Commissioner of New Zealand Police v D'Esposito

[2019] NZHC 2914

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2014-485-011238

[2019] NZHC 2914

UNDER

the Criminal Proceeds Recovery Act 2009

IN THE MATTER OF

an application under sections 22, 24 and 25

BETWEEN

THE COMMISSIONER OF NEW ZEALAND POLICE

Applicant

AND

ANTONINO GIOVANNI D’ESPOSITO

First Respondent

GIANCARLO HAROLD D’ESPOSITO
Second Respondent

MARCUS GIUSEPPE D’ESPOSITO

Third Respondent

JOHN STANLEY BUTLER
Fourth Respondent

JASON IAN LEE
Fifth Respondent

HAWKES BAY SEAFOODS PROPERTY LIMITED

Sixth Respondent

AND

KARIN D’ESPOSITO
First Interested Party

MAREE YVONNE NEWMAN
Second Interested Party

AMY SARAH D’ESPOSITO

Third Interested Party

AHURIRI TRUSTEE SERVICES LIMITED

Fourth Interested Party

THE COMMISSIONER OF NEW ZEALAND POLICE v D’ESPOSITO & ORS [2019] NZHC 2914

[7 November 2019]

HAWKES BAY SEAFOOD LIMITED

Fifth Interested Party

NAPIER INDEPENDENT TRUSTEES LIMITED
Sixth Interested Party

ANZ BANK NEW ZEALAND LIMITED
Seventh Interested Party

BAHARA BAS FISHING LIMITED
Eighth Interested Party

HEARTLAND BANK LIMITED
Ninth Interested Party

Hearing:	4 November 2019
Counsel:	A Britton and S McCusker for the Applicant
Judgment:	7 November 2019

JUDGMENT OF DOOGUE J

Introduction

[1]                 The parties seek the approval of the Court for the settlement of these Criminal Proceeds (Recovery) Act 2009 (the Act) proceedings.

[2]                 Settlement is sought pursuant to s 95 of the Act on the ground that it is consistent with the purposes of the Act and overall interests of justice.

Background

[3]                 The Commissioner obtained a without notice  restraining  order  in  September 2014 restraining the respondents and interested parties from disposing of or otherwise dealing with a vast array of property consisting of interests in real property, motor vehicles, and cash.

[4]                 The first to third respondents and the fifth interested party were all charged with offences under the Fisheries Act 1996 and all entered guilty pleas. The parties were sentenced in the District Court at Wellington on 25 February 2019. Significant fines were imposed by way of penalty as follows:

HBS	OEL	ESP	MARCUS D’ESPOSITO	JOE D’ESPOSITO	NINO D’ESPOSITO
Starting point	$495,000	$247,500	$123,750	$185,625	$123,750	$61,875
Previous history	$12,375	$9,281	$6,187	$4,640
Good character	(18,562)
Steps taken	($12,375)	($6,496)	($3,325)	($4,076)	($3,248)	($1,662)
Guilty pleas	($72,393)	($38,006)	($19,455)	($22,348)	($19,003)	($9,727)
Butler	$31,183	$31,183
End point	$410,232	$215,373	$141,434	$126,639	$106,686	$86,309

Fines paid

[5]The following fines were paid by the respondents on 31 October 2019:

(a)the first respondent paid $91,489.00;

(b)the second respondent paid $106,736.00; and

(c)the third respondent paid $126,689.00.

Restraining orders

[6]                 Between the making of the original without notice restraining order and today’s date, there have been no fewer than five applications made by the applicant to remove property restrained by operation of the order.1

1      Applications dated 30 September 2014, 4 November 2014, 26 February 2015, 27 February 2018 and 9 March 2018.

The settlement

[7]Section 95 of the Act provides:

95High Court must approve settlement between Commissioner and other party

(1)The Commissioner may enter into a settlement with any person as to the property or any sum of money to be forfeited to the Crown.

(2)A settlement does not bind the parties unless the High Court approves it.

(3)The High Court must approve the settlement if it is satisfied that it is consistent with—

(a)the purposes of this Act; and

(b)the overall interests of justice.

