THE SOLICITOR-GENERAL OF NZ V SORICH HC AK CIV-2005-404-005595

THE SOLICITOR-GENERAL OF NZ V SORICH HC AK CIV-2005-404-005595 5 September 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2005-404-005595UNDER the Proceeds of Crime Act 1991 BETWEEN THE SOLICITOR-GENERAL OF NEW ZEALAND Applicant AND ANTHONY JONATHAN PAUL SORICH Respondent Appearances: Ms A Longdill for Crown Mr F P Hogan for prisoner Judgment: 5 September 2006(ORAL) JUDGMENT OF LANG J [in relation to application by Crown for forfeiture order]Solicitors: Crown Solicitor, Auckland Counsel: Mr F P Hogan, Dykes Road, Karaka, RD1, Papakura[1] Earlier today I sentenced Mr Sorich to five years three months imprisonment on a charge of manufacturing methamphetamine and on other related charges. [2] Mr Sorich's arrest followed the execution of a search warrant at his house property at 11 Balgowan Road, Conifer Grove, Takanini. During the search the police located an array of assorted chemicals, heating elements, glassware and a steam distiller. The police also located a pair of scales which contained extracts of methamphetamine. [3] The Solicitor-General has now applied for an order under the Proceeds of Crime Act 1991 that Mr Sorich forfeit the house property. [4] Mr Sorich's wife has filed an application for relief under ss 17 and 18 of the Act together with a supporting affidavit. In light of the material contained in that affidavit the Solicitor-General accepts that the Court should recognise that Mrs Sorich has a 50 per cent interest in the property, and that this interest should be excluded from any forfeiture order that I might make. [5] According to a valuation obtained in April 2006, the property has a value of approximately $370,000 to $410,000. It is not subject to any mortgage. On that basis, and after excluding Mrs Sorich's interest in the property, the value of the property sought to be forfeited is between $185,000 and $205,000.Jurisdiction[6] Mr Sorich has pleaded guilty to a charge of manufacturing the Class A controlled drug methamphetamine. Section 6 (2)(a) of the Misuse of Drugs Act 1975 prescribes a maximum sentence of life imprisonment for this offence. As a result, Mr Sorich's offending clearly falls within the definition of "serious" offending under s 2 of the Proceeds of Crime Act 1991. [7] In addition, the fact that Mr Sorich manufactured methamphetamine in the house means that it is tainted property. It has that status by virtue of its use in facilitating the commission of Mr Sorich's offending. Jurisdiction therefore existsto make an order that Mr Sorich's interest in the property be forfeited. Before it makes such an order, the Court must first take into account the factors prescribed by s 15(2) of the Act.Section 15(2) factors(a) The use that was ordinarily made of the property[8] Although the property was no doubt used as a residence, it is clear from the depositions evidence that it was also used to manufacture methamphetamine. A substantial quantity of equipment, materials and precursor substances were found at the address. These were spread throughout several rooms. For this reason, although the property may also have been used for residential purposes, it is clear, in my view, that the manufacturing of methamphetamine was a significant activity that occurred at the property.(b) Any undue hardship that is reasonably likely to be caused to any person by the operation of such an order[9] On this point I note the Crown's submission that the criterion is "undue" hardship, and that the Court must consider this phrase in the context of the purposes of the Act. Forfeiture of any property is likely to cause hardship, but before this becomes a factor under the Act the hardship must be "undue". In the present case Mr Sorich will undoubtedly suffer hardship as a result of any forfeiture order. The house represents his only remaining asset and if it is forfeited he will emerge from prison owning no assets at all. [10] On the other hand, one of the deterrent features of the Act is that persons who use property in the commission of offences against the Act stand to have that property forfeited. That is an important feature that the legislature relies upon to discourage persons from becoming involved in activities such as those that Mr Sorich engaged in. Although it means that he will lose his only asset, I am not satisfied that this can be said to amount to undue hardship to Mr Sorich. It is no more than the hardship that would be caused to any person in Mr Sorich's position.[11] The second person who would be affected by the making of an order is Mrs Sorich. The Solicitor-General has, however, recognised that her 50 per cent interest in the property ought to be excluded from any order that the Court makes. To that extent her interests are protected, and it cannot be said that she will suffer undue hardship as the result of the making of an order.(c) The nature and extent of the offender's interest in the property and the nature and extent of any other person's interest[12] As I have already said, the only parties who have any interest in the property are Mr Sorich and his wife. Mrs Sorich's position will be protected by the exclusion of her interest in the property from the order that I propose to make.(d) Any other matter relating to the nature and circumstances of the offence or the offender, including the gravity of the offence[13] Little is known about Mr Sorich's personal circumstances or the circumstances in which he came to be involved in this manufacturing operation. This is because Mr Sorich declined to be interviewed by a probation officer and he also instructed his counsel to make virtually no submissions on his behalf at sentencing. For this reason I am unable to have regard to any factor advanced by Mr Sorich relating to the nature and circumstances either of his offending or in relation to himself. [14] I accept, however, the Crown's submission that this was a relatively sophisticated manufacturing operation. All of the equipment and precursor materials required to manufacture methamphetamine were present at the property when the police executed the search warrant. There is nothing about the nature and circumstances of the offending, in my view, to suggest that a forfeiture order is not appropriate in the present case.Result[15] The Solicitor-General's application is therefore granted.Order[16] There is an order under s 15(1) of the Proceeds of Crime Act 1991 that the house property situated at 11 Balgowan Terrace, Conifer Grove, Auckland (being the land described in Certificate of Title NA30C/1299 (North Auckland Registry)) is forfeited to the Crown. [17] The 50 per cent interest in the property held by Judith Anne Sorich is excluded from the operation of the above order. [18] In terms of s 15(4) of the Act I specify that the value of the property that has been forfeited to be $195,000. Lang J