Commissioner of New Zealand Police v Rowland
[2019] NZHC 3314
•13 December 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-166
[2019] NZHC 3314
UNDER the Criminal Proceeds (Recovery) Act 2009 IN THE MATTER OF
an application under ss 21,24 and 25
BETWEEN
COMMISSIONER OF NEW ZEALAND POLICE
Applicant
AND
MATTHEW AARON ROWLAND
First Respondent
AND
ASHLEIGH MARIE ZAMMIT
Second Respondent
AND
NICOLA ELIZABETH ALLEN
First Interested Party
AND
MARTIN ALBERT ZAMMIT
Second Interested Party
Hearing: 9 December 2019 Appearances:
S B McCusker for Applicant
V Nisbet and P Paino for Second Respondent
Judgment:
13 December 2019
JUDGMENT OF GRICE J
Introduction
[1] The applicant (the Commissioner) seeks an on notice application for restraining orders, effective control orders, and sale orders against property held by the first and second respondents under the Criminal Proceeds (Recovery) Act 2009 (the Act).
COMMISSIONER OF NEW ZEALAND POLICE v MATTHEW AARON ROWLAND [2019] NZHC 3314 [13
December 2019]
[2] Mr Rowland and Ms Zammit have both reached terms of settlement with the Commissioner. The Court’s approval of these settlements is sought under s 95 of the Act.
[3] This proceeding is related to Commissioner of Police v Peita.1 A settlement memorandum for Peita has also been filed. The respondent in that proceeding, Mr Stephen Peita, is an associate of Mr Rowland. The restrained property in that proceeding includes a Chevrolet motor vehicle registered in Mr Peita’s name. Mr Peita’s position is that this vehicle was at all times under the effective control of Mr Rowland. Mr Rowland acknowledges that this vehicle was under his effective control, and should be forfeit pursuant to his proposed profit forfeiture order in this proceeding.
Background
[4] On 13 September 2018, Mr Rowland was convicted on seven charges in relation to the importation, possession and supply of a class C controlled drug.
[5] Mr Rowland agrees that he received an unlawful benefit of $1,750,000 as a result of his significant criminal activity.
[6] As part of a proposed settlement, Mr Rowland has agreed to a profit forfeiture order for $1,7500,000. He also agrees that all property currently held under restraint will be forfeit to the Crown save for the following items which will be returned to Mr Rowland:
(a)A gold bracelet seized from the first respondent at the time of his arrest on 8 March 2018.
(b)A gold necklace seized from the first respondent at the time of his arrest on 8 March 2018.
1 Commissioner of Police v Peita, CIV-2018-485-165.
(c)A Rolex watch seized from 41 Te Puia Drive, Aotea, Porirua on 8 March 2018.
[7]The restrained property will include the Chevrolet motor vehicle in
Commissioner of Police v Peita referred to above.2
[8] The settlement outlined above is proposed to be full and final settlement of this proceeding against Mr Rowland. Costs are to lie where they fall.
Proposed resolution
[9] On 16 August 2018, Ms Zammit pleaded guilty to one representative charge of money laundering.
[10] As part of a proposed settlement, Ms Zammit disclaims any interest in the property said to be registered in her name, on the basis that it was all material times under the sole effective control of Mr Rowland. This property is to be forfeit as part of the profit forfeiture order agreed as part of Mr Rowland’s settlement.
[11] However, Ms Zammit continues to maintain an interest in a 2014 Mini Cooper motor vehicle currently subject to restraint orders.
[12] The 2014 Mini was purchased with a $15,000 loan provided by Ms Zammit’s parents and an $8,000 trade-in of a 2003 Mini Cooper motor vehicle registered in Ms Zammit’s name. Ms Zammit acknowledges that the 2003 Mini Cooper was purchased through the proceeds of her significant criminal offending.
[13] On the basis that the 2014 Mini was acquired through a combination of legitimate and tainted funds, the Commissioner and Ms Zammit have agreed that
$8,000 (being the trade-in value of the tainted 2003 Mini) should be forfeit to the Crown as part of an assets forfeiture order.
2 Commissioner of Police v Peita, at 1, above.
[14] If the settlement is approved on receipt of the funds, the Commissioner proposes to return the 2014 Mini to its registered owner, Mr Martin Zammit.
