Commissioner of Police v Feleti
[2024] NZHC 3526
•22 November 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-002318
[2024] NZHC 3526
UNDER the Criminal Proceeds (Recovery) Act 2009 BETWEEN
COMMISSIONER OF POLICE
Applicant
AND
AISAKE FELETI
First Respondent
FERN CUSHLA HOUSTON
Second RespondentSESE VIMAHI
Third RespondentMARTIN JULIAN PRITCHARD
Fourth RespondentContinued over page…
Hearing: On the papers Judgment:
22 November 2024
JUDGMENT OF WALKER J
[Approval of partial settlement with ninth respondent]
This judgment was delivered by me on 22 November 2024 at 4.30 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
COMMISSIONER OF POLICE v FELETI [2024] NZHC 3526 [22 November 2024]
ANGELINA BANTI JEET SINGH
Fifth Respondent
MATANGIKOLO PIUKANA
Sixth Respondent
RONNIE KIVALU
Seventh Respondent
JESSIE ELIZABETH FORBES
Eighth Respondent
TONY IUVALE
Ninth Respondent
SANLOLAN PIUKANA
Tenth Respondent
RALPH ANTHONY VULETIC
Eleventh Respondent
[1] On 7 December 2021, Katz J made without notice restraining orders under the Criminal Proceeds (Recovery) Act 2009 (the Act). At the time of making those orders, Mr Iuvale, was not a respondent to the proceedings.
[2] On 13 December 2021, the Commissioner of Police (Commissioner) filed an on notice application for restraining and further orders against the respondents and, for the first time, included Mr Iuvale as the ninth respondent. The application sought restraining and effective control orders over property attributed to Mr Iuvale. The property which the Commissioner sought to restrain was:
(a)cash to the value of $36,000 seized by New Zealand Customs Service from [REDACTED] on 10 August 2021 (Cash); and
(b)a 2015 Hyundai iLoad, registration LRF514, registered to Mr Tony Iuvale.
[3] The restraining and effective control orders were made, by consent, by Edwards J on 2 May 2022.
[4] A further order allowing for the sale of the Hyundai iLoad to preserve its value was made on 9 August 2022 without opposition. It was subsequently sold by the Official Assignee. The net proceeds of sale ($16,604.89) remain restrained pursuant to the existing restraining orders.
[5] There have been various extensions to the restraining orders concerning Mr Iuvale’s property. The orders are currently due to expire on 2 May 2025, unless further extended.1
[6] The Commissioner and Mr Iuvale have agreed between themselves to settle the question of forfeiture in respect of the Hyundai iLoad and now jointly invite the Court to approve the settlement under s 95 of the Act. Mr Iuvale’s position in respect of the Cash is that he denies any interests in it.
1 COP v Feleti, HC Auckland CIV-2021-404-2318, 19 April 2024 (minute of Johnstone J) at [9].
Background
[7] The genesis of the restraining orders was a police investigation, codenamed Operation Selina, into importation of methamphetamine into New Zealand. The investigation identified Mr Iuvale, along with another, as someone who directed one of three distinct importation syndicates. Mr Iuvale was also identified in the investigation as being involved in the importation of methamphetamine from Tonga to New Zealand. Mr Iuvale was arrested on 10 August 2021. Police executed a search warrant at his home and located the cash within a safe in Mr Iuvale’s bedroom.
[8] Mr Iuvale faced charges of importation, conspiring to import methamphetamine, and participation in an organised criminal group.
[9] Those criminal proceedings have been resolved following Mr Iuvale’s guilty plea to one charge of possession of a Class A controlled drug for supply. Mr Iuvale was sentenced on 23 August 2024, receiving an end sentence of nine years and 10 months’ imprisonment.2
Settlement for approval
[10] The restraining orders were sought on the grounds that Mr Iuvale has unlawfully benefited from significant criminal activity. Mr Iuvale’s involvement in significant criminal activity is indisputable given his conviction for possession of at least 29.7 kilograms of methamphetamine for supply in the context of a large scale operation involving importation and supply. The Commissioner’s case is that Mr Iuvale was remunerated for his involvement in the drug offending since he directed one of the syndicates which successfully imported methamphetamine with a total value of at least $41.5 million in 2021.
[11] The Commissioner therefore relies on Mr Iuvale’s guilty plea for the possession of a significant quantity of methamphetamine for supply, his wider involvement and role in the importation and supply and his minimal declared income to form the view that Mr Iuvale derived an unlawful benefit.
2 R v Iuvale [2024] NZDC 20711.
[12] The Commissioner contends that, given the lack of any substantial income, there is a compelling inference that the Hyundai iLoad must have been acquired at least in part with the proceeds of Mr Iuvale’s unlawful activities and is therefore tainted property.
[13] As noted, Mr Iuvale has denied any interest in the Cash or that he acquired the Hyundai iLoad with the proceeds of crime or derived an unlawful benefit from significant criminal activity. Nonetheless, in the interests of certainty Mr Iuvale is prepared to settle the proceedings.
[14] The proposed settlement, which will bind the parties in the event this Court approves it, is on the following terms:
(a)A Type 1 assets forfeiture order is made, by consent, under s 50(1) of the Act, over the restrained property attributable to Mr Iuvale, namely:
(i)the sale proceeds of the 2015 Hyundai iLoad registration LRF514, formerly registered to Mr Tony Iuvale and any interest accrued.
