Commissioner, New Zealand Police v Taui
[2024] NZHC 488
•8 March 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-231
[2024] NZHC 488
BETWEEN THE COMMISSIONER, NEW ZEALAND POLICE
ApplicantAND
ROBERT JASON TAUI
Respondent
CHRISTOPHER RAYMOND WILLS
Interested Party
Hearing: On the papers Appearances:
B M Finn and K J Eskildsen for Applicant
Judgment:
8 March 2024
JUDGMENT OF CHURCHMAN J
[1] The Commissioner of the New Zealand Police (the Commissioner) has filed an application for Type 1 asset forfeiture, profit forfeiture and effective control orders (the application) against Robert Taui (the respondent). Christopher Wills was served as an interested party.
[2] Following the call of the application on 5 February 2024, Gwyn J issued a minute directing the Commissioner to file a memorandum setting out the basis upon which the Commissioner says the Court can grant the application. The Commissioner has filed a memorandum dated 6 March 2024 addressing this issue.
[3] The Commissioner seeks an asset forfeiture order (AFO) in respect of $5,060 cash and accrued interest; a profit forfeiture order (PFO) against the respondent in the
THE COMMISSIONER, NEW ZEALAND POLICE v TAUI [2024] NZHC 488 [8 March 2024]
sum of $1,392,000; an order that the following property is to be realised to meet the PFO:
(a)$3,720.62 along with accrued interest from the sale of a black 2004 BMW 645CI, registration JMA318.
(b)A grey 2003 Holden Commodore HSV Clubsport, registration EUE452 and ignition keys, registered in the name of the interested party Christopher Raymond Wills, and under the effective control of Robert Jason Taui.
(c)$3,956.25 along with accrued interest from the sale of a blue and black 2009 Yamaha YZF R1X Roadbike, registration A1ULT.
(d)$8,668.75 along with accrued interest from the sale of a black and silver 2003 Harley Davidson FXSTD 1450 Deuce Roadbike, registration B1EPD.
(e)Orders confirming the respondent’s effective control over the properties set out above in this paragraph.
Background
[4] Subsequent to his arrest on 2 May 2019 the respondent pleaded guilty to four counts of possession of methamphetamine for supply and single counts of possession of cannabis for supply, unlawful possession of a pistol and unlawful possession of ammunition.
[5] On 13 August 2021 the respondent was sentenced to nine years and one month’s imprisonment on the basis that he had received 1.524 kilograms of methamphetamine from Kenny McMillan for supply.
[6] On 7 May 2019 the Commissioner had filed a restraining order application along with an early sale application in respect of three of the vehicles referred to above
(the BMW, Yamaha and Harley Davidson motorcycles). On 4 May 2021 the restraining and early sale orders were granted.
[7] Neither the respondent nor interested party has taken any substantive steps in these proceedings.
[8] On 26 October 2023 the Commissioner filed this application. Both the respondent and interested parties were served with the application and affidavits in support. Both have subsequently been served with a copy of the memorandum filed by counsel in respect of this application.
AFO
[9] The Commissioner seeks a Type 1 AFO in respect of $5,060 cash and accrued interest.
[10] Under s 50 of the Criminal Proceeds (Recovery) Act 2009 (CPRA) the Court must make a Type 1 AFO in respect of property if it is satisfied on the balance of probabilities that the specific property is tainted property.
[11] Tainted property is property that has, wholly or in part, been acquired as a result of significant criminal activity, or directly or indirectly derived from significant criminal activity.
[12] Section 50(4) of the CPRA provides that the Court may only make a Type 1 AFO in relation to property that no person has claimed an interest in if the Court is satisfied of the following additional matters:
(a)that a restraining order was earlier made in relation to the same property;
(b)that the restraining order has been in place for a period of at least one year;
(c)that the Commissioner has contacted or made all reasonable efforts to contact any person the Commissioner believes may have an interest in the property.
Analysis
[13] I am satisfied that the cash of $5,060 and accrued interest is wholly or in part “tainted property” for the purposes of the CPRA; that the property was acquired or derived from significant criminal activity, namely the possession of methamphetamine or supply being an offence against s 6(1)(f) and 2(a) of the Misuse of Drugs Act 1975.
[14] I am satisfied of this because the respondent pleaded guilty to four counts of possession of methamphetamine for supply and was convicted and sentenced to nine years and one month’s imprisonment on the basis that he had received 1.524 kilograms of methamphetamine for supply.
