Commissioner, New Zealand Police v Te Rure (aka Kingi)
[2020] NZHC 2168
•25 August 2020
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2020-441-26
[2020] NZHC 2168
UNDER the Criminal Proceeds (Recovery) Act 2009 IN THE MATTER OF
an application under sections 21, 25, 43, 44
& 52
BETWEEN
THE COMMISSIONER, THE NEW ZEALAND POLICE
Applicant
AND
QUENTIN ROBERT JAMES TE RURE (AKA QUENTIN ROBERT KINGI)
First Interested Party
RICHARD TE RURE
Second Interested PartyANN FRANCIS LAKE
Third Interested Party
Hearing: On the Papers Counsel:
F E Cleary for Applicant
Judgment:
25 August 2020
JUDGMENT OF CLARK J
[1]The Commissioner of Police has made two applications:
(a)an application for a restraining order (on notice);1 and
(b)an application for a profit forfeiture order.2
1 Criminal Proceeds (Recovery) Act 2009, s 21.
2 Section 43.
THE COMMISSIONER, THE NEW ZEALAND POLICE v TE RURE (AKA KINGI) [2020] NZHC 2168
[25 August 2020]
[2] A without notice restraining order was granted on 4 June 2020. The second and third interested parties have taken no step nor made any contact. Accordingly, the Commissioner asks that the matter proceed by way of formal proof. The Duty Judge directed the filing of an affidavit of service on interested parties. The papers have been placed before me as Duty Judge. Although the possibility of a short hearing was foreshadowed earlier I have been able to determine the applications on the papers.
Factual background
[3] On 4 April 2019 Police were alerted to a car crash at Manga-o-nuku Bridge No 3 on State Highway 50 in Hawkes Bay. On arrival they found a severely damaged 2003 Holden Commodore, registration BPB484. The vehicle had collided with the concrete abutment of a one-lane bridge.
[4] The driver and sole occupant of the vehicle, the first interested party, Quentin Robert James Te Rure (aka Quentin Robert Kingi) died at the scene.3 Police located two cellphones: one in Mr Kingi’s trouser pocket and another on the driver’s seat. Also located in the vehicle was a ‘Nike’ shoulder bag containing two sealable bags of methamphetamine weighting 40.2 grams in total, a bundle of cash bound with a rubber band and Mr Kingi’s driver’s licence. Including the cash in the shoulder bag, a total of $15,555 cash was located throughout the vehicle.
[5] Police later obtained production orders in respect of the two cellphones. The Commissioner submits the text message data obtained reveals that Mr Kingi was involved in the sale and supply of methamphetamine and cannabis.
Application for profit forfeiture order
[6]The Commissioner seeks an order that:
(a)the value of the unlawful benefit ( determined in accordance with section 53 of the Act) in this case is $18,790.00; and
3 To avoid confusion with the second interested party, in this judgment I refer to the first interested party as Mr Kingi, the name by which he was also known.
(b)the maximum recoverable amount is $18,790.00 (there being no assets to be forfeited); and
(c)the cash located at the scene is to be realised in satisfaction of the profit forfeiture order.
[7] The grounds on which the profit forfeiture order is sought is that during the period 13 March 2019 to 19 April 2019 Mr Kingi unlawfully benefited to the value of
$18,790 from significant criminal activity, namely the sale and supply of methamphetamine and cannabis. The Commissioner submits that at the time of his death Mr Kingi had the full interest in the cash. The second and third interested parties respectively, Mr Kingi’s father and grandmother, have been named as the likely benefactors of Mr Kingi’s estate.
The Criminal Proceeds (Recovery) Act 2009
[8]Section 7 of the Act provides:
7Meaning of unlawfully benefited from significant criminal activity
In this Act, unless the context otherwise requires, a person has unlawfully benefited from significant criminal activity if the person has knowingly, directly or indirectly, derived a benefit from significant criminal activity (whether or not that person undertook or was involved in the significant criminal activity).
[9]Sections 53–55 are also relevant to this application. Section 53 provides:
Value of benefit presumed to be value in application
(1)If the Commissioner proves, on the balance of probabilities, that the respondent has, in the relevant period of criminal activity, unlawfully benefited from significant criminal activity, the value of that benefit is presumed to be the value stated in—
(a)the application under section 52(c); or
(b)if the case requires, the amended application.
(2)The presumption stated in subsection (1) may be rebutted by the respondent on the balance of probabilities
[10] Under s 54, before the High Court makes a profit forfeiture order, it must determine the maximum recoverable amount by taking the value of the benefit determined in accordance with s 53 and deducting from that the value of any property forfeited to the Crown as a result of an assets forfeiture order made in relation to the same significant criminal activity to which the order relates.
[11]Section 55 provides:
55 Making profit forfeiture order
(1)The High Court must make a profit forfeiture order if it is satisfied on the balance of probabilities that—
(a)the respondent has unlawfully benefited from significant criminal activity within the relevant period of criminal activity; and
(b)the respondent has interests in property.
(2)The order must specify—
(a)the value of the benefit determined in accordance with section 53; and
(b)the maximum recoverable amount determined in accordance with section 54; and
(c)the property that is to be disposed of in accordance with section 83(1), being property in which the respondent has, or is treated as having, interests.
Subsections (1) and (2) are subject to section 56.
