Commissioner of Police v Good

[2017] NZHC 3145

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2011-404-7205 [2017] NZHC 3145

UNDER

the Criminal Proceeds (Recovery) Act

2009

BETWEEN

COMMISSIONER OF POLICE Applicant

AND

JOHNNY BE GOOD Respondent

Hearing:	14 December 2017
Appearances:	M J Hammer, M R Harborow and L J Fraser for Applicant I M Brookie for Respondent M Headifen for Interested Party
Judgment:	15 December 2017

JUDGMENT OF LANG J

[on application for approval of proposed settlement]

This judgment was delivered by me on 15 December 2017 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

COMMISSIONER OF POLICE v GOOD [2017] NZHC 3145 [15 December 2017]

[1]      In this proceeding the Commissioner of Police (the Commissioner) seeks asset forfeiture orders under the Criminal Proceeds (Recovery) Act 2009 (the Act).

[2]      The applicant, the respondent and the interested party (Ms Giordani) have now reached agreement regarding compromise of the Commissioner’s claim and seek the approval of the Court under s 95 of the Act to the proposed settlement.

Background

[3]      Mr Good was found guilty by a jury on 14 charges of Class C drug offending. He was subsequently sentenced to nine years imprisonment.   Mr Good appealed against   conviction,   but   the   Supreme   Court   recently   dismissed   his   appeal.1

Ms Giordani was never charged with any offending relating to the activities that led to

Mr Good being charged.

[4]      The Commissioner contends that Mr Good derived substantial profits from the offending.  For that reason he applied for both profit and assets forfeiture orders.

[5]      Two assets are currently subject to restraining orders made in this proceeding. They are:

(a)      The  residential  property  situated  at  4A  Purchas  Road,  Hauraki, Auckland. This has a current value of approximately $1.15 million.  It is subject to a mortgage in favour of the Bank of New Zealand Limited securing a loan of approximately $341,223.  There is therefore equity in the property amounting to approximately $809,000.

(b)A men’s silver ring with a circle of diamonds. This was discovered by the police in an apartment in Takapuna when they terminated the

operation that led to Mr Good’s arrest.

1      R v Cameron [2017] NZSC 89.

The proposed settlement

[6]      The proposed settlement contains the following essential ingredients:

(a)       the Official Assignee shall sell the property at 4A Purchas Road for its fair market value;

(b)      after sale of 4A Purchas Road by the Official Assignee, he will pay:

(i)       the reasonable costs in effecting the sale of the property;

(ii)the outstanding borrowings secured by the mortgage on the property;

(iii)     the sum of $80,000 to Mr Good’s mother; and

(iv)18.75 per cent of the net sale proceeds to Ms Giordani (after items (i), (ii) and (iii) have been deducted);

(c)       assets forfeiture orders be made by consent in relation to Mr Good’s

62.5 per cent share of the net proceeds of sale of 4A Purchas Road, and the silver ring;

(d)      assets forfeiture orders are made by consent in  respect of half of

Ms Giordani’s 37.5 per cent share of the net proceeds of sale of 4A Purchas Road;

(e)       the Official Assignee will give Ms Giordani the first right to purchase the property, such right being exercisable by her in writing no later than

10 April 2018. Any such sale will be on terms acceptable to the Official Assignee in his sole discretion, after taking into account one or more registered valuations and such other material as the Official Assignee considers appropriate;

(f)      if Ms Giordani exercises her right to purchase the property, she and the Official Assignee  may  reach  an  agreement  on  how  the  effect  of paragraph (b)(iv) above is to be achieved but the overall net position must remain the same;

(g)no profit forfeiture orders will be pursued by the Commissioner against either Mr Good or Ms Giordani; and

(h)      costs will lie where they fall.

[7]      If  approved,  the  settlement  will  see  the  sum  of  approximately $592,000 forfeited to the Crown by way of assets forfeiture orders.  Ms Giordani will receive the sum of approximately $137,000. Mr Good will receive no direct monetary benefit from the settlement himself, but a loan owing by him and Ms Giordani to Mr Good’s parents will be repaid in full from the sale proceeds.

Decision

[8]      Section 95 of the Act provides as follows:

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.

[9]      I am satisfied that the proposed settlement is consistent with the purposes of the Act because it results in a major asset owned by Mr Good being sold and the bulk of the sale proceeds forfeit to the Crown. Ms Giordani is likely to have had a claim in relation to that property and the settlement enables her to share in the sale proceeds, albeit to a lesser extent than her current ownership interest.  Mr Good will receive

nothing from the sale but the debt that he and Ms Giordani owe to Mr Good’s parents will be repaid. The settlement also resolves the present proceeding in a cost effective manner.

[10]     I therefore make an order under s 95 of the Act approving the proposed settlement.

Lang J

Solicitors:

Crown Solicitor, Auckland