THE SOLICITOR-GENERAL OF NEW ZEALAND V JONGEJAN HC AK CIV 2005-404-006642

THE SOLICITOR-GENERAL OF NEW ZEALAND V JONGEJAN HC AK CIV 2005-404-006642 10 June 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-404-006642UNDER the Proceeds of Crime Act 1991 BETWEEN THE SOLICITOR-GENERAL OF NEW ZEALAND Applicant AND SIMON CARL JONGEJAN Respondent Hearing: 10 June 2008 Appearances: A Longdill for Applicant M J Levett for Respondent Judgment: 10 June 2008REASONS FOR JUDGMENT OF COOPER J (on application for forfeiture)Solicitors:Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland.Copy to: M J Levett, 75C Corinthian Drive, Albany, North Shore City[1] This is an application by the Solicitor-General under s 15 of the Proceeds of Crime Act 1991. I heard the application earlier today immediately prior to sentencing the respondent in respect of offending under the Misuse of Drugs Act, counsel being of the view that the outcome of this application would be relevant to the sentencing exercise. [2] Having heard counsel and noting that the application was unopposed, I indicated that I would make the order sought, giving my reasons for doing so later in the day. I now give those reasons.The application[3] The application seeks orders pursuant to s 15 of the Proceeds of Crime Act that:all interests in a property at 71 Stillwater Crescent, Stillwater, comprised and described in Certificate of Title NA24D/677, excluding the interests of the Bank of New Zealand and the registered mortgage D224536.4, and excluding the interest of Jacky Angelique Bramley be forfeited to the Crown.[4] Further orders are sought under s 15(5) of the Act, directing that the property is to be sold by the Official Assignee, and dealing with application of the proceeds of sale. If those orders are made, then the mortgage to the Bank of New Zealand will be repaid, and 50 per cent of the net proceeds following deduction of costs and expenses will be paid to Ms Bramley, who is the respondent's former partner. The balance, being the value of the respondent's interest, will be forfeited to the Crown. [5] The value of the respondent's interest has been assessed at $115,500. [6] The application was called before Priestley J on 12 May 2008. At that stage, Mr Gibson was acting for the respondent, but he did not appear. He had agreed to a proposed time table order presented by counsel for the Crown and Priestley J made time tabling orders accordingly. Subsequently, Mr Gibson has advised Ms Longdill that the application is unopposed. This morning, Mr Gibson again did not appear, but Mr Levett was present for the purposes of the sentencing which was about totake place. He was good enough to seek instructions from Mr Jongejan on his attitude to the present application. Having done so, he confirmed that the application was unopposed.Background[7] The property to which the application relates was the scene of serious offending under the Misuse of Drugs Act 1975. Mr Jongejan, together with a co- offender Tamarangi Huka, was tried before a jury in the High Court at Auckland. The trial commenced on 14 April 2008. The jury gave its verdict on 22 April. Both the respondent and his co-accused were convicted on 11 counts. They included allegations of manufacturing methamphetamine, selling methamphetamine, and possession of methamphetamine for supply, as well as the possession of precursor substances, equipment and material for the manufacture of methamphetamine. [8] The charges arose out of the search of the premises at 71 Stillwater Crescent on two separate occasions, namely 26 August and 27 October 2005. On each occasion the police had the authority of a search warrant. On 26 August, the police found a significant amount of industrial chemicals, including toluene, acetone, hydrochloric acid, sulphuric acid and methylated spirits as well as a number of "cold and flu" capsules, and other materials containing pseudoephedrine which could have been used to manufacture between a range of 2.5 to 3.5 grams of methamphetamine. The chemicals were found in various locations throughout the house, some in the kitchen, some in the lounge and some in one of the bedrooms. [9] There was in addition equipment able to be used to manufacture methamphetamine, some of which had methamphetamine and/or pseudoephedrine residue on it. Items included electric hotplates, a gas burner, a digital pH metre, glassware, a blender, conical flask, a Parr bomb and other miscellaneous items. [10] A dish containing 217 milligrams of methamphetamine was located in the kitchen. A similar dish, containing 417 milligrams of methamphetamine was located in the master bedroom.