[15] The possession of methamphetamine for supply carries a maximum penalty of life imprisonment and accordingly constitutes “significant criminal activity” for the purposes of s 6 of the CPRA. The fact that the respondent has not declared any income since 1 April 2018 confirms that he has lived off the proceeds of criminal offending since his release from prison on 9 October 2018.
[16] The fact that the respondent has failed to call any evidence about the $5,060 cash supports an inference it is indeed the proceeds of the respondent’s methamphetamine sales.
[17] No person is currently claiming an interest in the $5,060 cash. A restraining order has been in place for over a year (two years and 10 months). The Commissioner has contacted the respondent through counsel on several occasions over the course of the proceeding and the respondent’s counsel has not indicated any intention to claim in interest in the cash. There is no basis for believing that another person who may have an interest in the cash exists.
[18]Accordingly, I make the AFO as sought.
PFO
[19] Under s 55 of the CPRA the Court “must” make a PFO if satisfied on the balance of probabilities that:
(a)the respondent has unlawfully benefited from significant criminal activity within the relevant period, and
(b)the respondent has interests in the property sought to be forfeited.
[20] In accordance with Pulman v Commissioner of Police1 the making of a PFO requires consideration of four separate steps:
(a)The Court must determine whether the Commissioner has proved on the balance of probabilities, that the respondent has unlawfully benefited from significant criminal activity during the relevant period. If the Court is so satisfied then the value of the benefit is presumed to be that stated in the Commissioner’s application, unless rebutted by the respondent on the balance of probabilities.
(b)The Court must determine the maximum recoverable amount. That is done by taking the value of the benefit as already determined in accordance with s 53 of the CPRA and deducting from it the value of any property already forfeited to the Crown by virtue of any AFO made in relation to the same criminal activity that the PFO application relates to.
(c)The Court must determine whether any property should be excluded from the operation of the PFO because of any undue hardship likely to be caused to the respondent if such property were realised.
1 Pulman v Commissioner of Police CIV-2010-404-5666, 27 May 2011 at [10]–[13].
(d)Once steps in sub-paragraphs a–c above have been undertaken, the Court must make a PFO if satisfied, on the balance of probabilities, that the respondent has interests in the property.
Unlawful benefit from significant criminal activity
[21] On the basis of the affidavit evidence before me I am satisfied that the respondent has unlawfully benefited from significant criminal activity namely the possession and sale of methamphetamine. The value of that benefit is therefore presumed to be the value stated in the Commissioner’s application, namely to the value of $1,392,000.
[22] In assessing the benefit derived directly or indirectly from the respondent’s offending, any expenses or outgoings must be disregarded. Hence the price the applicant may have paid to purchase the methamphetamine is excluded. The benefit figure is the total value of the drugs that he possessed.
Maximum recoverable amount
[23] The maximum recoverable amount is $1,386,400 being $1,392,000 less $5,060 and the associated accrued interest.
Making the PFO
[24] No application for exclusion of property due to undue hardship has been filed. I am satisfied on the balance of probabilities that the respondent has interests in property namely:
(a)$3,720.62 with accrued interest from the sale of a black BMW 645CI registration JMA318.
(b)A grey 2003 Holden Commodore HSV Clubsport, registration EUE452 and ignition keys registered in the name of the interested party Christopher Raymond Wills and under the effective control of the respondent.
(c)$3,956.25 along with accrued interest from the sale of a blue and black 2009 Yamaha YZFR1X Roadbike registration A1ULT.
(d)$8,668.75 along with accrued interest from the sale of a black and silver 2003 Harley Davidson FXSTD 1450.
[25] On 4 May 2021 Grice J made effective control orders confirming the respondent’s ownership of the BMW, Yamaha and Harley Davidson bikes. The respondent accordingly has a legal interest in the proceeds of sale of those vehicles making them amenable to a PFO.
[26] In addition, the Commissioner presently seeks an effective control order in respect of the Holden Commodore declaring that the respondent has effective control over the vehicle which is registered in the name of the interested party. On the basis of the affidavit evidence I am satisfied that the respondent has effective control over the vehicle and make the orders sought.
Outcome
[27] For the reasons set out above I make all of the orders sought and approve the form of the draft order filed with the application.
Churchman J
Solicitors:
Luke Cunningham Clere, Wellington for Applicant
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