Commissioner of Police v Holtman
[2025] NZHC 2829
•26 September 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-002032
[2025] NZHC 2829
UNDER the Criminal Proceeds (Recovery) Act 2009 BETWEEN
COMMISSIONER OF POLICE
Applicant
AND
KYLE LEE HOLTMAN
First Respondent
LEE ANDRIA JONES
Second Respondent
Judgment:
(On the papers)
26 September 2025
JUDGMENT OF BREWER J
This judgment was delivered by me on 26 September 2025 at 3.45 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Meredith Connell (Auckland) for Applicant K Hogan / L Nunweek for Respondents
COMMISSIONER OF POLICE v HOLTMAN [2025] NZHC 2829 [26 September 2025]
[1] The applicant (the Commissioner) and the respondents have reached a proposed settlement as to how property restrained under the Criminal Proceeds (Recovery) Act 2009 (the Act) is to be disposed of.1
[2] I have received a joint memorandum of counsel seeking approval of the proposed settlement under s 95 of the Act.
[3]Section 95 provides:
(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.
[4] The restrained property is:
KiwiSaver account
(a)ANZ Bank of New Zealand Limited KiwiSaver investment account, investor number 49055D, in the name of Kyle Lee Holtman;2
Vehicles
(b)a 2010 Volkswagen Golf, registration DR34MZ, registered person Mr Holtman (Volkswagen Golf);
(c)the net proceeds of sale totalling $10,082.51 of a 2021 Yamaha motorcycle, registration C7EGP, registered person Mr Holtman plus any interest accrued (Yamaha);
(d)the net proceeds of sale totalling $78,000 of a 1989 BMW M3, registration 88M3, registered person Ms Jones (BMW) plus any interest accrued;
(e)the net proceeds of sale totalling $21,762.13 of a 2014 Jeep Grand Cherokee, registration PQU301, registered person Ms Jones (Jeep Cherokee) plus any interest accrued;
1 As I will come to, it is proposed that items of property other than cash are to be sold and the realised sums forfeited. I will call that property “the Property”. Three items of property are proposed to be returned to the respondents. I will call those items “the Excluded Property”.
2 The balance of the account is $27,112.64 as at 28 August 2025.
Jewellery
(f)various jewellery owned by Ms Jones and/or Mr Holtman and seized by Police on 12 September 2023 from the properties of 6 Moana Avenue, Belmont, Auckland and 16A Madden Avenue, Kumeu Auckland;3 and
Cash
(g)$1,930 cash located by Police on 28 March 2023 from the Jeep Cherokee plus any interest accrued (Cash).
[5] The proposed settlement is that the value of the Property (but not the Excluded Property) will be forfeited to the Crown pursuant to a profit forfeiture order made by consent.
The Excluded Property which is to be returned to the respondents is:
(a)two gold clasp earrings, located by Police on 12 September 2023 at 6 Moana Avenue;4
(b)a gold pin/broach spelt ‘Namiko’, located by Police on 12 September 2023 at 16A Madden Avenue;5 and
(c)the personalised licence plate6 of the Volkswagen Golf (DR34MZ).
[7] Since it is necessary to quantify the actual amount to be forfeited, the parties propose that the settlement occur in two stages:
(a)First, the parties seek approval of the settlement, an extension to the restraining orders, and orders directing the Official Assignee to sell all of the Property that is currently unsold7 (not including the Excluded Property), at its fair market value, and hold the proceeds pending further Court order.
(b)Second, once the relevant sales have occurred (and the final value of the Property ascertained), the parties will file a further joint memorandum asking for the profit forfeiture order to be made in the sum of the Property less the Excluded Property.
3 Listed individually within the on notice restraining and further orders dated 24 November 2023 (On Notice Orders) at [3(a)(vi)] – [3(a)(xxii)] (together, the Jewellery).
4 Listed in the On Notice Orders at [3(a)(xxi)].
5 Listed in the On Notice Orders at [3(a)(xiii)].
6 I would describe this as a number plate, but I accept that this Americanism is now ubiquitous.
7 Being the Volkswagen Golf and the Jewellery.
[8] The joint memorandum advises that the anticipated value of the property to be sold is in the vicinity of $250,000. The value of the three items of property to be returned to the respondents is estimated to be $1,350.
[9] On the material before me, I have no doubt that the respondents have benefited financially from significant dealing in illegal drugs. The first respondent is serving a sentence of 13 years and six months’ imprisonment and the second respondent is serving a sentence of 12 months’ home detention.
[10] I conclude that there are good grounds for considering that the Property is tainted property, but in any event a profit forfeiture order would be available.
