COMMISSIONER OF POLICE AND MATANGIKOLO PIUKANA Sixth SANLOLAN PIUKANA Tenth
[2024] NZHC 3274
•17 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-2318
[2024] NZHC 3274
UNDER the Criminal Proceeds (Recovery) Act 2009 BETWEEN
COMMISSIONER OF POLICE
Applicant
AND
MATANGIKOLO PIUKANA
Sixth Respondent
SANLOLAN PIUKANA
Tenth Respondent
Hearing: On the papers Counsel:
S Earl and E Rangamuwa for the Applicant K Hogan for the Sixth Respondent
D Dufty for the Tenth Respondent
Judgment:
17 December 2024
(REDACTED) JUDGMENT OF GORDON J
This judgment was delivered by me
on 17 December 2024 at 3 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors:
Meredith Connell, Auckland
COMMISSIONER OF POLICE v PIUKANA [2024] NZHC 3274 [17 December 2024]
[1] In this proceeding the Commissioner of Police (Commissioner) has obtained restraining orders under the Criminal Proceeds (Recovery) Act 2009 (Act) over property including the following property attributed to the sixth respondent, Matangikolo Piukana and the tenth respondent, his sister Sanlolan Piukana, as follows:1
(a)$264,051.91 formerly held in the Bank of New Zealand bank account [redacted], held in the name of Mr M Piukana and Ms S Piukana (Bank Funds);
(b)$316,900 cash seized by Police on 17 November 2021 from [redacted] (Waterview Cash); and
(c)$24,470 cash seized by Police on 17 November 2021 from [redacted] (Mangere Cash).
[2] The Commissioner and Mr and Ms Piukana now seek the Court’s approval of a settlement under s 95 of the Act.
[3] In summary, the proposed settlement involves a profit forfeiture order by consent against Mr and Ms Piukana jointly and severally, for an agreed amount of
$413,290. That sum is made up of the Waterview Cash, Mangere Cash and part of the Bank Funds.
[4] The Commissioner agrees to forego seeking a profit forfeiture order against both Mr and Ms Piukana for a higher sum on the basis that they have no other property that could be disposed of to meet such an order. The Commissioner further agrees to the release of a portion of the Bank Funds in recognition of the interests of family members of Mr and Ms Piukana in the Bank Funds.
1 In the joint memorandum filed for the purposes of seeking approval of settlement, counsel for the Commissioner notes that a number of other respondents in the proceeding are scheduled to be sentenced at various times within the next four months. It is further recorded that counsel understands there are suppression orders in place with respect to at least one of the other respondents. For that reason the Commissioner seeks suppression of the identifying particulars of the remaining respondents in this judgment. The other respondents are accordingly not named. They are also not mentioned in the intituling which refers only to the sixth and tenth respondents.
Background
[5] The restraining orders followed from an investigation by the National Organised Crime Group of the New Zealand Police and the New Zealand Customs Service, starting in July 2021 into the suspected importation of methamphetamine into New Zealand.
[6] Mr Piukana was part of one of three identified syndicates and was described as the “logistical organiser” of the methamphetamine importations at Auckland Airport.
[7] On 17 November 2021 Police executed search warrants at a number of addresses, including Mr Piukana’s home address where the Mangere Cash was found in his bedroom. Mr Piukana was arrested on the same day.
[8] The criminal proceeding against Mr Piukana was recently resolved with the entry of guilty pleas to one representative charge of importing methamphetamine and one representative charge of conspiring to import methamphetamine. He has yet to be sentenced.
[9] As recorded in the agreed summary of facts, Mr Piukana was employed as an Air New Zealand baggage handler. He received instructions from close associates to facilitate a number of methamphetamine importations predominantly from Malaysia. He assigned baggage handling staff to particular flights to collect the imported drugs which were subsequently driven off the airport grounds and supplied to other members of the syndicate.
[10] Mr Piukana’s role extended to handling cash, the proceeds of the syndicate’s importation. He stored large amounts of cash at the home of his sister, Ms Piukana, and her husband, Sitaleki Maka.