[8]                 The Commissioner seeks to vary the order dated 22 September 2014 to delete from the ambit of that order the property identified at paragraphs 3 (b), (c), (e), (o) and

(p)  of the restraining order, namely:

(a)All interests in the property at 54 Duart Road, Havelock North, Hastings, registered in the names of Antonino Giovanni D’Esposito, Giancarlo Harold D’Esposito and Karin D’Esposito, and described in certificate of title HBV1/1280, legal description Lot 1 DP 24053, other than the interests of ANZ Bank New Zealand Limited under registered mortgage number 719878.2 (54 Duart Road).

(b)All interests in the property at 25 McHardy Street, Havelock North, Hastings, registered in two half-shares: one half-share in the names of Antonino Giovanni D’Esposito, Giancarlo Harold D’Esposito and Karin D’Esposito; and the remaining half-share in the names of the same parties, and described in certificate of title HB114/244, legal description Lot 1 DP 7236, other than the interests of the ANZ Bank New Zealand Limited under registered mortgage number 669421.1 (25 McHardy Street);

(c)All interests in the property at Apartment 406, 7 Humber Street, Pandora, Napier, registered in the names of Antonino Giovanni D’Esposito, Giancarlo Harold D’Esposito and Karin D’Esposito, and described in certificate of title 355599, legal description Unit 406 and

Accessory Unit 33 DP 388915, other than the interests of the ANZ Bank New Zealand Limited under registered mortgage number 8436201.3 (406/7 Humber Street);

(d)All interests in the property at 51 Airini Road, Waimarama, Hastings registered in  the  names  of  Marcus  Guiseppe  D’Esposito,  Antonino Giovanni D’Esposito and Maree Yvonne Newman, and described in certificate of title HBE3/1261, legal description Lot 2 DP 13250, other than the interests of the ANZ Bank New Zealand Limited under registered mortgage number 9254103.2 (51 Airini Road);

(e)Cash  to  the  value  of   $21,520.72   NZD   located   by   Police   at 50 Duart Road on 24 September 2014; and

(f)Cash to the value of $5,015.70 located by Police at 25 McHardy Street on 24 September 2014.

[9]                 The applicant and the respondents have reached an agreement that the matter may be settled subject to this Court’s approval on the basis that the respondents will forfeit the following:

(a)$253,404.62 representing the commercial value of the 27 tonnes of misreported Bluenose (BNS), the subject of the Operation Marquise prosecution under the Fisheries Act 1996;2

(b)$38,116.07 representing the use of money for $218,00.00 in avoided deemed values from 1 December 2014 to 20 February 2019 based on the Ministry of Justice’s civil debt interest calculator; and

(c)$27,420.00 representing the commercial value of the 1,142.5 kilograms of Pāua and knowingly and unlawfully receiving the subject of the separate Operation River (Pāua) prosecution under the Fisheries Act.3

[10]             It is also agreed that the respondents will pay $15,000.00 as a contribution towards the applicant’s costs.

2      Ministry for Primary Industries v Hawkes Bay Seafood Ltd & Ors [2019] NZDC 2599.

3      Ministry for Primary Industries v D’Esposito, CIV-2016-041-001835.

[11]             There is little doubt that some of the assets were tainted as a result of criminal offending and the respondents and interested parties do not take issue with that. There is also no doubt that significant proceeds ought to have been recompensed to the State.

[12]             The monetary value to be placed on that criminal activity (as distinct from the fines imposed) is  identified  in  the  decision  of  Judge  William  Hastings,  dated  25 February 2019. The Court need not undertake its own examination of that aspect of the matter as it is acknowledged by both parties that the above sums accurately represent the illicit gain in each case.

[13]I am satisfied in the circumstances that the settlement is consistent with:

(a)the purposes of the Act; and

(b)the overall interests of justice.

Result

[14]I make the following orders:

(a)the order dated 22 September 2014 is varied to delete the property listed at paragraph 3(a), (b), (c), (e), and (p);

(b)further, that the respondents deposit funds totalling $318,940.69 into the Official Assignee’s trust account by 5:00 p.m. on 8 November 2019;

(c)an order for costs is to issue against the respondents in favour of the applicant in the amount of $15,000.00 payable forthwith; and

(d)an order that the Official Assignee release to the respondents the property itemised in the amended application for forfeiture order.

[15]Otherwise, costs will lie where they fall.

Doogue J

Solicitors:

Crown Solicitor, Wellington Ocean Law, Nelson