Commissioner of Police v Hammond

[2020] NZHC 3353

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2016-454-053

[2020] NZHC 3353

IN THE MATTER OF

an application pursuant to the Criminal Proceeds (Recovery) Act 2009

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

MIKAL JAMES HAMMOND

Respondent

Hearing:	On the papers
Judgment:	16 December 2020

JUDGMENT OF GRICE J

(Approval of settlement pursuant to s 95 Criminal Proceeds (Recovery) Act 2009)

[1]                  The first respondent and the Commissioner have reached agreement and propose a settlement of an application by the Commissioner for forfeiture of an amount of cash belonging to the respondent, and two motor vehicles, pursuant to the forfeiture provisions of the Criminal Proceeds (Recovery) Act 2009 (the Act).

Background

[2]                  The background to the offending is set out in the joint memorandum as follows:1

3.Mikal James Hammond has a lengthy criminal history for drug use and dealing drugs. He also has legitimate interests in selling Kauri stumps.

1      Joint memorandum of counsel seeking approval of settlement at [3]–[20].

THE COMMISSIONER OF POLICE v HAMMOND [2020] NZHC 3353 [16 December 2020]

Cash

4.On 16 August 2015, a female by the name of Leah Turner checked into the Langham Hotel, Grafton, Auckland. Ms Turner is known to Mr Hammond and has been referred to as his partner.

5.Leah Turner occupied room 955 and paid for parking in relation to a BMW motor vehicle registration JCT221, registered at that time to Michael Louis Southee. This BMW is also subject to the forfeiture application.

6.On 17 August 2015 Leah Turner checked out of the hotel and left the premises. A short time after this [sic] hotel staff tending the room located a black rubbish bag in a bed side table, within which was a large sum of cash and Police were called. Police seized the cash and it later confirmed it to total $79,840.

7.Room 449 was also booked to the BMW vehicle JCT221. The room was booked and utilised by a Mr James Butler.

8.A search was conducted of the room, during which a total of 47 grams of methamphetamine was located.

9.Also located within the room was a packet of prescription medicine in the name Mikal J Hammond and a Notice of Bail dated 14 August 2015 in the name Mikal James Hammond.

10.Constable Daniel Griffiths of Auckland City Police conducted enquiries into the ownership of the cash located. When he spoke to Turner, she denied the cash was hers and informed Constable Griffiths that the cash belonged to her partner, the respondent.

11.Constable Griffiths has not been able to identify any other person who may have ownership over the cash located, nor has any other person made any claim on the cash. No criminal proceedings were laid as a result of what was located at the Langham Hotel.

Vehicles

12.On 13 April 2016, Palmerston North CIB executed a search warrant under the Search and Surveillance Act at [the Totara Road property].

13.During the course of the search of a bedroom occupied by the respondent, a number of notable items were found including:

a.Approximately 1.28 kg of a substance identified as the  Class B controlled drug MDMA;

b.Approximately 250 grams of the Class C controlled drug cannabis;

c.$398,700 cash in New Zealand currency;

d.A .22 calibre pistol, with [a] silencer;

e.Ammunition for the .22 calibre pistol; and

f.A 750 millilitre PowerAde drink bottle, approximately 1/3 full of a liquid, believed to be the Class C controlled drug GBL.

14.At the time of this alleged offending the respondent (Hammond) was facing other charges detailed in the earlier offending, and was subject to 24 hour curfew.

15.As a result of the investigation, the Mikal Hammond was charged and pleaded guilty to the following criminal charges:

a.Possession of a Class B controlled drug, namely MDMA (Ecstasy), for the purposes of supply;

b.Possession   of   a    Class   A   controlled   drug,   namely, methamphetamine;

c.Possession of Cannabis Oil;

d.Possession of a Class B controlled rug, namely GBL, for the purposes of supply;

e.Possession of a Class B controlled drug, namely cannabis, for the purposes of supply;

f.Unlawful possession of a pistol; and

g.Unlawful possession of ammunition.

16.As a result of the offending identified the respondent was convicted on 25 January 2018 and sentenced to four years, and nine months imprisonment.

