Commissioner of Police v Feleti
[2025] NZHC 1337
•27 May 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2021-404-2318
[2025] NZHC 1337
BETWEEN COMMISSIONER OF POLICE
Applicant
AND
AISAKE FELETI
First Respondent
FERN CUSHLA HOUSTON
Second RespondentSESE VIMAHI
Third RespondentMARTIN JULIAN PRITCHARD
Fourth Respondent
ANGELA BANTI JEET SINGH
Fifth RespondentContinued …/2
Hearing: On the papers Appearances:
S Earl and E Rangamuwa for the Applicant J Wall for the Third Respondent
Judgment:
27 May 2025
JUDGMENT OF HARVEY J
This judgment is delivered by me on 27 May 2025 at 11 am pursuant to r 11.5 of the High Court Rules
………………………………
Deputy Registrar
COMMISSIONER OF POLICE v FELETI & ORS [2025] NZHC 1337 [27 May 2025]
Continued…
MATANGIKOLO PIUKANA
Sixth Respondent
RONNIE KIVALU
Seventh RespondentJESSIE ELIZABETH FORBES
Eighth RespondentTONY IUVALE
Ninth Respondent
AND SANLOLAN PIUKANA
Tenth Respondent
RALPH ANTHONY VULETIC
Eleventh Respondent
Introduction
[1] By a joint memorandum filed on 15 May 2025, the Commissioner of Police and Sese Vimahi seek an order per s 95 of the Criminal Proceeds (Recovery) Act 2009 approving the proposed settlement of the Commissioner’s claim against Mr Vimahi. The property relevant to this proceeding is set out below:
(a)$70,000.46 previously held in ANZ 06-0401-0297618-03 in the name of Mr Vimahi and Lavina Sekona-Vimahi;
(b)$500.58 previously held in ANZ 06-0401-0297618-46 in the name of Mr Vimahi and Lavina Sekona-Vimahi; and
(c)a 2019 Ford Raptor, registration NJS174, registered in the name of LS Security Solutions Ltd.
[2] The proposed settlement is based on three grounds. First, time and costs savings will result for the parties and the Court. Second, the Commissioner has a strong case that Mr Vimahi unlawfully benefited from significant criminal activity to a large but undetermined monetary value. Third, Mr Vimahi’s restrained property amounts to $70,844.82 being 50 percent of the restrained property and interest accrued as of 5 May 2025. The remaining 50 percent is attributed to Ms Sekona-Vimahi. The Commissioner is unaware of any other assets of Mr Vimahi. The parties consider that a pragmatic approach is required. This includes the Commissioner retaining the ability to proceed with an application for future profit forfeiture in the event that Mr Vimahi’s statutory declaration proves false or misleading. The parties also acknowledge the inherent risks of a contested hearing when arriving at this settlement proposal.
Background
[3] In 2021, the National Organised Crime Group of the New Zealand Police and Customs Service embarked upon Operation Selena to identify three separate syndicates importing methamphetamine into New Zealand from Los Angeles, Malaysia and Tonga. Mr Feleti, the first respondent, led the Los Angeles syndicate and Mr Vimahi was the second in command. They were both arrested on 8 December
2021. Mr Vimahi pleaded guilty to one representative charge of importing methamphetamine and two charges of conspiring to import methamphetamine.
[4] Counsel confirmed that Mr Vimahi’s convictions are conclusive proof that he committed the offences to which he was sentenced.1 On 20 February 2025, Mr Vimahi received a sentence of two years and five months’ imprisonment. Before then, on 14 February 2024, Mr Vimahi was sentenced to 14 years and seven months’ imprisonment on separate charges.2 The later sentence was added cumulatively so that, overall, Mr Vimahi is serving a total sentence of 17 years’ imprisonment.
[5] The present proceedings commenced in December 2021 and without notice restraining orders were issued on 7 December 2021. Those orders were extended and are due to expire on 2 May 2026 unless further extended. As the criminal case against Mr Vimahi has ended, the Commissioner seeks to conclude the forfeiture aspect of the proceedings.