[11] I accept the description in the joint memorandum of my jurisdiction under s 95 of the Act:
5.3In enacting s 95, Parliament expressly empowered the Commissioner to enter into settlement discussions with respondents (and interested parties) regarding the forfeiture of assets. In doing so, Parliament is likely to have had in mind the significant costs associated with civil litigation, and the benefits to all parties if such proceedings can be resolved by consent.8 Indeed, there is strong public interest in litigation of this nature being brought to a prompt conclusion, provided the settlement reflects the likely costs and risks inherent in the determination of a contested application.9
5.4Parliament has entrusted the Court with a supervisory jurisdiction, aimed at ensuring that any settlements reached are consistent with its intent in enacting the Act, and with the overall interests of justice.10 The approval of a proposed settlement by the Court is not a rubber stamping exercise.11
5.5The primary purpose of the Act is the establishment of a regime for forfeiture of property that has been derived directly or indirectly from significant criminal activity, or that represents the value of a person's
8 Some analogy may be drawn with ‘agreed penalties’ or settlements in matters involving the Commerce Commission under the Commerce Act 1986. In Commerce Commission v NZ Milk Corporation Ltd [1994] 2 NZLR 730 (HC), a Full Court of this Court said there was a strong public interest in litigation being brought to a conclusion, and if possible at an early date. The Court commented that negotiated settlements are in the interests of the parties but equally in the interests of the community in that they avoid “clogging the Court” with potentially complex and lengthy litigation, and the attendant expense.
9 Commissioner of Police v Cotton [2017] NZHC 0021 at [7].
10 Commissioner of Police v Know-All Group Ltd, HC Auckland CIV-2010-404-403, 7 November 2011 at [11].
11 Commissioner of Police v Bradley HC Rotorua CIV-2011-463-000675, 5 July 2012 at [9];
Commissioner of Police v Veevers [2017] NZHC 80 at [10].
unlawfully derived income.12 Ancillary purposes are to “eliminate the chance” for persons to profit from undertaking or being associated with significant criminal activity13 and to “deter” significant criminal activity.14 The Court of Appeal has confirmed that, taken together, the Act has a “strongly expressed statutory purpose”.15 The Supreme Court has further stated that the language of 3(2)(a) is “aspirational” and provides a “clear and emphatic signal as to the legislative purpose”.16
5.6Determining if a settlement is consistent with the “overall interests of justice” requires a broad analysis. While the Court’s jurisdiction is supervisory, it is “equally important that the Court carry out a broad inquiry and acknowledge, where appropriate, that settlements can be in the interests of justice, bearing in mind the savings of time and cost and the litigation risk to the parties”.17 The Court has recognised that the decision to settle proceedings under the Act may be made on economic and pragmatic grounds and often reflects a “common sense compromise” between the parties.18
5.7If the Court is satisfied of the two matters set out in s 95(3), the Court “must” approve the settlement.
[12] I am satisfied that the proposed settlement is consistent with the purposes of the Act and in the overall interests of justice.
[13] I am satisfied that attempting to obtain civil forfeiture orders for a greater sum than the estimated value of the Property would be problematic.
[14] The value of the Excluded Property is low and there is evidence that the earrings and the Namiko broach were gifts from family members.
[15]Accordingly, I:
(a)approve the proposed settlement, noting the sum of the profit forfeiture order sought will be ascertained on sale of the unsold Property (and is likely to be in the region of $250,000);19
12 Criminal Proceeds (Recovery) Act 2009 s 3(1).
13 Criminal Proceeds (Recovery) Act 2009 s 3(2)(a).
14 Criminal Proceeds (Recovery) Act 2009 s 3(2)(b).
15 Hayward v Commissioner of Police [2014] NZCA 625 at [29].
16 Marwood v Commissioner of Police [2016] NZSC 139, [2017] 1 NZLR 260 at [12].
17 Commissioner of Police v Zhang [2016] NZHC 930 at [8]. See similarly Commissioner of Police v Kree [2013] NZHC 2972 at [11].
18 Commissioner of Police v Douglas [2015] NZHC 1293 at [6]; Commissioner of Police v Venn
[2014] NZHC 361.
19 Given the nature of the property, which includes various jewellery, this figure is an approximation based on currently available valuations.
(b)rescind the restraining orders over the Excluded Property and direct that the Official Assignee is to return it to Mr Holtman and Ms Jones;
(c)will extend the restraining orders in accordance with [16(b)] below (in order to allow time for the sale of the Property to be completed);
(d)will make the further orders for the sale of the unsold Property, in accordance with [16(c)] below;
(e)direct that costs lie where they fall in relation to all matters between the Commissioner and Mr Holtman and Ms Jones in this proceeding; and
(f)reserve leave to the parties to seek the agreed profit forfeiture order (and consequential orders) once the unsold Property has been sold and the net sale proceeds retained by the Official Assignee.
Accordingly, I make the following orders:
(a)Variation of restraining orders under ss 34 and 35 of the Act: the restraining and further orders made by Justice Johnstone on 24 November 2023 are rescinded in relation to the following property, which the Official Assignee is directed to release to Kyle Holtman and Lee Jones forthwith (Excluded Property):
(i)two gold clasp earrings, located by Police on 12 September 2023 at 6 Moana Avenue;20
(ii)a gold pin/broach spelt ‘Namiko’, located by Police on 12 September 2023 at 16A Madden Avenue;21 and
(i) the personalised licence plate of the 2010 Volkswagen Golf, registration DR34MZ, registered person Kyle Holtman (Volkswagen Golf).
(b)Extension of the restraining and further orders under s 41 of the Act: the restraining and further orders made by Justice Johnstone on 24 November 2023 (other than in relation to the Excluded Property) are extended for a period of one year from 24 November 2025 so that they expire on 24 November 2026, unless further extended.
