Commissioner of Police v Barrett
[2024] NZHC 705
•28 March 2024
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2022-419-000226
[2024] NZHC 705
BETWEEN THE COMMISSIONER OF POLICE
Applicant
AND
KELLY SEAN BARRETT
Respondent
Hearing: 25 September 2023 Appearances:
K R L Guthrie for Applicant
K W Burroughs for Respondent
Judgment:
28 March 2024
JUDGMENT OF VAN BOHEMEN J
[application for an asset forfeiture order]
This judgment was delivered by me on 28 March 2024 at 3 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………..
Counsel/Solicitors:
Crown Solicitor, Hamilton K W Burroughs, Hamilton
THE COMMISSIONER OF POLICE v BARRETT [2024] NZHC 705 [28 March 2024]
[1] The Commissioner of Police applies under ss 43, 44 and 49 of the Criminal Proceeds (Recovery) Act 2009 (the Act) for an assets forfeiture order to be made with respect to $24,200.00 in cash that was seized from a car being driven by Kelly Sean Barrett on Boundary Road in Hamilton when the car was stopped and searched by police in January 2020.
[2] The Commissioner says the Court can be satisfied that it is more likely than not that the funds were either wholly or in part acquired or derived from significant criminal activity, being the possession of methamphetamine for supply.
[3] Mr Barrett opposes the application and says the funds were not acquired as a result of significant criminal activity but were the balance of a sum of $36,566.16 that was paid to him by the Department of Corrections when he was released from prison in 2015 and paroled to his daughter’s address in Morrinsville.
Relevant background
[4] In the early hours of 16 January 2020, the police stopped a BMW motor vehicle (registration ATA900) (the BMW) being driven by Mr Barrett. Daryl Walker was also in the BMW when it was stopped.
[5] The police officer who approached the driver’s side door observed a clear ziplock bag partially concealed between the driver’s seat and the centre console. Inside the ziplock bag were smaller ziplock bags containing a clear crystal-like substance, which the officer suspected was methamphetamine. The officer asked Mr Barrett to hand him the larger ziplock bag. Mr Barrett turned his back to the officer and, after about 10 to 20 seconds, handed a torn, empty piece of the bag to the officer.
[6] The officer directed Mr Barrett to get out of the vehicle and placed him under arrest, advised him of his rights under the New Zealand Bill of Rights Act 1990 and conducted a warrantless search of the vehicle.
[7] As a result of the search of the BMW, the police found eight ziplock bags each containing approximately one gram of methamphetamine. Thirteen additional unused ziplock bags and the torn remnants of the larger ziplock bag were also found. The
police also found, in a locked compartment in centre console, two bundles of cash totalling $24,200.00 wrapped in black plastic bags. Police photographs of the cash indicate it comprised $50 and $20 notes.
[8] Although the car was owned by Mr Walker’s son and Mr Walker advised police how to access the locked compartment, when police asked who the money in the compartment belonged to, Mr Barrett said that some of the money was his, although he did not answer when asked how much was his.
[9] Mr Barrett and Mr Walker were taken to the Hamilton Police Station and searched. The police found a further ziplock bag containing methamphetamine in Mr Barrett’s wallet and a small quantity of cannabis in his pants pocket.
[10] On 2 June 2021, Mr Barrett swore an affidavit in which he said that the $22,000 in cash found in the BMW was his money and did not belong to Mr Walker.1 Mr Barrett said he had received the money from the Department of Corrections when released from prison in 2015 and paroled to his daughter’s address in Morrinsville. Mr Barrett said that when he left prison, he was given a cheque for $36,566.16 which were his wages for working while in the prison release to work programme. It is not in dispute that Mr Barrett received a cheque for this amount from Corrections on 31 August 2015.