[11] The representative charge of importing methamphetamine relates to Mr Piukana’s involvement in three separate importations on 9 June 2021, 12 July 2021 and 31 July 2021. He accepted the 12 July 2021 importation related to 10 kilograms of methamphetamine. In relation to the two other importations, following a disputed
facts hearing, the Court held that sentencing will proceed on the basis that those two importations related to at least 100 kilograms of methamphetamine.2
[12] The representative charge of conspiracy to import methamphetamine relates to commercial quantities of methamphetamine during the period February 2021 to October 2021.
[13] Ms Piukana and Mr Maka were both initially charged with money laundering and participating in an organised criminal group. The criminal proceedings against the two of them have been resolved with both pleading guilty to one charge of receiving in relation to the Waterview Cash that was found at their home on 17 November 2021.
[14] The agreed summary of facts records that between 1 October 2021 and 17 November 2021 Ms Piukana and Mr Maka stored large amounts of cash at their home for Mr Piukana, the cash being the proceeds of methamphetamine importations that Mr Piukana completed.
[15] Ms Piukana and Mr Maka were both sentenced to 12 months’ home detention on 14 November 2024.
[16] The Commissioner has not yet filed an application for civil forfeiture orders against Mr and Ms Piukana.
[17] For completeness I note that the Commissioner has reached settlement with two other respondents, with orders approving the settlements under the Act being made on 1 May 2024 and 22 November 2024.
2 R v Prichard [2024] NZHC 3090 at [75].
The Commissioner’s position
[18] The “significant criminal activity”, for the purposes of s 6 of the Act, underlying the Commissioner’s case is the importation and supply of methamphetamine3 and also receiving.4
[19] As counsel for the Commissioner submits, both Mr and Ms Piukana’s involvement in the significant criminal activity cannot be disputed in light of their guilty pleas as referred to above.
[20] On the basis of the evidence available to the Commissioner, he considers it is clear that both Mr and Ms Piukana derived an unlawful benefit from the significant criminal activity. The Commissioner acknowledges that Mr Piukana did not physically take possession of imported methamphetamine but he facilitated its importation. When the value of the controlled drugs or cash that he handled is taken into account, he must have unlawfully benefited from his role in facilitating the importation of at least 110 kilograms of methamphetamine. Ms Piukana’s unlawful benefit is likely to encompass the value of the cash of which she had possession and handled.
[21] The Commissioner’s position is also that all of the restrained property is tainted. The Waterview Cash is the subject of Ms Piukana’s conviction for receiving and overall there is no legitimate explanation for the possession of both the Waterview Cash and the Mangere Cash when the modest declared income of both Mr and Ms Piukana is taken into account.
[22] In relation to the Bank Funds, having regard to the definition of tainted property, all funds in a specific bank account will become tainted as soon as the account is in receipt of at least some funds which were derived from significant criminal activity.5 On that basis, the Commissioner considers the entirety of the bank funds are tainted.
3 Misuse of Drugs Act 1975, s 6.
4 Crimes Act 1961, s 246.
5 Commissioner of Police v He [2022] NZHC 533 at [126].
[23] However, for the purposes of settlement, the Commissioner recognises the interests of family members of Mr and Ms Piukana and that a portion of the Bank Funds and the account appeared to have, at least in part, a legitimate purpose. The Commissioner recognises that the account from which those funds were restrained appears to have been set up as a family account prior to its receipt of cash during the offending period. The account was jointly held by Mr and Ms Piukana. The Commissioner acknowledges that it had a balance of $228,142.83 as at 31 May 2021, immediately prior to the start of the period of the offending as referred to above.
[24] As part of the settlement agreement, the balance of the Bank Funds not to be forfeited will be deposited into an account not operated by Mr and Ms Piukana.
Mr and Ms Piukana’s position
[25] While Mr and Ms Piukana acknowledge their convictions and the summaries of facts which were before the Court when they entered their guilty pleas, they deny the Commissioner’s allegations in this proceeding regarding the extent of their unlawful benefit from the significant criminal activity.
