Commissioner, New Zealand Police v Wishart

[2020] NZHC 2159

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-34

[2020] NZHC 2159

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER OF

an application under sections 43, 44, and 52

BETWEEN

THE COMMISSIONER, THE NEW ZEALAND POLICE

Applicant

AND

RICHARD WISHART

First Respondent

BRANKA GLUMICIC
Second Respondent

NEVILLE ALEXANDER WISHART

First Interested Party

JACQUELINE GRACE TRIFUNOVICH
Second Interested Party

THE WISHART FAMILY TRUST

Third Interested Party

Hearing:

On the papers

Counsel:

A W M Britton for Applicant

M Robinson for First Respondent
G Turkington for Second Respondent and Interested Parties

Judgment:

25 August 2020

JUDGMENT OF CLARK J

THE COMMISSIONER, THE NEW ZEALAND POLICE v WISHART & GLUMICIC [2020] NZHC 2159 [25

August 2020]

Introduction

[1]                 The parties seek this Court’s approval of their settlement under s 95 of the Criminal Proceeds (Recovery) Act 2009.

[2]                 It is agreed that the first respondent has been involved in significant criminal activity in terms of s 6 of the Act1 and that he received an unlawful benefit of

$209,245.78 from his significant criminal activity.

Procedural Background

[3]                 On 3 February 2020 the applicant filed a without notice application for a restraining order over:

(a)cash totalling $9,245.78 seized from the first respondent at 10 Nagpur Terrace, Broadmeadows, Wellington  (the  residential  property)  on  15 November 2019 and currently held in the New Zealand Police Trust Account;

(b)all interests in the residential property registered in the name of the second interested party Jacqueline Grace Trifunovich, Diana Grace Wishart and the first interested party Neville Alexander Wishart;

(c)the contents of the Kiwibank term-deposit account (the Kiwibank account) personalised in the name of the first respondent and the second respondent and estimated to hold funds to the value of $23,000 to

$25,000.

[4]On 7 February 2020 the High Court made an order restraining the property.

1      The first respondent pleaded guilty and has been convicted under the Misuse of Drugs Act 1975 of cultivating cannabis (s 9(1)) and possession of cannabis for supply (s 6(1)(f)).

[5]                 On 11 February 2020 the applicant filed an on-notice application for a restraining order over the property. The applicant did not proceed with the restraint of property over the contents of the Kiwibank Account.

[6]                 This proceeding was adjourned on 9 March 2020 to allow for the criminal proceedings in the District Court to be concluded.

[7]                 An instrument forfeiture order hearing was scheduled before the District Court for 29 June 2020 as part of the criminal proceedings. Before that hearing took place, the parties reached an agreed position and advised the District Court that they would seek the approval of this Court to resolve all forfeiture matters flowing from the defendant’s offending.

[8]                 Sentencing of the first respondent is due to take place in the District Court on 26 August 2020.

The proposed settlement

[9]                 The parties agree that funds totalling $209,245.78 should be forfeited to the Crown.

[10]The parties have agreed to the following terms:

(a)the third interested party, the Wishart Family Trust,2 will make a payment of $200,000 to the Official Assignee’s trust account on behalf of the first and second respondents within 10 working days of the Court’s determining of a profit forfeiture order; and

(b)the $9,245.78 cash amount currently under restraint as part of these proceedings is forfeited to the Crown under a profit forfeiture order.

[11]The parties have further agreed that:

(a)once payment of $200,000 by the third interested party has been

2      The Wishart Family Trust is the registered proprietor of the residential property.

received in the Official Assignee’s trust account, the applicant will apply for a further order to vary the without notice restraining order to release from restraint the residential property; and

(b)in the event that the third interested party does not make the payment of $200,000 to the Official Assignee’s trust account within 10 working days of the profit forfeiture order, the Official Assignee may sell the residential property to recover the maximum recoverable amount specified in the profit forfeiture order; and

(c)costs are to lie where they fall in respect of this proceeding.

The law

[12]             While the Commissioner may enter into a settlement with any person as to the property or sum of money to be forfeited to the Crown a settlement does not bind the parties unless approved by the High Court. If the High Court is satisfied that the settlement is consistent with the purposes of the Act and the overall interests of justice it must approve the settlement.3

[13]             The primary purpose of the Act is to establish a regime for the forfeiture of property:4

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

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

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

[15]As Brewer J observed in Commissioner of Police v Know-All Group Limited:5

3      Criminal Proceeds (Recovery) Act 2009, s 95.

4      Criminal Proceeds (Recovery) Act 2009, s 3(1).

5      Commissioner of Police v Know-All Group Limited HC Auckland CIV 2010-404-403, 7 February 2011 at [11].

The approval of this Court of a proposed settlement is not a stamping exercise. Parliament has entrusted the Court with a supervising jurisdiction aimed at ensuring that settlements are consistent with Parliament’s intent in enacting the statute.

Discussion

[16]             The statutory language in s 95 — the “overall interests of justice” — indicates a broad inquiry is required when the Court is tasked with approving a settlement.6 As such, the Court can consider a number of factors.

[17]             I consider the most relevant here to be that the proposed settlement figure is the maximum amount recoverable and the settlement involves forfeiting property that represents the substantial unlawful benefit the first and second respondents have received from the first respondent’s significant criminal activity.

[18]             A further positive feature of the proposed settlement is that the uncertainty inherent in litigation, and the costs associated with it, are avoided.

[19]             I am satisfied the parties’ settlement is consistent with the purposes of the Act and the overall interests of justice.

Orders

[20]Accordingly, the settlement is approved and the following orders are made:

(a)The third interested party, the Wishart Family Trust, will make a payment of $200,000 to the Official Assignee’s trust account on behalf of the first and second respondents within 10 working days.

(b)The $9,245.78 cash amount currently under restraint as part of these proceedings is forfeited to the Crown under a profit forfeiture order.

(c)Once payment of $200,000 by the third interested party has been received in the Official Assignee’s trust account, the applicant will apply for a further order to vary the without notice restraining order to

6      Commissioner of Police v Li [2018] NZHC 1566 at [32].

release from restraint the residential property.

(d)In the event that the third interested party does not make the payment of $200,000 to the Official Assignee’s trust account within 10 working days of the profit forfeiture order, the Official Assignee may sell the residential property to recover the maximum recoverable amount specified in the profit forfeiture order.

(e)Costs shall lie where they fall.

Karen Clark J

Solicitors:

Crown Solicitor, Wellington for Applicant

Landford Law, Wellington for Respondents and Interested Parties