(b)Mr Iuvale agrees to abandon all claims he may have, under the Act or otherwise, to the Hyndai iLoad, and to any other restrained property in this proceeding, including, but not limited to:
(i)cash to the value of $36,000 seized by New Zealand Customs Service from [REDACTED], Auckland on 10 August 2021, and any interest accrued.
(c)Mr Iuvale is to provide a statutory declaration within one week of a settlement agreement being reached (or by a later date if agreed to by the parties), to the effect that he does not hold or have interests in any assets beyond the property restrained in this proceeding, 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 disposed of to meet any profit forfeiture order made against him.
(d)If it later transpires that the statutory declaration provided by Mr Iuvale was false or misleading in any way, the Commissioner may then proceed with seeking a profit forfeiture against Mr Iuvale in relation to the significant criminal activity evidenced in the affidavits filed in this proceeding to date, notwithstanding paragraph (e) below which becomes of no effect should this paragraph be engaged.
(e)The Commissioner will not pursue an application for a profit forfeiture order against Mr Iuvale in relation to the significant criminal activity evidenced in the affidavits filed in this proceeding to date.
(f)The Commissioner agrees to abandon the examination of Latoya Banaba with respect to these proceedings, there being one exception – if paragraph (d) is engaged, the Commissioner may examine Ms Banaba.
(g)The agreement is full and final settlement of the question of civil forfeiture of the Hyundai iLoad as between the Commissioner and Mr Iuvale on the basis of the significant criminal activity evidenced in the affidavits filed in this proceeding to date.
(h)Costs in relation to this matter between the Commissioner and Mr Iuvale lie where they fall.
[15] The value of the property, namely the sale proceeds of the Hyundai iLoad currently subject to restraining orders but to be forfeited, is $16,604.89.
[16] The Commissioner will separately seek forfeiture of the cash that Mr Iuvale claims no interest in.
Approval of settlements under the Act
[17]Section 95 of the Act provides:
95 High 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.
[18] By this section, Parliament has expressly empowered the Commissioner to enter into settlements as to the forfeiture of property under the Act and it has entrusted the High Court with a supervisory jurisdiction to approve settlements when satisfied they are consistent with the purposes of the Act and the overall interests of justice.3
[19] The Act therefore establishes a regime for forfeiture of property that has been derived directly or indirectly from significant criminal activity or which represents the value of a person’s unlawfully derived income.4
[20] Further purposes include those of eliminating opportunities to profit from undertaking or being associated with significant criminal activity; and deterring significant criminal activity.5
Decision
[21] The Court must have regard to the overall interests of justice which reflects the strong public interest in litigation under the Act being brought to a prompt conclusion.
3 Commissioner of Police v No-All Group Limited HC Auckland CIV-2010-404-403, 7 November 2011 at [11].
4 Criminal Proceeds (Recovery) Act 2009, s 3(1).
5 Section 3(2).
This in turn reflects the likely costs and risks inherent in the determination of a contested application.6 It is desirable that proceedings under the Act be settled on economic and pragmatic grounds reflective of common sense compromise.7
[22] A broad enquiry is required in respect of the test of “overall interests of justice”. Important factors are whether the settlement is in the interests of justice, bearing in mind the savings of time and cost and the litigation risk to the parties.8 I am satisfied that approving the settlement so that it becomes binding is consistent with the purposes of the Act and the overall interests of justice.
[23] The reason why I am so satisfied is because there will be a saving in time and cost by this resolution; the Commissioner considers he has a good case to show that the restrained property attributed to Mr Iuvale is tainted and can therefore be forfeited by way of an assets forfeiture order, but there are practical difficulties in pursuing a civil debt under the Act.
[24] It is apparent that the value of Mr Iuvale’s restrained assets (even if including the restrained cash which the Commissioner considers belongs to Mr Iuvale but which he denies) falls a long way short of any profit forfeiture order that may be sought. Of relevance is the fact that the Commissioner is not aware of any assets held by Mr Iuvale beyond the restrained property and intends to rely on a statutory declaration from him to the effect that he does not hold or have any interests in any assets, either directly or indirectly, in New Zealand or elsewhere, that could be disposed of to meet a profit forfeiture order. Materially, if it later becomes apparent that the statutory declaration Mr Iuvale has agreed to provide was false or misleading in any way, the proposed settlement allows the Commissioner to proceed with an application for profit forfeiture orders against him in the future.
[25] From Mr Iuvale’s perspective, while not accepting the Commissioner’s case against him, particularly insofar as the Commissioner asserts that the value of the methamphetamine he possessed is logically connected to the extent of any unlawful
6 Commissioner of Police v Cotton [2017] NZHC 21 at [7].
7 Commissioner of Police v Douglas [2015] NZHC 1293 at [6].
8 Commissioner of Police v Zhang [2016] NZHC 930 at [8].
benefit he derived from significant criminal offending, he wishes to minimise the time and cost of going to a hearing.
[26] The risk inherent in any contested hearing underpins this settlement and enables the parties to have certainty and control.
[27]The settlement is approved accordingly.
Result
[28]I make the following orders:
(a)Assets forfeiture orders under s 50(1) of the Act: The following property vests in the Crown absolutely and is in the Official Assignee’s custody and control:
(i)Sale proceeds of the 2015 Hyundai iLoad, registration LRF514, formerly registered to Mr Tony Iuvale, and any interest accrued.
(b)Costs: Costs lie where they fall in relation to all matters between the Commissioner and Mr Iuvale.
[29]The terms of settlement set out at [14] above are noted.
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Walker J
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