchstone, or necessarily relevant at all.  This is made sufficiently clear in the passage from Ryan cited above and on which Mr Earwaker relied.  It is made clearer in the next paragraph of the Ryan judgment which commences:

It is, however, right to recognise that there are cogent policy factors which favour forfeiture of property utilised in the commission of offending which go beyond the stripping away of the proceeds of the offending.

This was followed by the same citation from Lyall that is made at [28] above. This passage in Ryan concluded:

Accordingly, we are of the view that the Crown was not under an obligation to prove that the benefits derived by the appellant from his offending were equivalent to the value of the interest which was forfeited.

[48]     And in Crombie the Court of Appeal said, at [17], that the extent to which an offender benefits from the offending does not set an upper limit on the extent to which forfeiture orders can be made.

[49]     There is the separate question, noted earlier, as to whether forfeiture coupled with the sentence imposed would have been disproportionately severe punishment in terms of s 9 of the New Zealand Bill of Rights Act.  Having regard to the principles in Crombie and Lyall earlier referred to (at [28]) I am satisfied that forfeiture of 50

Sycamore Drive coupled with a sentence which did not take account of forfeiture, would not result in a disproportionately severe punishment.   Nevertheless, when I came to sentence Mr Collings I considered that it was just in all the circumstances to take into account in his favour the fact that there had been an order for forfeiture. The sentence of imprisonment that would otherwise have been imposed was substantially reduced.   The credit in Mr Collings’ favour was dealt with in conjunction with other matters noted in my sentencing notes at [35]-[36].  I assessed the credit for these matters, including forfeiture, at between 2 to 3 years.  The total reduction of the sentence that would have otherwise been imposed, having regard to matters personal to Mr Collings, was a total of 5 years, with the balance of the credit relating to the long delay from Mr Collings’ arrest in March 2004 to his conviction in May 2008.

[50]     For the reasons now fully set out in this judgment I concluded that the order for forfeiture of 50 Sycamore Drive should be made.

Value of the interest

[51] Section 15(4) of the Act provides:

Where the Court orders that property (other than money) is forfeited to the Crown, the Court shall specify in the order the amount that it considers to be the value of the property at the time the order is made.

[52]     A valuation of the property was produced in support of the application.  This was by a valuer employed by DTZ New Zealand Limited.  It was completed on 4

April 2008.  There was no evidence of value for Mr Collings.  I therefore accept the market valuation of DTZ New Zealand Limited of $385,000.

[53] Section 15(3) of the Act provides:

A Court that makes a forfeiture order against property may, if it considers that it is appropriate to do so, by order,—

(a)Declare the nature, extent, and value of any person's interest in the property; and

(b) Declare that the forfeiture order may, to the extent to which it relates to the interest, be discharged pursuant to section 22 of this Act.

[54] I consider it is appropriate to make both declarations referred to, for the benefit of Mr Collings, if he or his parents wish to exercise the right in s 22 of the Act. Section 22 enables discharge of the forfeiture order by payment of the sum specified under s 15(3). I am not able to make the declaration with precise figures as I do not know the quantum of costs incurred by Mrs Margaret Collings with her solicitors.

[55] I also consider it appropriate to adjust the figure required to discharge the order under s 22 by further deducting from the value of Mr Collings’ interest an estimate of the costs that would be incurred on sale. This is appropriate because the cash sum to be paid to the Crown under s 22 to discharge the forfeiture order is, in substance, the sum that the Crown would otherwise receive following forfeiture and sale by the Crown.

[56] I accordingly declare pursuant to s 15(3) of the Act:

a)        The nature and extent of Mr Collings’ interest in the property is his equity as the sole registered proprietor.

b)The value of Mr Collings’ interest is $395,000 less the following sums:

i)        the total owing to the Public Trustee as first mortgagee;

ii)       $73,000 owed to Mrs Margaret Collings;

iii)the reasonable costs of Mrs Margaret Collings incurred with her solicitors, Morton Tee & Co., for protection of her interests in relation to the $73,000 loan;

iv)$10,000 being an estimate of the costs that would be incurred on sale of the property, inclusive of agent’s commission and legal fees, or such greater sum as may be agreed by or on behalf of the Crown and Mr Collings.

c) I further declare pursuant to s 15(3)(b) of the Act that the forfeiture order may be discharged pursuant to s 22 of the Act upon payment to the Crown of the sum calculated in accordance with the preceding

declaration.

Peter Woodhouse J