[11] In his first affidavit, Mr Barrett said that, after he arrived in Morrinsville, he opened a bank account into which he deposited the cheque. He said that, once the cheque had cleared, he withdrew over $30,000 in cash because he did not trust banks and, because he was on an unemployment benefit, he did not want his possession of the money being taken into account by WINZ.2 Mr Barrett said he gave the money to his daughter for safe keeping but that sometimes he took amounts from the cash. He also said that, sometimes, he gave other money to his daughter. Mr Barrett also said
1 On 12 September 2022, Mr Barrett swore a further affidavit in which he confirmed the evidence in the affidavit of 2 June 2021. He said, however, that he now understood that the value of the bundle of money was $24,000 rather than $22,000. He said it was his money and not funds from criminal activity.
2 Work and Income New Zealand (WINZ) is an organisation within the Ministry of Social Development.
that, not long before he was arrested, he went to his daughter’s place and collected the last of the money because he wanted to use it to buy a Harley Davidson motorcycle.
[12] On 21 July 2021, Mr Barrett was convicted of possessing methamphetamine for supply and was sentenced to a term of two years’ imprisonment.3
[13] Mr Walker pleaded guilty to and was convicted of being in possession of methamphetamine for supply and supplying methamphetamine. The sum of $15,000 in cash was located in Mr Walker’s pants pocket. That sum was later forfeited in accordance with s 32 of the Misuse of Drugs Act 1975.
[14] Mr Barrett has a number of previous convictions for drug offending. In 1987 and 1988, he was convicted of possessing cannabis and sentenced to terms of two months’ and three months’ non-residential periodic detention. In 1997, he was convicted of possession of cannabis for supply and sentenced to five months’ non- residential periodic detention. In 2000, he was convicted of cultivation of cannabis and sentenced to six months’ community supervision. In 2007, he was convicted of the manufacture of methamphetamine and sentenced to three years’ imprisonment cumulative on a sentence of six years’ imprisonment imposed for injuring with intent to cause grievous bodily harm. Mr Barrett has a number of other convictions for a variety of offending.
The case for the Commissioner
[15] Ms Guthrie, counsel for the Commissioner, submits that the Court can be satisfied that Mr Barrett’s claim to have retained a significant portion of the money paid to him by Corrections in 2015 is not credible, based on enquires undertaken by the police into:
(a)Mr Barrett’s bank account records;
(b)benefits that Mr Barrett applied for and received from the Ministry of Social Development (MSD);
3 Misuse of Drugs Act 1975, s 6(1)(f); maximum sentence life imprisonment.
(c)loans taken out by Mr Barrett from Instant Finance and Cash Converters; and
(d)Mr Barrett’s purchase of a Harley Davidson motorcycle in 2015.
[16] Ms Guthrie further submits that the Court can be satisfied, on the balance of probabilities, that the $24,200 found in the BMW is tainted property, considering:
(a)the money was found in a car in which methamphetamine was found in eight ziplock bags, each containing one gram of methamphetamine, and with other empty ziplock bags in which the methamphetamine could have been sold in smaller amounts;
(b)the evidence of Detective Haydon Sievwright of the quantities in which methamphetamine is commonly sold, and the prices at which those quantities were generally sold in January 2020;
(c)the amount of money found is consistent with the commercial sale of methamphetamine, both as the proceeds of sales and as a float to purchase further wholesale quantities of methamphetamine;
(d)Mr Barrett’s income at the time was insufficient to fund his living expenses which makes it improbable that the funds found in January 2020 were those paid out to him by Corrections in 2015, particularly when Mr Barrett had to fund the acquisition of the methamphetamine in his possession, which formed the basis of the charges on which he was convicted; and
(e)there is no other adequate explanation for Mr Barrett’s possession of that amount of money.
The case for Mr Barrett
[17] The case for Mr Barrett is that the money is his and was the remainder of the funds paid to him by Corrections upon his release from prison in August 2015.
Mr Barrett denied spending the money following his depositing the funds in the bank accounts he opened in September 2015. He further denied that the money found in the BMW was connected to the sale and purchase of methamphetamine.