Background
Operation Manuka
[15] In 2017, the Wellington District Covert Operations Group Drug Squad commenced a criminal investigation called ‘Operation Manuka’ targeting the importation and sale of large quantities of the class C controlled drug N- Ethylpentylone, primarily focussing on Mr Rowland and his associates.
[16] Two without notice restraining orders were granted by the Court in this proceeding. The first related to assets held by Mr Rowland and Ms Zammit in New Zealand. The second concerned various assets held by Mr Rowland in the United Kingdom.
The first restraining order
[17] On 7 March 2018, the Commissioner made a without notice application for restraining order in respect of property held by Mr Rowland and Ms Zammit. A global order was sought in respect of all property located on termination of Operation Manuka.
[18] The without notice restraining order was granted by the Court on 7 March 2018.
[19] On 8 March 2018, the police terminated Operation Manuka. Mr Rowland and Ms Zammit were arrested and charged the same day.
[20] On 13 March 2018, the applicant filed its first on notice application for restraining orders. The first on notice application related to property which was subject to the earlier without notice restraining order, as well as property which was located and restrained following termination of Operation Manuka.
[21] An amended version of the first on notice application was filed with the Court on 10 May 2018. The property subject to this application was extensive.
The second restraining order
[22] Following termination of Operation Manuka, the Commissioner conducted an analysis of bank accounts belonging to Mr Rowland, Ms Zammit and other interested parties. The analysis revealed the transfer from these accounts to bank accounts held by Mr Rowland in the United Kingdom.
[23] Further investigation of Mr Rowland’s bank records revealed the existence of several properties in the United Kingdom which he appeared to have an ownership interest in.
[24] On 20 April 2018, the Commissioner filed an application for a without notice restraining order in respect of the property held by Mr Rowland in the United Kingdom, as well as his United Kingdom bank accounts.
[25] The without notice restraining order was granted by the Court on 26 April 2018.3 An on notice application in respect of this property was filed on 2 May 2018.
[26] The restraining order relates exclusively to assets held by Mr Rowland in the United Kingdom.
[27] Following the grant of orders in New Zealand, a request was made by the Attorney-General to the United Kingdom pursuant to s 21 of the Mutual Assistance in Criminal Matters Act 2002 (MACMA) for enforcement of the restraining order.
[28] A restraining order was made by the Crown Court at Preston on 10 July 2018 under the UK Proceeds of Crimes Act 2002 (the POCA Restraining Order) in relation to these assets.
3 Commissioner of New Zealand Police v Rowland & Zammit, HC Wellington CIV-2018-485-166, 26 April 2018 (Order of Simon France J).
Mr Rowland’s sentencing
[29] On 28 June 2018 Mr Rowland pleaded guilty to the following charges following a sentencing indication hearing:
(a)One charge of conspiring to import a class C controlled drug, pursuant to s 6(2A)(c) of the Misuse of Drugs Act 1975 (MODA).
(b)One charge of importing a class C controlled drug, pursuant to ss 6(1)(a) and 2(c) of the MODA.
(c)Three charges of supplying a class C controlled drug pursuant to ss 6(1)(e) and 2(c) of the MODA.
(d)One charge of possession of a Class C controlled drug for sale, pursuant to ss 6(1)(f) and 2(c) of the MODA.
[30] The notes of sentencing indication record that Mr Rowland organised 28 imports of N-elthylpentylone from a two year period from April 2016 to March 2018. The importations totalled 17.3 kg, with a street value of at least $1,750,000.
[31] On 13 September 2018, Mr Rowland was sentenced to four years and seven months imprisonment.
Ms Zammit’s sentencing
[32] On 16 August 2018, Ms Zammit pleaded guilty to one representative charge of money laundering.
[33] The Summary of Facts establish that Ms Zammit laundered $219,489 in the proceeds of Mr Rowland’s drug dealing.
Jurisdictional issues regarding enforcement of restraining order
[34] As noted above, several of the restrained assets in this proceeding are located in the United Kingdom.
[35] As the Commissioner and the respondent agree that this property should be forfeit, the Attorney-General will be required to make a request to United Kingdom authorities pursuant to s 21(b) of the MACMA.
