Commissioner of Police v Hines
[2019] NZHC 1668
•17 July 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2015-404-1682
[2019] NZHC 1668
UNDER the Criminal Proceeds (Recovery) Act 2009 BETWEEN
COMMISSIONER OF POLICE
Applicant
AND
WILLIAM HINES
First Respondent
TE HERE MAIHI MAAKA
Second RespondentTRAVIS JAMES SADLER
Third Respondent…/cont
Hearing On the papers Counsel:
DMA Wiseman and Y Wang for the Applicant D Dufty on behalf of the Fifth Respondent
Judgment:
17 July 2019
JUDGMENT OF GORDON J
This judgment was delivered by me on 17 July 2019 at 4.30 pm.
Registrar/Deputy Registrar Date:
Solicitors: Crown Solicitor, Auckland Counsel: D Dufty, Auckland
COMMISSIONER OF POLICE v HINES [2019] NZHC 1668 [17 July 2019]
JIA SUN
Fourth Respondent
FALCO BROUQ CELLAH MAAKA
Fifth Respondent
AND TINY BIG WORLD LIMITED
Interested Party
[1] In this proceeding, the Commissioner of Police (the Commissioner) seeks forfeiture orders under the Criminal Proceeds (Recovery) Act 2009 (the Act) against the respondents.
[2] I have now received a joint memorandum from counsel for the Commissioner and counsel for the fifth respondent, Falco Maaka (Mr F Maaka), seeking the Court’s approval under s 95 of the Act to a settlement reached between the Commissioner and Mr F Maaka.
[3] Any settlement made in relation to proceedings brought under the provisions of the Act is required to be approved by this Court.1
Background
[4] In 2015, Mr F Maaka and a number of other members and associates of the Head Hunters Motorcycle Club (Head Hunters) were part of an organised syndicate involved in the manufacture and distribution of methamphetamine led by the first respondent, Mr William Hines.
[5] In March 2017, Mr F Maaka was found guilty and convicted on one charge of manufacturing methamphetamine. On 24 April 2017, he was sentenced to 13 years’ imprisonment on the basis that, as a patched member of Head Hunters, he exercised the role of supervision during the manufacturing process of at least one kilogram of methamphetamine on 18 April 2015.2
The Commissioner’s case
[6] The Commissioner relies on Mr F Maaka’s criminal conviction as conclusive proof that he manufactured at least one kilogram of methamphetamine on 18 April 2015. The Commissioner also alleges that Mr F Maaka played a role in the supply of at least 863 grams of methamphetamine for commercial gain in the subsequent period. Accordingly, the Commissioner’s case is that the scale and duration of Mr F Maaka’s drug offending extends beyond that reflected by his criminal conviction. The
1 Criminal Proceeds (Recovery) Act 2009, s 95.
2 R v Hines [2017] NZHC 769 at [76]–[78].
Commissioner bases this submission on evidence that Mr F Maaka was able to acquire a Harley Davidson B5ALP (valued at approximately $25,800) on 14 November 2014 despite declaring modest income in the form of Ministry of Social Development benefits during the relevant period.
The current proceeding
[7] The Commissioner seeks profit forfeiture orders under the Act. He initially estimated Mr F Maaka’s unlawful benefit to be in the vicinity of $804,978 comprising
$369,840, being the sale price of 863 grams of methamphetamine, together with
$435,138 in unexplained sources of funds.
[8] The Commissioner also contends that the property attributable to Mr F Maaka (the Harley Davidson B5ALP) is “tainted property” under the Act. It is the Commissioner’s case that the purchase of the Harley Davidson B5ALP was funded with the proceeds of Mr F Maaka’s criminal activity.
Mr F Maaka’s position
[9] Mr F Maaka opposes the Commissioner’s application. His evidence is that he did not benefit from the sale of methamphetamine, he was incarcerated for a significant period during the analysis period, and he was financially supported by his mother when he was living in the community. He stated that the Harley Davidson B5ALP was gifted to him by another Head Hunters member in 2014.
Commissioner’s adjusted claim
[10] As a result of Mr F Maaka’s claims and the supporting documents provided by him, the Commissioner adjusted the unexplained source of funds figure during the analysis period to $166,792.20. Accordingly, the Commissioner now seeks a profit forfeiture order in the vicinity of $536,632.20.
The proposal
[11] The proposed terms of settlement between the Commissioner and Mr F Maaka are as follows:
(a)assets forfeiture orders under s 50(1) of the Act are to be made by consent in respect of the Harley Davidson B5ALP attributed to Mr F Maaka;
(b)the settlement is full and final in respect of any interests Mr F Maaka might claim to have in any of the other property restrained in this proceeding;
(c)the Commissioner’s application for a profit forfeiture order against Mr F Maaka is withdrawn and he will not proceed with any application for a profit forfeiture order against Mr F Maaka in relation to the offending at issue in this proceeding; and
(d)costs will lie where they fall in relation to all matters as between the Commissioner and Mr F Maaka.
[12] The estimated total value of the property to be forfeited as a result of the proposed settlement is approximately $14,5000.
Decision
[13]Section 95 of the Act governs court-approved settlements and provides that:
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.
[14] I am satisfied that the proposed settlement recognises the primary purpose of the Act, which is to provide for forfeiture of property derived directly or indirectly
from significant criminal activity or property representing the value of a person’s unlawfully derived income.3
[15] In this case, the only restrained property attributable to Mr F Maaka, namely the Harley Davidson B5ALP, will be realised for the benefit of the Crown. Any profit forfeiture order made by the Court against Mr F Maaka is likely to significantly exceed the value of the restrained property attributed to Mr F Maaka (by more than $510,000). The Commissioner advises he is unaware of any additional assets belonging to Mr F Maaka which could be realised to satisfy the greater amount.
[16] I therefore consider the settlement is a sensible resolution of the claim against Mr F Maaka. There is little point in the Commissioner proceeding to trial and obtaining a profit forfeiture order against Mr F Maaka that could never be satisfied from restrained or other assets.
[17] The Commissioner is accordingly taking a pragmatic approach notwithstanding the apparent strength of his case. An agreed settlement allows the parties to have certainty and control as to the outcome of these matters. I also agree with the parties that there will be a saving of time and especially cost if the matter can be resolved by agreement.
[18] I therefore approve the proposed settlement under s 95 of the Act and make orders as sought in [6.1] of the joint memorandum dated 10 July 2019, namely:
(a)assets forfeiture orders under s 50(1) of the Act in respect of the funds held in the Official Assignee’s trust account, representing the net sale proceeds of the Harley Davidson, formerly registered to Mr F Maaka, registration B5ALP, and any accrued interest, so that it vests in the Crown absolutely and is in the custody and control of the Official Assignee;
3 Criminal Proceeds (Recovery) Act, s 3(1)(a) and (b).
(b)the settlement is full and final in respect of any interests Mr F Maaka might claim to have in any of the other property restrained in this proceeding;
(c)The Commissioner’s application for a profit forfeiture order against Mr F Maaka is withdrawn and he will not proceed with any application for a profit forfeiture order against Mr F Maaka in relation to the offending at issue in this proceeding; and
(d)costs will lie where they fall in relation to all matters as between the Commissioner and Mr F Maaka.
[19] Finally, I note that the Commissioner’s application as against Messrs Sadler and Gush remains for determination notwithstanding this settlement. The hearing date of 11 September 2019 therefore remains.
Gordon J
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