Criminal Proceeds (Recovery) Act
[18] The purpose of the Act as set out in s 3 is, in summary, to establish a regime for the forfeiture of property or income derived from significant criminal activity, to reduce the opportunity for persons to profit from such activity and thereby to deter such activity. As is made clear in s 4(1) of the Act, property derived from significant criminal activity may be forfeited under the Act without the need for a conviction.
[19] Under s 5(1), tainted property is any property that has, wholly or in part, been acquired as a result of significant criminal activity or directly or indirectly derived from significant criminal activity.
[20] Under s 6, significant criminal activity means an activity engaged in by a person that, if proceeded against as a criminal offence, would amount to offending punishable by a maximum term of imprisonment of five years’ or more, or from which property or proceeds worth $30,000 or more have been acquired or derived. Section 6 also makes it clear that a person undertakes significant criminal activity regardless of whether he or she has been charged with or convicted or acquitted of an offence in connection with the activity.
[21] Under s 7, a person has unlawfully benefited from significant criminal activity if the person has knowingly, directly or indirectly, derived a benefit from significant criminal activity, whether or not he or she undertook or was involved in the activity.
[22] Under s 13, there is no need to identify the owner of the property of which an assets forfeiture order is sought.
[23] Part 2 of the Act sets out the criminal proceeds forfeiture regime. Under sub- pt 3, the Court may, on the application of the Commissioner, grant civil forfeiture orders, which include Type 1 assets forfeiture orders made under s 50 and Type 2 assets forfeiture orders made under s 50C.
[24] Sections 43 and 44 provide that the Commissioner may apply to the High Court for an assets forfeiture order.
[25] Section 49 provides that, in an application for a Type 1 assets forfeiture order, the Commissioner must specify the property alleged to be tainted property and the grounds for the Commissioner’s belief that the property is tainted property.
[26] Section 50 provides that the Court must make a Type 1 assets forfeiture order if satisfied, on the balance of probabilities, that the property specified in the Commissioner’s application is tainted property. The only exception to that requirement is where, under s 51, the Court may exclude certain property from an assets forfeiture order if it considers that undue hardship is reasonably likely to be caused to a respondent if that property were included in the order.
The nature of the Commissioner’s case
[27]As specified in the Commissioner’s application:
(a)the property alleged to be tainted is the $24,200 in cash seized by the police on 16 January 2020; and
(b)the grounds on which the Commissioner seeks the forfeiture of the
$24,200 in cash are that:
(i)it has wholly or in part been derived as a result of significant criminal activity, being possession of methamphetamine for supply; and/or
(ii)it was directly or indirectly derived from significant criminal activity, being possession of methamphetamine for supply.
[28] The Commissioner’s case that the cash is tainted property is based on circumstantial evidence. As the Court of Appeal said in Commissioner of Police v de Wys, another case where the Commissioner sought the forfeiture of funds:4
[9] Circumstantial evidence allows a fact-finder to infer that a particular fact exists, even if there is no direct evidence of it. A single piece of circumstantial evidence will generally allow for more than one explanation. However, a number of separate items of circumstantial evidence, when considered together, may strongly support the drawing of a particular inference. Circumstantial evidence derives its force from the involvement of a number of factors that independently point to a particular factual conclusion. The analogy that is often drawn is that of a rope: any one strand of the rope may not support a particular weight, but the combined strands are sufficient to do so.
[10] It is only the ultimate issue in a circumstantial case that must be proved to the required standard. In this case that issue is whether the respondents benefitted from significant criminal activity. The Commissioner must prove that they did, on the balance of probabilities. He is not required, however, to separately prove each individual strand of evidence to the balance of probabilities standard before the Court can take that evidence into account. In Thomas v R this Court observed that “[it] is the totality of [the] narrative to which the formula ‘beyond reasonable doubt’ applies”.