[36] If the proposed settlement is approved by the Court, a mutual assistance request will be made by the Commissioner to Crown Law. On receipt of the request, it is anticipated that the authorities in the United Kingdom will deal with the order under the Proceeds of Crimes Act 2002 (UK) and apply for orders necessary in that jurisdiction.
Mr Rowland and Ms Zammit’s interests in the property to be forfeit
Mr Rowland’s interests in the property to be forfeit Mr Rowland’s interests
[37] Mr Rowland acknowledges that he either has an ownership interest in, or effective control of, the property referred to at paragraph (c) of the draft profit forfeiture order attached.
[38]He agrees that the property should be forfeit on that basis.
Ms Allen’s interests
[39] The property referred to at paragraphs (c)(iii), (vii), (xiv)–(xvii) of the draft profit forfeiture order (attached) are said to be registered in the name of the first interested party, Ms Nicola Elizabeth Allen (Ms Allen).
[40] Ms Allen is Mr Rowland’s mother. She acknowledges having no interest in the property said to be registered in her name, and agrees that it is under Mr Rowland’s effective control. She is a signatory to the memorandum for that purpose.
Mr Peita’s Chevrolet
[41] A 1991 Chevrolet C1500 Utility motor vehicle, registration plate KES455 (the Chevrolet) is restrained pursuant to a without notice restraining order in the proceedings relating to Mr Rowland’s associate, Mr Peita.
[42] Mr Peita has disclaimed any interest in the Chevrolet on the basis that it was at all times under the effective control of Mr Rowland.
[43] Mr Rowland accepts that the Chevrolet was under his effective control, and should be forfeit pursuant to a profit forfeiture order in his name.
Ms Zammit’s interest in the property to be forfeit
[44] The amended on notice application for restraining order dated 10 May 2018 records the following property allegedly owned by Ms Zammit:
(a)All interests in the property situated at 117 Grey Street, Woodville, registered in the name of Ashleigh Marie Zammit, and described in certificate of title HBP2/1011, legal description Lot 4 DP 22562 (the Grey Street Property); and
(b)A 2006 Audit motor vehicle including ignition keys, registration plate B5GHL, and registered in the name of Ashleigh Marie Zammit (the Audi).
[45] Ms Zammit disclaims any interest in the Grey Street property and the Audi on the basis that both items of property were under the effective control of Mr Rowland. Mr Rowland acknowledges and accepts that the Grey Street property and the Audi were under his effective control at all material times.
[46] Ms Zammit also disclaims any interest in property said to be under her joint effective control with Mr Rowland, on the basis that Mr Rowland exercised effective control over that property at all material times.
[47]The exception to this is the property referred as:
A 2014 Mini Cooper motor vehicle including ignition keys, registration plate KUK259, and registered in the name of the second interested party, Martin Albert Zammit and under the effective control of the respondents (Rowland) and (Zammit) (the 2014 Mini).
[48] Mr Rowland agrees that, with the exception of the 204 Mini, he exercised sole effective control over all the property currently under restraining and which is intended to be subject to the proposed profit forfeiture order.
The 2014 Mini
[49]The 2014 Mini was purchased on 17 February 2018 for $23,000.
[50] The vehicle was purchased with a $15,000 loan provided by Ms Zammit’s parents and an $8,000 trade-in on a 2003 Mini Cooper (the 2003 Mini), the registration plate BSM535, registered in the name of Ms Zammit.
[51] The 2014 Mini was registered in the name of Ms Zammit’s father, Mr Martin Zammit. The affidavit in support of the without notice restraining order notes that Mr Zammit offered to put the vehicle into his name on the basis that he may later purchase it off Ms Zammit.
[52] The Commissioner has undertaken inquiries of the previous owner of the 2003 Mini who confirms that $8,400 was deposited into a UDC Finance account to pay for the vehicle. There is no evidence of withdrawals from Mr Rowland’s or Ms Zammit’s bank accounts around this time to account for payment of the vehicle.
[53] The Commissioner, Ms Zammit, and Mr Rowland agree that the 2003 Mini was acquired with funds procured from Ms Zammit’s significant criminal activity. Consequently, the parties further agree that Ms Zammit’s interest of $8,000 in the 2014 Mini is tainted property for the purposes of s 5 of the Act.
