COMMISSIONER OF POLICE AND MARTIN JOHN PIPER TROY KAKAU SHANNON HONETUHI RAYNER Cont:…/2

[2024] NZHC 3210

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1777

[2024] NZHC 3210

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

MARTIN JOHN PIPER

First Respondent

TROY KAKAU
Second Respondent

SHANNON HONETUHI RAYNER
Third Respondent

Cont:…/2

Hearing:

On the papers

Counsel:

R W Jenson for Applicant

N M Dutch for Third Respondent

Judgment:

31 October 2024

JUDGMENT OF WILKINSON-SMITH J

This judgment was delivered by me on 31/10/2024 at pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Pollett Legal Ltd, Tauranga N M Dutch, Tauranga

COMMISSIONER OF POLICE v PIPER & ORS [2024] NZHC 3210 [31 October 2024]

Continued…

AND

LISA MAY O’SULLIVAN

First Interested Party

TRADIN POST LIMITED
Second Interested Party

ANZ BANK NEW ZEALAND LIMITED

Third Interested Party

Introduction

[1]                 The Commissioner of Police and the third respondent Shannon Rayner seek approval of a settlement pursuant to s 95 of the Criminal Proceeds (Recovery) Act 2009 (the Act).

[2]                 The Commissioner of Police has applied for an assets forfeiture order for the following property:

(a)cash in the sum of $6,100.

[3]                 Additionally, the Commissioner filed an application for a profit forfeiture order to the value of the benefit of $647,644.64 with the only property to be realised being the property which is the subject of the assets forfeiture order.

[4]  The Commissioner and Mr Rayner have now agreed to a settlement subject to the Court’s approval pursuant to s 95 the Act.

[5]                 The respondent consents to an assets forfeiture order being made in respect of the restrained property on the basis that the Commissioner will discontinue the application for profit forfeiture order.

[6]  An amended application for an assets forfeiture order reflecting the proposed settlement has been filed.

Legal Principles

[7]                 Section 95 of the Act provides that 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, but that settlement does not bind  the parties unless approved by the  High Court.

[8]The High Court must approve the settlement if satisfied it is consistent with:1

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

(a)the purposes of the Act; and

(b)the overall interests of justice.

[9]                 In Commissioner of Police v Cherrington Toogood J set out the principles to be applied as follows:2

(a)civil litigation incurs substantial costs for the parties, a significant portion of which would not usually be recoverable under the rules of Court relating to payments of costs;

(b)it is in the public interest to avoid the burden on the Court of complex and lengthy civil litigation;

(c)there is also strong public interest in litigation of this nature being brought to a prompt conclusion, so long as the settlement reflects the likely costs and risks inherent in the determination of a contested application;

(d)approval of any settlement by the Court acting in its supervisory jurisdiction requires consideration of the legislative intent and the overall interests of justice and is not a rubber-stamping exercise; and

(e)a broad inquiry is required, recognising that the decision to settle proceedings under the Act may be made on economic and pragmatic grounds and often reflects a “common sense compromise” between the parties.

(footnotes omitted)

Discussion

[10]              The third respondent Mr Rayner came to the attention of police during a covert operation targeting the manufacture and supply of the Class A controlled drug, methamphetamine. The respondent was located at an address, together with two of the other respondents, midway through the process of manufacturing methamphetamine. He has now been convicted of:

(a)six counts of produce/manufacture methamphetamine;

(b)two counts of supply methamphetamine;

2      Commissioner of Police v Cherrington [2022] NZHC 1396 at [20].

(c)two counts of possess for supply the Class A controlled drug methamphetamine;

(d)three counts of possess precursor substance;

(e)possess precursor equipment;

(f)unlawful possession of firearm;

(g)unlawful possession of a pistol;

(h)possess for supply cannabis;

(i)cultivate cannabis;

(j)possess pipe or utensil for methamphetamine; and

(k)possess pipe or utensil for cannabis.

[11]              The Commissioner accepts that the value of the assets sought in the assets forfeiture order is significantly less than the profit forfeiture order amount initially claimed.

[12]              The Commissioner maintains that the third respondent has had the benefit of the value of the amount sought in the profit forfeiture application, but the Commissioner is satisfied that Mr Rayner does not have an asset base at his disposal necessary to satisfy the profit forfeiture order sought.

[13]              The Commissioner accepts it is unlikely that the value of any profit forfeiture order can be realised and proposes to approach the matters on a pragmatic basis whereby an assets forfeiture order of Mr Rayner’s available assets is viewed as full and final settlement in the proceedings.

[14]              The parties’ position is that the approach may assist in the third respondent’s overall rehabilitation and that upon his release from his sentence of imprisonment he

will not be disincentivised from pursuing legitimate avenues of employment and enrichment due to fear that the fruits of those efforts could be used to satisfy the balance of a profit forfeiture order. I note that rehabilitation is not a purpose of the Act but I agree that a realistic approach which acknowledges economic realities is in the interests of justice.

[15]              The parties submit that the resolution is in the interests of justice and provides for the prompt forfeiture of the relevant property without the need for further proceedings in relation to Mr Rayner.

[16]              The resolution is proposed in full and final settlement and there is no issue as to costs between the Commissioner and the third respondent.

[17]              Having regard to the matters upon which Mr Rayner has now been convicted and the fact he is serving a sentence of imprisonment, I am satisfied that the proposed settlement arrangement is consistent with the purpose of the Act and the overall interests of justice.

[18]              I accept the Commissioner’s position that there is a good case to show that the property which is subject to the proposed assets forfeiture order is tainted property. The proposed settlement diminishes the profit obtained by Mr Rayner from the criminal activity, although it is not reflective of the entire benefit that Mr Rayner obtained from the criminal activity. The reality however is that Mr Rayner has no other assets that can be realised and is unlikely to be in any position to meet a profit forfeiture order.

[19]I agree that there is an interest in bringing some finality to the matter.

Orders

[20]I make the following orders by consent:

(a)The settlement arrangement is approved by the Court pursuant to s 95 of the Act.

(b)The following property vests in the Crown absolutely; and is to be in the Official Assignee’s custody and control:

(i)Cash in the sum of $6,100, attributed to Shannon Rayner.

[21]              Costs lie where they fall in relation to all matters between the Commissioner and Mr Rayner.

Wilkinson-Smith J