(footnotes omitted)
[29]The relevant strands of evidence in the present case include:
(a)the evidence of the cash and the circumstances in which it was found;
(b)the evidence of Detective Sievwright about the quantities in which methamphetamine is generally sold and the prices for which those quantities were typically sold in January 2020;
(c)the evidence of Mr Barrett’s income and expenditure over the relevant period, which includes:
(i)Mr Barrett’s bank accounts;
(ii)Mr Barrett’s applications to MSD;
4 Commissioner of Police v de Wys [2016] NZCA 634.
(iii)Mr Barrett’s loans from Instant Finance and Cash Converters; and
any evidence of other sources of income;
(d)The evidence of Mr Barrett and his daughter, Melissa Troy Murray- Green, about the funds that were found in the BMW in January 2020.
The relevant evidence
The cash and the circumstances in which it was found
[30] It is not in dispute that the cash was found in the BMW together with eight one-gram bags of methamphetamine. As Detective Sievwright confirmed, methamphetamine is commonly sold in one-gram lots but it can also be sold in smaller amounts, also in small ziplock bags. The presence of the 13 unused ziplock bags at least gives rise to the possibility that it was intended that the methamphetamine in the eight one-gram bags would be broken down into smaller amounts in order to achieve a higher overall price. The amount of cash is also consistent with sales of methamphetamine — as Detective Sievwright also confirmed.
Detective Sievwright’s evidence
[31] Detective Sievwright’s evidence, which was not challenged in cross- examination by Mr Burroughs, counsel for Mr Barrett, was that:
(a)methamphetamine is commonly sold in one-gram, half-gram and quarter gram amounts, as well as in 0.1-gram amounts (points);
(b)in January 2020, the price of methamphetamine:
(i)for a gram, was between $400 and $500, with $400 being common;
(ii)for a half-gram, was between $200 and $350, with $250 being common;
(iii)for a quarter gram, was commonly $150; and
(iv)for a point, was between $80 and $120, with $100 being common;
(c)when methamphetamine is sold in smaller quantities, such as a point, it was common for sales to be conducted in denominations of $50 and
$100 notes but that smaller denominations could also be used.
Mr Barrett’s income and expenditure
[32] Mr Barrett’s ANZ bank statements were produced by Detective Stuart McIntyre and were not challenged by Mr Burroughs. The bank statements show that on 2 September 2015, Mr Barrett opened an account with ANZ (the 00 account) and deposited the Corrections cheque for $36,566.16.
[33] The bank statements show that, between the opening of the 00 account on 2 September 2015 and 14 October 2015, there were withdrawals of:
(a)$1,500 on 3 September 2015;
(b)$13,200 on 7 September 2015;
(c) $10,000 on 11 September 2015;
(d)$8,500 on 9 October 2015; and
(e)amounts ranging from $100 to $500 in 14 Automatic Teller Machine (ATM) withdrawals totalling $4,500.
[34]In relation to the above transactions:
(a)the withdrawal of $10,000 on 11 September 2015 was, in fact, a transfer to another ANZ bank account opened by Mr Barrett (the 46 account); and
(b)the evidence of Adrian McGovern and Mr Barrett establish that it is likely that the withdrawal of $8,500 on 9 October 2015 was to fund the purchase of a blue 2005 Harley Davidson Sportster motorcycle (registration A3MSM) from Mr McGovern for $8,000 in a TradeMe sale that ended on 12 October 2015.
[35] During the same period of 2 September 2015 to 14 October 2015, Mr Barrett received three payments, totalling $1,112.11, from WINZ and a refund of $280.00 from C & D Taylor.
[36]As at 14 October 2015, the 00 account balance was $230.28.
[37] From 14 October 2015 to 9 December 2016 when the 00 account was closed, there were regular deposits, initially from WINZ and then from StudyLink (MSD), in amounts usually ranging from approximately $170 to $215. There were also regular cash withdrawals by Mr Barrett and payments made to various shops and businesses. Over that period, the balance did not usually exceed $376 and the account was sometimes overdrawn. There were two exceptions. On 23 May 2016, $1,000 was deposited into the account by Studylink. However, the same day, there was a cheque withdrawal for $1,000 which reduced the balance to $2.43. On 20 July 2016, $6,000 was deposited into the account. However, similarly, that same day, there was a cheque withdrawal for $5,987.00 which reduced the balance to $177.83.
