Commissioner of Police v Hopkins

[2023] NZHC 3506

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2020-419-000316

[2023] NZHC 3506

UNDER

Sections 22 and 25 of the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

TRAVIS MILES HOPKINS

Respondent

MELISSA KATHRYN LEVET
First Interested Party

NICOLE LOUISE LEVET

Second Interested Party

ANDREW SCHOUTEN

Third Interested Party

Hearing:

29 November 2023

Appearances:

R Guthrie for the Applicant T Hopkins self-represented

S McKenna for the First Interested Party

Judgment:

5 December 2023

JUDGMENT OF WALKER J

This judgment was delivered by me on 05 December 2023 at 10 am Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

Hamilton Legal, Crown Solicitor, Hamilton McKenna King Dempster Ltd, Hamilton

COMMISSIONER OF POLICE v HOPKINS [2023] NZHC 3506 [5 December 2023]

[1]    On 24 February 2021, Muir J made restraining orders under the Criminal Proceeds (Recovery) Act 2009 (the Act). Those orders were extended on multiple occasions and currently expire on 23 February 2024.

[2]    The Commissioner, respondent and first interested party (hereafter parties) have agreed between themselves to settle the question of profit forfeiture. They jointly invite the Court to approve the settlement under s 95 of the Act.

[3]    The interested parties have been served with proceedings. Only the first interested party, Melissa Levet, has taken an active role in the proceedings and the settlement.

Background

[4]    The restraining orders were sought on the grounds that Travis Hopkins benefitted from significant criminal activity by being involved in the possession and supply of methamphetamine and cannabis. On 12 April 2019, Police executed a search warrant at an address on Heatherington Road following which Mr Hopkins was arrested and charged with possession of cannabis for supply, possession of methamphetamine for supply, supplying methamphetamine and methamphetamine related utensils and unlawfully possessing ammunition. Following the entry of guilty pleas on 19 November 2019, Mr Hopkins was sentenced in the Hamilton District Court to six years and 10 months’ imprisonment.

Settlement for approval

[5]    The proposed settlement, which will bind the parties in the event this Court approves it is that:

(a)Mr Hopkins accepts that he has unlawfully benefitted from significant criminal activity, namely the supply and possession for supply of methamphetamine and cannabis.

(b)Within the relevant period of criminal activity, the value of that unlawful benefit was $90,910.

(c)The parties agree that the maximum recoverable amount is $72,560. This sum takes into account a sum previously forfeited at sentencing.

(d)Mr Hopkins and/or Ms Melissa Levet will pay to the Commissioner

$65,000 (Settlement sum) in full and final settlement with no residual debt owing by Mr Hopkins in respect of the maximum recoverable amount of $72,560.

(e)Funds currently restrained in stipulated BNZ bank accounts in the name of Travis Miles Hopkins (comprising $31,350.79 along with any interest accrued) are to be forfeited by consent in application of the payment of the Settlement sum.

(f)The amount of $1,949 held in the Police trust account pursuant to Mr Hopkins’ arrest (and not forfeited at sentencing) is to be forfeited by consent in application of payment of the Settlement sum.

(g)The balance of the Settlement sum of approximately $31,700.21 is to be paid to the Commissioner by Mr Hopkins and/or Ms Melissa Levet in full and final satisfaction of the Settlement sum.

(h)All other property, namely the property at 746 Heatherington Road to be released from restraint upon full and final satisfaction of the Settlement sum.

(i)Each party will bear their own costs.

Approval of settlements under the Act

[6]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.

[7]    By this section, Parliament has expressly empowered the Commissioner to enter into settlements as to the forfeiture of property under the Act and it has entrusted the High Court with a supervisory jurisdiction to approve settlements when satisfied they are consistent with the purposes of the Act and the overall interests of justice.1

[8]    The Act therefore establishes a regime for forfeiture of property that has been derived directly or indirectly from significant criminal activity or which represents the value of a person’s unlawfully derived income.2

[9]    Further purposes include those of eliminating opportunities to profit from undertaking or being associated with significant criminal activity, and deterring significant criminal activity.3

Decision

[10]   The Court must have regard to the overall interests of justice which reflects the strong public interest in litigation under the Act being brought to a prompt conclusion. This in turn reflects the likely costs and risks inherent in the determination of a contested application.4 It is desirable that proceedings under the Act be settled on economic and pragmatic grounds reflective of common sense compromise.5

[11]   I am satisfied that approving this settlement so that it becomes binding is consistent with the purposes of the Act and the overall interests of justice. The amount to the paid in settlement represents a significant portion of the value of Mr Hopkins’

1      Commissioner of Police v No-All Group Limited HC Auckland CIV-2010-404-403, 7 November 2011 at [11]

2      Criminal Proceeds (Recovery) Act 2009, s 3(1).

3      Section 3(2).

4      Commissioner of Police v Cotton [2017] NZHC 21 at [7].

5      Commissioner of Police v Douglas [2015] NZHC 1293 at [6].

unlawfully derived income as identified by the agreed maximum recoverable amount. It avoids the need for the Official Assignee to incur costs and time to take steps in selling the property at Heatherington Road. There will be significant costs of litigation for both parties if the matter proceeds to a substantive hearing. The estimated amount to be forfeited is significant in terms of its proportion to the value of unlawfully derived income and so will operate as a deterrent both to Mr Hopkins and others who learn of the consequences of the application of the legislation.

[12]The settlement is approved accordingly.

Result

[13]I make the following orders, so as to give effect to the settlement:

(a)The respondent and/or the first interested party will pay to the Commissioner $65,000 (Settlement sum) in full and final settlement with no residual debt owing by the respondent.

(b)Funds currently restrained in the BNZ bank accounts in the name of Travis Miles Hopkins (comprising $31,350.79 along with any interest accrued) are to be forfeited by consent in application of the payment of the Settlement sum.

(c)The amount of $1,949 held in the Police trust account is to be forfeited by consent in application of payment of the Settlement sum.

(d)The balance of the Settlement sum of approximately $31,700.21 is to be paid to the Commissioner by the respondent and/or first interested party in full and final satisfaction of the Settlement sum.

(e)All other property, namely the property at 746 Heatherington Road, to be released from restraint upon payment in full of the Settlement sum.6

6      All land comprised and described in the following record of title unique identifiers: SA1747/94, South Auckland Land Registration District (section 44 block X Rangiriri Survey District) being 5,269 square metres more or less; SA1D/1242, South Auckland Land Registration District (Part

(f)Each party will bear their own costs.

............................................................

Walker J

Section 42 Block X Rangiriri Survey District) being 2572 square metres more or less; and SA1D/1243, South Auckland Land Registration District (Part Section 42 Block X Rangiriri Survey District) being 807 square metres more or less.