Commissioner of Police v Cutler

[2019] NZHC 1108

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001659

[2019] NZHC 1108

UNDER

Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

BRIAN PAUL CUTLER

Respondent

Hearing:

20 May 2019

Appearances:

L Fraser for Applicant

S Lack on behalf of R Mansfield for Respondent

Judgment:

20 May 2019

JUDGMENT OF VENNING J

This judgment was delivered by me on 20 May 2019 at 2.45 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Meredith Connell, Auckland Counsel:           S Lack/R Mansfield, Auckland

COMMISSIONER OF POLICE v CUTLER [2019] NZHC 1108 [20 May 2019]

[1]                 On 31 July 2018 the Commissioner applied for restraining and civil forfeiture orders against Mr Cutler.

[2]                 The Commissioner sought the profit forfeiture order against Mr Cutler to the value of $1,137,355 on the basis that Mr Cutler unlawfully benefited from significant criminal activity comprising the cash found in the storage unit of $1,116,480 and bank deposits of $20,875. In the alternative the Commissioner sought asset forfeiture orders in respect of the cash on the basis it was tainted property.

[3]                 On 31 August 2018 restraining orders were made in relation to $1,116,480 cash with the Commissioner’s application for civil forfeiture adjourned to a mention in May 2019 to follow the expected conclusion of Mr Cutler’s jury trial.

[4]                 Counsel have now filed a joint memorandum. The Commissioner and Mr Cutler have reached agreement and seek the approval of the Court under s 95 of the Criminal Proceeds (Recovery) Act 2009.

[5]                 Mr Cutler was charged with five charges of importing methamphetamine and four charges of possessing methamphetamine for supply. On 20 March 2019 he entered guilty pleas to four charges of possessing methamphetamine for supply (10.2 kilograms) and an additional charge of supplying methamphetamine. The remaining charges for importing methamphetamine were withdrawn.

[6]                 The criminal proceedings followed an investigation by Police and New Zealand Customs Service. Those investigations supported charges that Mr Cutler was using an address at 8D Southgate Place, Henderson to collect methamphetamine. He also began hiring a storage unit to store packages of methamphetamine. The

$1,116,480 cash was seized at the storage unit.

[7]                 The Court must approve the proposed settlement if satisfied it is consistent with the purposes of the Act and the overall interests of justice.

[8]                 Mr Cutler has not declared any income since arriving in New Zealand on 23 September 2017. An analysis of his bank accounts confirmed he had no known

sources of income between 19 October 2017 and 2 February 2018. Despite this he received a number of deposits totalling $18,975 into one of his bank accounts.

[9]                 I accept that the proposed settlement is consistent with the purposes of the Act and the overall interests of justice.

[10]              The Commissioner has a strong case to show the cash is tainted and should be forfeited by way of asset forfeiture orders. All of the restrained property will be realised for the benefit of the Crown. The Commissioner is however prepared to take a pragmatic approach and forego the profit forfeiture application which would have included the additional $20,875. The proposed settlement allows both parties to have certainty and control as to outcome.

[11]              There will also be a saving of time and cost if the matter can be resolved without further litigation.

[12]              Accordingly I confirm the proposed settlement is approved and make the following orders:

(a)an assets forfeiture order under s 50(1) of the Act in respect of the

$1,116,480 cash seized by police from unit A180, Storage King, 182 Swanson Road, Henderson, Auckland on 8 February 2018, plus any accrued interest, so that it vests in the Crown absolutely and is to be in the Official Assignee’s custody and control;

(b)the Commissioner’s application for a profit forfeiture order against Mr Cutler is noted as withdrawn, with the Commissioner not proceeding with his application for a profit forfeiture order against Mr Cutler in relation to the offending at issue in this proceeding; and

(c)costs will lie as they fall in relation to all matters as between the Commissioner and Mr Cutler.

[13]              I record that the settlement is a full and final settlement of the current proceedings which are now at an end.

Venning J