[38] As Detective McIntyre pointed out, a notable feature of the withdrawals is that they do not reference payments for rent, power or other utilities and there are relatively few payments for groceries and petrol.
[39]With respect to the 46 account, the bank statements show that, after leaving the
$10,000 untouched for a period of about a month following the transfer on 11 September 2015:
(a)from 15 October to 30 November 2015, Mr Barrett made a series of cash withdrawals in amounts ranging from $93 to $1,500, with the
result that the balance of the 46 account as at 30 November 2015 was
$4,410.93;
(b)from 1 December to 20 January 2016, Mr Barrett made a series of further cash withdrawals in amounts ranging from $150 to $1,000, with the result that the balance of the 46 account as at 29 January 2016 was
$4.94; and
(c)from 2 February 2016 to 28 April 2017, Mr Barrett did not use the 46 account except to transfer the credit balance of $4.94 to the 00 account on 9 December 2016.
[40] The evidence of Detective McIntyre, the accuracy of which Mr Burroughs did not challenge, was that Mr Barrett could not access the 46 account using his EFT-POS card, so the withdrawals from that account had to be made by manual withdrawals at the bank.
[41] For completeness, I note that the bank statements that Detective McIntyre produced of Mr Barrett’s Westpac bank account for the period May 2017 to January 2020 show a similar pattern of Mr Barrett receiving payments from MSD, and also from two employers, and Mr Barrett withdrawing or spending that money soon afterwards. Over that period, the balance of the account rarely exceeded $600, and the account was occasionally overdrawn.
[42] Detective McIntyre also produced records of payments made by WINZ / MSD to Mr Barrett over the period 9 September 2015 to 16 January 2020. These show that, over that period, Mr Barrett received benefits totalling $42,795.31 comprised of:
(a)Jobseeker Support payments totalling $30,815.26;
(b)Winter Energy payments totalling $415.05;
(c)Accommodation Supplement payments totalling $7,601.57;
(d)Temporary Additional Support payments totalling $1,585.36; and
(e)Special Needs Grants totalling $2,378.08.
[43] When applying for these payments, Mr Barrett had to complete the necessary forms, which required him to disclose whether he had any cash assets. Mr Barrett ticked “No” in each case.
[44] According to records provided by Instant Finance to Detective McIntyre, over the period 2 November 2017 to 31 May 2019, Mr Barrett took out loans for:
(a)$500 to service a motorcycle — under which Mr Barrett was required to repay $693.46 in total;
(b)$2,522.96 to purchase a vehicle and register a motorcycle — under which Mr Barrett was required to repay $3,744.21 in total (the Harley Davidson was provided as security for the loan);
(c)$3,432.27, comprising $1,350 to pay for repairs to the motorcycle and
$2,082.27 to refinance the previous loan — under which Mr Barrett was required to repay $5,392.18 in total (the Harley Davidson remained as security for the loan);
(d)$4,199.11, comprising $1,200 to pay for further repairs to the motorcycle, a payment to Cash Converters and a cash advance; and
$2,999.11 to refinance the previous loans — under which Mr Barrett was required to repay $5,540.53 in total (the Harley Davidson remained as security for the loan); and
(e)$13,097.99, comprising $9,623.67 to purchase and insure a 2007 Honda Accord and $3,474.42 to refinance the previous loan — under which Mr Barrett was required to repay $22,030.26 in total (the Honda Accord and the Harley Davidson were security for the loan).
[45] In addition to the above loans, according to records provided by Cash Converters to Detective McIntyre, over the period 23 February 2018 to 8 January 2019, Mr Barrett took out six loans from Cash Converters for:
(a)$300 — under which Mr Barrett was required to repay $443.80 in total;
(b)$800 — under which Mr Barrett was required to repay $1,200.49 in total;
(c)$300 — under which Mr Barrett was required to repay $475.52 in total;
(d)$350 — under which Mr Barrett was required to repay $547.66 in total;
(e)$500 — under which Mr Barrett was required to repay $758.48 in total; and
(f)$637.36, comprising cash of $400 and $237.36 owing under the previous loan — under which Mr Barrett was required to repay $985.92 in total.