[11] In addition, the police found a scanner tuned into the North Shore/Rodney police radio channel, and there were two video surveillance cameras affixed to the house giving live feeds to televisions in the lounge and master bedroom. [12] Although the house was clearly occupied, none of the occupants were present on the occasion of the execution of the first search warrant. However, when the police returned to the property on 26 October 2005 they found both the respondent and Mr Huka. [13] Once again, industrial chemicals able to be used in the methamphetamine manufacturing process were found including iodine, toluene, acetone, hydrochloric acid, hypophosphorous acid and methylated spirits. A number of cold and flu or coldrex tablets (or empty packets of the same) and glass bottles of Robitussin, containing pseudoephedrine were also found. [14] On this occasion the police again found equipment able to be used to manufacture methamphetamine, much of it with methamphetamine and/or pseudoephedrine residue on it, and there were pH testing strips, glassware and a Parr bomb. A glass baking dish was located containing 1.05 grams of a combination of methamphetamine and other chemicals, in the kitchen. A similar dish, containing 1.49 grams of methamphetamine was located in the master bedroom. [15] When the police entered the house, the respondent and Mr Huka had been together in the lounge. Being aware that the police were entering the property, Mr Huka threw a black laptop bag out of the toilet window. The police later located it around the side of the house. A search of the bag recovered $10,000 in cash, a number of zip lock bags, a set of electronic scales, syringes, methamphetamine pipes, more "cold and flu" tablets and two knives. Inside the zip lock bags was a total of about 1.5 to 2 grams of methamphetamine. [16] The security cameras seized on the first warrant had been replaced with new cameras to once again give live feeds to television sets in the lounge and the respondent's bedroom.Discussion[17] At the trial, the respondent denied involvement in the offending. A plank of his defence was that at all relevant times he was not in fact residing at the property, and that he lived with his current partner at a property that she occupied in Green Bay, Auckland City. Another plank of his defence was to suggest that others present at the property may have used it for the manufacturing process, but he did not do so. The jury must be taken as having rejected both aspects of the defence. There can be no doubt in the circumstances the property which is the subject of the present application was "tainted" by the offending, in particular the manufacture of methamphetamine. [18] In Solicitor-General v Anaru (CA 52/06, 16 August 2006) the Court of Appeal observed: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.[19] Under s 15(2) of the Proceeds of Crime Act, in considering whether or not to make an order under s 15(1), the Court may have regard to: a) The use that is ordinarily made or intended to be made of the property. b) Any undue hardship that is reasonably likely to be caused to any person by the operation of a forfeiture 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 in it. d) Any sanction imposed in the nature of a pecuniary penalty or forfeiture of property on the person's conviction, as well as any other matter relating to the nature and circumstances of the offence or the offender, including the gravity of the offence.[20] I am satisfied on the facts of this case that a forfeiture order would not be "disproportionately severe". Further, the matters set out in s 15(2) applied to the current facts all indicate that a forfeiture order can appropriately be made. [21] As to the issue of disproportionate severity, I am satisfied on the evidence that whether or not the respondent was present at the premises for longer or shorter durations over the relevant period, he well knew that the manufacturing of methamphetamine was taking place there, as well as being involved in that activity himself. There was mention in the evidence of, and to some degree an attempt was made to shift the blame onto, others who were present in the property from time to time. The respondent, however, was aware of their presence there and appears to have been content for the property to be used as the base of a reasonably significant commercial manufacturing process. In these circumstances, and where some allowance can be made for the making of the forfeiture order in the sentencing process, it could not be said that the making of a forfeiture order in addition to the imposition of an appropriate term of imprisonment would be disproportionately severe. [22] Insofar as the use that was ordinarily made of the property, it appears to have been used as a place where Mr Huka boarded, that the respondent visited from time to time and that others resided at from time to time. The suggestion is that those other persons were also involved in the manufacturing process. Plainly, the intended use of the property was as a residence. However, there is merit in the Crown's submission that its primary use over the relevant period appears to have been as the centre of a methamphetamine manufacturing operation. Effectively that is what it was used for. [23] As to the issue of undue hardship, the position of third parties with an interest in the property is to be protected in the manner that I have already addressed. No children were residing there. On his own evidence, the respondent was only there from time to time, and he primarily resided with his partner in Green Bay. He has no dependants. There will, of course, be a degree of hardship for the respondent. However, I do not accept that that could be described as "undue" given the overallcircumstances here. None of the other statutory considerations tend against the grant of the Crown's application.Result[24] For the reasons I have given, the Solicitor-General is entitled to the orders that he seeks and I make orders accordingly.