17.At the time of arrest, the respondent had a number of keys in his possession, as well as two access passes. These remained in Police possession following the search warrants.

18.On 6 August 2016, Detective Scott Algie uplifted the access passes from property linked to the respondent (Hammond) following his arrest in April 2015. This exhibit contained two swipe security cards and was taken to [Tim's Storage Lockups], Feilding for comparison and testing. Both swipe cards opened the access gates to the location. On 10 August 2016 these were identified as being the keys for the BMW (JCT221) and Holden vehicles and transferred into the possession of the Official Assignee by Detective Algie which were located at [Tim's Storage Lockups]. The vehicles are in poor condition.

19.No key was present, but one was found in the respondent's (Hammond) property seized on 13 April 2016.

20.There is no doubt that the respondent had engaged in "significant criminal activity".

[3]                  On 12 August 2019 orders were made vesting in the Crown absolutely (to be placed under the official assignee’s control and custody) the following:

(a)Cash to the value of $398,700.

(b)Casino chips to the value of $727.50.

(c)A Phantom 3 Professional drone.

(d)Cash to the value of $3,395.

(e)Casino chips to the value of $600.

[4]                  These items were forfeited without opposition having been found in the course of various searches, including of the applicant’s residence and a motor vehicle.

[5]                  The proposed settlement contemplates that cash to the value of $59,840, which was seized on 17 August 2015 plus accrued interest, will vest in the Commissioner absolutely and under the official assignees’ custody and control. A BMW (JCT221) and a 2004 Holden Commodore seized by the police from Tim’s Storage Lockups in Feilding, in storage units under the control of the respondent on 4 August 2016 and cash to the value of $20,000 seized on 17 August 2015 will be returned to the respondent.

[6]                  Forfeiture is sought for cash in the amount of $59,840. The Commissioner is of the view that the cash is the tainted property or that the respondent has unlawfully benefited from criminal activity to at least that amount.

[7]                  The Commissioner is also aware that the respondent has outstanding and legitimate debts, in particular, to his parents. The settlement recognises the intention is that those debts be met out of the cash to be returned to the respondent.

The law

[8]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.

[9]In Commissioner of Police v Know-All Group Ltd,2 Brewer J observed:

[11] The approval by this Court of a proposed settlement is not a stamping exercise. Parliament has entrusted the Court with a supervising jurisdiction aimed at ensuring that settlements are consistent with parliament's intent in enacting the statute.

[10]              The purpose of the Act is set out in section 3:

3        Purpose

(1)The primary purpose of this Act is to establish a regime for the forfeiture of property–

(a)that has been derived directly or indirectly from significant criminal activity; or

(b)that represents the value of a person's unlawfully derived income.

(2)The criminal proceeds and instruments forfeiture regime established under this Act proposes to–

(a)eliminate the chance for persons to profit from undertaking or being associated with significant criminal activity; and

(b)deter significant criminal activity; and

(c)reduce the ability of criminals and persons associated with crime or significant criminal activity to continue or expand criminal enterprise; and

(d)deal with matters associated with foreign restraining orders and foreign forfeiture orders that arise in New Zealand.

2      Commissioner   of   Police   v   Know-All   Group   Ltd   HC   Auckland   CIV-2010-404-403,     7 February 2011.

[11]              The parties submit that the settlement reached between them is consistent with the purposes of the Act and the overall interests of justice.

[12]              The parties also point out that dealing with the forfeiture by consent will save time and costs, as the settlement provides them with certainty as to the outcome against the inherent litigation risks. Settlement means that a reasonably substantial amount of cash is forfeited to the Crown while recognising the respondent’s claims and third- party debts.

[13]The parties have agreed costs lie as they fall.

[14]              I am satisfied that the settlement is consistent with the purposes of the Act and the overall interests of justice in terms of s 95(3). Accordingly, I approve the settlement in terms of the above and as set out in the draft order filed.

[15]Costs are to lie as they fall.

Grice J

Solicitors:

BVA The Practice for the applicant.