Commissioner of Police v Bell (aka Shortland)

[2022] NZHC 1100

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2020-419-261

[2022] NZHC 1100

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

MARGARET BELL (AKA SHORTLAND)

First Respondent

MYLES ALLAN BELL

Second Respondent

Hearing:

18 May 2022 (by telephone)

Counsel:

R L Guthrie for applicant

L C Hann on instruction from T C Tran for first respondent P A Depledge for second respondent

Judgment:

19 May 2022

JUDGMENT OF HARLAND J

This judgment was delivered by me on 19 May 2022 at 10.30am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:

Crown Solicitor, Hamilton T Tran, Hamilton

P Depledge, Hamilton

COMMISSIONER OF POLICE v BELL [2022] NZHC 1100 [19 May 2022]

[1]    The Commissioner has applied for an asset forfeiture order relying on ss 43, 44 and 49 of the Criminal Proceeds (Recovery) Act 2009 (the Act) and on the affidavits of Ya Tsui affirmed on 12 October 2020 and 28 October 2021.1

[2]The application was served on the parties as follows:2

(a)on the Official Assignee via email on 9 May 2022;

(b)on the first respondent on 10 May 2022;

(c)on the second respondent on 10 May 2022; and

(d)on ASB Bank Limited on 10 May 2022.

[3]A joint memorandum of counsel has been filed.3

Restrained property

[4]    The Commissioner filed proceedings against the respondents seeking an asset forfeiture order in respect of a property at 9 Derby Street, Nawton, Hamilton. The property is currently subject to an  on-notice restraining  order made by  Muir J on  18 November 2020 and extended by me on 17 November 2021.

[5]    The parties have reached an agreement to settle the proceedings. This requires approval under s 95 of the Act, which 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—

1      Application dated 5 May 2022.

2      Affidavits of service sworn 17 May 2022.

3      Dated 5 May 2022.

(a)the purposes of this Act; and

(b)the overall interests of justice.

Proposed settlement

[6]    Agreement has been reached between the first and second respondents and the Commissioner on the following basis:

(a)the respondents will pay the sum of $220,000.00 to the Official Assignee;

(b)upon receipt of the sum of $220,000.00 by the Official Assignee the current restraining order will be discharged;

(c)payment of $220,000.00 will be in full and final settlement of all issues between the parties;

(d)each party will bear its costs.

Discussion

[7]    The joint memorandum sets out the basis for the application in paragraphs [6] to 12]. I have read and considered the matters set out in the joint memorandum and note the acknowledgment by the respondents that the restrained property at 9 Derby Street is tainted property having been wholly or in part acquired or derived from significant criminal activity, namely, the sale and supply of controlled drugs.

[8]    The joint memorandum also outlines that the rateable value of the Derby Street property is $390,000 and the balance of the mortgage over it is $24,278.08.

[9]    I am satisfied that the forfeiture of the sum of $220,000.00 will meet the purposes of the Act. I also accept counsel’s submissions that the expense of a contested court hearing analysing the legitimate incomes of the respondents, and the extent to which funds that were derived from significant criminal activity (both directly and indirectly) were used to service and maintain the mortgage of 9 Derby Street, would not be justified.

[10]   The joint memorandum of counsel notes that the sum of $220,000.00 will be funded by a third party through legitimate means.

Decision

[11]   In terms of deterrence, the amount to be forfeited is significant and I am satisfied it will act as a deterrent both to the respondents and others. I am satisfied that the purposes of the Act and the overall interests of justice will be met if I approve the settlement.

[12]   I approve the settlement. I make orders in terms of the draft asset forfeiture order accompanying the joint memorandum. The order may be sealed in the form applied for.

Harland J