Tittleton v Police

[2012] NZHC 994

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2012-406-10 [2012] NZHC 994

GARY WALTER TITTLETON

v

NEW ZEALAND POLICE

Hearing:         10 May 2012

Counsel:         R A Harrison for Appellant

J Webber for Crown

Judgment:      11 May 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 2:00pm on the 11th May 2012.

JUDGMENT OF WILLIAMS J

[1]      Mr Tittleton was convicted in the Blenheim District Court on 21 September

2009 on one count of cultivating cannabis and one count of possession of cannabis plant for supply.

[2]      On 15 September 2011, Mr Tittleton was sentenced to come up if called upon within 12 months.   His Honour Judge Harrop also made an instrument forfeiture order in respect of 50% of the value of Mr Tittleton’s home.   This was the real penalty.  The property was valued in January 2010 by a registered valuer at $377,000 with the Crown suggesting (at that stage) that Mr Tittleton would walk away with

$175,000 as the value of his share.

GARY WALTER TITTLETON V NEW ZEALAND POLICE HC BLE CRI-2012-406-10 [11 May 2012]

[4]      Mr Tittleton argues his appeal on two grounds:

(a)      the District Court has no jurisdiction to make instrument forfeiture orders when conviction is entered summarily; and

(b)if the court did have jurisdiction, then the order should not have been made because it would cause the appellant undue hardship due to his age, state of health, and inability to earn an independent income.

Facts

[5]      On 21 September 2009, the police searched the appellant’s home and found

1.64 kg of dried cannabis head said to be of extremely good quality, eight clone cannabis plants being grown indoors in an irrigated fertilised fish bin.  There were also the remains of old cannabis plants, stalks, root  systems, leaf and  so forth, together with extensive growing paraphernalia.  The approximate street value of the seized cannabis was said by police to be $32,000-$41,000.

[6]      While on bail for these charges, the appellant’s home was searched again and

28 grams of “extremely good quality” cannabis head was obtained valued at between

$560 and $700.

[7]      The appellant is a sickness beneficiary aged 65.  He suffers from a number of physical ailments – a recent heart attack, two knee reconstructions, and macular degeneration among other problems.  He cannot work.  He lost his wife to cancer following his arrest and, I am told, also lost a close friend in a boating accident and had another friend who was dying of cancer at the time of sentencing.  He has eight past convictions – two cannabis-related but they are very old.

[8]      By the terms of s 6(2)(c) of the Misuse of Drugs Act 1975, possession of cannabis for supply carries a maximum penalty of eight years’ imprisonment.  By the terms of s 9(2) of that Act cultivation of cannabis carries a maximum penalty of seven years.

[9]     Notwithstanding these statutory maxima, the District Court can proceed summarily.  In the event that that option is taken and a summary conviction entered, the District Court is specifically restricted in the sentences available to it.  The court can impose sentences to a maximum of one year imprisonment or a $1,000 fine for supply, and two years’ imprisonment or a $2,000 fine for cultivation.   These restrictions are contained in s 6(3) and s 9(3) respectively.

[10]     By the terms of s 142N of the Sentencing Act 2002, the court can order that an instrument of crime, or any part of it, be forfeited to the Crown.  In this case that can be taken as a reference to the appellant’s house.   Section 142B of that Act requires that the person affected by such instrument forfeiture order must first have been convicted of a “qualifying instrument forfeiture offence”.   A qualifying instrument forfeiture offence is relevantly defined in s 4 of the Sentencing Act as “an offence punishable by a maximum term of imprisonment of five years or more.”

[11]     Mr Harrison argues that when the sentencing restrictions on the District Court in s 6(3) and s 9(3) of the Misuse of Drugs Act are read alongside the foregoing provisions of the Sentencing Act, it is clear that the appellant has not committed a qualifying instrument forfeiture offence.  This is because the sentences available to the District Court on summary conviction must not exceed one year for supply and two  years  for  cultivation  whereas  the  qualifying  maximum  for  an  instrument forfeiture offence must be five years or more.

[12]     Mr Webber for the police argues that the appellant, in this submission, has confused the jurisdictional limit available to the District Court with the statutory offence maximum as provided in s 6(2) and s 9(2).

[13]     In my view the Crown’s interpretation is to be preferred both on a plain reading of the relevant provisions and on a purposive approach to their construction. The qualifying instrument forfeiture offence definition in s 4 of the Sentencing Act requires the offence to be “punishable” by a maximum term of five or more years’ imprisonment.  By contrast, s 6(3) provides that:

...  where  any  person  is  summarily  convicted  of  an  offence  against  this section relating to a Class C controlled drug, the District Court may sentence him to imprisonment for a term not exceeding one year or to a fine not exceeding $1,000.

