Commissioner of Police v Bateman aka Hitchcock

[2021] NZHC 1705

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1298

[2021] NZHC 1705

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

STEPHEN LESTER BATEMAN (aka STEPHEN LESTER HITCHCOCK)

Respondent

Hearing:

On the papers

Appearances:

M R Harborow / S E Cann for Applicant T Clee for Respondent

K Hunt (Interested Party) in person

Judgment:

8 July 2021

JUDGMENT OF LANG J

[on application for approval of settlement]

This judgment was delivered by me on 8 July 2021 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

COMMISSIONER OF POLICE v BATEMAN [2021] NZHC 1705 [8 July 2021]

[1]                In this proceeding the Commissioner of Police (the Commissioner) has obtained restraining orders under the Criminal Procedure (Recovery) Act 1009 (the Act) against property allegedly owned by Mr Hitchcock (also known as Mr Bateman). The Commissioner has not yet sought forfeiture orders in relation to those assets.

[2]                Mr Kenneth Hunt has become involved in the proceeding because he claims an interest in a motor vehicle that is currently subject to the restraining orders that are currently in existence.

[3]                The parties now seek to settle the proceeding in full. If approved, the settlement will avoid the need for the Commissioner to apply for forfeiture orders as would normally occur. The parties have filed a joint memorandum in which they seek the Court’s approval under s 95 of the Act to a settlement of the litigation between them.

Background

[4]                Mr Hitchcock served a sentence of five months imprisonment imposed on him on 26 April 2007 on charges of cultivating cannabis and being in possession of cannabis for supply between 2003 and October 2004. These charges related to a large- scale hydroponic cannabis cultivation operation the police discovered when they searched a factory complex in Onehunga on 22 October 2004.

[5]                In 2020 the police discovered another sophisticated hydroponic cannabis cultivation operation, this time located in Mr Hitchcock’s dwelling in Albany. This led to Mr Hitchcock being sentenced to seven months home detention on 10 December 2002 on further charges of cultivating cannabis and being in possession of cannabis for supply.

[6]                The Commissioner has now carried out an analysis of Mr Hitchcock’s bank accounts. Although he declared minimal income between 1 August 2013 and 1 May 2020, he received cash deposits into his bank accounts during that period totalling

$402,357.80. The Commissioner has also discovered that Mr Hitchcock had access to further funds outside the banking system and this enabled him to make substantial loans to his sister.  The Commissioner contends these funds were derived through

continued offending involving cannabis and this has enabled Mr Hitchcock to acquire property in the form of motor vehicles and to fund his living expenses.

The proposed settlement

[7]                Under the proposed settlement Mr Hitchcock will forfeit the following property to the Crown:

(a)Two Buick motor vehicles.

(b)All but $5,000 of the restrained funds held in Mr Hitchcock’s bank accounts.

(c)The sum of $250 in cash seized by the police when they searched Mr Hitchcock’s home address on 30 April 2020.

[8]                The following property would be released from restraint and returned to Mr Hitchcock:

(a)A Fyran boat and trailer.

(b)A Mercedes Benz motor vehicle.

(c)The sum of $5,000 from the restrained funds in Mr Hitchcock’s bank accounts.

(d)The personalised number plate PRNHUB.

[9]                An orange Buick motor vehicle bearing the personalised number plate NYCEA would be returned to Mr Hunt.

[10]The value of the property to be forfeited to the Crown is approximately

$125,000.  Mr Hitchcock would receive property having a value of approximately

$11,000.  The motor vehicle to be returned to Mr Hunt is valued at approximately

$50,000.

Decision

[11]            I am satisfied the proposed settlement recognises the primary purpose of the Act, which is to provide for forfeiture of property derived directly or indirectly from significant criminal activity, or property representing the value of a person’s unlawfully derived income.1

[12]            The proposed settlement will result in forfeiture of the bulk of the property currently subject to restraint. Much of this is likely to have been acquired using cash derived through the undetected sale of cannabis. Furthermore, the proposed settlement allows the parties to have certainty and control as to the outcome of the present litigation.

[13]I therefore approve the proposed settlement and make orders as sought in para

6.1 of the joint memorandum signed by the parties on 5 July 2021.

[14]            In addition, I note the further terms of the agreed settlement set out at para 6.2 of the memorandum.

Costs

[15]The costs of the present proceeding are to lie where they fall.

Lang J

1      Criminal Proceeds (Recovery) Act 2009, s 31(a) and (b).