Commissioner of Police v Guy

[2025] NZHC 1502

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2014 [2025] NZHC 1502

UNDER  the Criminal Proceeds (Recovery) Act 2009

BETWEEN  COMMISSIONER OF POLICE

Applicant

AND  PAUL GUY

First Respondent

LESLIE MITA
Second Respondent

NICHOLAS OWEN JONES
Third Respondent

LEVI HEREMAIA PATARIKI SMITH

Fourth Respondent

Hearing:                   (On the papers)

Judgment:                10 June 2025

JUDGMENT OF VENNING J [Re: LEVI SMITH]

This judgment was delivered by me on 10 June 2025 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Meredith Connell, Auckland Counsel:           A Simperingham/R Bevin

COMMISSIONER OF POLICE v SMITH [2025] NZHC 1502 [10 June 2025]

[1]                   The Commissioner of Police (Commissioner) and Levi Smith (Mr Smith) seek this Court’s approval under s 95(2) of the Criminal Proceeds (Recovery) Act 2009 (the Act) to the proposed settlement in this proceeding.

[2]                  The Court is required to approve the settlement if satisfied that it is consistent with the purposes of the Act and the overall interests of justice.1

[3]                  On 4 July 2022, Mr Smith was arrested at his home at 2272 Kaitaia-Awaroa Road, Herekino, where the manufacture of methamphetamine had taken place. Mr Jones, the third respondent, and Mr Mita, the second respondent, were also arrested. Prior to the arrest Mr Smith together with Mr Jones and Mr Mita ran from the address, taking a large frying pan and baking dish full of methamphetamine. At Mr Smith's home, the police located a large clandestine methamphetamine laboratory, 1.6 kilograms of “finished” methamphetamine, the materials used in the manufacture of methamphetamine and cash of $23,627.40. The cash together with more methamphetamine was located in Mr Smith and his partner, Ms Repia’s bedroom.

[4]                  In October 2023, this Court made restraining orders over the cash and all interest. In October 2024, Mr Smith pleaded guilty to and was subsequently sentenced to four years and 5.5 months’ imprisonment on two charges of manufacturing methamphetamine, one representative charge of supplying methamphetamine, and of participating in an Organised Criminal Group.2

[5]                  The police investigation into Mr Smith’s financial affairs revealed that from 2020 his income largely comprised benefits. In the six month period between January 2022 and 30 June 2022, just immediately prior to his arrest, only $1,160 cash was withdrawn from Mr Smith and Ms Repia’s joint bank account.

[6]                  The Commissioner and Mr Smith have agreed to resolve the issue of the forfeiture of assets between themselves on terms. Ms Repia, Mr Smith’s partner, has confirmed that she does not want to challenge the forfeiture. Constable Tailby has

1      Criminal Proceeds (Recovery) Act 2009, s 95.

2      R v Smith [2025] NZDC 3939.

filed an affidavit confirming his communications with Ms Repia which concluded with her confirming that she did not want to fight the case.

[7]                  The Commissioner’s application is supported by a substantive affidavit from Constable Tailby in particular.

[8]                  The parties propose a settlement on the terms that a type 1 assets forfeiture order under s 50 of the Act be made by consent over the cash (and interest). Mr Smith will also abandon all claims he may have under the Act or otherwise to any of the property to be forfeited or to any of the other restrained property in these proceedings involving the remaining respondents.

[9]                  The Commissioner will agree not to proceed with an application for a profit forfeiture order against Mr Smith and costs will lie where they fall.

[10]              There can be no doubt that Mr Smith was involved in the offending as he pleaded guilty to it. Nor can there be any issue as to the identification of the cash. It was located in his bedroom, some of which was in a lock box together with further methamphetamine. The clear inference from the evidence available is that the cash was the proceeds of the methamphetamine operation Mr Smith was involved in.

[11]              There are however obvious risks to both parties if the matter was to proceed to a hearing. While the Commissioner’s case against Mr Smith is strong there would be little point in the Commissioner pursuing Mr Smith for a profit forfeiture order given the investigation into his affairs suggests he has no further assets. The settlement will also provide certainty and avoid further costs. From Mr Smith’s point of view it will bring matters to an end and once his sentence is completed he will, as noted, have a fresh start.

[12]              Having regard to the above the Court is satisfied the proposed settlement meets the purposes of the Act and also the overall interests of justice.

[13]I approve the following basis of settlement:

(a)a type 1 assets forfeiture orders under s 50 of the Act be made in favour of the Commissioner over the following property:

(i)cash to the value of $23,627.40 seized by police on 4 July 2022 at 2272 Kaitaia-Awaroa Road, and all interest.

(b)Mr Smith abandons all claims he may have under the Act or otherwise to any of the property to be forfeited or to any of the other restrained property in the proceedings;

(c)the Commissioner will not proceed with an application for a profit forfeiture order against Mr Smith on the basis of the significant criminal activity evidenced in the affidavits filed in the proceedings to date; and

(d)costs will lie where they fall

[14]To give effect to the settlement I make the following orders:

(a)A Type 1 assets forfeiture order under s 50(1) of the Act vesting the following property in the Crown absolutely and in the Official Assignee’s custody and control:

(i)cash to the value of $23,627.40 seized by Police on 4 July 2022 at 2272 Kaitaia-Awaroa Road, Herekino, Northland and all interest.

(b)Costs are to lie where they fall in relation to all matters between the Commissioner and Mr Smith.

[15]In addition I note the further terms of the agreed settlement:

(a)Mr Smith abandons all claims he may have, under the Act or otherwise, to any of the property to be forfeited or any of the other restrained property in the proceedings; and

(b)the Commissioner will not bring an application for a profit forfeiture order against Mr Smith on the basis of the significant criminal activity evidenced in the affidavits filed in the proceedings to date.

[16]              This now brings an end to the proceedings between the Commissioner and Mr Smith.

Venning J