[14]     Section  9(3)  in  relation  to  cultivation  is  not  materially  different  for  the purposes of this analysis.   The subsection does not say that the offence is only punishable up  to  a maximum  of one  year.    It  says  the maximum  on  summary procedure is one year.  The limitation is based not on the offence but on the forum. At all times, the maximum punishment for each offence remained seven years and eight  years  respectively.    For  the  purposes  of  construing  the  meaning  of  the definition of qualifying offence, the limitation is on the District Court, not on the offence at all.  If a greater penalty was felt to be appropriate by the District Court Judge, this could be achieved by the administrative expedient of removing the matter to the High Court.   With respect, I agree with Wylie J who observed in Police v

Sullivan:[1]

In the context of sentencing, the maximum penalty is that fixed by the statute, not by the jurisdiction of the court which is called upon to sentence.

[1] [1991] 3 NZLR 505 at [508] HC.

[15]     Right on point is Durie J in Cameron v Police:[2]

The appellant’s argument, in my view, is based upon a misconception that s 6(3) adjusts the maximum sentence.  In fact it does no more, in my view, than allow for sentencing by the District Court up to a jurisdictional limit.

[2] AP 17/03 Wellington Registry 18 March 2003.

[16]     That case related to whether proceeding summarily meant the District Court was bound to reduce the overall scale of available penalties to within the range of zero to one year where that scale would normally apply across a range of zero to seven years.  Durie J found that it is the scale running to the statutory maximum for

the  offence,  not  that  for  the  District  Court’s  jurisdiction  which  must  apply  in

sentencing calculation.   The same reasoning surely applies to the application of instrument forfeiture orders.   The reduced  sentences  in s 6(3) and  s 9(3) of the Misuse  of  Drugs Act  are  about  choice  of  procedure  and  forum,  not  about  the maximum penalty for the offence.

[17]     Taking a more purposive approach, it can be seen that the interpretation favoured  by  Mr  Harrison  would  produce  perverse  results.    It  would  mean  for example   that   civil   forfeiture   orders   available   under   the   Criminal   Proceeds (Recovery) Act 2009 could not be made retrospectively if the offender is convicted summarily potentially years earlier.   This is because orders can only be made in respect of tainted property defined in the Act as property acquired as a result of “significant criminal activity”. And in s 6 that phrase is triggered by two gateways – either the property proceeds or benefits are valued at more than $30,000 or the offences carry a maximum penalty of five years or more in prison.

[18]     Because these orders can be obtained for any significant criminal activity occurring within seven years of the date of application, the effect of the appellant’s argument  will  be  to  disqualify  the  Crown  from  making  applications  for  civil forfeiture orders after conviction if the Crown originally proceeded summarily and the thing forfeited is valued at less than $30,000.  Given the scheme of the Criminal Proceeds (Recovery) Act, that will not have been the Parliament’s intention.

[19]     The  District  Court  does  therefore  have  jurisdiction  to  make  instrument forfeiture orders notwithstanding the provision of ss 6(3) and 9(3) of the Misuse of Drugs Act, and Judge Harrop had the jurisdiction to make such an order in this case.

Undue hardship

[20]     Mr Harrison argued that the appellant’s age, infirmity and lack of income earning capacity going forward, all combine to make the loss of 50% in value of his home unduly harsh.   Mr Harrison confirmed that the appellant is a sickness beneficiary and that he earns legitimate income from renting the upper storey of the home.

[21]     There was disagreement over the value of the home.  The appellant argued that the January 2010 valuation of $377,000 is no longer valid in these more straitened  times,  and  that  he  will  be  unable  to  walk  away  from  the  sale  with sufficient to buy himself a place to live in. These were contentions from counsel, but there was no supporting evidence.  The Crown challenged these assertions arguing that a small one-bedroom home could be purchased in Picton with the appellant’s share of the proceeds from sale of his home.  Again, the Crown merely asserted this from the bar, there was no evidence.

[22]     These are matters that I am in no position to resolve.  Evidence is required.  I invited the appellant to make an application to file evidence but this invitation was declined, the appellant not wishing to expose himself to the stress of possibly being cross-examined by the Crown about these matters.

[23]     I  am  left  therefore  with  the  balancing  undertaken  by  the  Judge  at  first instance, and am not persuaded that his view was wrong.  The sentencing Judge’s decision to reduce the Crown’s share to 50% was intended to ensure that this penalty was not unduly harsh, and I am satisfied, in the absence of evidence to the contrary, that this was appropriate.

[24]     The appeal is dismissed accordingly.

Williams J