Commissioner of Police v Browne

[2022] NZHC 205

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000212

[2022] NZHC 205

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER

of an application pursuant to s 95 of the Act

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

ALEXANDER LEIGH BROWNE

Respondent

Appearances:

C White for Applicant

P N Allan for Respondent

Judgment

17 February 2022

(Determined on the papers)

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 17 February 2022 at 2.30 pm Pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date

COMMISSIONER OF POLICE v BROWNE [2022] NZHC 205 [17 February 2022]

[1]                 The Court has previously made restraining orders under the Criminal Proceeds (Recovery) Act 2009 affecting the property of the respondent, Alexander Browne.1

[2]                 The Commissioner of Police and Mr Browne have since entered into a settlement as to three vehicles and two sums of money to be forfeited to the Crown.

[3]                 The Commissioner and Mr Browne request that the Court, under s 95 of the Act, approve the settlement.

The jurisdiction

[4]Section 95 of the Act 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—

(a)the purposes of this Act; and

(b)the overall interests of justice.

[5]                 It is recognised that the Court may consider approval of a settlement reached following the making of a restraining order without the need for a formal forfeiture application — a joint memorandum from the parties (or counsel) sufficiently engages s 95 of the Act.2

Discussion

[6]                 Counsel have by their memorandum referred to the fact that Mr Browne has admitted significant criminal offending in his associated criminal proceeding. They refer to the summary of facts which recorded the value of cannabis cultivation at

1      Commissioner of Police v Browne [2021] NZHC 197.

2      Commissioner of Police v Saunders [2021] NZHC 3479 at [2].

$95,000. They refer to $50,000 as being a fair assessment of Mr Browne’s profit (he having conducted a joint operation with another person). The proposed settlement involves the forfeiture of property valued at approximately $50,000.

[7]                 I am satisfied that the proposed settlement is consistent with the purposes of the Act and the overall interests of justice.

Order

[8]I approve the following settlement, namely:

(a)The value of the benefit determined in accordance with s 53 Criminal Proceeds (Recovery) Act 2009 is as the case requires:

(i)the maximum recoverable amount is $50,000;

(b)The following property is to be realised:

(i)a blue coloured 2012 Ford Ranger registration MLR821 valued at approximately $15,000;

(ii)a BMW X5 registration HJK143 valued at approximately

$11,000;

(iii)a black coloured 2013 Ford Ranger registration MRF341 valued at approximately $13,000;

(iv)a cash deposit of $7,002.06 together with accrued interest; and

(v)cash seized from Marcoft Street in the sum of $5,700 together with accrued interest.

(c)The following property is hereby released from restraint, namely:

(i)a red coloured 2005 Mazda RX8 registration MPP668;

(ii)a 2004 Jayco Heritage Caravan registration 44U91 provided:

1.       the respondent is to pay 50 per cent of the cost of relocating the caravan from Auckland to a Christchurch address nominated by the respondent (a sum of $2,291.38 including GST) into the bank account of the Official Assignee within 15 working days of this order; and

2.       upon receipt of the above payment the Official Assignee will make arrangements forthwith to contact the respondent to relocate the caravan to the nominated address.

(d)A boat trailer registration 8U720, to be transferred to a Police lock-up facility to be dealt with in accordance with the normal procedure for unclaimed property.

Osborne J

Solicitors:

Crown Solicitor, Christchurch

Barrister:
P N Allan, Barrister, Christchurch