Commissioner of Police v Avery aka Placid

[2024] NZHC 1425

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-184

[2024] NZHC 1425

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

ISAAC WIREMU AVERY also known as IZIC PLACID

First Respondent

AND

KELSEY ROSE MEHRTENS

Second Respondent

AND

GABRIELLE RIVERS

Interested Party

Hearing:	On the papers
Judgment:	31 May 2024

JUDGMENT OF HARLAND J

Introduction

[1]    This judgment determines an application for a Type I Assets Forfeiture Order made under the Criminal Proceeds (Recovery) Act 2009 (the Act). All of the parties agree the application should be granted and the orders sought should be made by consent.

Background

[2]    On 16 June 2023, Andrew J granted an application by the Commissioner of Police under the Act for restraining orders over the following items of property:

COMMISSIONER OF POLICE v AVERY [2024] NZHC 1425 [31 May 2024]

(a)        $391,177.20 cash located at 3 Primrose Street, Christchurch on 22 September 2021;

(b)       items of jewellery located at 3 Primrose Street, including a full sovereign gold ring, a half sovereign gold ring and a gold chain necklace;

(c)        two black Louis Vuitton handbags located at 3 Primrose Street;

(d)       $19,180 cash located at 45A Reginald Street, Burwood, Christchurch on 22 September 2021; and

(e)        10-carat gold and diamond earrings located at 45A Reginald Street and valued at approximately $1,400.

[3] The second respondent did not oppose the application but, although the first respondent was represented by Mr Huda, Mr Huda had no instructions in respect of the application and advised the Court that he had no expertise in proceedings under the Act. However, he said he would assist the first respondent to obtain legal advice about it. Andrew J proceeded to determine the application and granted it in respect of the property listed in para [2]. Leave was granted to the first respondent to apply to rescind or amend the orders made upon receipt of legal advice.

[4]The on-notice restraining orders made by Andrew J expire on 16 June 2024.

This application

[5]    The Commissioner has applied for a Type 1 Assets Forfeiture Order in respect of most of the items of property listed above that were restrained by Andrew J’s orders, save as in relation to the gold and diamond earrings referred to in [2](e) above.

[6]    The order is sought on the grounds that the proposed forfeited property is tainted property because it has, wholly or in part, been acquired as a result of significant criminal activity or directly or indirectly derived from significant criminal activity, namely the supply of methamphetamine.

[7]In relation to this, the Commissioner’s application notes:

(a)        the first and second respondents have pleaded guilty and been sentenced in relation to various drug charges, including supplying methamphetamine;

(b)       the first and second respondents acknowledge that the property listed in paragraph two is tainted property because it has, wholly or in part, been acquired as a result of significant criminal activity or directly or indirectly derived from significant criminal activity, namely the supply of methamphetamine;

(c)        the first and second respondents consent to forfeiture of the property listed at paragraph two; and

(d)       the interested party, who was residing with the first respondent at 3 Primrose Street on 22 September 2021, disavows any interest in the property listed at paragraph 2(a) to (c).

[8]    The application is made in reliance on ss 43, 44 and 49 of the Criminal Proceeds (Recovery) Act 2009. In support of the application, a memorandum of consent has been filed.1 It is signed by counsel for the Commissioner and the first respondent, counsel for the second respondent and the interested party.

[9]    I am satisfied, taking into account the memorandum of consent and having read the affidavit of Detective Glenn Forrest, sworn on 2 May 2023, as well as considering the principles that apply, that it is appropriate to grant the application by consent.

Result

[10]   The application is granted. I make orders in terms of the draft Type 1 Assets Forfeiture Order attached to the application.

Harland J

1      Dated 27 May 2024.