Commissioner of Police v Hines
[2019] NZHC 1613
•11 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 1613
BETWEEN COMMISSIONER OF POLICE
Applicant
AND
WILLIAM HINES
First Respondent
TE HERE MAIHI MAAKA
Second RespondentTRAVIS JAMES SADLER
Third Respondent
Hearing: On the papers Appearances:
D M A Wiseman / Y Y Wang for Commissioner Second Respondent in person
Judgment:
11 July 2019
JUDGMENT OF LANG J
[approving settlement between applicant and second respondent]
This judgment was delivered by me on 11 July 2019 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
COMMISSIONER OF POLICE v HINES [2019] NZHC 1613 [11 July 2019]
[1] In this proceeding the Commissioner of Police seeks forfeiture orders under the Criminal Proceeds (Recovery) Act 2009 (the Act) against the respondents. The Commissioner and the second respondent, Mr Te Here Maihi Maaka, now seek the Court’s approval under s 95 of the Act to a settlement of the litigation as between themselves.
[2] Mr Maaka was formerly represented by counsel, but confirms he now wishes to act on his own behalf to bring his participation in this proceeding to a conclusion.
Background
[3] In 2017, Mr Maaka and several others were found guilty following a trial on charges of manufacturing methamphetamine and other drug-related charges. They were also convicted of firearms charges and participating in an organised criminal group. This led to Mr Maaka being sentenced to 16 years two months imprisonment on the basis that he played an important role in the manufacture of at least one kilogram of methamphetamine.1 The Court of Appeal subsequently dismissed Mr Maaka’s appeal against conviction but reduced the sentence imposed on him to one of 14 years eight months imprisonment with a minimum term of six years seven months.2
The Commissioner’s case
[4] The Commissioner relies on Mr Maaka’s convictions as providing conclusive proof that he manufactured at least one kilogram of methamphetamine on 18 April 2015 and that he supplied at least 863 grams of methamphetamine for commercial gain thereafter. The Commissioner contends, however, that the scope and duration of Mr Maaka’s drug offending extended well beyond that reflected by his criminal convictions. The Commissioner bases this argument on evidence suggesting that Mr Maaka has accumulated significant assets, mostly in the form of motor vehicles, despite declaring no income during the period between July 2008 and July 2015.
1 R v Hines [2017] NZHC 769 at [29]-[33].
2 Te Here Maihi Maaka v R [2017] NZCA 618 at [46]-[52] and [147].
[5] The Commissioner seeks profit forfeiture orders under the Act, and estimates the unlawful benefit derived by Mr Maaka through his offending to be in the vicinity of $958,449. This comprises the value of 863 grams of methamphetamine ($369,840) together with unexplained sources of funds ($588,609).
[6] Several of the vehicles that the Commissioner attributes to Mr Maaka in his application for civil forfeiture orders are held in the names of third parties. The Commissioner contends these were under the effective control of Mr Maaka and are therefore available to meet any profit forfeiture order made against him. None of the third parties has opposed the Commissioner’s application for civil forfeiture orders.
[7] The Commissioner contends that all property attributable to Mr Maaka is also tainted property in terms of s 5 of the Act because Mr Maaka has declared no income since 2008. The Commissioner says the acquisition of the property must have been funded using the proceeds of Mr Maaka’s criminal activities.
The proposal
[8]The proposed settlement contains the following essential components:
(a)The making of assets forfeiture orders under s 50(1) of the Act in relation to all remaining restrained property attributed to Mr Maaka except for the sum of $5,000. This sum is to be returned to Mr Maaka by deposit to a bank account nominated by him;
(b)The settlement is full and final in relation to any interest Mr Maaka might claim to have in any of the other property restrained in this proceeding;
(c)Mr Maaka gives the Commissioner an undertaking that all property to be forfeited under this settlement and now, or previously, held in third parties’ names (whether in the names of individuals or companies) is, or was, held on his behalf;
(d)The Commissioner’s application for a profit forfeiture order against Mr Maaka will be withdrawn and he will not proceed with any application for a profit forfeiture order against Mr Maaka in relation to the offending at issue in this proceeding; and
(e)Costs will lie where they fall in relation to all matters as between the Commissioner and Mr Maaka.
[9] The Commissioner estimates the proposed settlement will result in property to the value of approximately $93,647 being forfeited whilst Mr Maaka will retain the sum of $5,000 in cash. The Commissioner is not aware of any other assets belonging to Mr Maaka that could be realised to satisfy any profit forfeiture order he might obtain.
Decision
[10] 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
[11] I also consider the settlement is a sensible resolution of the claim against Mr Maaka. There is little point in the Commissioner proceeding to trial and obtaining a profit forfeiture order against Mr Maaka that could never be satisfied from restrained or other assets.
[12] The Commissioner is therefore taking a pragmatic approach notwithstanding the apparent strength of his case. This will allow both parties to achieve certainty as to the outcome of this proceeding. It will also result in a significant saving of costs for the Commissioner because he will not now need to go to trial on the claim against Mr Maaka.
3 Criminal Proceeds (Recovery) Act 2009, s 3(1)(a) and (b).
Result
[13] I approve the proposed settlement under s 95 of the Act, and make orders as sought in para 6.1 of the joint memorandum dated 10 July 2019.
[14] I also record that Mr Maaka has given the Commissioner an undertaking that all property to be forfeited that is now, or was previously, held in the names of third parties (whether individuals or companies) is or was held on his behalf.
Lang J
Solicitors:
Crown Solicitor, Auckland
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