The evidence of Mr Barrett and his daughter
[46] In his affidavits and in his oral evidence, Mr Barrett continued to insist that the money found in the BMW was the remainder of the funds given to him by Corrections in 2015. He said he did not use the money received from Corrections for his daily expenses and that he covered those costs from casual employment and money received from WINZ / MSD, bearing in mind that he had been recalled to prison in 2016 and was not released until 2017. He says that, after his release, he was employed as a digger operator, for which he was paid $30 an hour and around $25 an hour by successive employers.
[47] Mr Barrett said that, when applying for benefits from WINZ / MSD, he had concealed that he had the balance of the money received from Corrections so he did not have to spend any of his savings. He also said he was able to live within his means, without accessing those funds, even though he applied for a series of loans from Instant Finance and Cash Converters.
[48] Despite the fees and interest he had to pay on the loans, Mr Barrett said he did that in preference to using his own money. He said he would rather pay off a loan of
$500 at $49 a week, even if the total cost of the loan came to $693. He said, “it’s just being smart.” He also said it was a way of building a relationship with the loan companies.
[49] Mr Barrett did not dispute that he had purchased the Harley Davidson motorcycle in 2015 or that he had used the money received from Corrections to fund that purchase. He said, “we all like to own our own bikes when it comes to that. I don’t like to have that on finance.” He said his intention in early 2020 had been to upgrade that bike, which was why he had collected the remaining funds from his daughter. He said that they had left for Auckland early on the morning he was stopped in order to beat the traffic and that he had not intended to spend all the cash on the purchase of the new bike.
[50] Mr Barrett acknowledged that, at the time the police stopped him in January 2020, he was using methamphetamine and had paid for it. He said it was “like $50 there, $60 there” and that he did not have a raging meth habit. He said he was not a frequent user of methamphetamine at that stage — he said he used it “once every couple of weeks”. However, Mr Barrett also said he took “a point a week” and did not deny that this was $100 a week and said he “must’ve been” funding the purchases from his limited income as shown in his bank statements.
[51] In an affidavit sworn on 4 October 2022, Ms Troy-Green confirmed the essential elements of Mr Barrett’s account in his affidavit of 2 June 2021. That is, that on the day after her father arrived at her home in Morrinsville, she had gone with him to open an account at the Morrinsville ANZ branch and that after the cheque from Corrections had cleared, her father had withdrawn over $30,000, being most, if not all, of the money from the deposit. Ms Troy-Green said her father left the money with her and that sometimes he would give her other money when he was working and sometimes he would come and take some money. Ms Troy-Green also said that, not long before Mr Barrett had been arrested, he had come and taken the last of the money and that she understood he was going to buy a new Harley Davidson motorcycle.
[52] In her oral evidence, Ms Troy-Green said she was not sure of the full amount withdrawn by her father but said she knew he took it all out of his account because he
told her as much, and she saw the money. She also said Mr Barrett had withdrawn the money in a lump sum. Ms Troy-Green said her father had given her the money to look after for about four years and that the money was buried somewhere in Morrinsville and only she and her father knew where it was buried. Ms Troy-Green also said the money remained buried in Morrinsville in 2016 when she moved to Te Awamutu and her father was recalled to prison.
[53] When asked how this evidence aligned with her affidavit evidence that her father would sometimes come and take money, Ms Troy-Green said that, in the year before he was arrested, her father would come to her address in Hamilton where it had been reburied and take money from her. Ms Troy-Green also said her father would not come often because he was wanting to keep the money saved until he really needed it and that he was wanting to use it to buy his dream bike. Later in her evidence, Ms Troy-Green said she had seen her father take money only once and “it wasn’t that much”. Ms Troy-Green also said the other money her father had given her had been for board and was paid out of his work wages. She also said Mr Barrett had come to collect the remaining money the night before he was arrested.