[54] The Crown accept that Mr Zammit had no knowledge of, or involvement with, the significant criminal activity undertaken by the respondents. As registered owner of the vehicle, he consents to the release of the 2014 Mini in the manner outlined in the draft asset forfeiture order attached. He is a signatory to the settlement memorandum for that purpose.
Proposed settlement for Mr Rowland
[55]The Commissioner and Mr Rowland agree:
(a)Mr Rowland has been involved in significant criminal activity as defined by s 6 of the Act.
(b)Mr Rowland received an unlawful benefit of $1,750,000 from his significant criminal activity for the purposes of s 53 of the Act.
(c)The maximum recoverable amount under s 54 of the Act is $1,750,000.
(d)The property to be disposed of are those assets listed at paragraph (c) of the draft profit forfeiture order (attached). This will include the Chevrolet restrained in the proceedings Commissioner of Police v Peita.4
(e)On the granting of the orders, the following items should be released from restraint and returned to Mr Rowland:
(i)The gold watch;
(ii)The gold necklace; and
(iii)The Rolex.
[56] The parties have agreed the proposed settlement will be in full and final settlement of any claims the Commissioner may have against Mr Rowland and costs will lie where they fall.
4 Commissioner of Police v Peita HC Wellington CIV-2018-485-165.
Approval of settlement
[57] The Commissioner and Mr Rowland sought approval of the High Court for this settlement pursuant to s 95 of the Act on the grounds that it is consistent with the purposes of the Act and the other overall interests of justice.
[58]In the parties’ submission:
(a)The assets to be forfeit are valued at approximately between $1,640,000 to $1,750,000.
(b)All assets accepted to be under Mr Rowland’s ownership or effective control – save for the gold watch, the gold necklace and the Rolex – are to be forfeit to the Crown. The Commissioner is not aware of any other assets of value belonging to Mr Rowland which are capable of being forfeit.
(c)The gold watch, gold necklace and Rolex are valued at approximately
$24,800. Valuations were produced. The Commissioner acknowledges these have sentimental value for Mr Rowland.
(d)Further given the costs of any potential litigation relative to the value of these items, the Commissioner submits that the settlement reached is fair and equitable.
Proposed settlement for Ms Zammit
[59] The Commissioner and Ms Zammit have agreed subject to orders of the Court that:
(a)Ms Zammit disclaims any interest in all of the property restrained in this proceeding with the exception of the 2014 Mini.
(b)Ms Zammit’s $8,000 interest in the 2014 Mini was directly or indirectly derived from her significant criminal activity and is tainted property for the purposes of s 5 of the Act.
(c)An asset forfeiture order is to be made in relation to funds totalling
$8,000 which are to be deposited by Ms Zammit into the New Zealand Insolvency & Trustee Service Proceeds of Crime Account.
(d)Upon approval of this settlement by the Court:
(i)Ms Zammit will deposit $8,000 into the Trust Account.
(ii)On forfeiture of the funds, the Commissioner will return the 2014 Mini to its current registered owner, Mr Zammit.
(iii)This settlement will be in full and final settlement of any claims the Commissioner may have against Ms Zammit in CIV-2018- 485-166. Costs will lie where they fall.
(iv)Mr Zammit, as registered owner of the 2014 Mini, consents to an order being made on this basis.
Approval of settlement
[60] The Commissioner and Ms Zammit seek approval of the High Court for the proposed settlement pursuant to s 95 of the Act on the grounds that it is consistent with the purpose of this Act and the overall interests of justice.
[61] In my view the agreed settlement is consistent with the purpose of the Act and the overall interests of justice as:
(a)The settlement amount of $8,000 represents the totality of Ms Zammit’s tainted interest in the 2014 Mini.
(b)While Ms Zammit pleaded guilty to laundering the proceeds of Mr Rowland’s significant criminal activity to the amount of $219,489, and there are other restrained assets in Mr Rowland’s name (notably the Audi and Grey Street property) which may be able to meet a profit forfeiture order, Ms Zammit has disclaimed in any interest in this
property on the grounds that it was at all times under Mr Rowland’s effective control. As noted above, the Audi and the Grey Street property will be forfeit by Mr Rowland as part of his proposed profit forfeiture order. On the basis that all other property under restraint will be subject to Mr Rowland’s profit forfeiture order, there are no known assts belonging to Ms Zammit which might be able to meet this shortfall.