[26] They further say the wider family collectively own the funds in the bank account.
[27] The Commissioner undertook a compulsory examination of Mr Piukana’s wife under s 107 of the Act. During the examination, she confirmed the position of Mr and Ms Piukana regarding bank funds and also provided legitimate explanations for some of the cash found in her home with Mr Piukana. However, in the interests of certainty, both Mr and Ms Piukana are prepared to settle the proceeding on the terms I refer to below.
Proposed settlement
[28]The proposed settlement is on the following terms:
(a)A profit forfeiture order is to be made, by consent, against Mr and Ms Piukana, under s 55 of the Act, jointly and severally, as follows:
(i)the value of the benefit determined in accordance with s 53 of the Act is $413,290;
(ii)the maximum recoverable amount is $413,290;
(iii)the following property is to be disposed of:
(A)$316,900 cash seized by Police on 17 November 2021 from [redacted];
(B)$24,470 cash seized by Police on 17 November 2021 from [redacted]; and
(C)$71,920 from the restrained funds formerly held in the Bank of New Zealand bank account [redacted], held in the name of Mr and Ms Piukana.
(b)The restraining orders over the remainder of restrained bank funds, namely $192,131.91 formerly held in the Bank of New Zealand bank account [redacted], held in the name of Mr and Ms Piukana is to be rescinded, and returned to a nominated account by agreement between the Commissioner and Mr and Ms Piukana.6
(c)Mr and Ms Piukana agree to abandon all claims they may have, under the Act or otherwise, to any of the property forfeited under this settlement.
(d)The Commissioner will not pursue an application for a profit forfeiture order against Mr and Ms Piukana, for a greater value than what is stated above, on the basis of the significant criminal activity evidenced in the affidavits filed in this proceeding to date.
6 The nominated account is jointly held by Mr Piukana’s wife together with the sister of Mr and Ms Piukana. Neither is a respondent in the proceeding and neither has any convictions in relation to the underlying significant criminal activity.
(e)This settlement is in full and final settlement of the question of civil forfeiture of the property listed at [28(a)(iii)], as between the Commissioner, Mr and Ms Piukana, on the basis of the significant criminal activity evidenced in the affidavits filed in this proceeding to date.
(f)Costs in relation to this matter between the Commissioner, Mr and Ms Piukana, are to lie where they fall.
Statutory provision – approval of settlement
[29]Section 95 of the Act, which governs settlement, 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.
[30] First, as to the purposes of the Act: the primary purpose, in s 3(1) is to establish a regime for the forfeiture of property that has been derived directly or indirectly from significant criminal activity or that represents the value of a person’s unlawfully derived income. The ancillary purposes in s 3(2) include to eliminate the chance of persons to profit from undertaking or being associated with significant criminal activity and to deter significant criminal activity.
[31] The words “overall interests of justice” in s 95(3) require a broad inquiry.7 Relevant factors include the saving of time and cost and the litigation risk of a hearing
7 Commissioner of Police v Li [2018] NZHC 1566 at [32].
to the Commissioner and a respondent.8 The Courts have recognised that a decision to settle proceedings under the Act will often reflect a “pragmatic” arrangement or solution, a “common sense compromise” or a “sensible resolution” that will meet the purposes of the Act and the overall interests of justice.9 This Court has recently reiterated that there is a strong public interest in litigation under the Act being brought to a prompt conclusion.10
This case
[32] In their joint memorandum counsel set out a number of reasons why they submit that the proposed settlement is consistent with the purposes of the Act and the overall interests of justice. I set out some of those reasons below:
(a)There will clearly be a saving of time and cost if the proceeding is resolved by consent. Court time and resources will not be required in order to determine an application for civil forfeiture orders.
(b)Although the Commissioner considers there is a strong case to support forfeiture of all of the restrained property to meet a profit forfeiture order against both Mr and Ms Piukana, he also acknowledges that other family members may seek relief against forfeiture in relation to the Bank Funds. This position is reflected in the proposed settlement with the Waterview Cash and Mangere Cash being forfeited in their entirety and only a portion of the Bank Funds being forfeited.