[54] Ms Troy-Green did not accept that she had not given an honest account of what had happened. She did accept, however, that, following her father’s arrest in January 2020, she had taken over the repayments to Instant Finance to pay for the Honda purchased with the last Instant Finance loan.
Analysis
[55] On the basis of the evidence of the cash and the circumstances in which it was found, it is reasonable to infer that:
(a)Mr Barrett and Mr Walker were involved in the purchase and supply of methamphetamine; and
(b)the cash was either the result of methamphetamine sales made before the BMW was stopped or was connected with intended future purchases of methamphetamine.
[56] Given the presence of a bag of methamphetamine in his wallet, it is also reasonable to infer that Mr Barrett was, at the time of his arrest, a user of methamphetamine. In fact, in his oral evidence, Mr Barrett himself confirmed that he was using methamphetamine at the time and was taking a point a week. He did not dispute that this would have cost him $100 each time.
[57] Having regard to Detective Sievwright’s evidence, given the presence in the BMW of eight one-gram bags of methamphetamine, 13 unused ziplock bags and a large cash quantity of cash made up in denominations of $20 and $50 notes, it is reasonable to infer that there was a direct link between the methamphetamine and the cash, and that the cash was derived from or intended to be used in the sale and/or purchase of methamphetamine.
[58] Having regard to the bank statements produced by Detective McIntyre, a number of observations can be made about Mr Barrett’s banking history between his release from prison in August 2015 and his arrest in January 2020:
(a)There was no single cash withdrawal of $30,000 in September 2015 as asserted by Mr Barrett in his affidavit of 2 June 2021, and by Ms Troy- Green in her affidavit of 4 October 2022 and in her oral evidence.
If the purchase price of the Harley Davidson motorcycle ($8,000) is deducted from the amount received from Corrections, the balance available to Mr Barrett in the 00 account and 46 accounts and in cash as at 12 October 2015 came to $25,066.
(b)If the purchase price of the Harley Davison motorcycle ($8,000) was deducted from the amount received from Corrections ($36,577.16), the remaining balance of the Corrections fund would be $28,577.16. This is only $4,377.16 more than the $24,200 found in the BMW in January 2020, over five years later. This suggests that Mr Barrett would have had to leave untouched most of that balance over that period. Yet, his bank statements show that, as at that date, the balance of the 00 account was $2.65 and the balance in the 46 account was $10,008.26. Three
days later, Mr Barrett started making withdrawals from the 46 account and continued to do so until it was reduced to $4.94 as at 29 January 2016.
(c)The withdrawals from the 00 and 46 accounts over the period September 2015 to January 2016 are more consistent with a gradual use of the money received from Corrections than a decision to remove the funds from bank management. They also suggest that Mr Barrett had largely used up those funds by the end of January 2016.
(d)Despite Mr Barrett’s asserted distrust of banks, he was prepared to trust the bank sufficiently to transfer $10,000 from the 00 account to the 46 account, to leave that money untouched for over a month and to go into the bank in order to make the physical withdrawals necessary to access the 46 account.
[59] However, the absence of any provision for rent and utilities suggests that Mr Barrett was reliant on other sources of income to meet at least some of his living expenses. That is particularly so if, as Mr Barrett acknowledged, he was having to spend $100 a week to service his methamphetamine habit.
[60] Even so, the payments that Mr Barrett received from WINZ / MSD indicate that he was reliant on Government support to meet some of his daily living expenses over the period 9 September 2015 to 16 January 2020. That is consistent with records that Detective McIntyre obtained from the Inland Revenue Department. These show that Mr Barrett’s average annual income over that period, excluding the time he spent in custody when recalled to prison, was just over $14,000. That income would have been quite inadequate to fund methamphetamine purchases of the order of $5,200 per year based on Mr Barrett’s acknowledgement that he took a point a week.
[61] Under the loans that Mr Barrett took out with Instant Finance and Cash Converters, Mr Barrett borrowed:
(a)a total of $23,752.33from Instant Finance and had to repay $37,400.64;
(b)a total of $2,887.36 from Cash Converters and had to repay $4,411.87.