(c)Further orders under ss 33, 34 and 35 of the Act:
(i)The Official Assignee shall sell the following items at their fair market value:
(A)the Volkswagen Golf;
(B)women’s elite gold and black wrist watch with a stone bevel with one stone missing and no serial number,
20 Listed in the notice restraining and further orders dated 24 November 2023 (On Notice Orders) at [3(a)(xxi)].
21 Listed in the On Notice Orders at [3(a)(xiii)].
located by Police on 12 September 2023 at 16A Madden Avenue, Kumeu, Auckland (16A Madden Avenue), owned by Ms Jones;22
(C)Citizen brand gold chain women’s wrist watch, serial number 162220028, located by Police on 12 September 2023 at 16A Madden Avenue, owned by Ms Jones;23
(D)gold and stone encrusted ring with a square top, located by Police on 12 September 2023 at 16A Madden Avenue, owned by Ms Jones;24
(E)thin gold ring with circular design, located by Police on 12 September 2023 at 16A Madden Avenue, owned by Ms Jones;25
(F)gold ring with three round sections of stones, located by Police on 12 September 2023 at 16A Madden Avenue, owned by Ms Jones;26
(G)gold ring with single centre green stone, located by Police on 12 September 2023 at 16A Madden Avenue, owned by Ms Jones;27
(H)two star-shaped silver cluster earrings with no butterflies/backs, located by Police on 12 September 2023 at 16A Madden Avenue, owned by Ms Jones;28
(I)gold chain with circle pendant, located by Police on 12 September 2023 at 6 Moana Avenue, Belmont, Auckland (6 Moana Avenue), owned by Mr Holtman;29
(J)gold ring showing a face, located by Police on 12 September 2023 at 6 Moana Avenue, owned by Mr Holtman;30
(K)gold necklace chain, located by Police on 12 September 2023 at 6 Moana Avenue, owned by Mr Holtman;31
22 This item is the same item described in the on notice restraining and further orders dated 24 November 2023 (On Notice Orders) at [3(a)(vi)].
23 This item is the same item described in the On Notice Orders at [3(a)(vii)].
24 This item is the same item described in the On Notice Orders at [3(a)(viii)].
25 This item is the same item described in the On Notice Orders at [3(a)(ix)].
26 This item is the same item described in the On Notice Orders at [3(a)(x)].
27 This item is the same item described in the On Notice Orders at [3(a)(xi)].
28 This item is the same item described in the On Notice Orders at [3(a)(xii)].
29 This item is the same item described in the On Notice Orders at [3(a)(xiv)].
30 This item is the same item described in the On Notice Orders at [3(a)(xv)].
31 This item is the same item described in the On Notice Orders at [3(a)(xvi].
(L)gold ring inscribed with the letter “H”, located by Police on 12 September 2023 at 6 Moana Avenue, owned by Mr Holtman;32
(M)gold necklace chain with square pendant, located by Police on 12 September 2023 at 6 Moana Avenue, owned by Mr Holtman;33
(N)gold and white chain with Louis Vuitton branding, located by Police on 12 September 2023 at 6 Moana Avenue, owned by Mr Holtman;34
(O)two gold and stone stud earrings, located by Police on 12 September 2023 at 6 Moana Avenue, owned by Mr Holtman;35 and
(P)one gold piece (tooth), located by Police on 12 September 2023 at 6 Moana Avenue, owned by Mr Holtman.36
(ii)In determining the Volkswagen Golf’s fair market value, the Official Assignee must have regard to the valuations provided in the affidavits of Ian Nott (affirmed 16 July 2024) and Michael Joseph Hatch (sworn 9 August 2024) filed in this proceeding by Mr Holtman and the Commissioner of Police, respectively.
(iii)Following payment of the Official Assignee’s reasonable costs and any other associated costs in effecting the sales, the Official Assignee shall hold the proceeds of the sales as restrained property pending further order of the Court.
[17] I note the following further terms of the agreed settlement:
(a)Mr Holtman and Ms Jones abandon all claims they may have, under the Act or otherwise, to the Property and to the proceeds of its sale.
(b)The settlement is full and final with respect to this proceeding brought by the Commissioner against Mr Holtman and Ms Jones under the Act based on the significant criminal activity evidenced in the affidavits filed in this proceeding to date.
(c)The Commissioner will not make an application for a type 1 assets forfeiture order over any property of Mr Holtman or Ms Jones in respect of the significant criminal activity as evidenced in the affidavits filed in this proceeding to date.
(d)Costs lie where they fall.
32 This item is the same item described in the On Notice Orders at [3(a)(xvii)].
33 This item is the same item described in the On Notice Orders at [3(a)(xviii)].
34 This item is the same item described in the On Notice Orders at [3(a)(xix)].
35 This item is the same item described in the On Notice Orders at [3(a)(xx)].
36 This item is the same item described in the On Notice Orders at [3(a)(xxii)].
[18] Leave is reserved to the parties to seek the profit forfeiture order once the value of the sold items of the Property is known.
Brewer J
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