(c)The release of some of the Bank Funds from restraint will be to family members who have interests in those funds and who have no convictions in relation to the underlying significant criminal activity.
(d)While the Commissioner considers he has a good case to show that Mr and Ms Piukana have unlawfully benefited from significant
8 Commissioner of Police v Kree [2013] NZHC 2972 at [11]; Commissioner of Police v Zhang
[2016] NZHC 930 at [8].
Commissioner of Police v Marsh [2022] NZHC 1032 at [5]; Commissioner of Police v Douglas
[2015] NZHC 1293 at [6]; and Commissioner of Police v Cherrington [2022] NZHC 1396 at [20].
10 Commissioner of Police v Feleti [2024] NZHC 3526 at [21].
criminal activity so as to support a profit forfeiture order for a greater amount than the amount in the agreement for settlement purposes, the Commissioner is not aware of any assets held by Mr or Ms Piukana beyond the restrained property that could be disposed of to meet a profit forfeiture order for a greater value.11
(e)While the Commissioner also considers he has a good case to show that the Bank Funds are tainted property in their entirety, he acknowledges that a large portion of those funds were acquired prior to the period of the offending and that various family members not charged with the offending that underlies the case in this proceeding, have interests in the Bank Funds.
(f)The parties acknowledge the risk inherent in a contested hearing. An agreed settlement provides certainty.
[33] When these reasons are considered collectively, I accept that what is proposed is consistent with the purposes of the Act and the interests of justice.
Result and orders
[34] Given I am satisfied that the proposed settlement is consistent with the purposes of the Act and the overall interests of justice as set out in s 95(3), under s 95 I must approve the settlement. I make the following orders, so as to give effect to the settlement:
(a)Profit forfeiture order under s 55 of the Act: a profit forfeiture order is made against Matangikolo Piukana and Sanlolan Piukana, jointly and severally, by consent:
(i)the value of the benefit determined in accordance with s 53 of the Act is $413,290;
11 A similar position was recognised in Commissioner of Police v Parkes [2019] NZHC 397 at [12].
(ii)the maximum recoverable amount is $413,290; and
(iii)the following property is to be disposed of:
(A)$316,900 cash seized by Police on 17 November 2021 from [redacted];
(B)$24,470 cash seized by Police on 17 November 2021 from [redacted]; and
(C)$71,920 from the restrained funds formerly held in the Bank of New Zealand bank account [redacted], held in the name of Matangikolo Piukana and Sanlolan Piukana (Portion of Bank Funds).
(b)Further directions under ss 33, 34 and 35 of the Act: the restraining orders over the remainder of restrained bank funds, namely
$192,131.91 formerly held in the Bank of New Zealand bank account [redacted], held in the name of Matangikolo Piukana and Sanlolan Piukana (Remainder of Bank Funds) is to be rescinded, and returned to a nominated account by agreement between the Commissioner, Matangikolo Piukana and Sanlolan Piukana.
(c)Costs: costs lie where they fall in relation to all matters as between the Commissioner, Matangikolo Piukana and Sanlolan Piukana.
[35] Further, as requested by the parties I note the further terms of the agreed settlement:
(a)Mr and Ms Piukana abandon all claims they may have, under the Criminal Proceeds (Recovery) Act 2009 or otherwise, to any of the property to be forfeited under this settlement.
(b)The Commissioner will not pursue an application for a profit forfeiture order under s 55 against Mr and Ms Piukana, for a greater value than
what has been agreed in this settlement, on the basis of the significant criminal activity evidenced in the affidavits filed in this proceeding to date.
(c)This settlement is in full and final settlement of the question of civil forfeiture of the property listed at [34](a)(iii)], as between the Commissioner and Mr and Ms Piukana, on the basis of the significant criminal activity evidenced in the affidavits filed in this proceeding to date.
[36] For completeness, I record that once the orders are sealed, the proceeding so far as it concerns Mr and Ms Piukana will be at an end.
Gordon J
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