Orders sought by consent
[62] The Commissioner and Mr Rowland agree that the following orders and directions can be made by consent:
(a)That the profit forfeiture orders can be made in terms of the draft order attached.
(b)Costs are to lie where they fall.
[63] The Commissioner and Ms Zammit agree that the following orders and directions can be made by consent:
(a)That the asset forfeiture orders be made by consent in terms of the draft order attached.
(b)Following the making of the order and the transfer of the $8,000 to the Trust Account, the Commissioner is to return the 2014 Mini to its registered owner, Mr Zammit.
(c)Once those orders have been granted, these proceedings against Ms Zammit will be at an end.
(d)Costs are to lie where they fall.
[64] I am satisfied on the basis set out above that the grounds have been made out for the orders sought in terms of s 58 of the Act (the property is to be treated as though
he has an interest in it) and/or s 25 that the relevant party has benefited from significant criminal activity as set out above.
[65]Orders are made accordingly.
Grice J
Solicitors:
Crown Law Office, Wellington for Respondent
SCHEDULE
Property – Rowland
DRAFT ORDER
(a)The value of the benefit determined in accordance with s 53 of the Act is $1,750,000;
(b)The maximum recoverable amount is $1,750,000; and
(c)The following property is to be realised:
(i)All interests in the property situated at 117 Grey Street, Woodville, registered n the name of Ashleigh Marie Zammit, and described in certificate of title HBP2/1011, legal description Lot 4 DP 225562, which is unencumbered and under the effective control of the first respondent (Rowland)(the Grey Street property);
(ii)All interests in a removable house identified by the reference S570 and currently stored at Alpha Specialised Movers Limited, 1110 Maymorn Road, Maymorn, Upper Hutt and under the effective control of the first respondent (Rowland)(the removable house);
(iii)A 2013 Holden HSV Clubsport motor vehicle including ignition keys, registration plate HDD135, and registered in the name of the first interested party, Nicola Elizabeth Allen and under the effective control of the first respondent (Rowland) (the Holden);
(iv)A 2007 Mercedes-Benz motor vehicle including ignition keys, registration plate JAH195, and registered in the name of the first respondent (Rowland)(the Mercedes-Benz);
(v)A 2006 Audi motor vehicle including ignition keys and a personalised registration plate BADRS4, and registered in the name of the second respondent (Zammit)(the Audit);
(vi)A 2013 Harley Davidson motor cycle including ignition keys, registration plate B5GHL, and registered in the name of the first respondent (Rowland) (the 2013 Harley Davidson);
(vii)A 2012 Harley Davidson motorcycle including ignition keys, registration plate A6TAK, and registered in the name of the first interested party, Nicola Elizabeth Allen and under the effective control of the first respondent (Rowland)(the 2012 Harley Davidson);
(viii)Approximately $3,781.91 in funds, being the contents of a Bank of New Zealand bank account numbered 0772-003607-00 in the name of Matthew Rowland and under the effective control of the respondent (Rowland);
(ix)Cash totalling $1,912.60 seized from the first respondent at the time of his arrest on 8 March 2018;
(x)A Mercedes-Benz wheel with tyre seized from 41 Te Puia Drive, Aotea, Porirua on 8 March 2018;
(xi)Cash totalling $13,088.30 seized from 41 Te Puia Drive, Aotea, Porirua on 8 March 2018;
(xii)14.13 Bit Coins seized from the first respondent’s virtual online wallet on 8 March 2018;
(xiii)34.999601 Ethereum seized from the first respondent’s virtual online wallet on 8 March 2018;
(xiv)Cash totalling $250,000 seized from a storage locker at All Safe Storage, 1 Heriot Drive, Porirua on 8 March 2018 registered in the name of the first interested party, Nicola Elizabeth Allen and under the effective control of the first respondent (Rowland);
(xv)Four matching Mercedes-Benz wheels and tyres seized from a storage locker at All Safe Storage, 1 Heriot Drive, Porirua on 8 March 2018 registered in the name of the first interested party, Nicola Elizabeth Allen, and under the effective control of the first respondent (Rowland);
