Commissioner, New Zealand Police v Sulusi

[2019] NZHC 107

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2016-441-84

[2019] NZHC 107

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER OF

an application under section 43, 44, 52 & 55

BETWEEN

THE COMMISSIONER, THE NEW ZEALAND POLICE

Applicant

AND

LEATITLA LUCKIE SULUSI

First Respondent

TRIESTE MARTIN ROPIHA

Second Respondent

ITUFA SULUSI

First Interested Party

ALEYSHA KAYE STRACHAN nee WICKCLIFFE

Second Interested Party

TAMA RANGINUI HOHEPA HAWKINS

Third Interested Party

JOSEPH DAVID ALEXI BOWLES

Fourth Interested Party

AARON JOHN MAIR

Fifth Interested Party

Hearing:

On the papers

Counsel:

F E Cleary for Applicant

E R Fairbrother QC for First Respondent C J Tennet for Second Respondent

Judgment:

8 February 2019

THE COMMISSIONER, THE NEW ZEALAND POLICE v SULUSI [2019] NZHC 107 [8 February 2019]

JUDGMENT OF CLARK J

Introduction

[1]    The Commissioner of Police has filed applications for profit forfeiture and effective control orders in respect of the first respondent and an application for an asset forfeiture order in respect of the second respondent. The applications are made under the Criminal Proceeds (Recovery) Act 2009 (the Act).

[2]    The Commissioner has been engaged in settlement discussions with the first respondent. They have agreed to terms of settlement and seek the Court’s approval of the settlement pursuant to s 95 of the Act.

Background

[3]    The application for profit forfeiture against the first respondent was in respect of the following property:

(i)All interests in a 2009 Ford Falcon Super Pursuit utility, registration WKDFPV, and its keys.

(ii)All interests in a 1956 Ford Fairlane Vic, registration JTJ890, and its keys.

(iii)All interests in a 2008 factory built Big Dog Pit Bull motorcycle, registration RDR, and its keys.

(iv)All interests in a 2006 Holden Commodore, registration HFF860, and its keys.

(v)All interests in a 2002 Mazda Atenza, registration JAS206, and its keys; and

(vi)All interests in a 1957 Ford Customline, registration GEH943, and its keys.

[4]    The grounds on which the order was sought were that the first respondent had, in the relevant period of criminal activity1 namely, 26 July 2011 to 26 July 2016, unlawfully benefited to the value of $456,373.30 from significant criminal activity being the supply of methamphetamine.

[5]    The property which I have listed above was to be realised to recover the maximum recoverable amount of $456,373.30.

[6]    The application under s 58 of the Act was for an order that the following property be treated as though the first respondent has interests in it:

(i)All interests in a 2008 factory built Big Dog Pit Bull motorcycle, registration RDR, registered to Itufa Sulusi and its keys (the motorcycle).

(ii)All interests in a 2006 Holden Commodore, registration HFF860, registered to Tama Ranginui Hohepa Hawkins and its keys (the Holden).

(iii)All interests in a 2002 Mazda Atenza, registration JAS206, registered to Aaron John Mair in the Police National Intelligence Application and its keys (the Mazda).

(iv)All interests in a 1957 Ford Customline, registration GEH943, registered to Itufa Sulusi in the Police National Intelligence Application and its keys (the Customline).

[7]    The Commissioner relied on evidence of communications by the first respondent:

(a)discussing the motorcycle as if he were the true owner;

(b)claiming ownership of the Holden in a Facebook post and discussing

1      As defined in s 5 of the Criminal Proceeds (Recovery) Act 2009.

spending money on the vehicle as well as giving an unsigned statement to the Police following an incident with the Holden, that he owned the Holden; and

(c)stating to police when this particular police operation terminated, that the Mazda was his vehicle.

[8]    The Customline is registered in the name of the first respondent’s brother (the first interested party). The first respondent delivered the Customline to panel beaters for paint work and a bank cheque for $21,000 was paid in advance for the work done.

[9]    The applications against the first respondent and second respondent were set down for a two-day hearing on 18 and 19 February 2019.