(4)A profit forfeiture order is enforceable as an order made as a result of civil proceedings instituted by the Crown against the person to recover a debt due to it, and the maximum recoverable amount is recoverable from the respondent by the Official Assignee on behalf of the Crown as a debt due to the Crown
[12] In Pulman v Commissioner of Police Lang J summarised the effect of s 55 in the following way:4
[10] The making of a profit forfeiture order under s 55 potentially requires the Court to take four separate steps. First, it 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, the value of that benefit is presumed to be
4 Pulman v Commissioner of Police HC Auckland CIV-2010-404-5666, 27 May 2011, at [10].
one of the values prescribed by s 53(1). The respondent may, however, rebut that presumption on the balance of probabilities
[11] Second, the Court is required to determine the maximum recoverable amount. It does that by taking the value of the benefit and deducting from that figure the value of any property already forfeited to the Crown by virtue of any assets forfeiture order made in relation to the same criminal activity as that to which the profit forfeiture application relates.
[12] Third, the Court must determine whether any property should be excluded from the operation of the profit forfeiture order because undue hardship is likely to be caused to the respondent if such property were realised.
[13] Once the Court has undertaken such of these exercises as may be relevant, it must make a profit forfeiture order under s 55(1) if it is satisfied on the balance of probabilities that the respondent has interests in property. Any such order must specify the value of the benefit, the maximum recoverable amount, and the property that is to be disposed of.
(footnotes omitted)
Unlawful benefit from significant criminal activity?
[13] Detective Sergeant Lea Smith who is attached to the Central Asset Recovery Unit, swore an affidavit in support of the Commissioner’s application for without notice restraining orders in relation to the $15,555 cash located and seized on 4 April 2019 from the car Mr Kingi was driving.
[14] I have considered the evidence and am satisfied on the balance of probabilities it shows the respondent unlawfully benefited from significant criminal activity, as the Commissioner contends. The evidence shows:
(a)In addition to the $15,555 cash, Mr Kingi was also in possession of two bags containing a total of 40.2 grams of methamphetamine.
(b)The manner in which the methamphetamine was packaged suggests the amount originally purchased by Mr Kingi was two ounces. Although both bags were of equal size one bag contained 27.5 grams of methamphetamine (consistent with “an ounce” deal bag) and the other bag contained 12.7 grams. Detective Smith’s evidence is that
12.7 grams is an uncommon size and it is likely the two bags originally contained the same amount of methamphetamine and were purchased
by Mr Kingi as two ounces. The common price for one ounce of methamphetamine sold in an ounce quantity was (at the time) $6,000. Two ounces of methamphetamine was likely to have cost Mr Kingi around $12,000.
(c)Analysis of the cellphone records showed messages were exchanged with 16 different cellphone numbers and were consistent with the sale and supply of methamphetamine and cannabis.
(d)Mr Kingi’s declared income over a seven year period from 1 April 2013 — 31 March 2019 was $35,280.07.
[15] Being satisfied that the Commissioner has proved on the balance of probabilities that Mr Kingi unlawfully benefited from significant criminal activity during the relevant period, the value of the benefit is presumed to be that stated in the Commissioner’s application, namely $18,790.5 That value is reached as a result of the following calculations.
Table 2 Quantities of methamphetamine and cannabis supplied between 13 March 2019 and 2 April and values of those quantities supplied (identified from text message data).
Drug Unit sold Text with Unit Price Total Methamphetamine 0.1 grams 64275247796 $100 $ 100 Methamphetamine 0.25 grams 642108642430 $150 $ 150 Methamphetamine 0.5 grams 64224993779 $250 $ 250 Methamphetamine 7 grams 64225670893 $400 $2,800 Methamphetamine 4 grams 64225670893 $400 $1,600 Methamphetamine 3 grams 64225670893 $400 $1,200 Methamphetamine total 14.85 grams $6,100
Cannabis 17 Tinnies (1.5g per unit) 0225489754 $20 $ 340 Cannabis 28 grams (1 Ounce) 64276254031 $350 $ 350 Cannabis Total 53.5 grams $ 690
Combined total $ 6,790
5 Section 53(1).
Table 3 Total value of unlawful benefit from Serious Criminal Activity.
Value of methamphetamine (possession / purchased) $12,000 Value of methamphetamine and Cannabis sold $ 6,790 Total unlawful benefit $18,790
[16]There is no evidence rebutting the statutory presumption.
Maximum recoverable amount
[17] In determining the maximum recoverable amount the Court must take the value of the unlawful benefit, as determined above, and deduct from that figure the value of any property already forfeited to the Crown by virtue of any assets forfeiture order made in relation to the same criminal activity as that to which the profit forfeiture order relates.
[18] No asset forfeiture orders have been made or are sought in this matter. There are no deductions that need to be made from the value of the unlawful benefit.
Undue hardship to the respondent?
[19] Mr Kingi is unable to make any claim as to undue hardship. Nor have the second or third interested parties made any such claim. Personal service of all relevant documents has been effected on both Mr Te Rure and Ms Lake. The documents included a letter from Elvidge & Partners (acting for the Commissioner) recommending they consult a lawyer for further advice. There was also a case management conference on 20 July 2020 at which neither Mr Te Rure or Ms Lake appeared.
Result
[20] I am satisfied on the balance of probabilities that Mr Kingi has unlawfully benefited from significant criminal activity within the relevant period of criminal activity and that he has interests in property. Accordingly, the following order is made:
(i)The value of the benefit determined in accordance with s 53 is
$18,790.
(ii)The maximum recoverable amount is $18,790.
(iii)The cash totalling $15,555 located and seized on 4 April 2019 from the 2003 Holden Commodore, registration BPB484, and also from the crash scene, being property in which Mr Kingi had an interest, is to be disposed of in accordance with s 83(1) of the Act.
[21] A profit forfeiture order having been made there is no need to consider the application for an on-notice restraining order.
Karen Clark J
Solicitors:
Crown Solicitor, Napier for Applicant
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