(xvi)One Mercedes-Benz wheel and tyre seized from a storage locker at All Safe Storage, 1 Heriot Drive, Porirua on 8 March 2018 registered in the name of the first interested party, Nicola Elizabeth Allen, and under the effective control of the first respondent (Rowland);
(xvii)Cash totalling $155,000 seized from a storage locker at Storage One, 4 Jupiter Grove, Trentham, Upper Hutt on 8 March 2018 registered in the name of the first interested party, Nicola Elizabeth Allen, and under the effective control of the first respondent (Rowland);
(xviii)$6,547.97, being a refund from Mitre 10 Porirua of a cash deposit paid by the first respondent (Rowland) for a kitchen and bathroom suite for the removable house, currently being held by the Official Assignee;
(xix)A refundable bond of $2,400 held by Tenancy Services but under the effective control of the first respondent (Rowland);
(xx)All interests in the property situated at 18 Orme Street, Blackpool, FY1 4AL, United Kingdom, registeredin the name of Matthew Aaron Rowland, and described in certificate of title
LA452692, which is unencumbered and under the effective control of the first respondent (Rowland) (the 18 Orme Street property);
(xxi)All interests in the property situated at 19 Orme Street, Blackpool, FY1 4AL, United Kingdom, registered in the name of Matthew Aaron Rowland, and described in certificate of title LAN130921, which is unencumbered and under the effective control of the respondent (Rowland)(the 19 Orme Street property);
(xxii)All interests in the property situated at 33 Montrose Avenue, Blackpool, FY1 4AS, United Kingdom, registered in the name of Matthew Aaron Rowland, and described in certificate of title LA749794, which is unencumbered and under the effective control of the respondent (Rowland)(the Montrose Avenue property);
(xxiii)All interests in the property situated at 40 South King Street, Blackpool, FY1 4NJ, United Kingdom, registeredin the name of Matthew Aaron Rowland, and described in certificate of title LA657978, which is unencumbered and under the effective control of the respondent (Rowland) (the South King Street property);
(xxiv)The contents of a Halifax bank account number: 12287962 and Sort Code number: 11-00-65 in the name Matthew Rowland, with a balance of just under £48,330.52 as at 19 April 2018, and under the effective control of the respondent (Rowland);
(xxv)The contents of a Royal Bank of Scotland account number: 10191133 and Sort Code number: 16-30-25 in the name of Matthew Rowland, with a balance of £61,000 as at 16 April
2018 and under the effective control of the respondent (Rowland);
(xxvi)The contents of a Co-Operative Bank account number: 05208917 and Sort Code number: 08-90-66 in the name Matthew Rowland, with a balance of £18,300 as at 16 April 2018, and under the effective control of the respondent (Rowland); and
(xxvii)The net rental income, after deductions for contractual property management fees and maintenance costs, earned from the properties described in subparagraphs (xxiii)-(xxvi) above.
(xxviii)A 1991 Chevrolet C1500 Utility motor vehicle including ignition keys registration plate KES455, registered in the name of Steven Trent Peita and under the effective control of the respondent (Rowland) (the Chevrolet), and currently restrained int e proceeding Commissioner, The New Zealand Police v Peita CIV-2018-485-165.
[66]The following property is to be returned to the first respondent:
(a)A gold bracelet seized from the first respondent at the time of his arrest on 8 March 2018;
(b)A gold necklace seized from the first respondent at the time of his arrest on 8 March 2018;
(c)A Rolex watch seized from 41 Te Puia Drive, Aotea, Porirua on 8 March 2018.
[67] The following property is property over which the Court is satisfied that Matthew Aaron Rowland has effective control of the items of property referred to at paragraphs 4(c)(1)-(iii), (vii)–(viii), (xiv)–(xxvi) and (xxviii).
Property – Zammit
(a)Funds totalling $8,000 to be deposited by the second respondent, Ms Ashleigh Marie Zammit, into the New Zealand Insolvency & Trustee Service Proceeds of Crime Account.
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