Commissioner of Police v Drummond

[2024] NZHC 1485

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2018-463-28

[2024] NZHC 1485

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

CHARLES ALBERT WILLIAM DRUMMOND

Respondent

MARY TEATI JOHN
Interested Party

WESTPAC NEW ZEALAND LIMITED

Interested Party

Hearing:	On the papers
Counsel:	R W Jenson for Applicant W T Nabney for Respondent
Judgment:	6 June 2024

JUDGMENT OF LANG J

[approval of settlement]

This judgment was delivered by Justice Lang On 6 June 2024 at 3.00 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

Pollett Legal Ltd, Office of the Crown Solicitor, Tauranga W T Nabney, Tauranga

THE COMMISSIONER OF POLICE v DRUMMOND [2024] NZHC 1485 [6 June 2024]

[1]        In 2021, Mr Drummond was convicted on charges relating to the large scale cultivation of cannabis. He subsequently received a sentence of imprisonment.

[2]        The Commissioner of Police initially filed the present proceeding to restrain assets that Mr Drummond owned or in which he had an interest. These included his house in Opotiki together with bank accounts and vehicles.

[3]        On 13 October 2023, the Commissioner applied for profit forfeiture orders under s 43 of the Criminal Proceeds (Recovery) Act 2009 (the Act). The Commissioner originally estimated that Mr Drummond had received a benefit from engaging in criminal activity of at least $1.439 million. He therefore sought a profit forfeiture order in that amount.

[4]        The parties have now reached a settlement and seek the Court’s approval under s 95 of the Act.

The settlement arrangement

[5]        The settlement arrangement involves Mr Drummond consenting to a profit forfeiture order being made against him in the sum of $750,000. This is to be paid through the sale of restrained property to that value which is to be forfeited to the Crown. The parties are optimistic that the sale of restrained property will realise sufficient funds to enable Mr Drummond’s property in Opotiki to be released from restraint.

Analysis

[6]        The amount for which the Commissioner originally sought a profit forfeiture order was calculated on the basis of the total value of the cannabis plants found in a cannabis growing operation in which Mr Drummond and others were involved. The Commissioner took the view that all those involved in the operation should be jointly and severally liable for the entire value of the growing operation. Mr Drummond contends that he should only be liable for a half-share of the value of the operation.

[7]        Mr Drummond is now 70 years of age and suffers from health issues. The property in Opotiki is his family home. He also proposed to defend the proceeding on the basis that the making of a profit forfeiture order that resulted in the loss of his home would be an undue hardship to him.

[8]        The Commissioner continues to maintain that Mr Dummond’s liability should reflect the entire value of the cannabis growing operation and that Mr Drummond may be unable to establish his claim relating to undue hardship. However, the Commissioner and Mr Drummond both acknowledge the litigation risk that they face in relation to these matters.

[9]        The Commissioner has therefore agreed to reduce the value of the profit forfeiture order to $750,000 to resolve the proceeding. This responds to the litigation risk the Commissioner faces and, so far as Mr Drummond is concerned, it reduces the risk that his house may need to be sold to meet the profit forfeiture order.

[10]      The interested party, Ms Mary John, had earlier indicated that she claimed an interest in the Opotiki property as Mr Drummond’s former partner. She was therefore served with a copy of the proceeding but has taken no steps. She now lives in Western Australia, and it seems that she no longer seeks to claim an interest in the property.

Decision

[11]      I am satisfied that the proposed settlement is consistent with the objective of the Act, which is to provide for the forfeiture of property derived directly or indirectly from significant criminal activity and to eliminate the profit obtained by persons involved in such activity.1 The making of profit forfeiture orders also has the potential to deter significant criminal activity in the future.

[12]      I therefore approve the proposed settlement under s 95 of the Act. I make orders by consent as sought in paragraph 22 of the Joint Memorandum of Counsel dated 1 May 2024.

1      Criminal Proceeds (Recovery) Act 2009, s 3(1)(a) and (2)(a).

[13]Costs are to lie where they fall.

Lang J