Legal principles
[6]Section 95 of the Criminal Proceeds (Recovery) Act 2009 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.
[7] The purpose of the Act is to establish a regime for the forfeiture of property that is derived directly or indirectly from significant criminal activity, or which represents the value of a person’s unlawfully derived income.3 In addition, the
1 Evidence Act 2006, s 47.
2 R v Vimahi [2024] NZDC 3056.
3 Criminal Proceeds (Recovery) Act 2009, s 3(1).
legislative regime is intended to eliminate the opportunity for persons to profit from undertaking or being associated with significant criminal activity and to also deter significant criminal activity and its expansion.4
[8] It is well settled that the Court’s supervisory jurisdiction and function under s 95 requires a broad inquiry.5 Any assessment of s 95(3)(a) and (b) compliance requires a careful review of the strength of the case against respondents and their defence.6 The value of assets to be forfeited and the relativity of such sum to the total value of assets restrained as tainted property are relevant considerations.7 Further, there is the litigation risk of a hearing to both parties.8 The Court may also assess additional considerations including economic and pragmatic grounds which may then inform a sensible compromise to litigation that serves the Act’s purposes.9 Moreover, there is a strong public interest in the prompt disposal of forfeiture litigation, especially where a settlement reflects the likely costs and risks inherent in a contested application.10 In short, the Court’s approval is not a “rubber stamping” exercise but requires detailed evaluation.
Discussion
[9] The Commissioner argued that Mr Vimahi unlawfully benefitted from the importation and supply of methamphetamine. The value that Mr Vimahi and his associates imported exceed $3.42 million and with his senior role in the syndicate, the Commissioner submitted that he was renumerated. For example, on one occasion Mr Vimahi and baggage handlers received $200,000 for the importation of 10 kilograms of methamphetamine. While the Commissioner has not calculated Mr Vimahi’s precise unlawful benefit, taking the relevant background into account, it would exceed $200,000 and is well above the $70,844.82 relevant to the application.
[10] In addition, while the Commissioner noted that there may be some shortfall between the maximum recoverable amount in the value of the restrained property, as
4 Section 3(2).
5 Commissioner of Police v Zhang [2016] NZHC 930 at [8].
6 See Commissioner of Police v Kree [2013] NZHC 2972 at [11].
7 Commissioner of Police v Venn [2014] NZHC 361 at [5]–[6].
8 See Kree, above n 6, at [11].
9 See Commissioner of Police v Douglas [2015] NZHC 1293 at [5]–[6].
10 Commissioner of Police v Cotton [2017] NZHC 21 at [7].
mentioned, he is unaware of Mr Vimahi having interest in any other property that could be disposed of to meet a higher profit forfeiture order. The future prospects of recovering any additional property to meet any shortfalls are remote.
[11] In addition, the Commissioner accepted that Ms Sekona-Vimahi’s property has been mixed with that of Mr Vimahi, that she has legitimate income from the Ministry of Education and that some of the restrained funds can be traced to the proceeds of the sale of a property the couple owned and Ms Sekona-Vimahi’s earnings from the Ministry. The Commissioner also made the point that there was no evidence to establish Ms Sekona-Vimahi had knowledge of and derived an unlawful benefit from Mr Vimahi’s offending. Notwithstanding s 66 of the Act, and the applicable provisions of the Property (Relationships) Act 1976, the Commissioner accepted, for settlement purposes, that the return of 50 per cent of the restrained property to Ms Sekona-Vimahi is appropriate. While having been served with the documents, she has taken no steps and is unrepresented. In short, Ms Sekona-Vimahi accepts the settlement proposal.
[12] While Mr Vimahi does not agree with the Commissioner’s argument as to the extent to which he benefitted, he is nonetheless prepared to settle the proceedings on the terms set out in counsel’s joint memorandum.
