Commissioner of Police v Afakasi

[2015] NZHC 1303

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-7207 [2015] NZHC 1303

UNDER

The Criminal Proceeds (Recovery) Act

2009

BETWEEN

THE COMMISSIONER OF POLICE Applicant

AND

HENRY AFAKASI First Respondent

ZEBULIN DAVOREN Second Respondent

KAINUI (BEN) KAUKASI Third Respondent

LOIS CARNACHAN Fourth Respondent

VADI TOBIA Fifth Respondent

JORDAN IOANE Sixth Respondent

TINO LAVEA Seventh Respondent

JOHN FETU Eighth Respondent

Hearing:	3 June 2015
Appearances:	T Refoy-Butler for Applicant Commissioner R Mansfield and N Dobbs for Second Respondent
Judgment:	10 June 2015

JUDGMENT OF WHATA J

THE COMMISSIONER OF POLICE v DAVOREN [2015] NZHC 1303 [10 June 2015]

This judgment was delivered by Justice Whata on

10 June 2015 at 9.30 a.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Meredith Connell, Crown Solicitors, Auckland

Copy to:
R M Mansfield, Auckland

[1]      I have before me a joint memorandum of counsel for the Commissioner and counsel for Mr Davoren (second respondent) regarding a proposed settlement in relation to an application for restraining of forfeiture orders in respect of identified property.

[2]      The Commissioner filed affidavits of Christopher Allan, sworn 29 November

2012 and 18 December 2012 in support of the application.  A notice of opposition was filed by Mr Davoren, dated 14 February 2013, but no evidence was filed in support.

[3]      Some of the property while under the effective control of Mr Davoren was held in other parties’ names and these parties were served, but have subsequently taken no steps in the proceedings.

[4]      It was then agreed that the Commissioner would defer his application for forfeiture orders until after conclusion of a related criminal proceeding.

[5]      Following trial in 2014, Mr Davoren was convicted of 31 counts including manufacturing methamphetamine, possessing methamphetamine equipment, precursor substances and materials, supplying methamphetamine, offering methamphetamine for supply, conspiring to supply methamphetamine, offering pseudoephedrine for supply, supplying pseudoephedrine, perverting the course of justice and participating in an organised criminal group.

[6]      Mr Daveron was sentenced to 18 years and six months’ imprisonment with a

minimum period of imprisonment of 50 per cent.

[7]      Mr  Daveron  and  the  Commissioner  have  reached  a  proposed  settlement whereby:

(a)       Mr  Daveron  will  abandon  his  opposition  to  the  Commissioner’s

application for assets forfeiture orders in respect of the property;  and

(b)      Costs will lie where they fall.

Assessment

[8]      Given that there is no dispute that:

(a)       The identified assets are the proceeds of crime. (b)     Mr Daveron is the owner of the assets.

I am satisfied that it is in the interests of justice that the orders be approved as sought by consent in accordance with s 95 of the Criminal Proceeds (Recovery) Act 2009.

[9]      There shall be orders accordingly in terms of the draft asset forfeiture orders provided by counsel in the terms set out as follows:

(a)       Assets forfeiture orders pursuant to s 50 of the Act, in particular:

The following property vests in the Crown absolutely and is to be in the

Official Assignee’s custody and control:

(i)        2005    Landrover    Range    Rover    registration    EJM189 registered to Sose Meafou, located on 5 November 2012 at

64 Luke Road, Otahuhu, South Auckland (Landrover);

(ii)      1962 Chevrolet Impala registration GGQ362 registered to

Carl James Senkus, located on 2 November 2012 at 182

Wairau   Road,   Wairau   Park,   North   Shore   (Chevrolet

GGQ362);

(iii)      2008 Ford FG XR6 registration ERE416 registered to Tui Hurrell, located on 13 November 2012 at 22 Rountree Place, Takanini, South Auckland (Ford FG XR6);

(iv)     2004  LVVTA  BMC  280  Roadbike  registration  JWHOG

registered to Daniel Ralph Harvey, located on 2 November

2012  at  26  Lovegrove  Crescent,  Otara,  South  Auckland

(Roadbike);

(v)      2001 Nissan Skyline GTR registration GKZ360 registered to

Dean Stewart Blake, located on 1 November 2012 at 30

Myers Road, Manurewa, South Auckland (Nissan Skyline);

(vi)      1966  Chevrolet  Impala  registration  GLL336  registered  to Sara  Rosemary  Giles,  located  on  2  November  2012  at Wairau   Road,   Wairau   Park,   North   Shore   (Chevrolet GLL336);

(vii)     1966   Ford   Mustang   registration   FDC264   previously registered to Marc Colin Clough, located on 2 November

2012 at 182 Wairau Road, Wairau Park, North Shore (Ford

Mustang);

(viii)    2006 Mercedes Benz 55 V8 Kompressor EQJ19 registered to Siaale Taufa Moimoi of 78 Commissariat Road, Mt Wellington, yet to be located (Merecedes);

(ix)     $61,240.00 cash seized by police on 1 November 2012 from

30 Myers Road, Manurewa, the home address of Jasmine

Giles, partner of Zebulin Davoren (Myers Road Cash); and

(x)      $1,405.00 cash seized by police on 1 November 2012 from

60/68 Mountain Road, Mt Wellington, the  home address of Anna Kaukasi, partner of Zebulin Davoren (Mountain Road Cash).

[10]     Costs to lie where they fall.