[10]   The joint memorandum by which the Commissioner and first respondent seek approval  of their settlement  was filed  on 15 January 2019.   I issued a  minute on   4 February 2019 advising counsel that I had reviewed the terms of the settlement and was satisfied it could be approved. The two-day hearing was vacated. My reasons were to follow. This judgment contains my reasons.

The proposed settlement

[11]   Under the settlement proposal the first respondent’s interests in the following property will be forfeited to the Commissioner:

(i)All interests in a 2009 Ford Falcon Super Pursuit utility, registration WKDFPV, and its keys.

(ii)All interests in a 1956 Ford Fairlane Vic, registration JTJ890, and its keys.

(iii)All interests in a 2008 factory built Big Dog Pit Bull motorcycle, registration RDR, and its keys.

(iv)All interests in a 2006 Holden Commodore, registration HFF860, and

its keys.

(v)All interests in a 2002 Mazda Atenza, registration JAS206, and its keys.

[12]All interests in the Customline are to be returned to the first respondent.

Should the settlement be approved?

[13]   Under s 95 of the Act the High Court must approve a settlement if satisfied the settlement is consistent with the purposes of the Act and the overall interests of justice.

[14]   The primary purpose of the Act is to establish a regime for the forfeiture of property:2

(a)that has been derived from significant criminal activity; or

(b)that represents the value of a person’s unlawfully derived income.

[15]   The forfeiture regime is to eliminate the chance for persons to profit from significant criminal activity and curtail the expansion of criminal enterprise.3

[16]   In their joint memorandum counsel referred to Commissioner of Police v Saunders as authority for the proposition that a joint memorandum having been filed, that was sufficient for the Court to approve a settlement.4

[17]   Commissioner of Police v Saunders does not stand for such a wide proposition. In that case no formal application had been made for a forfeiture order. Chisholm J noted at the outset that there was no formal application before the Court but was prepared to treat the joint memorandum of counsel “as an application for [a profit forfeiture order] under the Criminal Proceeds (Recovery) Act 2009”.5 Chisholm J then proceeded to determine whether the proposed settlement was consistent with the purposes of the Act and the overall interests of justice, as required by s 95. In other

2      Section 3(1).

3      Section 3(2).

4      Commissioner of Police v Saunders [2012] NZHC 3479.

5 At [2].

words a joint memorandum agreeing to settlement will not, of itself, provide a proper basis for the Court to approve a settlement. As observed by Moore J in Commissioner of Police v Gray:6

As this Court has previously observed, Parliament has entrusted the Court with a supervisory jurisdiction to ensure that settlements are consistent with the parliamentary intention.

[18]   For the following reasons, I am satisfied the proposed settlement is consistent with the purposes of the Act and with the interests of justice:

(a)The matter has been before the Court for over two years. The property has been stored by the Official Assignee over that time. A settlement will avoid continuing additional costs associated with the storage and with a hearing.

(b)The value of the property to be returned to the first respondent represents, in the Commissioner’s estimate, approximately 10 per cent of the total value sought. Accordingly, the proposed settlement reflects a pragmatic and sensible outcome.

(c)Factors such as the saving of time and cost and avoiding litigation risk are routinely regarded as favouring a settlement in the interests of justice.7

(d)As well, the public interest is served by avoiding a two-day hearing and achieving instead, finality and certainty with regards to the outcome.8

6      Commissioner of Police v Gray [2015] NZHC 377 at [10], citing Commissioner of Police v Know- All Group Ltd HC Auckland CIV-2010-404-403, 7 November 2011 at [11].

7      See for example Commissioner of Police v Venn [2014] NZHC 361; Commissioner of Police v Bradley [2012] NZHC 1594; and Commissioner of Police v Moutray [2012] NZHC 2940.

8      These factors were recognised as relevant and important considerations in deciding whether to enter into settlement in Commissioner of Police v Moutray, above n 7, at [6]; and Commissioner of Police v Investments Ltd [2017] NZHC 284 at [16].

Result

[19]   The settlement is approved and an order to that effect is accordingly made. The terms of the settlement that are approved are those set out in [11] above.

Karen Clark J

Solicitors:

Elvidge & Partners, Napier for Applicant