[13] In summary, for the reasons set out in counsels’ joint memorandum, I accept that the statutory test has been met, that the proposed terms of settlement are consistent with the objectives and principles of the Act and that it is in the interests of justice that it should be approved. The finality of a settlement on these terms and the certainty it brings for the parties will avoid further costs, delay and litigation risk. I also accept that this proposal is a sensible and pragmatic basis on which to settle the proceedings, taking account of the real and personal property involved and the property that has been restrained against the background of Mr Vimahi’s offending. For the avoidance of doubt, the proposed settlement is on the terms outlined at [9.1]–[9.2] of counsel’s joint memorandum.
Decision
[14] The settlement between the Commissioner of Police and Sese Vimahi is approved, per s 95 of the Criminal Proceeds (Recovery) Act 2009. The following orders are now issued:
(a)a profit forfeiture order under s 55 of the Act against Mr Vimahi, by consent, with:
(i)the value of the benefit (determined in accordance with s 53 of the Act) being $70,844.82;
(ii)the maximum recoverable amount being $70,844.82; and
(iii)the following property is to be disposed of:
(A)50 per cent of $70,000.46 formerly held in the ANZ account 06-0401-0297618-03, held in the names of Mr Vimahi and Ms Sekona-Vimahi, and any interest accrued on that half-share;
(B)50 per cent of $500.58 formerly held in the ANZ account 06-0401-0297618-46, held in the names of Mr Vimahi and Ms Sekona-Vimahi, and any interest accrued on that half-share; and
(C)50 per cent of the proceeds of sale of the 2019 Ford Raptor, registration NJS174, registered to LS Security Solutions Ltd,11 and any interest accrued on that half-share;
(collectively, Mr Vimahi’s Share).
(b)Additional directions under s 59 of the Act, by consent:
11 The net sale proceeds being $58,685.68.
(i)After Mr Vimahi’s Share is forfeited, the restraining orders over the remaining property listed at [14(a)(iii)] above, and any remaining interest accrued on that property (collectively, Ms Sekona-Vimahi’s Share) are to be rescinded; and
(ii)the Official Assignee is to return Ms Sekona-Vimahi’s Share to a bank account nominated by Ms Sekona-Vimahi (and that must not be held by Mr Vimahi, or jointly held with Mr Vimahi).
(c)Costs are to lie where they fall in relation to all matters as between the Commissioner, Mr Vimahi and Ms Sekona-Vimahi.
[15]The following conditions of the settlement are noted:
(a)Mr Vimahi and Ms Sekona-Vimahi abandon all claims they may have under the Criminal Proceeds (Recovery) Act 2009 or otherwise to any of the property to be forfeited under this settlement;
(b)Mr Vimahi is to provide a statutory declaration within one week of this judgment or a later date by agreement, to the effect that he does not hold or have any interests in any assets beyond the property restrained in this proceeding,12 either directly or indirectly, in New Zealand or elsewhere, as at the time the statutory declaration is made, such that he does not have any assets beyond what is restrained that could be practically disposed of to meet any profit forfeiture order made against him.
(c)If it later transpires that the statutory declaration provided by Mr Vimahi was false or misleading in any way, the Commissioner may then proceed with seeking a profit forfeiture order against him, for a higher value than agreed for settlement purposes, based on the significant criminal activity evidenced in the affidavits filed in this proceeding to date, notwithstanding [15(d)] below which becomes of no effect should this paragraph be engaged.
12 Excluding one real property located in Tonga, that Mr Vimahi has advised the Commissioner he has interests in, being a family property obtained via succession, and that he is not the registered owner of.
(d)The Commissioner will not pursue an application for profit forfeiture order against Mr Vimahi, for a greater value than what is stated above, on the basis of the significant criminal activity evidenced in the affidavits filed in this proceeding to date.
(e)The settlement is in full and final settlement of the question of civil forfeiture of the property listed above at [14(a)(iii)] between the Commissioner and Mr Vimahi, on the basis of the significant criminal activity evidenced in the affidavits filed in this proceeding to date.
Harvey J
Solicitors:
Meredith Connell, Auckland
0
4
1