[62] Taken together, Mr Barrett had to pay back $15,172.82 on top of his total borrowings of $26,639.69. The effective interest rates, including establishment fees and other costs, were over 50 per cent. Given that interest rates in the period 2017 to 2020 were generally low, this was a very expensive way for Mr Barrett to finance his expenses. It is anything but smart to have incurred these costs if Mr Barrett had cash available in the amount of $24,200. If he had used that money, he would have saved himself $15,172.82, which was more than his average annual income.
Conclusion
[63] Taking into consideration all of the evidence, I am satisfied, on the balance of probabilities, that Mr Barrett could not have funded his methamphetamine habit, his repayment obligations to Instant Finance and Cash Converters, and his normal living expenses from the limited income he received from a couple of episodes of casual labour and payments from WINZ / MSD. The likelihood is that Mr Barrett supplemented his income from other sources, including the supply of methamphetamine, for which he was later convicted.
[64] It is clear that the evidence of Mr Barrett and Ms Troy-Green about the withdrawal of the money deposited in Mr Barrett’s ANZ 00 account on 2 September 2015 is not consistent with the bank statements for that account nor for the 46 account. Those bank statements show that, far from withdrawing the funds in a single sum, Mr Barrett drew the funds down over a six-month period. Accordingly, I do not accept the accounts of Mr Barrett or of Ms Troy-Green who, I consider, have conspired to fabricate narratives about what happened to the money received from Corrections.
[65] My conclusion that the narratives were fabricated is confirmed by the following:
(a)Ms Troy-Green added to her account the embellishments that the money had been buried in the ground in Morrinsville, for a period when neither she nor Mr Barrett were living in that town, and had been buried again in Hamilton when she moved there.
(b)Mr Barrett made no reference to the money being buried in either locality, despite Ms Troy-Green saying that only she and her father knew where it had been buried in Morrinsville. If the money had indeed been buried, it is improbable that Mr Barrett would not have mentioned that fact.
(c)Ms Troy-Green changed her account of her father collecting money from her a number of times when giving evidence.
[66] I am satisfied, therefore, that the money seized by the police when Mr Barrett was arrested in January 2020 was not the balance of the money Mr Barrett received from Corrections in August 2015.
[67] Given that conclusion, the evidence of the cash and the circumstances in which it was found, the evidence of Detective Sievwright about the quantities in which and the prices for which methamphetamine was sold in January 2020, the evidence of Detective McIntyre about Mr Barrett’s very limited income over the period February 2016 (when the Corrections funds had been used up) to January 2020 when Mr Barrett was arrested, and Mr Barrett’s admission that, at the time of his arrest, he was consuming a point of methamphetamine a week at a cost of $100 a point, I am satisfied, on the balance probabilities that the $24,200 seized by police was the product of or intended to be used in, wholly or in part, in the supply of methamphetamine.
[68] Accordingly, I am satisfied, on the balance of probabilities, that the $24,200 seized by police was tainted property; that is, it was, wholly or in part, acquired as a result of significant criminal activity or directly or indirectly derived from significant criminal activity. That significant criminal activity was the supply of methamphetamine which, under s 6(1)(f) of the Misuse of Drugs Act is punishable by a maximum penalty of life imprisonment.
[69] In accordance with s 50 of the Act, therefore, I am required to make a Type 1 assets order for the forfeiture of those funds. It has not been suggested that undue hardship is reasonably likely to be caused to Mr Barrett if the funds are forfeited.
Result and order
[70] I grant the Commissioner’s application for an assets forfeiture order with respect to $24,200.00 in cash seized from a vehicle search of a BMW motor vehicle registration ATA900 on 16 January 2020.
[71] In accordance with s 50 of the Criminal Proceeds (Recovery) Act 2009, I order that the $24,200.00 in cash seized by the police:
(a)vests in the Crown absolutely; and
(b)is to be in the custody and control of the Official Assignee.
G J van Bohemen J
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